1998 PLP 1332 (MLD)

During the pendency of the trial, an application was moved by the accused-petitioner Jamil Sadiq before the Senior Superintendent of Police Mirpur wherein he had prayed as under:

This application was sent to the P.D.S.P. Mirpur for comments and report who reported back as under: The learned Senior Superintendent of Police Mirpur agreed with this report and passed the following order: On the basis of these reports, on November 28, 1995, the Prosecuting Inspector submitted an application before the Trial Court praying therein that the prosecution be allowed to delete the offence to the extent of section 18 of the offence of Zina (Enforcement of Hudood) Act. On the back-side of this application, the Trial Court felt proper to record the statement of the said Inspector. In his statement, the Prosecuting Inspector, once again supported the said application and prayed that the challan be treated under section 294, P.C. On December 3, 1995, an application was moved by the accused -petitioner under section 249-A, Cr.P.C. that he be acquitted of the charge. This application was rejected by the Trial Court. Hence the present revision petition. Ch. Muhammad Azam Khan, learned counsel for the petitioners argued that a false case has been concocted against his client on account of past enmity with the Inspector C.I.A. who is the complainant in this case. According to him, from the perusal of the F.I.R. it becomes clear that no offence was committed by the petitioners. The police has failed to collect any material which could justify that the so-called accused-persons were preparing for the commission of any offence under the Offence of Zina (Enforcement of Hadood) Act. No witness in his statement has stated that petitioner Jamil Sadiq had kidnapped or abducted the so-called co-accused, Mst. Gulshan Nazir with the intention that she may be compelled to marry him against her will or she may be forced to seduce illicit intercourse which could attract section 18 of the Offence of Zina (Enforcement of Hudood) Act, The learned counsel for the petitioners in support of his contentions relied on a case titled Shaikh. Zahid Bashir v. Sarkar and another'. 1995 SCR

108. The facts of this case are that on the basis of a secret information the police party during the intervening night of May 19/20, 1993, raided room No. 105 of Hotel Al Jabeer Mirpur and found a young man and a woman in the room, who had pretended themselves to be husband and wife. They were arrested by the police and a case under section 18 of the Offence of Zina (Enforcement of Hudood) Act, was registered against them. An application for acquittal of the accused under section 249-A, Cr.P.C. was moved before the trial Court which was rejected by the said Court. The order was assailed in revision before the Shariat Court without success. Finally the learned Apex Court of Azad Jammu and Kashmir quashed the proceedings against the accused. In that case, the female arrested by the police from the Hotel, was produced before the Lady Doctor for medical legal report. According to the Medical Legal Report, the woman was found virgin. The learned Apex Court, therefore, came to the conclusion that there was no likelihood or probability of the accused party being convicted for the offence charged against them. The appeal, in exercise of the powers vested under section 249-A, Cr.P.C. was accepted and the impugned orders of the Shariat Court and the Trial Court, were set aside by dismissing the challan pending before the Trial Court against the accused-appellant. Consequently the accused were acquitted of the charge. The learned counsel for the petitioners also relied on a case titled Riffat Ali Barq v. S.H.O. Police Station Muzaffarabad,' 1991 P Cr. L J 9 wherein two M.B.B.S. students of Nishtar Medical College, Multan, were arrested by the police on the charge of doing obscene act in public place. The allegation against them was that they were kissing each other on a road. The Court in the light of the material came to the conclusion that the ingredients necessary to attract criminal liability under section 294, P.C. were not satisfied because in that case, the secret informer was not cited as witness. Moreover, the place of occurrence was an abandoned one which was not considered to be a public place. The learned Judge also observed that a case under section 294, P.C. is very easy to concoct and very difficult to rebut. On the basis of, the trends of the Courts, it was observed that, the Courts are justified it insisting upon solid and concrete evidence before taking cognizance and putting the accused on trial. Finally all the proceedings against the accused, were quashed. On the basis of the above reasoning, it was prayed that as necessary ingredients which could attract section 294, P.C. are lacking, the challan against the accused-petitioners be dismissed and they be acquitted of the charge. Controverting the arguments, the learned Additional Advocate-General argued that it was not felt proper by the police to cite secret informer as witness in this case. According to him, the petitioners have just mentioned past enmity with the police but has not mentioned any particular in this regard. It cannot therefore, be said that there was in fact any enmity between the police and the accused-petitioners. He further argued that no satisfactory explanation has been given by the accused that why at a desolated place in a parked car, they were sitting together on its back seat. According to him, in a Muslim society, no man is allowed to sit so close with a lady who is not related to him. The act itself, according to the learned Additional Advocate-General, was sufficient to attract the application of section 294, P.C. In the light of these facts, it was prayed that the petitions be rejected. I have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. All the Courts in Azad Kashmir are bound to obey the dictum of the Supreme Court. The c which was cited by the learned counsel for the petitioners on facts, was more strong as compared to the present case. In the case titled Shaikh Zahid Bashir v. Sarkar and another, 1995 P Cr. L J 877 a young man and a woman were found sitting in a room and were pretending themselves to be husband and wife. The Apex Court of Azad Kashmir, invoked powers under section 249-A, Cr.P.C. and dismissed the challan merely on the ground that the prosecution's case was lacking an intent on the part of the accused-persons to commit a crime. In the present case, the accused-petitioners were not staying in any room. The police has itself requested that section 18 of the Offence of Zina (Enforcement of Hudood) Act, be deleted as it was not attracted in the case. f Mere presence of two citizens in the back seat of a car perhaps would not attract, in ordinary course, section 294, P.C. In view of these facts, while allowing these petitions, the challan filed against the accused-petitioners is dismissed and both the accused-persons are acquitted from the charges. H.B.T./37//(AJ&K) Accused acquitted.