Ghulam Qadir

IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

Crl. Misc. No._____________/T/2000 Ghulam Qadir S/o Allah Ditta, caste Ladhi Pathan, R/o Basti Pathan Wala, Mouza Pir Sadat Tehsil & District Lodhran. Petitioner VERSUS 1.

State

2.

Sessions Judge, Lodhran.

3.

Shabbir Ahmad S/o Allah Ditta.

4.

Manzoor Ahmad S/o Allah Yar

5.

Abdul Hafeez S/o Abdul Khaliq

6.

Muhammad Aslam S/o Fazal Ahmad

7.

Abid Hussain S/o Ata Muhammad

8.

Sabir Hussain S/o Shah Muhammad

9.

Muhammad Ajmal S/o Fazal Ahmad

10.

Niaz Ahmad S/o Abdul Hameed

11.

Fida Hussain S/o Sarfraz All Otra by caste, Rs/o Kot Pir Sadat, Tehsil & District Lodhran.

12.

Allah

Bakhsh

alias

Saddoo

Malik

S/o

Ghulam

Muhammad, caste Khokhar, R/o Kotla Pir Sadat, Tehsil & District Lodhran. 13.

Allah Ditta S/o Pir Bakhsh, caste Otra, R/o near Pul Sodi Wali, Tehsil & District Lodhran. Respondents

Petition U/s 435 Cr.P.C. read with Section 526 Cr.P.C. against the order dated 19.9.2000 passed by the respondent No. 2 on the application dated 19.9.20000 filed by the petitioner.

F.I.R. No. 131/98 Dated 27.04.98 P.S. Qureshi Wala(Lodhran)U/s 16/7/79 I/L

Respectfully Sheweth: 1.

That the names and addresses of the parties have correctly been given for the purpose of their summons and citations.

2.

That the above mentioned F.I.R. was lodged on the statement of petitioner. He states that he is a cultivator. On the day of occurrence, at 7/8 A.M. he along-with his family was harvesting the wheat crop, when Haji Karam Hussain, Rana Qadir Bukhsh and Rana Muhammad Bakhsh caste Otra residents of same village came to his house. They called the petitioner and his wife Mst. Rehmat Mai and told that last night, Fiaz Hussain the son of petitioner had abducted Mst. Rukhsana Mai the daughter of Rana Ashiq Hussain Otra of same village. They directed to produce the same till evening. The petitioner and his wife became confused due to this situation. After some time, the petitioner along-with his wife and son namely Mushtaq Ahmad left the house in search of Fiaz Hussain and abductee. At about 9/10 A.M. when they reached near the Adda Isranwan Mari, suddenly Niaz Ahmad S/o Abdul Hafeez with pistol, Shabbir Ahmad S/o Allah Ditta with Sota on one motor cycle, Manzoor Ahmad S/o Allah Yar with Sota, Muhammad Aslam S/o Fazal Ahmad with Sota on one motor cycle, Allah Bakhsh S/o Pir Bakhsh with Hatchet, Qasim S/o Muhammad Hussain with Sota on one motor cycle, Mujahid Hussain S/o Atta Muhammad with Sota, Sabir Hussain S/o Shahid Khan empty handed, Sajjad S/o Fazal

Ahmad with pump on cycle, Abdul Hafeez S/o Abdul Khaliq with Sota, Saddo Malang with pistol, all Otra by caste residents of Kotla Pir Sadat obstructed. Manzoor raised Lalkara giving direction to abduct the wife of petitioner because of abduction of his niece. On this Saddo Malang pointed pistol on the petitioner’s head and threatened to fire on resistance. Abid Hussain caught hold of petitioner. Manzoor and Shabbir put Mst. Rehmat Mai forcibly on the motor cycle. Niaz Ahmad was driving the motor cycle, when Allah Bakhsh seated behind the wife of petitioner, and remaining accused persons caught hold of Mushtaq Ahmad. On the hue and cry, Muhammad Nawaz, Mehboob Ahmad along-with other persons of locality attracted to the occurrence; and got released the petitioner and his son when the wife of petitioner was taken away by the Niaz Ahmad and Allah Bakhsh. He further alleged that the accused persons had abducted Mst. Rehmat Mai under the common intention for the purpose of Zina. Hence, this F.I.R. Copy is Annex “A” and better copy Annex “A/1”. 3.

That even the statement of abductee, Mst. Rehmat Mai was recorded U/s 164 Cr.P.C. in which she alleged the allegations of gang rape, but the police challaned the accused person under sections 337-F, 354-A, 148/149 P.P.C. The petitioner submitted an application before the learned Judge, Antiterrorism Court No. 1 for taking the cognizance, but the same was refused vide order dated 28.4.1999. it was further advised that during the course of evidence, the matter of jurisdiction can be decided. The copy of statement under section 164 Cr.P.C. is Annex “B”. Copy of order dated 28.4.99 is Annex “C”.

4.

That the investigation of this case was conducted by the different agencies of police and ultimately challaned U/s 337F (iii), 354-A, 148/149 P.P.C. along-with Sec. 16/10 (4) 7/79 Islamic Law and submitted the challan before the learned

Magistrate. The copy of Report U/s 173 Cr.P.C. dated 4.6.99 is Annex “D”. 5.

That the learned Sessions Judge started the trial and recorded the statement of Rehmat Mai as PW-1 on 7.8.99. In this statement she again confirmed the allegations of gang rape, on which the learned Sessions Judge transferred the case to the Judge, Anti-terrorism Court, Multan with the observation that the prima facie case falls within the ambit of Sec. 10 (4)/7/79 Islamic Law. The order of learned Sessions Judge was assailed before the Hon’ble High Court through Crl. Misc. No. 81/Q/99 and vide order dated 8.2.2000, the order of learned Sessions Judge for the transfer of case/trial to the court of Judge Anti-Terrorism Court, was set aside. However, it was advised, because the Rehmat Mai was not crossexamined, so that order of transfer is not sustainable in the eyes of law, and there is no allegation of gang rape in the statement recorded by Police U/s 161 Cr.P.C. on 28.4.98. This order of Division Bench of Hon’ble High Court was challenged before the Hon’ble Supreme Court through a Crl. Petition No. 105-L of 2000 which was dismissed vide order dated 7.4.2000 and the order of Hon’ble High Court was upheld. Copy of In chief of Rehmat Mai along-with order dated 7.8.99, order of Hon’ble High Court dated 8.2.2000, copy of statement U/s 161 Cr.P.C. and order of Hon’ble Supreme Court dated 7.4.20000 are Annexes “E, F, G & H”.

6.

That the PW-1 was cross-examined on 7.8.2000 and the allegations of gang rape were not denied by the Rehmat Mai. Keeping in view the situation the petitioner submitted an application on 19.9.2000 seeking the transfer of case to the forum of Anti-terrorism Court, Multan. This application was rejected on the same day and the trial was proceeded further. The copy of application and order are Annexes “J & K”. This order dated 19.9.20000 is impugned inter alia on the following: -

GROUNDS a)

That the impugned order is against the principles of justice, natural justice and law of equity.

b)

That the impugned order is against the law and facts of the case.

c)

That now the statement under section 164 Cr.P.C. and evidence of adbuctee are in field, so much reliance cannot be placed upon statement U/s 161 Cr.P.C.

d)

That as per report U/s 173 Cr.P.C., the Investigation Agency has charged the accused persons for an offence U/s 10 (4) Prohibition (Enforcement of Hadood) Ordinance, 1979 along-with other offence, then it was a procedural defect to submit the challan before incompetent forum.

e)

That there is a competent court for the trial of offence U/s 10 (4) Prohibition (Enforcement of Hadood) Ordinance, 1979 under the Anti-terrorism Act, 1997. No court other than a court established under Act 1997, can proceed with the matter.

f)

That in the peculiar circumstances, proceedings before the learned Sessions Judge, Lodhran shall be corumnon-judice.

g)

That the impugned order has caused a great miscarriage of justice to the petitioner. In view of the above submissions, it is respectfully prayed that the impugned order dated 19.2.2000, may please be set aside and case F.I.R. No. 131/98 dated 27.4.98 P.S. Qureshi Wala (Lodhran) may please be transferred to the court of competent jurisdiction for trial.

Any other direction, order or relief, which this Hon’ble Court deems fit may graciously be awarded in the interest of justice and equity. Humble Petitioner, Dated: ___________ (Ghulam Qadir)

Through: Sheikh Muhammad Faheem, Hamad Afzal Bajwa, Advocate High Court, Advocate High Court, C.C. No. 20176 C.C. No. 20959 28-District Courts, Multan.

CERTIFICATE: Certified as per instructions of the client, that this is the first petition on the subject matter. No such petition has earlier been filed before this Hon’ble Court. Advocate

IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

Crl. Misc. No._____________/T/2000 Ghulam Qadir

Versus

State etc.

APPLICATION FOR STAY OF PROCEEDINGS The applicant respectfully sheweth as under: 1. That the contents of main petition shall be treated as integral part of this application. 2. That challan of the case was prepared and submitted under section 10 (4) Prohibition (Enforcement of Hadood) Ordinance, 1979, which is exclusively triable by the court established under Anti-terrorism Act, 1997. 3. That the trial before the learned Sessions Judge, Lodhran is “Corum-non-Judice”. 4. That this defect is not curable under section 537 Cr.P.C. It is, therefore, respectfully prayed that keeping in view the peculiar circumstances of the case in hand, proceedings before learned Sessions Judge, Lodhran may please be stayed till the final decision of main petition. Humble Applicant Dated: __________ (Ghulam Qadir) Through: Sheikh Muhammad Faheem, Hamad Afzal Bajwa, Advocate High Court, Advocate High Court, C.C. No. 20176 C.C. No. 20959 28-District Courts, Multan.

IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

Crl. Misc. No._____________/T/2000 Ghulam Qadir

Versus

State etc.

STAY APPLICATION AFFIDAVIT of: Ghulam Qadir S/o Allah Ditta, caste Ladhi Pathan, R/o Basti Pathan Wala, Mouza Pir Sadat Tehsil & District Lodhran.

I, the above named deponent do hereby solemnly affirm and declare that the contents of the above application are true and correct to the best of my knowledge and belief and nothing has been kept concealed thereto. DEPONENT

Verification: Verified on oath at Multan, this _____ day of October 2000 that the contents of this affidavit are true and correct to the best of my knowledge and belief. DEPONENT

IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

Crl. Misc. No._____________/T/2000 Ghulam Qadir

Versus

State etc.

AFFIDAVIT of: Ghulam Qadir S/o Allah Ditta, caste Lodhi Pathan, R/o Basti Pathan Wala, Mouza Pir Sadat Tehsil & District Lodhran.

I, the above named deponent do hereby solemnly affirm and declare that the contents of the above petition are true and correct to the best of my knowledge and belief and nothing has been kept concealed thereto. DEPONENT

Verification: Verified on oath at Multan, this _____ day of October 2000 that the contents of this affidavit are true and correct to the best of my knowledge and belief. DEPONENT

IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

Crl. Misc. No._____________/T/2000 Ghulam Qadir

Versus

State etc.

APPLICATION FOR DISPENSING WITH THE FILING OF CERTIFIED COPIES OF ANNEXURES. ========================================= Respectfully Sheweth:That certified copies of Annexures “___________” are not available. However, uncertified/photo state copies of the same have been annexed with the Petition, which are true copies of original documents. It is, therefore, respectfully prayed that this Hon’ble court may please dispense with the filing of aforesaid copies of documents. PETITIONER Dated: __________ (Ghulam Qadir) Through: Sheikh Muhammad Faheem, Hamad Afzal Bajwa, Advocate High Court, Advocate High Court, C.C. No. 20176 C.C. No. 20959 28-District Courts, Multan.

IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

Crl. Misc. No._____________/T/2000 Ghulam Qadir

Versus

State etc.

DISPENSATION APPLICATION

AFFIDAVIT of: Ghulam Qadir S/o Allah Ditta, caste Ladhi Pathan, R/o Basti Pathan Wala, Mouza Pir Sadat Tehsil & District Lodhran.

I, the above named deponent do hereby solemnly affirm and declare that the contents of the above petition are true and correct to the best of my knowledge and belief and nothing has been kept concealed thereto. DEPONENT

Verification: Verified on oath at Multan, this _____ day of October 2000 that the contents of this affidavit are true & correct to the best of my knowledge and belief. DEPONENT

IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

Crl. Misc. No._____________/T/2000 Ghulam Qadir

Versus

State etc.

INDEX S. No. NAME OF DOCUMENTS

ANNEXES PAGES

1

Urgent Form

__

__

2

Writ Petition.

__

1-11

3

Affidavit

__

13

4

Copy of F.I.R. & better copy.

A & A/1

15-17

5

Copy of statement U/s 164 Cr.P.C.

B

19-21

6

Copy of Order dated 28.4.99.

C

23

7

Copy of Report U/s 173 Cr.P.C.

D

25

8

Copy of In chief of Rehmat Mai.

E

27-31

9

Copy of Order dated 7.8.99.

F

33-41

10

G & G/1

43-59

H

61-69

12

Copy of Order dated 8.2.2000 & better copy. Copy of statement U/s 161 Cr.P.C. (better copy) & order dated 7.4.2000. Copy of application & order

J&K

71-79

13

Dispensation Application.

__

81

14

Affidavit.

__

83

15

Application for Stay of Proceedings.

__

85

16

Affidavit

__

87

17

Vakalatnama

__

89

11

PETITIONER Dated: ____________ Through: Sheikh Muhammad Faheem, Hamad Afzal Bajwa, Advocate High Court, Advocate High Court, C.C. No. 20176 C.C. No. 20959 28-District Courts, Multan.

TO WHOM IT MAY CONCERN

Certified that order dated 19.9.2000 passed by the learned Sessions Judge Lodhran on an application filed by the complainant Ghulam Qadir, seeking the transfer of trial “State vs Shabbir Ahmad etc.” of F.I.R. No. 131/98 P.S. Qureshi Wala (Lodhran), is hereby assailed before the Hon’ble High Court, Bench, Multan, through a petition, which was entertained vide Diary No.

dated

19.10.2000, and shall be fixed for hearing on 23.10.2000. Yours sincerely, Sh. Muhammad Faheem, Advocate High Court, Multan.