RIFFAT ALI BARQ vs S.H.O., POLICE STATION, MUZAFFARABAD and 4 others-

MUHAMMAD MUNIR KHAN, J.---On 18-3-1990 a case under section 294, P.P.C. Was registered against Riffat Ali Barq and Miss Huma Naz (both M.13.,B.S. Students of Nishtar Medical College, Multan) at police station Muzaffarabad on the charge of doing obscene act in public place.

According to the prosecution version, S.I. Muhammad Tufail. Of Muzaffarabad police on receiving information that a man and a :woman were doing obscene act by way of kissing on a road, conducted raid in the presence of A.S.I. Tariq, Haqnawaz and Izhar Hussain Constables and arrested the petitioner and his co-accused from an abandoned place on 18-3-1990. The appellant and his co-accused were brought to the police station, detained there and were subsequently released on bail under the orders of Assistant Commissioner, Multan. After investigation the police challaned them under section 294, P.P.C. In the Court

2. Feeling aggrieved, the appellant filed Writ Petition No.770/90 for declaring the registration of criminal case anti proceedings in the Court to be mala fide, illegal and without lawful authority. The writ petition was dismissed by the learned Single Judge in Chamber on 6-5-1990, hence this Intra- Court Appeal.

3. Learned counsel for the appellant submitted that the case against the appellant is on account of mala fides on the part of police; that the contents of F.I.R. Do not make out any-offence against the petitioner and his co-accused; that the learned Single Judge was under the wrong impression that the petition before him was under section 561-A, Cr.P.C.; whereas as a matter of fact it was a constitutional petition read with section 561-A, Cr.P.C. Learned counsel for the State has opposed this appeal on the ground that since the evidence is yet to be recorded by the trial Court, no exception could be taken to the impugned judgment.

4. We have considered the matter carefully. We feel persuaded to agree with the learned counsel for the appellant. For the facility of the reference, section 294, P.P.C. May be reproduced: "Section 294, P.P.C. Whoever, to the annoyance of others,

(a) does any obscene act in any public place, or

(b) sings, recites or utters any obscene songs, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both."

The language used in section 294, P.P.C. Makes it very much clear that onus lies on the prosecution to prove the following ingredients:

(a) the alleged act was obscene in nature;

(b) it was committed on a public road; and

(c) annoyance of the obscene act was caused to others.

5. The appellant and his female co-accused are M.B.,B.S. Students. Consequent upon the registration of criminal case against them, their entire career and future becomes subject to doom and gloom. Needless to say that offence under section 294, P.P.C. Is very easy to concoct and very difficult to rebut. So the Courts are fully justified in insisting upon solid and concrete evidence thereof before taking cognizance and putting the accused on trial. Since the prosecution case against the appellant and his co-accused stated in the F.I.R., accepted at its face value, no offence is made out therefore, we feel that in order to secure the ends of justice, this Court should come to their rescue and save them from the agony of an unwarranted trial which certainly amounts to an abuse of the process of the Court.

6. Pursuant to. The above discussion, the appeal is accepted and the judgment of the learned Single Judge is set aside and the proceedings against the appellant and his co-accused are quashed as being illegal, without lawful authority and abuse of the process of the Court.