1995 PLP 1405 (SCMR)

Malik Rab Nawaz Noon, Advocate, instructed by Ch. Akhtar Ali, Advocate‑on‑Record for Petitioners. Nemo for the State. Date of hearing:' 26th April, 1995 MUHAMMAD MUNIR KHAN, J.‑‑‑This petition for leave to appeal which is directed against the order dated 23‑2‑1995 of the Federal Shariat Court arises from the facts that on 31‑8‑1994, Muhammad Shakeel lodged a report at Police Station Chakrala of District Mianwali that at about 10‑00 a.m., Muhammad Riaz and Nasir Mahmood caught hold of him from near the Higher Secondary School Chakrala, put him in the car and forcibly took him to the Baitahk of Nasir Mahmood and there committed .sodomy upon him one after the other. The alarm raised by him had attracted Gulbaz and Muhammad Khan P.Ws. After the registration of the F.I.R., Muhammad Riaz and Nasir Mahmood were arrested and on the conclusion of the investigation, challan was submitted against them 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., in the Court of Sessions Judge, Mianwali. Before, the charge could be framed against them, the petitioners, on 9‑10‑1994, filed an application under section 265‑K, CT.P.C. for their acquittal of the charge under section 12 of the Ordinance, at that stage. The application was dismissed by the learned Sessions Judge, Mianwali, on 16‑1‑1995. The revision filed by, the petitioners against this order was also dismissed by the Federal Shariat Court on 23‑2‑1995. Hence this petition.

2. Before us, the learned counsel for the petitioners has maintained that if the allegation made by Shakeel in the F.I.R. is accepted at its face value, no case punishable under section 12 of the Ordinance is made out against the petitioners. He has prayed for the partial acquittal of the petitioners of the charge under section 12 of the Ordinance.

3. We have considered the arguments addressed by the learned counsel for the petitioners. We find that the case for trial is pending before the learned Sessions Judge, Mianwali. He has yet to frame the appropriate charge against the petitioners. So, examination of the merits of the case on the question of application of section 12 of the Ordinance would tantamount pre‑empting the duties and functions of the trial Court which is neither permissible nor desirable. Furthermore, any observation on the merits of the case relatable to the charge under section 12 of the Ordinance is likely to prejudice the case of either party, not only to the extent of the charge under section 12 of the Ordinance but also the . credibility of the witness, more particularly the victim of the crime. At the time of framing the charge, if after perusing the police report and all other documents and statements filed by the prosecution, the Court is of the opinion that there are no ground for framing the charge under a particular section of the P.P.C., it may not frame the charge. The trial Court, even after framing the charge, can amend the charge at any stage in the light of the evidence and circumstances appearing in the case.

4. For all these reasons, we do not see any cogent reason to interfere with the impugned order at this stage. Leave to appeal is, therefore refused and the petition is dismissed with the observations that at the time of the framing of the barge the petitioners may object to the framing of charge under section 12 of the Ordinance and the trial Court would act in accordance with law. N.H.Q./M‑3064/S Leave refused.