P L D 1993 Lahore 112 (PLP)

Abdul Majid complainant of the case registered vide F.I.R No.56 of 17-8-1992 under section 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at Police Station Bhara Kahu, Islamabad, alleging that on reporting of hue and cry around 2-00 a.m. the couple woke up and identifying the shrieks emitting from Muhammad Ishaq respondent's Baithak across the street to be that of their tender-aged daughter Shabana (12/13 years) banged at the door urging for its opening up by which time they were joined by Aurangzeb, Mst. Azmat Bibi and Mst. Qudrat Jan from the neighbourhood, whereupon the victim was brought out by the respondent's mother and entrusted unto him (while the respondent spirited away) who revealed that she was overpowered by the respondent from the rear upon her stepping out of the house for responding to the call of nature and dragging her into the Baithak plugging her*mouth with a piece of cloth she was stripped off her Shalwar and forcibiy subjected to sexual assault to which she offered resistance and during the, struggle she had been biting on the respondent's upper limbs, feeling aggrieved by recording of the respondent's discharge, complained of the matter to the learned Chief Justice of Pakistan vide application dated 4-10-1992 which was referred to this Bench.

2. Consequently with, a view to examining the complaint of grievance entire record of the case was summoned, perusal whereof divulged that respondent has been discharged of the case by A.C. (Rural), Islamabad on 30-9-1992 granting the police request opining it to be not a fit case for submission of the challan in view of negative Chemical Examiner's report qua the vaginal swabs, acting in a purely mechanical fashion without application of independent mind in the following terms: "Allowed as requested by the police. The accused be charged. Robkar be issued." despite, availability on the record the victim,s statement under sbction 161 Cr.P.C. fortifying the complainant's version, medico-legal report manifesting abrasions of the skin on left forearm above the elbow on lateral side and on. the buttocks with more mar on the left side, report of the Chemical Examiner certifying the victim's Shalwar to be stained with semen and blood as well as that of the respondent's father? Muhammad Fazal affirming the victim's recovery from the respondent's Baithak, whereupon notice was issued to the respondent for showing cause why, the impugned order shouldn't be set aside summoning the officials as well.

3. Pursuant whereto learned counsel appearing on behalf of the respondent though initially endeavoured to embark upon the factual plane but realizing that lest it invites observations to the prejudice of his client abandoning the idea didn't pursue it further rather felt contented in joining learned counsel appearing for the police officials in submitting that the impugned order being administrative in nature is not amenable to rovisional jurisdiction.

4. Be that as it may, in view of the patent illegality, treating the complainant's application as a Constitutional petition within the contemplation of Article 199 of the 1973 Constitution, the impugned order is declared to be a nullity in the eye of law and is hereby set aside; resultantly, the matter would be deemed to be ' pending with the investigating agency who should proceed with the same in accordance with law under direct supervision of S.S.P., Islamabad. N.H.Q/A-307/L Petition accepted.