' This order will dispose of Criminal Revision No,40 of 2001directed against the charge framed by the learned Additional Sessions Judge, Toba Tek Singh, under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979.
2. The facts in brief of the instant case are that Aneel Raza son of the complainant who was a student of first year, was taken from the cricket ground to some nearby place where Sajid Saleem, Shahbaz and Ashfaq committed sodomy with him. On the noise raised by the victim Sohail Amjad and Aasif Iqbal came to the place of occurrence. They raised Lalkara on which the accused persons leaving the victim ran away from the spot.
3. Learned counsel for the petitioner in support of this petition submits that no case under section 12, Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979 is made out, that according to the report under section 173, Cr.P.C. Dated 6-12-2000 it was directed by the D.S.P. (Legal) that section 12 should be deleted. He further submits that according to the report of Chemical Examiner the swa bs were not stained with semen. He further submits that the story given by the prosecution is unnatural as the victim was himself was a young boy. He submits there was two days delay in loading the F.I.R.
4. Learned Additional Advocate-General has read before me section 361, P.P.C. And submits that charge can be framed under section 377, P.P.C. But not under section 12, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 because the present case does not fall within the category of definition of kidnapping.
5. On the other hand learned counsel for the complainant submits that according to section 12 of the said Ordinance, this is a case in which a victim was abducted by the three accused persons and then sodomy was committed.
6. I have heard the learned counsel for the parties. In the instant case section 361, P.P.C. Which deals with kidnaping is reproduced below:-- "361. Kidnapping from lawful guardianship.--- Whoever takes or entices any minor under fourteen years of age if a male, or under sixteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship."
A bare perusal of section 361, P.P.C. Would show that the facts of the case are not attracted in the circumstances mentioned above and there was no kidnapping because even according to the prosecution case the victim was taken to the nearby place which was at some distance. Learned counsel for the petitioner has also relied upon 1985 SCM R 1822 (Shariat Bench) the judgment against of the Federal Shariat Court, Islamabad, headnote (d) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---S. 12 is given below:-- ' "S.12---Kidnapping---Existence of intention or reasonable knowledge of accused---Accused charged with offences under S.377, P.P.C. And kidnapping---Abduction neither intended nor object of crime but to commit sodomy alone---Merely because victim was moved a few paces in terrorism or shoved along to a suitable place, not to make additional offence under S.12 of Ordinance (VII of 1979)."
After having gone through the F.I.R., report of the Chemical Examiner, Citations produced by the learned counsel for the parties, definition of section 361, P.P.C. And that of section 12, Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979, I am of the opinion that this is a case in which the provisions of section 12 of the abovesaid Ordinance are not attracted and even the learned Additional Advocate-General has very candidly conceded the submissions made by the learned counsel for the petitioner. In this view of the matter, the charge framed by the learned Additional Sessions Judge under section 12, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is set aside and the case is remanded to the competent Court of jurisdiction for trial under section 377, P.P.C. Disposed of.
Revision petition accepted.
2001 P Cr, L J 1170 [Karachi] Before Muhammad Ashraf Leghari, J ALLAH WARRAYO and another--Applicants versus THE STATE---Respondent Criminal Bail Application No,292 of 2000, decided on 4th December, 2000.
Criminal Procedure Code (V of 1898)--- ----S. 497---Penal Code (XLV of 1860), Ss.302/377/342/34---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.18---Bail--Incident was unseen---Accused were already under arrest and the names of prosecution witnesses who had implicated them had subsequently been introduced by the police who did not figure in the F.I.R.---Accused were also not named in the F.I.R.- --No other piece of evidence was available against the accused and their false implication in the case could not be ruled out---Case of accused was distinguishable from that of co-accused--- No reasonable grounds at such stage were available to believe the accused being guilty of the offence charged with---Accused were admitted to bail in circumstances. [p. 1172] A & B Shaikh Amanullah for Applicants.
Abdul Sattar Soomro for A.A.-G. For the State.
' The applicants are booked for an offence under sections 302, 377, 342 and 34, P.P.C. Read with section 18, Offence Against Zina (Enforcement of Hudood) Ordinance, 1979 arising out of Crime No,11 of 2000 Police Station Thariri Mohabat.
' On 24-1-2000 at 19-20 hours complainant Muhammad Nawaz lodged F.I.R. At Police Station Thariri Mohabat stating therein that his son Zahid Hussain is student. On 20-1-2000 when complainant alongwith Haji Shah Nawaz and Mukhtiar Ahmed returned to his home at sun-set time, they were informed by the inmates of house that Zahid Hussain at evening time had left for round in the city but had not yet come back. The complainant and others went in his search. Some of the villagers informed them that the boy was standing on the road near Jeendal Shah at about 5/6 p.m. They deputed some persons for locating the whereabouts of Zahid Hussain. Such news was published in newspapers and the intimation was also given to various police stations. On 24-1-2000 complainant and his brothers were informed by their cousin Zulfiqar that at about 6-00 p.m. While he was passing from the lands of Qadir Bux Jhatial he found some dogs which had gathered. He went near and found the dead body of Zahid Hussain lying in Palal. He stated that some of the parts of his body were eaten by the dogs. The complainant and others went there and saw the dead body of deceased Zahid Hussain. The complainant lodged F.I.R. Disclosing his suspicion in accused Nisar Ahmed Abro and others. He stated in his F.I.R. That the intention of the culprits must be to commit Zina with him and thereby committed his murder.
' The police after registration of F.I.R. Started conducting investigation and arrested the present applicants on 2-2-2000. On 5-2-2000 police introduced two witnesses namely Sikandar Ali and Ghulam Shabbir in the case and recorded their 161, Cr.P.C. Statements. Yet 164, Cr.P.C. Statements of the abovenamed witnesses were recorded on 14-2-2000. The witnesses disclosed the names of present applicants to be the culprits of this incident.
' It is contended by the learned counsel for the applicants that the names of present applicants do not appear in the F.I.R. Similarly the names of alleged two witnesses Sikandar and Ghulam Shabbir also did not transpire in the F.I.R. For the first time the said two witnesses were joined in investigation on 5-2-2000 and they disclosed the names of present applicants. The 164, Cr.P.C.
Statements of the witnesses were again delayed by about nine days. Nothing incriminating was recovered from the possession of applicants. Except the oral version of the said two witnesses, there is no other piece of evidence connecting the applicants in the commission of the offence. It is submitted that the case of the present applicants is quite distinguishable from the case of accused Nisar and Jamal. The case of applicants require further enquiry as contemplated by section 497(2), Cr.P.C. The alleged eye-witnesses were silent about the incident for about 15 days after the incident. The false implication of accused cannot be ruled out.
' Mr. Abdul Sattar Soomro, learned counsel appearing for the learned A.A.-G. Has conceded to the bail plea of the applicants on the ground that the involvement of the applicants in the instant case appears to be afterthought.
The police record indicates that incident was unseen and names of witnesses Sikandar and Ghulam Shabbir were introduced by the police for the first time on 5-2-2000. The accused were already arrested on 2-2-2000, there was absolutely no evidence against theth on that day connecting them with the commission of offence. The 161, Cr.P.C. Statements of these two witnesses were recorded on 5-2-2000 but their 164, Cr.P.C. Statements were recorded on 14-2-2000. The names of accused do not transpire in the F.I.R. The names of P.Ws. Sikandar and Ghulam Shabbir also do not figure in the F.I.R. No other incriminating piece of evidence has been collected by the police against the present applicants. The case of applicants is distinguishable from the case of accused Nisar and Jamal. False implication of accused in such circumstances cannot be overruled and the case of applicants in peculiar facts and circumstances would come out of prohibitory clause of section 497(1),- Cr.P.C. At this stage, there appears no reasonable ground to believe that the accused are guilty of the offence with which they are charged.
In this view of the matter, the accused are granted bail in the sum of Rs,2,00,000 each and P.R. Bond in the like amount to the satisfaction of the trial Court.