1999 PLP 1638 (MLD)

Criminal Revision Petition No.6/I of 1998 assails an order dated 3-4-1998 passed by the Court of Additional Sessions Judge, Rawalpindi, Criminal Miscellaneous Application No.81/I of 1998 arises from the facts and documents submitted in the abovementioned petition. I propose to dispose of both the petition and application by this single judgment.

2. Facts of the case in brief are that one Mirza Gul Shameer Khan Moughal submitted an application before D.I.-G., Police Rawalpindi on 2-7-1997 stating therein that since about 20 years he is residing in Dubai and is labouring there to earn foreign exchange for the country. In the said application, he has alleged that his son Abdul Qadoos, aged 16 years, is a student of Punjab College of Commerce Rawalpindi. He has alleged further that on 13-4-1997 at about 5 p.m. one Sabeel Mughal son of Khan Muhammad Khan, resident of his own village Bangoin Azad Kashmir, made a telephonic call to his son named above and called him for some important work in Room No. 18 of Kashmir Hotel Saddar Rawalpindi. As soon as his son reached the abovementioned room of Kashmir Hotel, two persons namely Tahir Akram and Abid Moughal as well as the calling person Sabeel Mughal caught hold of him and then they made him naked forcibly and prepared naked photographs of his son after having removed his clothes. His son tried to get rid of these culprits but received fists and kickes and beating. After having prepared the pornographic photographs, the above mentioned three accused persons told his son that in case he wants that these photographs may not be shown to anybody then in future he should remain arranging money for them and permanently and as a first instalment he should arrange Rs.70,000 for them. They also threatened him that in case he informed any body about this incident then in that case he shall be killed and his traces shall not be left anywhere. It has also been alleged further that his son gave an application about this incident at Police Station Cantt. Rawalpindi against the accused but neither any case was registered by police nor any proceedings against the accused were initiated. It has also been alleged that the applicant/complainant came to know about this incident in Dubai. He sent many applications through Overseas Pakistanis Foundation but up to the time of the submission of this application nothing was done. Since his son, the victim, is minor in age and has been brought up in the village atmosphere, therefore, police did not care about his application in spite of his coming towards the police many a times. It has also been stated in the same application that the accused are roaming freely and are sending threats and are demanding money from his son and are also threatening that in case the money is not paid to them the nude photographs shall be sent to the people and his son- shall be disrespected in the society. He has also alleged further that the life of his victimised son is in danger. The accused persons are influential persons, and therefore, he had come to the D.I.-G. Police for report. An endorsement was made by the D.I.-G. of Police Rawalpindi on same day of submission of application i.e. 2-7-1997 to the D.S.P. Cantonment, Rawalpindi to take immediate necessary legal action and report facts within seven days. After necessary investigation an F.I.R. No.134 was lodged on 12-7-1997 at Police Station Cantt. Rawalpindi against all the three accused persons/respondents in Cr.R.No.6/I of 1998.

3. The grievance of petitioner Abdul Qadoos, the victim boy, in Cr.k. No.6/I of 1998 is that first of all the sodomy was committed forcibly with him by Respondent No.l (Abid Hussain) and Respondent No.3 (Tapir Harvon) whereas nude, obscene and objectionable photographs were drawn by Respondent No.2 (Muhammad Sabeel) and then he was forcibly taken to Azad Kashmir for the purpose of extorting money from him through black-mailing. After returning from Azad Kashmir, he submitted an application at the Police Station Cantt. Rawalpindi but due to the influence of some of the relatives of the accused persons/respondents who are well-known business men in Rawalpindi the police did not register the case. However, a "Report" was registered but no action was taken: More than two months after the incident his father came and submitted that above mentioned application before the D.I.-G. Police Rawalpindi, again a trick was played in the F.I.R. which was finally lodged against the accused persons in the sense that only minor offences under sections 384 and 506, P.P.C. were incorporated in the F.I.R. and the real offences under section 377, P.P.C., Article 12 of the Offences of Zina (Enforcement of Hudood) Ordinance, 1979 sections 365-A, 388 and 389, P.P.C. were not shown in the F.I.R. and for some time the police, which was under the influence of the accused persons, had not even arrested them but finally after much struggle and applications to the President of Pakistan and Prime Minister of Pakistan and other highly placed bureaucrats of police the accused were arrested. The challan against them was finally submitted on 6-2-1998 under sections 506, 342, 377 and 384, P.P.C. and also under Article 12, Offence of Zina (Enforcement of Hudood) Ordinance 1979, hereinafter to be referred to as the said ordinance. The case was finally entrusted to the Court of Additional Sessions Judge, Rawalpindi for trial which Court fixed date for framing of formal charge against the accused on 3-4-1998. In the meanwhile the petitioner victim submitted an application in the trial Court for addition and inclusion of the Offences under sections 365-A, 388 and 389 read with section 34, P.P.C. whereas the accused persons/Respondents also submitted an application for deletion of Article 12 of the said ordinance. The trial Court rejected the application submitted by the petitioner and admitted the application of the accused/Respondents and ordered for the deletion of Article 12 of the aid Ordinance and then the orders were made for transfer of the case to the Court any judicial Magistrate of Rawalpindi. This order of rejection of the application of petitioner and acceptance of the application of the accused has been impugned by the petitioner. In Criminal Miscellaneous Application No.81/I of 1998 the accused have pray that while deciding the Criminal Revision Petition No.6-I of 1998 the material found in Report No. 24 dated 22-4-1997 recorded at Police Station Cantt. Rawalpindi and an attested copy of order dated 27-8-1997 passed by Additional Sessions Judge Rawalpindi may be considered and brought on the record.

4. I have heard the learned counsel for the petitioner, respondents and State. The counsel for petitioner has contended that the nude photographs recovered by the police from two different sources do prove beyond any reasonable doubt that the petitioner victim by his complaints at various levels and statement under section 161, Cr.P.C. do inspire the confidence; that not only offence under article 12 of the said Ordinance is constituted but offences under sections 365-A, 388 and 389, P.P.C. read with section 34, P.P.C. are also completely constituted keeping in view of the facts of the case and for this purpose a proper appreciation of the facts has not been made by the impugned order. The counsel for respondents has contended that the Report No.24, dated 22-4-1997 Police Station Cantt. Rawalpindi does not refer to the telephonic call which has been added later m the complaint dated 2-7-1997 moved by the father of the victim after due deliberation and almost three months after the occurrence and, therefore according to him victim boy was neither kidnapped nor abducted to constitute the offences under Article 12 of the said ordinance; that the Report No.24 dated 22-4-1997 is registered 9 days after the occurrence for which delay no plausible explanation is coming forward; that originally an amount of Rs.60,000 hay, been shown to have been demanded from the victim in Report No.24 data 22-4-1997 but in the complaint dated 2-7-1997 it becomes Rs.70,000 that even offence under section 377, P.P.C. has not been alleged either in Report No.24 or in the complaint dated 2-7-1997; that although recovery of the nude photographs from the relatives, of accused has been shown in Sept. and October 1997, but the order dated 27-8-1997 made by Additional Sessions Judge Rawalpindi dismissing a petition for grant of bail to accused, Abid Hussain is making a reference to the said photographs which were shown by the courts to applicant and this fact proves that the so-called victim had supplied the same to the prosecution and he was a consenting party; that the ingredients of sections 365-A, 388 and 389 are not constituted; that after having been released the victim could have made complaint to the management of the hotel and the Culprits could have been apprehended immediately; that there are affidavits brought on tire record to prove the plea of alibi by accused Muhammad Sabeel; that the case lam- cited by the counsel for complainant/petitioner is based on head notes only but such notes do not clarify the import of rulings as has been enunciated in P LD 1989 FSC 11 and PLD 1988 SC 221; that framing the charge or altering it is the function of the trial court and interference by superior Courts prejudices the fair trial as is' laid in 1995 SCMR 1405. The counsel for State hay contended that Article 12 of the said ordinance is attracted whereas sections 365-A etc. of P.P.C. are not attracted.

5. At the outset I have applied my mind as to whether a jurisdiction for the prayers made by the petitioner is made out for the Federal Court. The prayer clause of Criminal Revision Petition No.6-1 of 1998 under; "In the circumstances, therefore, it is prayed that the impugned order dated 13-4-1998 may kindly be set aside and the application of the accused persons be rejected and the application of the petitioner (victim) for addition of offences under sections 388, 389 and 365-A be accepted, and Article 12 of Hadd Zina, 1979 may kindly be ordered to be restored the charge proposed. Any other relief found suitable under the circumstances of the case may also be granted." At this stage when the trial of the case has not yet commenced, I myself bound by following ruling at plancentia A, B and C enunciated by title Supreme Court of Pakistan and cited at Bar as 1995 SCMR 1405; Before us, the learned counsel for the petitioners has maintained that if the allegations made by Shakeel in the F.I.R. is accepted at its face value, no case punishable under section 12 of the Ordinance made out against the petitioners. He has prayed for the partial acquittal of the petitioners of the charge under section 12 of Ordinance. We have considered the arguments addressed by the learned counsel 4r the petitioners. We find that the case for trial is pending before learned Sessions Judge, Minawali. He has yet to frame the appropriate charge against the petitioners. So, examination of the merits of the case on the question of application of section 12 of the Ordinance would tantamount pre-empting the duties and functions of the trial Court which is neither permissible nor desirable. Furthermore, any observation on the merits of the case relatable to the charge under section 12 of the Ordinance is likely to prejudice the case of either party, not only to the extent of the charge under section 12 of the Ordinance but also the credibility of the witness, more particularly the victim of the crime. At the time of framing the charge, if after perusing the police report and all other documents and statements filed by the prosecution, the Court is of the opinion that there are no grounds for framing the charge under a particular section of the P.P.C., it may not frame the charge. The trial Court, even after framing the charge, can amend the charge at any stage in the light of the evidence and circumstances appearing in the case. For all these reasons, we do not see any cogent reason to interfere with the impugned order at this stage. Leave to appeal is, therefore, refused and the petition is dismissed with the observations that at the time of the framing of the charge the petitioners may object to the framing on charge under section 12 of the Ordinance and the trial Court would ac in accordance with law. In view of this ruling, I am not inclined to interfere into the proceedings at the trial stage as it shall tantamount pre-empting the duties and functions of the trial Court. Consequently, without making any remarks about merits of the case lest it prejudices the trial, the trial Court is directed to record evidence and during such proceedings it is free to add, alter and take out any offences from the charge or re-charge the respondents/accused in the light of evidence recorded and can amend the charge at an appropriate time while applying its judicial mind. Petition dismissed. N.H.Q./2000/FSC Order accordingly