' This is a petition, for the abashment of the order, dated 26-5-1993, of Additional Sessions Judge, Bahawalpur to the extent of last paragraph of the said order as it relates only to the petitioner in which before parting with the judgment, the Additional Sessions Judge, Bahawalpur directed the ministerial staff of his Court to inform the S.H.O. Concerned that Mst. Zarina, the petitioner has been declared as proclaimed offender and directed to issue warrants under section 88, Cr.P.C. To confiscate the property movable or immovable of the petitioner and the confiscated property, if any, is to be kept under the custody of District Collector till further orders and the S.H.O. Concerned was directed to produce the petitioner before his Court whenever she is traceable and till the arrest of the petitioner file was consigned to the record room.
2. Seven accused were challenged in case F.I.R. No,218, dated 10-6-1991 under sections 10(2)/18, 13 and 14, Offence of Zina (Enforcement of Hudood) Ordinance No,VII of 1979 registered at Police Station (City), Ahmedpur East at the instance of Muhammad Siddique, Inspector.
3. According to the prosecution story complainant along with other police employees was present at Kangan Road, Ahmedpur East. Qasim Hussain disclosed that Parvez accused is running a brothel house and kept three ladies for this purpose and he after getting remuneration from the different persons handed over the said ladies to them for the purpose of prostitution/Zina. On that day Pervez had also struck bargain with Muhammad Afzal, Muhammad Zafar and Umer Din after receiving Rs,100 each from them and he handed over Mst. Fazal Mai to Muhammad Afzal, Mst.
Nasreen to Muhammad Zafar and Mst. Zareena to Umer Din and they were present in three different rooms in order to commit Zina with each other. Raid was conducted. All the three ladies were present along with abovementioned three persons in a naked condition. They were caught red-handed. From the personal search of ladies one note of Rs,100 was recovered from each of the lady which they had received as a remuneration to commit Zina with their co-accused. The ladies further pointed out that they received the recovered amount from their co-accused through Parvez. On personal search of Umer Din Rs,302; from Muhammad Afzal one purse containing Rs,25 and National Identity Card; from Muhammad Zaffar accused three keys were recovered. Male accused were got medically examined to ascertain their potency and they were found potent.
After the completion of investigation the accused were found guilty and were challaned to the Court.
4. The petitioner Mst. Zarina became absent and she was declared proclaimed offender in accordance with law.
5. The only private witness, namely, Qaslm Hussain (P.W.1) who had given the information to the police before the raid turned hostile. ' ' The raid was allegedly conducted in his presence and he is not only the witness of occurrence but also the witness of recovery memos., but he totally denied the prosecution version and in these circumstances the Additional Sessions Judge, Bahawalpur (Camp at Ahmedpur East) vide impugned judgment, dated 26-5-1993, held that as the only eye- witness had totally denied the prosecution version and remaining prosecution witnesses were police employees and in this situation the evidence of the remaining prosecution witnesses was not recorded as it was held to be an exercise in futility and on the basis of the evidence of P.W.1, acquitted all the co-accused but in the last paragraph as mentioned above a direction has been issued against the petitioner and she was not acquitted.
6. I have heard the learned counsel for the petitioner and the State. The latter has not opposed this petition.
7. In regard to the absence of the petitioner from the trial Court it is stated in the petition that the petitioner is a young girl and she was sold to one Sindhi, where she remained in his confinement for about three years and due to this she was not able to appear before the trial Court. The petition is supported by an affidavit.
8. It is argued on behalf of the petitioner that her absence was due to the circumstances which were not in her control and while acquitting all the other co-accused the trial Court acted illegally in not acquitting the petitioner as well, along with them because there is no evidence against the petitioner and the benefit of the judgment should have been given to the petitioner also in order to do complete justice in the case. Reliance is placed upon Muhammad Aslam and 5 others v. The State 1972 SCM R 194 wherein the Honorable Supreme Court while acquitting the co-accused, acquitted the absconding appellant also and gave the benefit of the judgment to him as well in order to do complete justice in I the case. In the instant case there is no evidence against the petitioner and the only eye-witness has denied the occurrence and all the co-accused, including Umer Din who was allegedly found to be in compromising position with the petitioner, have been acquitted by the trial Court and in these circumstances and in view of the decision of the Honorable Supreme Court in Muhammad Aslam and 5 others v. The State 1972 SCM R 194 the trial Court ought to have given the benefit of the judgment to the petitioner also, in order to do complete justice in the case. This Court under section 561-A, Cr.P.C. Can quash any proceedings pending against anyone in a criminal Court for an offence falling under Ordinance VII of 1979. The issue of jurisdiction was raised and decided by the Honourable Supreme Court in case titled Haji Muhammad Aslam Khan v. Muhammad Aslam and another 1990 SCM R 211 wherein it was held that Article 203-DD of the Constitution of Islamic Republic of Pakistan, 1973 did not bar the inherent jurisdiction of High Court under section 561-A, Cr.P.C.
9. For the reasons mentioned above this petition is accepted and order of the Additional Sessions Judge, Bahawalpur (Camp at Ahmedpur East) contained in the last paragraph of the impugned judgment regarding the petitioner is quashed and the criminal proceedings against the petitioner in the above said case F.I.R. No,218 of 1991 are also hereby quashed.