MUHAMMAD AFZAL KHAN Versus STATE

ORDER

1. A challan under section 379, Penal Code and section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, was put in the District Criminal Court, Rawalakot, for trial by the Police.

2. After some of the proceedings were taken by the said trial Court, an objection was taken to its jurisdiction by the accused-petitioners contending that the case is triable by a Tehsil Criminal Court and so the same should be sent to that Court for trial under law.

3. The impugned order, by which the objection was overruled by the District Criminal Court, was not elaborately made. Only one point regarding standard of evidence was taken in view and that is also question able so as to bring the prescribed number of witnesses in the form of ocular evidence.

4. The circumstances of the case, as they stand narrated by the prosecu tion, do not constitute the offence of `haraabah' because there is no allega tion of making show of force for the purpose of taking away the property of the complainant if it is to be treated as his property, and no attack was made on him or there was no causing of wrongful restraint to him or be was not put in fear-of death or hurt, as the case may be, so as to constitute the offence of `haraabah'. He was not even on or near the spot at all. Vide section 15 of the Ordinance, which defines the offence of haraabah'.

5. The police report does not contain even a whit of facts in relation to the offence of 'haraabah' under section 17. This section was wrongly quoted by the police. According to the very prosecution, the offence of `haraabah' is not to be tried but the offence of theft stated in the police report. It is a simple case of theft not liable to `hadd' because the property allegedly stolen by the accused-petitioner was not taken away from hirz'. The truck was on the road side lying unguarded and it was thus open and (not fortified), The constructive custody, if to be deemed as such, would not amount to `hirz' when the property was lying without a `hirz' (fortification) on the open road.

6. The ingredients constituting the offence of theft liable to `hadd' lack in the instant case. It is obviously a case of theft not liable to `hadd' and its cognizance is to be taken by the Tehsil Criminal Court.

7. In the result, this revision petition is -accepted and the impugned order is set aside and also any of the proceedings taken by the District Criminal Court are hereby quashed and the case is made over to the Tehsil Criminal Court, Pallandari for its trial de novo in accordance with law. Record of the case shall now be sent to the trial Court at Pallandari for action under law,

8. Revision allowed.