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Petition for Special Leave to Appeal No. 6 of 1986, decided on 5th April, 1986.
‑‑‑S. 417(2)‑‑Penal Code (XLV of 1860), S.451‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 18/10‑‑Accused were acquitted under S. 265‑K, Cr.P.C. by Trial Court‑‑Ingredients of S.451, P.P.C. were not proved‑‑Order of acquittal was based on sound reasons‑‑Trial Court turning down request of prosecution to amend charge‑‑Prosecution, held, was duty bound to have put in challan under proper provisions of a and it could not be permitted to alter its stand to fill in lacuna in its case‑‑Order of acquittal upheld in circumstances.
Abdul Qayyum for the Petitioner.
Date of hearing: 5th April, 1986.
Muhammad Akhtar son of Sher Muhammad Awan resident of Mohallah Latifal, Nausherah, District Khushab has filed this petition for special leave to appeal against the judgment of learned Sessions Judge, dated 21‑9‑1985, under section 417(2) of Cr.P.C. He has cited Muhammad Amir and Mat. Nek Bakht, a widow (daughter of Surkhroo Khan) as respondents. Muhammad Akhtar is not satisfied with the impugned judgment by means of which the two respondents were acquitted under section 265‑K, Cr.P.C. He wants that the impugned order be set aside and the case be remanded for trial.
2. Muhammad Akhtar by means of application, dated 12‑10‑1984 moved Resident Magistrate in which he alleged that Mst. Nek Bakht was not a good woman. She was leading a sinful life and she was carrying on with Muhammad Amir.
3. On the application of Muhammad Akhtar a raid was organised on 12-10‑1984 at 9.30 p.m. It was headed by the Resident Magistrate. Raiding party went to the house of Nek Bakht and knocked at the door. Mat. Nek Bakht opened the door and said that she was alone in the house. But on search of the room Muhammad Amir was found hiding.
4. A case under section 451, Cr.P.C. read with section 18/10 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was registered against Muhammad Amir and Mat. Nek Bakht. Both were tried and acquitted by the learned Sessions Judge.
5. Learned counsel who appeared in support of this petition contended that the acquittal was not in accordance with law. It was based on misreading of evidence. The medical evidence proved that Muhammad Amir was potent to perform sexual intercourse whereas Mat. Nek Bakht was used to sexual intercourse.
6. Last of all learned counsel submitted that the judgment is based on presumption, supposition and conjectures.
7. I do not think it is so. On the other hand I find that the learned Sessions Judge gave sound reasons for discharging the two respondents. He rightly turned down the request of the D.D.A., to amend the charge. He further found that the ingredients of section 451, Cr.P.C. had not been proved.
8. It was the duty of the prosecution to have put in the challan under proper provision of law. Prosecution could not be permitted to alter its stance in order to fill in lacuna in the prosecution case.
9. I do not think the impugned judgment as such calls for any interference especially when there is no legal error.
10. Petition for special leave to appeal is accordingly dismissed.
H.A.K. Petition dismissed.
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