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Criminal Revision No. 345 of 1982, decided on 4th December, 1982.

-- S. 435/439 and Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 11-Revision against order of Additional Sessions Judge remanding case and observing that facts disclosed a case under S. 11 of Offence of Zina (Enforcement of Hudood) Ordinance-A: legations against accused that he dragged victim and gave her danda blows-Prosecution unable to convince that observa tion made by appellant Court bear out any case for trial under S. 11 of Ordinance-Revision accepted and case remanded to appellate Court (Additional Sessions Judge) for rehearing and decision in accordance with law.

Mian Qurban Sadiq Aram for Petitioner.

Sh. Riaz Ahmad, A.-G. assisted by Khalil Pamday A. A.-G. and C. M. Latif for the State.

Date of hearing : 4th December, 1982.

This Revision Petition is directed against the order dated 3rd June, 1982 of Sabah Mohyuddin Khan, Additional Sessions Judge., Mianwali whereby the learned Additional Sessions Judge set aside the order dated 3rd May, 1982 of Magistrate 1st Class, Bhakkar whereof the learned Magistrate had convicted the petitioner on two counts i.e. under sections 354 and 323, P. P. C. and sentenced him to undergo 6 months' S. I. on each count. Both the sentences were ordered to run concurrently. The learned appellate Court while setting aside the order of the learned lower Court observed that the facts of the prosecution case disclosed a case under section 11 of the Offence of Zifla (Enforcement of Hudood) Ordinance, 1979 against the petitioner, he therefore, directed the learned trial Court that the case be sent up for trial to the Court of Session as required under section 190 of the Code of Criminal Procedure.

2. The first information report in the case was lodged by Ahmad Bakhsh P. W. 1, a nephew of Mst. Hamidan (P. W. 2) which was registered under section 354/323, P. P. C. at Police Station Bhakkar. At the trial P. W. 1 Ahmad Bakhsh, P. W. 2 Mst. Hamidan and P. W. 3 Nazu gave the ocular account. Msr. Hamidan P. W . 2 has stated that she had gone to the fields where she started picking saag' at about peshiwela. The petitioner armed with danda came there and dragged her towards the cluster of Date trees and wanted her to submit to illicit intercourse. When she offered resistance he gave her 2/3 danda blows on her left hand, right arm and neck. The P.Ws. were attracted. She was medically examined by the doctor, who found three contusions on her person. The injuries were declared simple.

3. Learned counsel for the petitioner has vehemently argued that the observation made by the learned appellate Court that the facts of prosecu tion case disclosed a case under section 11 of the Offence of Zina (Enforce ment of Hudood) Ordinance, 1979, is not well-founded. It is contended that it is Mst. Hamidan's own case that she was given danda blows by the petitioner and when the P. Ws. came he was saying that since Mst, Hamidan was picking saag' from his field, he has, given her beating. Learned counsel for the petitioner has pointed out that the petitioner who is aged 70 years even otherwise may not have been fit to perform the sexual inter course, and that there is no evidence that her shalwar or shirt were removed by the petitioner. It is also argued that abduction which is a pre-requisite for application of section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was not complete because the only allegation against the. petitioner is that he had dragged her a few yards and then started giving her danda blows. Learned counsel for the# petitioner has taken me through the evidence.

4. The learned Advocate-General has not been able to convince me that the observations made by the learned appellate Court bear out any, case for trial under section 11 of the Offence of Zina (Enforcement off Hudood) Ordinance, 1979.

In the circumstances, the revision petition is accepted. The order dated 3rd June, 1982 passed by the learned Additional Sessions Judge is set aside. The appellate Court shall rehear the appeal of the petitioner B on merits and decide the same in accordance with law. In view of the fact that Mr. Sabah Mohyuddin Khan, Additional Sessions has already expressed his opinion, it will be in the fitness of things that the appeal of the petitioner is heard by the Sessions Judge himself.

Petition accepted.

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