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Criminal Revision No. 1056 of 1975, heard on 6th February 1976.

-----S. 438‑Revision‑Charge, quashment of---‑Court framing charge under S. 377, P.P.C., on basis of evidence disclosing no such case‑Prosecution prayer for permission to adduce further evidence yet to be considered and decided‑Charge quashed, in circumstances‑Court ordered to frame charges after considering, evidence including additional evidence, if case made out Penal Code (XLV of 1860), S 377.‑‑‑[Revision (criminal)].

The facts of this case are as follows:‑--

Shakeel Ahmad aged about 4 years grandson of Muhammad Din complainant was abducted by Muhammad Arif accused on 22‑5‑1972 for 4.omrnitting unnatural offence. The accused was seen with the child on a cycle by Shahbaz P. W. Khan and Muhammad P. W. Salim P. Ws before the alleged occurrence. In the evening the accused returned home but the child was not with him. When questioned by the complainant, the accused could not give any plausible explanation about the child. A case was registered with the Police of P. S. City. Sialkot under section 363, P. P. C. for the abduction of the child who was later on recovered from the quarto of Muhammad Siddiquo Sepoy at the instance of the accused. After investigation the accused was challaned under sections 363 and 377, P. P.C. and sew up for trial in the Court of Mr. Rafiq Ahmad Awan M, I. C. Sialkot. Seven P. Ws., were examined in Court in support of the prosecution version.

The learned Magistrate after going through the evidence on record framed a charge under section 377, P. P. C. The proceedings are forwarded for revision on the following grounds:‑

(1) The victim was not produced as a P. W. He was allowed to he summoned on the application of the P. S. T. but no efforts were made to secure his attendance and the evidence for the prosecution was closed by the Magistrate.

(2) According to the provisions of section 253, Cr. P. C. it is incumbent upon the Magistrate that he should see that the evidence brought on record is sufficient to warrant conviction if un‑rebutted and only then he should proceed to frame the charge. In the present case, the deposition of the victim or any other material evidence which should connect the accused with the offence was not brought on record. The evidence on record is insufficient in the ordinary circumstances to frame a charge against the accused. The Magistrate has acted in a haste and improper fashion. The provisions of P L D 1966 Kar. (334) also support the above contention where it has been held that the High Court can interfere where a person is being pro secuted on a charge which on the evidence produced by the prosecution does not exist, as this would amount to harassing the accused and abuse of process of law.

The case is, therefore, submitted for orders of the Chief Justice and Judges of the High Court of Punjab, Lahore. It is, recommended that the order of the lower Court may be set aide.

Before Aslam Riaz Hussain

Mian Ataur Rehman for Petitioner.

Nemo for Respondent.

Date of hearing : 6th February 1976.

This is a reference by the learned District Magistrate, Staikot, under section 438, Cr. P. C.

2. The facts of the case, as sated in the reference, briefly are as follows :‑

"Shakeel Ahmad aged about 4 years grandson of Muhammad Din complainant was abducted by Muhammad Arif accused on 22‑5‑1972 for committing unnatural offence. The accused was seen with the child on a cycle by Shahbaz Khan and Muhammad Salim P. Ws. fore the alleged occurrence. In the evening the accused returned me but the child m as not with him. When questioned by the complainant, the accused could not give any plausible explanation bout the child. A case a as registered with the police of P. S. City Sialkot under section 363 P.P.C. was later on recovered from the quarter of Muhammad Siddidue Sepoy at the instance of the accused. After investigation the accused was challaned under section 363/377, P. P. C. and sent up for trial in the Court of Mr. Rafiq Ahmad Awan M. I. C. Sialkot. Seven P.Ws. were examined in Court in support of the prosecution version the learned Magistrate after going through the evidence on record framed a charge under section 377, P. P. C."

3. The learned District Magistrate has expressed the view that on the evidence recorded by the learned trial Magistrate an offence under section 377, P. P. C. is not made out, yet the learned Magistrate has framed the charge under section 377, P. P. C. on insufficient, evidence.

4. I have gone through the evidence with the help of the learned State counsel. I agree with the learned District Magistrate. The evidence brought on the record only makes out an offence under section 363, P. P. C. The learned State counsel, however, submits that the P. S. I. has made an application to the learned trial Magistrate praying for permission to adduce further evidence which will bring the offence under section 377. P. P. C. That application has not yet been decided.

5. In view of the above discussion the charge under section 377, P. P. C. is quashed. The learned trial Magistrate is ordered to reconsider the evidence including the evidence of the additional witnesses which the prosecution desires to examine (provided he allows the application or merits), and frame a charge for the offence made out by the evidence. The reference is disposed of.

6. Let the file of the case be returned to the, learned trial Magistrate.

Revision allowed.

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