2000 PLP 2625 (YLR)

4. It is stated that the Investigating Officer deleted section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and final challan was submitted under section 342/343/34, P.P.C. in the Court of Judicial Magistrate Sargodha, who vide his order, dated 3‑4‑2000 returned the challan to the District Attorney, Sargodha for his legal opinion.

5. District Attorney, Sargodha on 7‑4‑2000 gave his opinion that since Naseem Bibi stated that the accused kept on forcing her to give statement in their favour during her abduction, therefore, proper section which attracted the facts was section 365‑A, P. P. C. Consequently section 365‑A, P. P. C, was added to the array of offences.

6. Judicial Magistrate vide his order, dated 30‑5‑2000 concluded that since section 365‑A, Cr.P.C. has been added to section 342,343/34 P.P.C. in F.I.R. No.321 of 1998, therefore, with the addition of former section he ceases to have jurisdiction to conduct the trial as the same was attracted by the provisions of Anti‑Terrorism Act, 1997, therefore, the challan was sent to the Court of Sessions Judge, Sargodha for onward transmission to the Court of Special Judge constituted under the Anti‑Terrorism Laws.

7. On 3‑6‑2000 Sessions Judge, Sargodha passed an order that the Magistrate without procuring the attendance of the accused sent the challan to him, therefore, he was directed to first procure the attendance of the accused and then sent up the case to his Court. With this direction case was remitted to the Magistrate for doing the needful as observed in the order.

8. Learned counsel appearing for the petitioner has strenuously emphasized in his arguments that the addition of section 365‑A, P.P.C. is not at all attracted by the allegations levelled in the First Information Report lodged at the instance of Naseem Bibi and that the opinion of the District Attorney is not the be all and end all to be taken as a gospel truth. Magistrate without application of his independent mind and being in hurry divested himself of his jurisdiction by sending the case to the Sessions Judge, Sargodha for onward transmission to the Court of Special Judge for trial.

9. At the time of preliminary hearing we considered it necessary to hear the District Attorney, Sargodha who gave opinion that the allegations contained in the F.I.R. attracted the provisions of section 365‑A, P.P.C. District Attorney, Sargodha is present and repeated his arguments forming the opinion. Since the matter involves question of public importance we admit this petition to regular hearing. Complainant's counsel and the District Attorney, Sargodha accept the notice and are prepared to address full dress arguments. Learned Additional Advocate-?General for the State is also present and represents the State.

10. Section 365‑A, P.P.C. is reproduced for facility of reference:‑‑ 365‑A, Kidnapping or abduction for extorting property valuable security, etc.‑‑‑Whoever kidnaps or abducts any person for the purpose of extorting from the person kidnapped or abducted, or from any person interested in the person kidnapped or abducted, any property, whether movable or immovable, or valuable security, or to compel any person to comply with any other demand, whether in cash or otherwise for obtaining release of the person kidnapped or abducted, shall be punished with death or imprisonment for life and shall also be liable to forfeiture of property."

11. The bare reading of the above‑quoted provisions of law makes it amply clear that whoever kidnaps or abducts any person for the purpose of extorting from him, or from any person interested in him, any property whether movable or immovable or valuable security, or to compel any person to comply with any other demand whether in case or otherwise for obtaining release of the person kidnapped or abducted‑‑‑‑‑‑‑, the offence contained in section under consideration‑is punishable with death or imprisonment for life and also liable to forfeiture of property. The provision of law is one of those few sections which attracts capital punishment, therefore, the Courts have to be extremely careful before applying the said offences and have to satisfy and convince itself fully whether the facts contained in the F.I.R. do attract the section under consideration. The Judicial Magistrate was very well within his right to seek legal opinion from the District Attorney, however, we are amazed that ‑once the opinion was given the judicial officer did not consider his duty to closely study the opinion and the facts of the case and thereafter apply his mind whether section 365‑A, ibid is or is not attracted to the allegations contained in the First Information Report. When we questioned the District Attorney the basis of. his opinion why he thought that section 365‑A, P.P.C. was attracted, his answer was that since the abducted was being forced by the abductors to give a statement in their favour that no one has abducted her, therefore, the provision of section 365=A, F:P.C. stood attracted. The argument is‑ not only fallacious on the face of it but is totally divergent of legal reality and we are wonder‑struck that a person trained in law would venture to give an opinion of far ?reaching implication ‑without thoroughly examining the query posed to him and showing reticence to embark upon a research of case‑law on the subject. Section 365‑A, P.P.C. is an off shoot of section 383, P.P.C. which is defined as extortion. Section 383, P.P.C. is reproduced as under:‑‑‑ Extortion. ‑‑‑Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put it fear to deliver to any person arty property or valuable security or anything signed or sealed' which may be converted into a valuable security; commits "extortion". The only difference between sections 383 and 365‑A, P.P.C. is that in the latter section the extortion takes place after kindnapping or abduction whereas in the former section it is not necessary. to commit abduction or kidnapping of the victim and the second / difference is that in extortion a person is .put in fear of injury; injury may be to a person's mind, his body, his reputation or to his property. Whereas under section 365‑A, P.P.C. the extortion is always pecuniary in nature. The words of the section itself show without. any ambiguity that a person is kidnapped or abducted with the intention that said kidnapping or abduction should serve as blackmail to persuade his kith and kin ‑to part with property movable or immovable or valuable security or to compel any person to comply with the demand whether in cash or otherwise. District Attorney in a vain attempt tried to base his opinion on the words underlined by us and reproduced once again: or to compel any person to comply with any other demand whether in cash or otherwise .... and went to state that force used by the kidnappers in .their attempt to get a writing from the girl that she has not been kidnapped, amounted to compulsion on their part to get satisfied their demand. The District Attorney totally lost sight of the fact that the word "demand" is further qualified by the words "Whether in cash or otherwise", which again means that the demand is to pay cash for the release of the‑abductee or property other than cash. Law‑giver in his wisdom has enacted this section as a corollary to the offence of extortion and since two offences get combined in section 365‑A, P.P.C viz. kidnapping and extortion, it gets more serious in nature, however, the corner stone or the hallmark of section 365‑A, P.P.C. always remains the return of abductee or the kidnapped for cash or property movable or immovable. Forcing a girl i.e. the abductee to give statement in favour of the abductors that she was not abducted or kidnapped, does not at all fall within the purview of B section 365‑A, P.P.C. The interpretation placed by the District Attorney and accepted by the Judicial Magistrate is alien to wisdom, common sense and against all cannons of interpretation. The facts narrated in the F.I.R. bearing No.321 of 1998 which Corms the basis of the allegations do not by any stretch of imagination attract section 365‑A, P.P.C., therefore, the order of Judicial Magistrate Section 30, Sargodha, dated 30‑5‑2000 is without any application of mind, bereft of reasoning and wholly illegal, as such the same is set aside.

12. The matter, however does not end here. Nasim Bibi in F.I.R. under discussion clearly made a statement that Tasleem Bibi was removed with force by the delinquents in law. As such on the face of the allegations case under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 stands constituted and the order, dated .3‑4‑2000 by the Judicial Magistrate Section 30, Sargodha is maintained along with the order of Sessions Judge, Sargodha, dated 3‑6‑2000. Judicial Magistrate Section 30, Sargodha shall after comply with the orders, dated 3‑6‑2000 of the Sessions Judge, Sargodha, while exercising his powers under section 190, subsection (3) Cr.P.C. send the challan to the Sessions Judge, Sargodha for trial.

13. Concomitantly writ petition, for reasons given, is accepted without any order as to costs. N.H.Q./Z‑25/L ?????????? Petition accepted.