1985 PLP 1320 (MLD)

Muhammad Iqbal son of Salehon, Ali Muhammad, Muhammad Sher, Muhammad Khan and Shera son of Alo were tried under section 363/366/148 read with section 149,lP.P.C. by Mr. Irshad Ullah Khan Sial, Civil Judge First Class, exercising the powers of Magistrate Section 30, Sargodha. Muhammad Iqbal was convicted under section 366, P.P.C. He was sentenced to six years' R.I. and a fine of Rs. 6,000 or in default to undergo further six months' R.I. The other accused were acquitted.

2. On 13-1-1977, Sheru father of Mst. Daulan, the abductee, lodged report at 6-30 p.m. at Police Station Sadar Sargodha against Muhammad Iqbal and others, The occurrence was alleged to have taken place in the afternoon on the said date.

3. According to Sheru, he, his wife Mst. Hakan and Mst. Daulan and others were going to their house from his Dera at about Degarwela. While the party was on its way. Muhammad Iqbal and the remaining accused turned up in a Tonga. Muhammad Iqbal and Shera were armed with guns while the other had Lathie. They forcibly took away Mst.Daulan. When the parents resisted, they were given beating by the accused with Lathis. Shera accused fired in the air.

4. In order to prove the aforesaid incident, the prosecution examined Mat. Daulan, her father Sheru, her mother Mst. Hakan Lady Doctor Nasim Begum, who medically examined Mst. Daulan.

5. I am not going to discuss the evidence in detail in this case because this appeal is bound to succeed partially on a technical law point taken by the learned counsel for the appellants. This was that the accused were denied opportunity to cross--examine Mat. Daulan the prosecutrix and her father Sheru.

6. I find that after the examination-in-chief of Mst. Daulan and her father concluded, the Magistrate noted down: In order to verify whether it was so, I examined the order sheet. On 23-10-1982, after the examination-in-chief of Mat. Daulan and Sheru concluded, the Magistrate passed the following order:-

7. Thereafter, when the case was re-called, the time was 2-15 p.m. Then the Magistrate wrote:

8. Learned counsel for the appellant submitted that on 21-5-198 an application was moved by the appellant before the trial Court in which he requested that Mst. Daulan and her father Sheru who had not been cross-examined be summoned. The Magistrate did not pas any order on that application.

9. This position appears to be correct. The application referred to by the counsel is on the file of the connected case. There is no order on that application.

10. This shows gross negligence on the part of Magistrate and lack of application of judicial mind. He was under a legal duty to pass any judicial order which he thought fit.

11. Similarly he was also required to give reasonable opportunity to the counsel of the appellant to cross-examine the star witness, who was the prosecutrix in this case.

12. For the above two serious omissions on the part of the Magistrate, the conviction cannot be sustained. I, therefore, set aside the impugned judgment.

13. The case shall go back to the Magistrate concerned who shall afford an opportunity to the counsel for the petitioner to cross-examine Mst. Daulan as well as her father. He shall then decide the case afresh in accordance with law without being prejudiced in any manner.

14. The conviction was recorded on 12-6-1984. I had a mind to allow bail to the appellant but I found that before his conviction he remained on bail. It was only after the judgment was announced that he was arrested.

15. In view of the nature of the offence. I am not inclined to admit him to bail pending trial.

16. Another reason why I declined to do so is that he remained proclaimed offender for a long time.

17. The trial Court is directed to conclude the trial without fail within six months under intimation to the Registrar of this Court. H. A. K. Case remanded.