' This is a reference by the learned District Magistrate, Sialkot, under section 438, Cr. P. C.
2. The facts of the case, as stated in the reference, briefly are as follows :- "Shakeel Ahmed aged about 4 years grandson of Muhammad Din complainant was abducted by Muhammad Arif accused on 22-5-1972 for committing unnatural offence. The accused was seen with the child on a cycle by Shahbaz Khan and Muhammad Salim P. Ws. Before the alleged occurrence. In the evening the accused returned home but the child was not with him. When questioned by the complainant, the accused could not give any plausible explanation about the child. A case was registered with the police of P. S. City Sialkot under section 363, P. P. C. For the abduction of the child who was later on recovered from the quarter of Muhammad Siddique Sepoy at the instance of the accused. After investigation the accused was challaned under section 363/377, P. P. C. And sent up for trial in the Court of Mr. Rafiq Ahmad Awan, M. I. C., Sialkot. Seven P.
Ws. Were examined in Court in support of the prosecution version. The learned Magistrate after going through the evidence on record framed a charge under section 377, P. P. C."
3. The learned District Magistrate has expressed the view that on the evidence recorded by the learned trial Magistrate an offence under section 377, P. P. C. Is not made out, yet the learned Magistrate has framed the charge under section 377, P. P. C. On insufficient evidence.
4. I have gone through the evidence with the help of the learned State Counsel. I agree with the learned District Magistrate. The evidence brought on the record only makes out an offence under section 363, P. P. C. The learned State Counsel, however, submits that the P. S. I. Has made an application to the learned trial Magistrate praying for permission to adduce further evidence which will bring the offence under section 377, P. P. C. That application has not yet been decided.
5. In view of the above discussion the charge under section 377, P. P. C. Is quashed. The learned trial Magistrate is ordered to reconsider the evidence including the evidence of the additional witnesses which the prosecution desires to examine (provided he allows the application on merits) and frame a charge for the offence made out by the evidence. The reference is disposed of.
6. Let the file of the case be returned to the learned trial Magistrate.