2010 PLP 695 (YLR)

SYED ZULFIQAR ALI BOKHARI, J.

Through this petition the petitioners have assailed the order dated 6-6-2006 passed by learned Additional Sessions Judge, Kabirwala through which he dismissed the application under section 265-K, Cr.P.C. filed by the petitioners.

2. Learned counsel for the petitioners cc ,tends that initially the case F.I.R. No.349 dated 8-12-2005 was registered under section 337-J, P.P.C. After receipt of report of chemical examiner section 337-J, P.P.C. was deleted by the I.O. as no poison or intoxicants were detected in the sample sent by the police. Later on, on the supplementary statement of the complainant section 10(3), P.P.C. Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was added. The police applied to the Magistrate for medical examination of Mst. Shazia, Mst. Halima and Mst. Hasina but when the I.O. reached the hospital for medical examination of above-said ladies, Mst. Shazia and Mst. Halima refused to get them medically examined stating that no one has committed Zina with them. However, Mst. Haseena in the statement under section 161 Cr.P.C. alleged that she was subjected to Zina-bil-Jabr. The allegation, of Zina was levelled only against Imran, Petitioner No.2 whose DNA test was ordered by the Magistrate on 12-12-2005 which was conducted and result was received through which allegation levelled by Mst. Haseena was found false. Learned counsel for the petitioners submits that there was no eye-witness of the alleged occurrence and allegations regarding giving intoxicants in rice and commission of Zina by Imran, Petitioner No.2 with Mst. Haseena were falsified through report of Chemical Examiner as well as DNA test report. He submits that in the circumstances, there is no chance of conviction of the petitioners in the case. The continuation of trial will be abused of process of Court. He submits that the trial Court has illegally dismissed the application under section 265-K, Cr.P.C. without applying its judicial mind.

3. Learned counsel appearing on behalf of the complainant submits that since the allegation against the petitioner relates to Islamic laws so this petition only lies before the Honourable Shariat Court. This petition before the High Court is incompetent and does not lie. He submits that sufficient material is available on record to connect the petitioners with commission of offence. The allegations levelled by the prosecution could only be proved through trial. He supported the impugned order passed by learned Additional Sessions Judge and prayed for dismissal of the petition.

4. I have heard learned counsel for the parties and perused the record.

5. The initial charge levelled by the complainant of giving rice mixed with intoxicants was falsified through report of Chemical Examiner as no intoxicant was detected in the material sent to the chemical examiner for report. Later on, through supplementary statement section 10(3) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was levelled against the petitioners. Mst. Halima and Mst. Shazia refused to get medically examined stating that no one has committed Zina with them. The statement of Mst. Haseena under section 161 Cr.P.C. was recorded through which she implicated Imran Petitioner No. 2 for commission of Zina with her but through report dated 14-2-2006 of DNA test, the allegation of Zina was also falsified as DNA of Imran, Petitioner No.2 do not match with DNA of person who committed Zina with Mst. Haseena Bibi. Petition under section 561-A Cr.P.C. lies before the High Court because against the final orders/judgments passed by learned Additional Sessions Judge or Sessions Judge under Hudood Laws only appeal or revision lies before the Honourable Shariat Court but from registration of case till announcement of judgment in the trial of Hudood cases against all orders passed by the trial Court, the remedy lies before the High Court like grant or cancellation of bail etc. In this case prosecution has no evidence against the petitioners and in the circumstances charge is groundless, the continuation of trial in this case shall be abuse of process of law and on the basis of available material, there is no chance of conviction of the petitioners. This petition is allowed. The order dated 6-6-2006 passed by learned Additional Sessions Judge, Kabirwala is set aside, petition under section 265-K, Cr.P.C. filed by the petitioners is allowed and petitioners are acquitted from the charges. H.B.T./T-43/L????????????????????????????????????????????????????????????????????????? Petition allowed.