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

---S. 253-Trial Court closing prosecution evidence without first deciding application made by prosecution to- adduce further evidence and proceeding to frame charge against accused under S. 377, P. P. C. on insufficient evidence-Charge framed under S. 377, P. P. C. quashed and Court directed to consider request of pro secution on merits and then to reconsider whole evidence, including evidence of additional witnesses whom prosecution desired to examine, before framing charge afresh.

P L D 1962 Kar. 334 rel.

The facts of this case are as following: -

Shakeel Ahmad aged about 4 years grand son of Muhammad Din complainant was abducted by Muhammad Arif accused on 22-5-1972 for committing unnatural offence. Shahbaz P. W., Khan, Muhammad and Salim P. Ws. saw the accused with the child on a cycle 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, a P. C. for the abduction of the child who was later on recovered from the quarter of Muhammad Siddique Sepoy at the instance of the accused. After investigation the accused was chahane6 under sections 363, 377, P. P. C. and sent up for trial in the Court of Mr. Rafiq Ahmad Awan, M. 1. 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 be summoned on the application of the P. S. 1. But no efforts were made to secure his attendance and the Magistrate closed the evidence for the prosecution.

(2) According to the provisions of section 253, Cr. P. C. it is incumbent upon the Magistrate that he should see the evidence brought on record sufficient to warrant conviction if unrebutted 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 1962 Kar. 334(E) also support the above contention where it has been held that the High Court can interfere where a person is being prosecuted on a charge which on the evidence produced by the pro secution 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 aside.

Mian Ataur Rehman for the State.

Nemo for Respondent.

Date of hearing: 6th February 1976.

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

2. The facts of the case, as stated in the reference, briefly are as follows :-

"Shakeel Ahmed aged bout 4 years grand son of Muhammad Din complainant was abducted by Muhammad Arif accused on 22-5-1972 for committing unnatural offence. Shahbaz Khan and Muhammad Salim P. Ws. saw the accused with the child on a cycle 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 quarter of Muhammad Siddique 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 can record framed a charge under section 377, P. P. C."

3. The learned District Magistrate has expressed the view that o 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. 1. 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 on 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.

Reference allowed.

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