2001 P Cr (PLP)

Date of hearing: 16th February, 2001. This order will dispose of Criminal Revision No.40 of 2001 directed against the charge framed by the learned Additional Sessions Judge, Toba Tek Singh, under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979.

2. The facts in brief of the instant case are that Aneel Raza son of the complainant who was a student of first year, was taken from the cricket ground to some nearby place where Sajid Saleem, Shahbaz and Ashfaq committed sodomy with him. On the noise raised by the victim Sohail Amjad and Aasif Iqbal came to the place of occurrence. They raised Lalkara on which the accused persons leaving the victim ran away from the spot.

3. Learned counsel for the petitioner in support of this petition submits that no case under section 12, Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979 is made out, that according to the report under section 173, Cr.P.C. dated 6‑12‑2000 it was directed by the D.S.P. (Legal) that section 12 should be deleted. He further submits that according to the report of Chemical Examiner the swabs were not stained with semen. He further submits that the story given by the prosecution is unnatural as the victim was himself was a young boy. He submits there was two days delay in loading the F.I.R.

4. Learned Additional Advocate‑General has read before me section 361, P.P.C. and submits that charge can be framed under section 377, P.P.C. but not under section 12, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 because the present case does not fall within the category of definition of kidnapping.

5. On the other hand learned counsel for the complainant submits that according to section 12 of the said Ordinance, this is a case in which a victim was abducted by the three accused persons and then sodomy was committed.

6. I have heard the learned counsel for the parties. In the instant case section 361, P.P.C. which deals with kidnapping is reproduced below:‑‑ "

361. Kidnapping, from lawful guardianship.‑‑‑ Whoever takes ,or entices any minor under fourteen years of age if a male, or under sixteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship." A bare perusal of section 361, P.P.C. would show that the facts of the case are not attracted in the circumstances mentioned above and there was A no kidnapping because even according to the prosecution case the victim was taken to the nearby place which was at some distance. Learned counsel for the petitioner has also relied upon 1985 SCMR 1822 (Shariat Bench) the, judgment against of the Federal Shariat Court, Islamabad, headnote (d) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑S. 12 is given below ??????? ? "S.12‑‑‑Kidnapping‑‑‑Existence of intention or reasonable knowledge of accused‑‑‑Accused charged with offences under S.377, P.P.C. and kidnapping‑‑‑Abduction neither intended nor object of crime but to commit sodomy alone‑‑‑Merely because victim was moved a few paces in terrorism or shoved along to a suitable place, not to make additional offence under S.12 of Ordinance (VII of 1979)." After having gone through the F.I.R., report of the Chemical Examiner, Citations produced by the learned counsel for the parties, definition of section 361, P.P.C. and that of section 12, Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979, I am of the opinion that this is a case in which the provisions of section 12 of the abovesaid Ordinance' are not attracted and even the learned Additional Advocate?-General has very candidly conceded the submissions made by the learned counsel for the petitioner. In this view of the matter, the charge framed by the learned Additional Sessions Judge under section 12, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is set aside and the case is remanded to the competent Court of jurisdiction for trial under section 377, P.P.C. Disposed of. N.H.Q./S‑207/L????????????????????????????????????????????????????????????????????? Revision petition accepted.