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Criminal Revision No.102/L of 1986, decided on 26th February, 1987.

--Art.203-DD--Criminal Procedure Code (V of 1898), S.265-K--Penal Code (XLV of 1860), S.377--Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12--Revisional jurisdiction, exercise of- Revision against acquittal--Victim boy taken to nearby sugarcane field from village Abadi--Field adjacent to Pugdandi in the vicinity of village--Material on record clearly disclosing only intention to commit sodomy--Accused neither enticing nor abducting boy--Held, there was no abduction or kidnapping and as such no offence under S.12 of Ordinance was made out--Trial Court was left with no jurisdiction to try it under Offence of Zina (Enforcement of Hudood) Ordinance, 1979, case was therefore, rightly forwarded to Magistrate for trial under S.377, P.P.C.

Muhammad Tufail v. The State P L D 1984 F S C 23; Shamas Saeed Ahmad Khan v. Shafaullah 1985 S C M R 1822 and Muhammad Akhtar v. Muhammad Shafique and another 1986 S,C" M R 533 ref.

Raja Muhammad Muzaffar for Appellant.

S.M. Zubair,-A.A.-G. with M.A. Zafar for Respondents.

Date of hearing: 26th February, 1987.

-This is a revision by Muhammad Yousaf, first informant, against the order, dated, 31-8-1986, of the Additional Sessions Judge, Toba Tek Singh, who acquitted Saif-ur-Rehman, respondent, under Section 265(K) Cr.P.C., of .the charge under Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and redirected record of the case for retrial of the respondent, under Section 377 P. P.C. by the Ilaqa Magistrate.

2. On 21-2-1986, at about 10.00 a.m. Zahid Amin, aged seven years, resident of Chak No.395/J.B., tehsil and district Toba Tek Singh, was playing when Saif-ur-Rehman, respondent, asked to accompany him to his land on which respondent took the child to a sugar-cane field, removed his shalwar, made him lie on the ground and started committing unnatural offence with him. The child raised cries due to pain which attracted Abdul Ghaffar and Shahid Mahmood who raised lalkara that they were reaching the spot as a result of which respondent left the child and ran away. Muhammad Yousaf, petitioner, father of Zahid Amin, was employed in Ujala Textile Mills, Jhang, where he received information about it, on 22-2-1986 and reached home in the village where his son narrated him the occurrence. The respectables of the village made effort for a compromise to which Muhammad Yousaf petitioner did not agree. After getting Zahid Amir: medically examined from the Civil Dispensary; Chak No.394/J.B., he made a statement before Muhammad Ashraf, Assistant Sub-Inspector, at More Khanpura, Chak No.393/J.B. at 12.30 p.m. on which forma First Information Report was registered at Police Station, Toba Tek Singh, on 24-2-1986 at 1.30 p.m.

3. After investigation police challaned Saif-ur-Rehman, respondent, in Court and submitted its report under Section 173 Cr.P.C. on which the learned Ilaqa Magistrate took cognizance on 20-9-1986 under Section 190 (3) Cr.P.C. and sent the case for trial by the Court of Session under the Hudood Ordinance. It was entrusted to the learned Additional Sessions Judge, Toba Tek Singh, for trial. The case car up before the learned Additional Sessions Judge, Toba Tek Singh, on 31-8-1986 for framing charge against the respondent for which the learned Additional Sessions Judge, perused statement of the victim recorded under Section 161 Cr.P.C. and went through the site plan prepared by the Investigating Officer, on 24-2-1986 which disclosed that the village abadi was adjacent to the land of Square No.64 and place of occurrence was also adjacent to a pagdandi in the vicinity of the village on which the learned Additional Sessions Judge arrived at the conclusion that only intention of the respondent appeared to be to subject Zahid Amin to unnatural offence and no abduction or kidnapping was involved. In the circumstance learned trial Judge acquitted respondent under Section 265 (K) of Cr.P.C. of the offence under Section 12 of Zina (Enforcement of Hudood) Ordinance and held that his trial under Section 377 P. P. C. shall take place before the Ilaqa Magistrate for which record of the case was redirected. This is a revision against the order.

4. It has been argued on behalf of the first informant-petitioner that order under revision could not be passed because it had the effect of separating the offences under Section 12 of the offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under section 377 P.P.C. which could not be done in view of the provisions contained in Section 265(x) Cr.P.C. which authorizes acquittal of the accused at any stage only if there is no probability of the accused being convicted of any offence. It was further submitted that it will change the forum of trial and appeal. It was also submitted that the trial Court had no power in law to redirect trial of the respondent under Section 377 P. P. C. by, a Magistrate. On merits it was submitted that a clear case of abduction if not kidnapping, under Section 12 of the Ordinance, was made out as the boy was taken away deceitfully. On behalf of the State and the respondent it was submitted that no case under Section 12 of the Ordinance was made out because removal of the child for a short distance was neither kidnapping nor abduction. It was further submitted that power under Section 265(K) Cr.P.C. could be exercised at any stage even before framing of charge and case can be sent to a Magistrate for trial under Section 377 P.P. C.

5. On perusal of the record, the trial Court came to the conclusion that the boy was taken to the sugar-cane field from the village abad which was adjacent to a pugdandi in the vicinity of the village and therefore, there was no abduction or kidnapping, the only intention being to subject the boy to unnatural offence, The material before it clearly disclosed that the only intention was so commit sodomy and the accused never enticed or abducted the be v. The view of this Court is that where intention of the accused is- to commit unnatural offence he cannot be convicted for kidnapping or abduction. In the case of Muhammad Tufail v. The State P L D 1984 F S C 23, the victim was taken from a path to nearby Wahn and this Court held that it could not constitute kidnapping or abduction as contemplated by Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The same view was taken in Shamas Saeed Ahmad Khan v. Shafaullah 1985 S C M R 1822. It was held that merely because victim was moved a few paces in terrorem or shoved along to a suitable place, will not make additional offence under Section 12 of the offence of Zina (Enforcement of Hudood) Ordinance, 1979. In the case of Muhammad Akhtar v. Muhammad Shafique and another 1986 S C M R 533, it was held that removal of child only a few paces with object and purpose to commit sodomy and not at all to remove or take away child from lawful guardianship, will not make an additional offence under Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

6. In the instant case the victim was removed to a nearby sugar cane crop and on the mater before it there was no probability o the accused being convicted of any offence by the trial Court. I was justified in coming to the conclusion that no offence under Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 197 was made out. After this finding the learned Additional Sessions Judge, Toba Tek Singh, was left with no jurisdiction to try it as Hudood case. It was rightly forwarded to the Court of learned Magistrate for trial under Section 377 P.P.C. The contentions raises] before us on behalf of petitioner have no force. No ground is made out for interference in exercise of revisional jurisdiction of this Court.

6. In view of the above, there is no merit in this petition of revision which is dismissed.

S.A. /337/F.Sh.C. Appeal dismissed.

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