2010 P Cr (PLP)

HAFIZ ABDUR REHMAN ANSARI, J.

Ghulam Hussain son of Haji Muhammad Bakhsh petitioner through this writ petition has called in question the order, dated 6-7-2009 passed by respondent No.2 learned Illaqa Magistrate, City Dunyapur and the order, dated 28-8-2009 passed by the learned Additional Sessions Judge, Dunyapur, District Lodhran.

2. Brief facts of the case are that F.I.R. No.170 dated 8-6-2009 was got registered by the petitioner/complainant with Police Station City Dunyapur, District Lodhran, for offences under sections 367-A/377, P.P.C. against accused persons, namely, Arif alias Haku; Tasawar alias Bilu, Muhammad Imran, Zubair alias Jobhi and Yousaf; Muhammad Yasir, who was made victim of unnatural offence was medically examined on 8-6-2009. After medical examination internal and external annals swabs were sent to the Chemical Examiner for detection of the material. Report of the Chemical Examiner was received as positive. Local police conducted investigation and presented the accused persons before the Illaqa Magistrate for physical remand on 6-7-2009, on which date the Illaqa Magistrate /respondent No.2 vide order, dated 6-7-2009 deleted the 'offence under section 367-A, P.P.C. and sent the accused persons to judicial lock-up. Feeling aggrieved by the said order, dated 6-7-2009 of the Illaqa Magistrate deleting the offence under section 367-A, P.P.C. the petitioner/complainant preferred a criminal revision petition before the learned Additional Sessions Judge, Dunyapur. The learned Additional Sessions Judge on 28-8-2009 dismissed the revision petition of the petitioner.

3. The learned counsel for the petitioner/complainant as well as learned counsel for the victim submits that on 6-7-2009 accused were produced for further physical remand. The learned Illaqa Magistrate could grant physical remand of the accused on the request of Investigating Officer or could refuse the same but he could not delete the offence under section 367-A, P.P.C. that the learned Illaqa Magistrate had no authority to delete section 367-A, P.P.C. from the F.I.R. Learned counsel further submits that the Additional Sessions Judge committed further illegality and irregularity in dismissing the criminal revision filed by the petitioner by assailing the order, dated 6-7-2009. Learned counsel vehemently contested issue whether section 367-A, P.P.C. is attracted or not. They argued that Illaqa Magistrate committed illegality by deleting section 367-A, P.P:C. from the F.I.R. as said section 367-A, P.P.C. is very much attracted because the victim boy was abducted. Further contends that the trial Court as well as the learned Additional Sessions Judge misapplied the law. Learned counsel further emphasized that the accused armed with deadly weapons abducted Yasir with the intention to commit the act of sodomy as such offence under section 367-A, P.P.C, is fully attracted. Learned counsel further submits that the Magistrate committed excess in exercise of his jurisdiction. Report of Chemical Examiner was positive which was sufficient incriminating material available on the record to show that the victim was taken to the Dera of Maulvi Abdul Razzaq where act of sodomy was committed by said accused persons.

4. I have heard the learned counsel for the petitioner and perused the file. Perusal of the order passed by the Magistrate 1st class, Dunyapur reveals that this order was passed after hot contest. Both the orders passed by the learned Magistrate and the learned Additional Sessions Judge, respectively are well-reasoned based on the dictum laid down by the Honourable Supreme Court in the cases reported as Ali Nawaz v. The State 1988 SCMR 601, Shamas Saeed Ahmad Khan v. The State 1985 SCMR 1822, Muhammad Akhtar V. Muhammad Rafique 1986 SCMR 533 and Abdul Wadood v. The State 1986 SCMR 1947. In case of Shamas Saeed Ahmad Khan 1985 SCMR 1822 (supra) it has been ruled that removal of a child only a few paces with object and purpose to commit sodomy, not at all to remove or take away from lawful guardianship, will not make an additional offence of abduction. The offence under section 367-A, P.P.C. could not be attracted. Learned counsel for the petitioner during arguments conceded that from where the victim, was taken away to a place at a distance of 15/16 yards is not far away. I find there is no judicial error in both the orders. The learned Sessions Judge further rightly observed that Naik Muhammad A.S.-I. and later on Shaukat Ali, S.-I. did not make any effort to arrest the remaining accused, as the police did not show any progress in the case. Even it is observed in the order dated 28-8-2009 that the complainant moved an application to the RPO, Lodhran but no positive report on the part of higher Police Officer. A copy of the judgment passed by the learned Additional Sessions Judge was directed by him to be sent to the DPO, Lodhran who was further directed to ensure justice by taking appropriate action against the delinquent police officials.

5. For the reasons discussed above, this writ petition has no force and the same is dismissed. H.B.T./G-122/L Petition dismissed.