' This revision is directed against the order, dated 21-7-2001, passed by the learned Additional Sessions Judge-II, Quetta whereby he has transferred the case to the file of Judicial Magistrate, Quetta for trial, holding that ex facie the case did not attract section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and thus, being a case under section 377, P.P.C. Was not triable by a Court of Session.
2. Facts of the case lie in a small corhpass. On 28-3-2001 report was lodged by one Speen Khan son of Kotwal with S.H.O. Police Station City, Quetta wherein, it was alleged that the complainant's son namely Ahmad Khan aged about 15 years, who is mentally retarded a bit, however, sane, was working with Azizullah shopkeeper in Khyber Market. On the said date at about 6-00 p.m., no sooner said Ahmad Khan came out from Khyber Market then one Muhammad Hassan an employee of Cafe Iran alongwith his companion namely, Saeed Sarwar forcibly abducted him and carried him, in a rickshaw, to Pashtoonabad, in order to satisfy their lust. There, he was confined in a room where, both the culprits committed sodomy on him. While the complainant was in search of the abductee, he i,e, Ahmad Khan was seen in Pashtoonabad by two shopkeepers of Khyber Market and they brought him to the house of the complainant. It was further alleged in the complaint that on reaching back home, the abductee narrated the entire incident to the complainant and disclosed that he was not only forcibly abducted from the vicinity of Khyber Market on dagger point but was carried to Pashtoonabad in a rickshaw and was subjected to sodomy there by the accused persons. On the stated allegations a formal F.I.R. Bearing No,43, dated 28-3-2001 under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as "the Ordinance") and section 377, P.P.C. Was registered, at the said police station, and investigation was carried out in pursuance thereof. On the completion of investigation the accused persons were challaned to the Court for trial under the aforementioned sections.
3. Mr. Abdul Aziz Khan Khilji, Advocate, learned counsel for the petitioner has contended that though initially, the instant case, having been registered under section 12 of the Ordinance was transferred to the Court of Additional Sessions Judge for trial by the Judicial Magistrate, Quetta under section 190(3), Cr.P.C. Yet, it was again transferred to the file of Judicial Magistrate-IV, Quetta vide order, dated 16-5-2001 because the learned Additional Sessions Judge was of the opinion that section 12 of the Ordinance was not attracted. Order, dated 16-5-2001 was, however, set aside by the Honourable High Court of Balochistan vide order, dated 29-5-2001, as it was found that the order was passed without affording an opportunity of hearing to the petitioner. Learned counsel for the petitioner has further contended that subsequent to setting aside of the transfer order, again the learned Additional Sessions Judge vide order, dated 21-7-2001 has transferred the case to the file of Judicial Magistrate, tentatively assessing that provisions of the Ordinance were not attracted.
Learned counsel for the petitioner has maintained that as disclosed in the F.I.R. Victim Ahmad Khan was forcibly abducted by the culprits from Mecongy Road and was taken to Pashtoonabad where, sodomy was committed on him. Thus the instant case squarely fell within the ambit of section 12 of the Ordinance and, therefore, was exclusively triable by a Court of Session. Reliance has been placed on the case of Amjad Hussain v. Khalid Mehmood and others reported as PLD 1989 FSC 11.
4. Mr. Kamran Murtaza, Advocate, learned counsel for respondent No,1 while relying on the case of Muhammad Tufail v. The State PLD 1984 FSC 23 wherein it was held that taking of victim from path to a nearby Wahn did not constitute kidnapping or abduction as contemplated by section 12 of the Ordinance, though attempted to argue that the abductee having been allegedly taken from Khyber Market to Pashtoonabad and the said place situated nearby, section 12 of the Ordinance was not attracted yet, having been questioned that Khyber Market and Pashtoonabad being two quite distinct and separate places, in the absence of any evidence on record, as to where from he has gathered this impression that both these places situate in the same locality submitted, that he would have no objection in case the impugned order is set aside and the case is remanded to the learned Additional Sessions Judge for trial. However, prayed that question of jurisdiction may be left open and if on the basis of some evidence, led at the trial, subsequently, it is found that instant was not the case triable by a Court of Session then it may be sent to the Court competent to try the same.
5. Mr. Akhtar Zaman, Additional Advocate-General, Balochistan, has submitted that in view of the particular allegations levelled in the F.I.R. To the extent that Ahmad Khan was forcibly abducted from Khyber Market and taken to Pashtoonabad where the accused persons satisfied their lust, prima facie, a case under section 12 of the Ordinance was made out and thus the learned Additional Sessions Judge was not justified to conclude that the case was triable by a Magistrate.
6. It would be pertinent to mention here that challan of the case, through District Attorney was sent to Judicial Magistrate, Quetta, who having found that the offences mentioned therein were not triable by him, forwarded the same to Sessions Judge, Quetta. Thereafter, it was transferred to the file of Additional Sessions Judge-II, Quetta, for trial.
7. The allegation contained in the F.I.R. Is that Ahmad Khan while standing in front of Khyber Hotel at Meconghy Road was abducted by the accused persons and was taken, in a rickshaw, to Pashtoonabad where, sodomy was committed on him. In his statement recorded under section 161, Cr.P.C. Too, the abductee has reiterated the version contained in the F.I.R. Admittedly, Meconghy Road, wherefrom Ahmad Khan was allegedly taken and Pashtoonabad, where he was subjected to sodomy, are two distinct and separate places and though it is not conspicuous on record as to what is the actual distance between the two yet, the very fact that the abductee was allegedly carried in a rickshaw leads to the inference that distance between the two places was much and could not have been covered on foot. Therefore, to my mind, without recording some evidence, particularly statement of the victim, it could not have been concluded by the learned trial Judge that prima facie, section 12 of the Ordinance was not attracted.
It would be pertinent to mention here that though question relating to jurisdiction could be raised at any stage of the proceedings and it can be decided even without motion from any party and averments contained in the complaint/F.I.R. May be relevant for the purpose of taking cognizance and also for tentatively assessing the place and class of Court competent to hold trial ordinarily, yet, question of jurisdiction cannot be conclusively determined unless some evidence is led.
8. In the case of Amjad Hussain, referred to hereinabove in para. 3 (supra), the allegation against the accused a person was that they after taking away petitioner to a place at a distance of 300/400 yards from the main path had committed carnal intercourse with him. On the completion of investigation challan was sent for trial before the learned Sessions Judge. Both the accused persons were accordingly charge-sheeted under section 12 of the Ordinance read with section 377, P.P.C. And the case was then adjourned for recording of evidence. Subsequently, an application was moved by the accused persons before the trial Court praying that since the ingredients of section 12 of the Ordinance were not attracted to the facts of the case and the case was covered by the provisions of section 377, P.P.C., therefore, it may be sent to Ilaqa Magistrate for trial and disposal. The application was allowed and consequently, the case was sent to the Magistrate for trial. The impugned order was assailed in revision before a Division Bench of this Court. It was held that the observations made by the learned Sessions Judge, to the effect that the offence under section 12 of the Ordinance was not made out, were premature. It was further observed that question involved could have been determined only after recording some evidence particularly the statement of the victim. The impugned order was thus set aside and the case was remanded to the learned Sessions Judge with the direction that it should be tried and decided by him.
9. In view of above discussion as well as the principle enunciated in the afore-quoted ruling I am of the view that the impugned order, dated 21-7-2001, passed by the learned Additional Sessions Judge-II, Quetta cannot be sustained. It, therefore, is set aside and the case, with consent of the parties, is remanded to the learned Additional Sessions Judge, Quetta for its decision in accordance with law. Parties are directed to appear before him on 11-3-2002.