1988 P Cr (PLP)

‑‑‑Ss. 10 & 11‑‑Criminal Procedure Code (V of 1898), S. 439‑‑Revision against filing of Challan with change of offence from one under 5.10/11 of Ordinance VII of 1979 to offence under S.365, Penal Code and order of Sessions Judge transferring case from Court of Session to Court of a Magistrate‑‑Medical evidence prima facie showing that offence under S.10/11 of Ordinance VII of 1979 was made out against accused‑ Order of Sessions Judge not a speaking order and passed without proper appreciation of facts and law‑‑Order set aside and case sent back to Court of Session for trial according to law. M.D. Tahir for Petitioner. Najam‑uz‑Zaman, A.A.‑G. with Kh. Faiz Muhammad Sadiq for Respondents. Date of hearing: 14th December, 1987. In brief the facts of this case are that at the instance of Muhammad Aslam complainant‑petitioner a case under section 10/11 of Ordinance No. VII of 1979 was registered on 10‑6‑1985 against the accused. It was alleged in the F.I.R. that the accused Shahbaz etc. abducted his daughter Mst. Zahida Perveen. The police undertook investigation. Mst. Zahida Perveen was recovered on 17‑7‑1985. She was medically examined on 20‑7‑1985. She made statement under section 164 Cr.P.C. on 21‑7‑1985, supporting the contents of the F.I.R. and alleging that she was raped by the accused. The police filed incomplete challan under section 10/11 on 22‑3‑1986 which was entrusted to the Court of learned Additional Sessions Judge‑IV, Gujrat. The accused then made an application to higher authorities for further investigation of the case. After the said investigation, another challan was filed under section 365, P.P.C. against the accused. In this report under section 173, Cr.P.C., the Investigating Officer stated that Mst. Zahida Perveen was not raped by the accused. He, therefore, without deleting section 10/11, Ordinance No. VII of 1979, filed complete challan against the accused. However, the Deputy District Attorney directed that the challan should only be filed under section 365, P.P.C. which was accordingly done. The accused after filing of the challan made an application to the learned Sessions Judge, Gujrat for transfer of the case for trial td the Court of a Magistrate. This petition was accepted vide impugned order, dated 13‑9‑1987.

2. I have heard the learned counsel appearing on behalf of the parties. Mr. Najam‑uz‑Zaman A.A.G. supports this petition. It is stated by him that mere fact that subsequent challan was filed under section 365, P.P.C. would not mean that the offence under section 10/11, Ordinance No. VII of 1979 has been deleted. It was argued by him that from the statement of Mst. Zahida Perveen under section 164, Cr.P.C. it is abundantly clear that she was not only abducted and wrongfully confined but also raped by the accused. It was argued by the learned counsel for the accused‑respondents that the medical evidence does not support the prosecution case and that after her recovery on 17‑7‑1985 and before her medical examination on 20‑7‑1985, Mst. Zahida Perveen was given in marriage which would mean that the medical evidence was of no avail to the prosecution in support of its case. I have considered this contention. The alleged marriage took place in the month of August, much after her medical examination and statement under section 164, Cr.P.C. A perusal of the medico‑legal certificate indicates that the area around urethra and vagina was red and tender which admitted one finger with difficulty. It could, therefore, not be said that the medical evidence prima facie did not support the prosecution case or that no offence under section 10/11, Ordinance No. VII of 1979 was made out against the accused. It was stated by the learned A . A . G . that the prosecution had already file incomplete challan under section 10/11, Ordinance VII of 1979, ands that the Deputy District Attorney or the police had no authority'/ without any order of the Court to delete the said offences from the challan. In my view, the learned Sessions Judge passed the impugned order, dated 13‑9‑1987, without proper appreciation of facts and law. It was not a speaking order: It is accordingly set aside.

3. As a result of the above discussion, the titled case State v. Khuda Dad etc. arising out of F.I.R. No. 125, dated 10‑6‑1985, under section 10/11, /Ordinance No. VII of 1979 and section 365, P . P . C . is sent back to the Court of Additional Sessions Judge‑IV, Gujrat, for trial according to law. M.Y.H./M‑479/L Case remanded.