1997 P Cr (PLP)

Date of hearing: 26th January, 1997. This criminal revision calls in question judgment, dated 7-10-1996 passed by the learned Sessions Judge/Zila Qazi, Dir whereby he dismissed the appeal of petitioners against order, dated 16-7-1996 passed by the Illaqa Qazi, Balmbat, District Dir. The details of the case against the petitioners have been given in the judgment of the Courts below and are not recapitulated here to avoid the burdening of record. It would suffice to mention that the petitioners alongwith one Muhammad Iqbal son of Fazal Wahab absconder on 28-4-1994 at about 17-45 p.m. from near petrol pump Khaima in the area of Police Station Blambat abducted Laiq Zada son of Gul Shehzada a minor for the purposes of committing unnatural act with him. A case under section 12/18 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter called the Ordinance) and section 323, P.P.C. was registered against him. The challan after investigation was put up before the trial Court who on the conclusion of the trial wherein 7 P.Ws. were examined, convicted the petitioners under section 12 read with section 18 of the Ordinance, 1979 and sentenced each one of the petitioners to two and half years' R.I. and fine of Rs.2,000 each in default whereof they were to undergo one month's S.I. The trial Court also convicted each of the accused under section 323, P.P.C. and sentenced them to 6 months' R.I. each. There is no mention in the order of the trial Court as to whether the sentences aforementioned were to run concurrently. The benefit of section 382-B, Cr.P.C. was however, afforded. The petitioners went up in appeal before the learned Sessions Judge against the order of Illaqa Qazi who dismissed the appeal vide judgment, dated 7-10-1996. Hence this revision. The learned counsel for the petitioners has raised the contention that the trial Court was not competent to try the case as provided by section 20 of the Ordinance. He submitted that according to second proviso to section 20(1) of the Ordinance, 1979, it is only a Court of Session, which can try the cases of offences punishable under the Ordinance. In this context he submitted that the appeal merits to be accepted on this ground alone. The learned counsel appearing on behalf of the State has stated that it is correct that the trial has been held by a Court which was not competent to try the case. Having given consideration to the controversy involved I am of the view that the contention raised on behalf of the petitioners have great force. Section 20 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is reproduced hereunder for facility of reference:-- "Section 20.-- (1)???????

Provided that

Provided further that an offence punishable under this Ordinance shall be triable by a Court of Session and not by a Magistrate authorised under section 30 of the said Code and an appeal from an order of the Court of Session shall lie to the Federal Shariat Court." A bare perusal of the above proviso shows that the offences punishable under the Ordinance are triable by a Court of Session and not by a Magistrate with powers under section 30 of the Cr.P.C. I fail to understand as to why the learned Sessions Judge after challan was put up before him and he framed the charge against the petitioners/accused and even recorded statement of one of the prosecution witnesses sent the case to the Illaqa Qazi for trial. I have seen the record and find that by order, dated 13-11-1995 which is in the following terms:-- the learned Sessions Judge/Zila Qazi sent the case to the Illaqa Qazi for trial. No reason whatsoever has been afforded in the said order for so doing. In the face of the mandatory provisions and clear phraseology of section 20 ibid there was no justification for sending the case to the Court below. Such an attitude in dealing with cases obviously leads to multiplicity of proceedings and prolongation in the final adjudication of the cases. The Courts should avoid such an attitude in dealing with cases and show more responsibility. The Courts are places of serious business and the Presiding Officers are expected to act with all seriousness and full application of mind and should not deal with cases before them without adverting to the provisions of law governing the trial of cases, The initial trial of the case out of which this revision has arisen having been conducted by a Court lacking jurisdiction, there is no escape from accepting the revision. Resultantly I accept this petition and setting aside the judgments of the Courts below dated 16-7-1996 and 7-10-1996 remand the case to the learned Sessions Judge, Dir for trial and adjudication of the case afresh. N.H.Q./1081/FSC?????????????????????????????????????????????????????????????????????????????? Case remanded