Mst. NASREEN AKHTAR Versus HUSNAIN MEHDI

CH. EJAZ YOUSAF, ACTG. C.J.- -- Criminal Appeal No.206/I of 1996, filed by way of petition for special leave to appeal, is directed against the order/judgment, dated 24-4-1996 passed by the learned Additional Sessions Judge, Chakwal whereby private complaint filed by the appellant against the respondents under sections 10(3) and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with sections 166/167, 165/163, 342/348 and 109, Pakistan Penal Code was dismissed; Criminal Revision No.15/I of 1996 is directed against the order, dated 28-2-1996 passed by the learned Additional Sessions Judge, Chakwal whereby petitioners namely Khawaja Baber Saleem, Khawaja Daniyal Saleem both sons of Khawaja Khalid Saleem, Pir Abdul Sattar Nadeem son of Sh. Muhammad Ismail and Raja Muhammad Khalid, Chief Editor, Monthly Insaf Ki Ketchery, Padshahan, District Chakwal were summoned to face trial under section 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 and Criminal Revision No.16/1 of 1996 is directed against the same order, dated 28-2-1996 whereby petitioners Khawaja Babar Saleem and Khawaja Daniyal Saleem were summoned to face trial under section 7 of the Offence of Qazf (Enforcement of Hudood) Ordinance, 1979. Since all the matters are inter-connected and relate to the same occurrence, therefore, these are being disposed of by this single judgment.

2. Facts of the case, in brief, are that on 28-3-1996 private complaint under sections 10(3) and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with sections 166/167, 165/163, 342/348 and 109, Pakistan Penal Code was filed by Mst. Nasreen Akhtar in the Court of Sessions Judge, Chakwal wherein, it was alleged that 5/6 days prior to 30-5-1995 the complainant alongwith her Laughter namely, Mst. Rozina Shaheen, aged about 15/16 years had gone to Chappar Bazar, Chakwal for shopping. When they passed in front of the shop of Hasnain Mehdi, the respondent No. 1 which was run by him in the name and style of "Inayat Shoes", they were called and persuaded to enter the shop by the said respondent on the pretext that they may purchase shoes from him. On entering the shop they found that Ishaque Hasrat and Khalid Awan respondents were also present in the shop. The afore-named accused persons started teasing the complainant as well as her daughter and in the process caught hold of Mst. Rozina from her breasts. On the resistance offered by the complainant the accused persons insulted both the ladies and pushed them out of the shop. The complainant on returning to her house narrated the entire incident to her uncle namely, Ashraf with whom she, at the relevant time, was living but her uncle showed his inability to take any action against the culprits because of their influence. It was further alleged in the complaint that on 30-5-1995 in the evening. Mukhtar, A.S.-I. of CIA Police, Chakwal alongwith Azizullah Tilwala and Khalid Muhammad reached at Dhoke Hareer where, the complainant was residing. They had already hauled up Khalid Mahmood preliminary witness No.3, who happened to be the nephew of her uncle Ashraf. They arrested the complainant and also her daughter Mst. Rozina and took them to Dhoke Momin, District Chakwal (City). The appellant and her daughter were confined in the Chobara of the house of Constable Ghulam Ahmad. Khalid Mahmood was taken away by them whereas, Ghulam Ahmad P.W.5 besides, keeping a watch on them, also tried to get their thumb-impressions on a blank paper and ultimately succeeded in doing so. On 31-5-1995, in the evening, they took the appellant and her daughter to CIA Police Station where Hasnain Mehdi, respondent No.1, Muzaffar Abbas, Khalid Awan respondent No.2 and Ishaque Hasrat respondent No.3 were already present. It was further alleged that on 31-5-1995 Mukhtar Ahmad. A.S.-I., Hasnain Mehdi, Ishaque Hasrat and Khalid Awan accused respondents took away Mst. Rozina to the house of said Ghulam Ahmad on the pretext that she would be kept at a safe place. On 1-6-1995 there arose a dispute between CIA and the police regarding registration' of the case and, as a result, the complainant and Khalid Mahmood were set at liberty. After her release the appellant searched for her daughter but in vain. She also made applications to the police as well as Executive Officers but all remained unfruitful. It was further alleged that after some days appellant's daughter reached at her house and disclosed that she on 31-5-1995 and 1-6-1995 was subject8d to Zina-bil-Jabr by Hasnain Mehdi, Ishaque Hasrat, Khalid Awan and Mukhtar, A.S.-I. etc. It was further alleged in the complaint that despite applications, sent to high officials the case was not registered. However, taking notice of the news items Deputy Commissioner, Chakwal ordered for an inquiry which was conducted by Mr. Mobeen Aslam, Magistrate First Class, Chakwal. Inquiry report, dated 18-6-1995 was later on forwarded to Superintendent Police for necessary action. Since no action, in pursuance of the inquiry report was taken, therefore, the appellant was left with no option but to file the complaint. After holding the preliminary inquiry and recording statements of some of the witnesses the Additional Sessions Judge, Chakwal, to whom the case was made over for trial by the Sessions Judge, dismissed the complaint vide order, dated 24-4-1996.

3. We have heard Mr. Muhammad Aslam Uns, Advocate, learned counsel for petitioners Khawaja Babar Saleem and Mst. Nasreen Akhtar appellant, Sardar Muhammad Ghazi, Advocate learned counsel for respondents and Mr. Nadeem Mukhtar Chaudhary, Advocate, learned counsel for the State and have also gone through the relevant record with their assistance.

4. Mr. Muhammad Aslam Uns, Advocate, has contended that through only three witnesses out of the schedule of seven annexed with the complaint were examined by the appellant yet, the learned trial Judge unjustifiably called and examined three Court-witnesses namely, Muhammad Iqbal (C.W.1), Muzaffar Abbas (C.W.2) and Sher Afzal (C.W.3) despite the fact that the said witness, though related with the complainant were hostile and inimical towards her and the very fact was well within knowledge of the learned trial Judge, that if despite examination of three witnesses by the complainant no sufficient ground for proceedings further with the complaint, in the opinion of the learned trial Judge was made out then he should have in all fairness called and examined the rest of the witnesses mentioned in the schedule annexed with the complaint especially Lady Doctor Muneera Jalil whose evidence was elimental towards just decision of the case instead of calling and examining "the Court-witnesses"; that the Court-witnesses, at inquiry stage, could not have been examined and their evidence could not have been taken into account especially when the complainant was not given an opportunity to cross-examine them; that the conclusions drawn by the learned trial Judge, in dismissing the complaint; otherwise, were based on extraneous reasons, besides being unjustifiable.

5. Sardar Muhammad Ghazi, Advocate, learned counsel for the respondents, while controverting the contentions raised by the learned counsel for the appellant, on the other hand, submitted that since the complainant had closed her evidence with her free will and consent, therefore, now she cannot turn around and say that she was not given opportunity to prove her case. He added that it was incumbent on the complainant to prove her case and if she has failed to do-so she cannot blame any one except herself. He further added that the complaint was a counterblast to the case of Qazf wherein, she was summoned by the Court; that evidence of the rest of the scheduled witnesses even, if examined, was not capable to substantiate the allegations levelled in the complaint; that since the persons summoned as Court-witnesses were related with the complainant and the "incident" was well within their knowledge therefore, their statements were rightly given preference over the statements of the witnesses produced by the complainant. In the end, he submitted that at the time of preliminary inquiry, the complainant was at liberty to examine as many witnesses as she desired but now after the close of evidence, she is estopped to do so.

6. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also gone through the record of the case minutely. Record reveals that in the instant case, a list containing the name of following eight witnesses was annexed with the complaint, which was, on 30-5-1995, filed in the Court of Sessions Judge, Chakwal:--

(1) Khalid Mahmood son of Muhammad Akbar, resident of Mahrar, Tehsil Chakwal.

(2) Khawaja Baber Saleem Mahmood son of Khawaja Khalid Saleem, resident of Chakwal.

(3) Muhammad Ashraf son of Sher Dil, resident of Mahrar, Tehsil Chakwal.

(4) Dr. Mubeen Aslam, Magistrate 1st Class, Chakwal.

(5) Muneera Jaleel, Lady Doctor DHQ, Chakwal.

(6) Rozina Shaheen daughter of Sher Afzal, resident of Mahrar.

(7) Nasreen Akhtar, complainant herself.

(8) Kamran Rizvi, Chairman, Human Rights Pakistan.

The witnesses mentioned at Serial Nos.4 and 5 were requested to be summoned through process of Court.

Record further reveals that after filing the complaint, the complainant on 28-3-1996 appeared before Senior Civil Judge-cum -Magistrate Section 30, Chakwal alongwith her counsel whereupon it was written on the complaint, by the learned Magistrate, that since he had no jurisdiction to hear the complaint, therefore, it was transferred to the Court of Sessions Judge, Chakwal for appropriate order. On the same day, the learned Sessions Judge transferred the case to the file of Malik Kazim Ali, Additional Sessions Judge for trial. The learned Additional Sessions Judge on the same day after, recording that since complaint filed under Qazf Ordinance by Khalid Awan, Hasnain Mehdi respondents was also pending before him, in which he had already summoned the complainant to stand trial therefore, he was not in a position to try the case, sent the case back to the Sessions Judge. The learned Sessions Judge after perusing the reference again sent the case back to .the learned Additional Sessions Judge observing; that despite pendency of other cases, an experienced Judicial Officer like him should find no difficulty to arrive at a correct conclusion. On 1-4-1996 the following orders were passed by the learned Additional Sessions Judge:--

8. In pursuance of the above order statements of two preliminary witnesses and two Court-witnesses were recorded. However, it was on 11-4-1996 ordered that since at that stage father of Mst. Rozina Shaheen namely, Sher Afzal also appeared before the Court and wanted to get record his statement, voluntarily therefore, his statement be recorded. On the next day statement of C.W.3 was recorded and it was further observed that the complainant had also closed her evidence. Thereafter, the learned trial Judge passed the impugned order, dated 24-4-1996 thereby observing and recording inter alia, the following conclusions:--

(a) That the alleged occurrence took place on 30-5-1995. The District Magistrate, Chakwal had ordered judicial inquiry of the occurrence, in pursuance whereof Mr. Mubeen Aslam, Magistrate First Class conducted judicial enquiry and submitted his report to the effect that Mst. Rozina had not been subjected to Zina by the police officials or any one else. A certified copy of the enquiry report dated 18-6-1995 was available on the connected private complaint of Qazf . The District Magistrate approved the inquiry report vide his order, dated 19-6-1995. During preliminary arguments, in the complaint case, the learned counsel for the complainant, was questioned by the Court with reference to those inquiry reports and only answer from him was that the material being extraneous to the case in hand should not be taken into consideration. (Underlining is ours)

It would be pertinent to mention here that the learned trial Judge who was not in agreement with the learned counsel on the above point, further observed:--

That the allegations having been inquired into by the police as well as Magistrate and the result of inquiry being not favourable to the complainant. The complainant, omitted to approach the Court for more than one year and that the complaint filed by her was a counterblast to the complaint of Qazf in which she alongwith others were summoned to stand trial. He further observed that though law does not prescribe any limitation for filing the complaint would certainly effect the allegations set up therein, particularly when the delay was not explained plausibly.

(b) That husbands of Nasreen Akhtar and Mst. Rozina Shaheen in their statements on oath have stated that both the ladies were not true in their version and that in fact they were living in adultery. The same stand was taken by the father of the lady. It came in preliminary evidence of the, complainant that Muzaffar Abbas husband of Mst. Rozina Shaheen was present at the Police Station when both were taken there. In the circumstances it could not have been believed that Muzaffar Abbas had abetted and instigated his companions to commit Zina with his wife and mother-in-law. The statements of the C.Ws. appealed to reason and were acceptable in the given circumstances. Khalid P.W.3 was not related to the ladies in prohibited degree. The ladies had chosen to reside with him instead of their respective husbands. Muhammad Iqbal, the father of Mst. Nasreen Akhtar complainant clearly stated before the Court that his daughter was at fault in deserting her husband. In the end, the learned Judge concluded that no reason was seen by him to give preference to the statements of the preliminary witnesses over the testimonies furnished by the C.Ws.

At this stage, we are not inclined to assess soundness of the reasons which weighed with the learned trial Judge in recording the above conclusions in view of the order that we deem fit to pass lest it may prejudice case of either of the parties yet, some discussion of. the evidence on record appears imperative.

9. It would be worthwhile to mention' here that statements of the C.Ws. were given preference over the preliminary statements on oath of the witnesses of the complainant without discussing the same. It was also observed that since as per statement of the complainant, Muzaffar Abbas was already present at the Police Station when the ladies were taken there, therefore, the possibility that they were subjected to Zina had to be ruled out because both the ladies were related to said Muzaffar Abbas. Amazingly, the learned trial Judge has failed to take into account as to why Muzaffar Abbas, at all, was present at the police station at the relevant time. Further, if the delay in filing the complaint was fatal as to how statements of the witnesses could have been discredited on the basis thereof. Be that as it may, fact remains that preliminary evidence produced by the complainant-was disbelieved by the learned trial Judge in view of the statements made by the Court-witnesses.

10. Before proceeding further we deem it appropriate to have a glance at some of the provisions of particularly sections 265-C(2) and 265-D of Chapter XXII-A of the Cr.P.C., which regulate trials before High Courts and Courts of Session. It read as follows:---

Section 265-C(2). In all cases instituted upon a complaint in writing.--- (a) the complainant shall--

(i) state in the petition or complaint the substance of the accusation, the name of his witnesses and the gist of the evidence which he is likely to adduce at the trial; and

(ii) within three days of the order of the Court under section 204 for issue of process to the accused, file in the Court for supply to the accused as many copies of the complaint and any other document which he has filed with his complaint as the number of the accused."

"Section 265-D. When charge is to be framed .---If, after perusing the police report or, as the case may be, the complaint, and all other documents and statements filed by the prosecution, the Court is of opinion that there is ground for proceedings, with the trial of the accused it shall frame in writing a charge against the accused."

11. A bare reading of the above provisions particularly section 265-D, Cr.P.C. leads to the inference that if after perusing .the complaint and all other documents, which in case of a complaint would obviously include the gist of evidence likely to be adduced at the trial the Court is of the opinion that there are grounds for proceedings with trial of the accused, it shall frame charge but if the situation is other way round then the Court may, having regard to the express provision of section 202, Cr.P.C. either inquire into the case itself or direct an enquiry or investigation. However, as per proviso tagged to section 201 Cr.P.C., no such direction can be made unless the complainant is examined on oath under section 200, Cr.P.C. Here it would also be advantageous to go through section 202(1), Cr.P.C. which reads as, follows:

"Section 202(1). Postponement of issue of process . --- (1) Any Court, on receipt of a complaint of an offence of which it is authorized to take cognizance, or which has been sent to it under section 190, subsection (3), or transferred to it under section 191 or section 192 may, if it thinks fit, for reasons to be recorded, postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case itself or direct an inquiry or investigation to be made by any Justice of Peace or by a Police Officer or by such other person as it thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint."

12. From perusal of order, dated 24-4-1996 it does not appear as to what prompted the learned trial Judge to summon and record the statement of Mst. Rozina's husband namely, Muzaffar Abbas and complainant's father Muhammad Iqbal particularly when by that time, statement of Mst. Rozina even, was not recorded. No doubt a Court while for the purpose of ascertaining the truth or falsehood of a complaint may under section 202, Cr.P.C. while postponing the issue of process for compelling the attendance of the person complained against, inquire into the case itself or direct an inquiry or investigation and may call and examine any person if he i.e. the witness had any knowledge of -the crime yet, having regard to the express provisions of sections 265-C(2)(a)(1) and 265-D of the Criminal Procedure Code it cannot be done unless the witnesses or at least some of them, likely to be produced at the trial by the complainant, are examined. Needless to point cut that if evidence produced by 'the complainant at the stage of preliminary inquiry is found deficient or the Court is unable to make its mind regarding truthfulness or otherwise- of the accusation only then further evidence may be called.

13. It has been, in a number of cases, laid down by the superior Courts that while enquiring into a complaint, full and ample opportunity, even at preliminary inquiry stage, has to be given to the complainant to prove the allegations and this opportunity is all the more necessary where persons complained against are public servants especially the police officer. Reference, in this regard, may usefully be made to the cases of Abdul Jabar alias Achhar v. The State and 4 others 1974 PCr.LJ Note 110 at p. 69, Fateh Sher v. Khan Yaseen Khan, A.S. -I. and others PLD 1959 Lah. 660, Mahim Chandra Roy v. A.H. Watson (1929) 30 Cr.LJ 407 and Purosattam v. Ram Das and others (1925) 26 Cr.LJ 561.

14. Since in the instant case, the learned trial Judge while deciding fate of the complaint has primarily relied upon the statements of Court-witnesses and has failed to assess or appraise the statements of the witnesses produced by the complainant and has discarded the same by simply saying that he cannot give preference to the statements of the witnesses of the complainant over the statements of the Court-witnesses, therefore, in our view the impugned judgment/order cannot be sustained. The same is, therefore, set aside however, having regard to the provision of section 436, Cr.P.C. we deem it appropriate to remand the case to the learned trial Judge with the direction that at first, statements of the rest of the witnesses, whose names have been mentioned in the schedule of witnesses annexed with the complaint, be recorded and thereafter the complaint be proceeded with, in accordance, with law.

Since we have already decided to remand the case, therefore, the rest of the contentions raised by the learned counsel for the appellant need not to be attended to.

15. So far as the relief claimed through Criminal Revisions Nos. 15/I and 16/I of 1996; that the impugned order, dated 28-2-1996 may be quashed, is concerned, we feel that in view of the above order, the same, at this stage, cannot be granted. However, in order to avoid future complications we deem it appropriate to direct that the proceedings in these two cases i.e. Hudood Complaint No.30 of 1995 as well Hudood Complaint No.37 of 1995 shall remain stayed till fate of the complaint filed by Mst. Nasreen Akhtar, is decided. Thereafter, both these cases may also be decided on their merits, in accordance with law.

M.B.A./109/FSC Order accordingly.