IMRAN Versus State

RIAZ AHMED KHAN J.--- The appellant, Imran son of Muhammad Fazil, was convicted under section, 293, P.P.C. and sentenced to six months' R.I. with the fine of Rs. 50,000. He was also convicted under section 500, P.P.C. and sentenced to one year's R.I. with the fine of Rs.50,000 vide judgment dated 30-12-2010. The appellant has challenged the said conviction and sentence by filing the instant appeal.

Facts constituting the background of the present case are that Mst. Rukhsana wife of Ghulam Farid resident of Saidpur Islamabad submitted an application before S.P. Islamabad. The said application was sent to S.H.O. Police Station Kohsar and on the basis of the same, case F.I.R. No.431 of 2006 was registered on 8-10-2006 under sections 500/506/293/354/34, P.P.C. at Police Station Kohsar. Mst. Rukhsana in the complaint alleged that Imran, the present appellant, had been teasing her daughter Sidra and threatening her to abduct the said Sidra Her daughter had already been engaged to one person resident of Rawalpindi and her Nikkah was to be performed on 27 of Ramzan and appellant on coming to know about engagement and proposed Nikkah along with his companions, sent threats to the complainant that he would not let the Nikkah to be performed. A few days prior to the report, allegedly the appellant along with his friends namely Wajid son of Gulzar, Zahoor son of Haji Manzoor, Khalil alias Gaama son of Bashir procured a photograph of Mst. Sidra daughter of the complainant and with the help of computer, the accused persons got prepared naked photographs of Mst. Sidra. Furthermore, the copies of these photographs were distributed among the residents of the street, where the complainant is living. A copy of the same was sent to the house where Mst. Sidra was going to be married. The residents of the street tried to advise the accused party to behave, but to no avail. The complainant Mst. Rukhsana also alleged that the appellant party was adamant to insult and defame her daughter.

3. After registration of F.I.R., the police took cognizance of the case. The accused persons were arrested. However, afterwards were released on bail. Challan was submitted before the Court of learned Magistrate, Islamabad, evidence was recorded, but afterwards, the case was transferred to Additional Sessions Judge, Islamabad.

4. The prosecution examined Mst. Sidra as P.W.1. In her statement before the Court, she submitted that all the accused, who were residents of her street, had made her naked photographs about two years ago. They distributed the photographs in the street and also sent the same to the place, where she had been engaged. The complainant Mst. Rukhsana was examined as P.W.2. She reproduced the allegations made in the F.I.R. During cross-examination, she submitted that she herself had given the photographs to the 1.0. Mati Ullah Khan constable was examined as P.W.3, who was the witness of recovery. In his statement, he submitted that he along with I.O. had gone to the house of the accused and on the pointation of the accused two photographs of Sidra were recovered, which were produced by the accused and that lie is the witness of recovery memo. Last witness, the I.O., appeared as P.W.4. In cross-examination, he submitted that during investigation he came to know that prior to registration of case, some altercation had taken place between the complainant and the accused Imran. The statement of the accused under section 342, Cr.P.C. was recorded, wherein, he denied the charge. On completion of trial, the learned Additional Sessions Judge, Islamabad vide judgment dated 30-12-2010 convicted and sentenced the appellant as stated earlier. The remaining accused namely Wajid, Zahoor Ahmed and Khalil were acquitted.

5. Being aggrieved of the above said judgment, the present appeal has been filed.

6. I have heard the learned counsel for the parties and have also perused the record.

7. Learned counsel for the appellant contended that the basic registration of case was in violation of section 198, Cr.P.C. and this conviction was not maintainable. He further contended that the prosecution has failed to establish a case against the petitioner. On the same set of evidence, three other accused have been acquitted, whereas the appellant has been convicted simply on the basis of surmises and conjectures.

8. On the other hand, learned standing counsel has submitted that petitioner was directly charged in the F.I.R. The offence is heinous in nature and one innocent girl has been defamed for no fault on her part and as such the accused is not entitled to be acquitted.

9. The appellant in the present case has been convicted under section 500, P.P.C. and sentence of one year's R.I. has been awarded to him. Section 198 of Criminal Procedure Code provides that "No Court shall take cognizance of an offence falling under Chapter XIX or Chapter XXI of the Pakistan Penal Code or under sections 493 to 496 (both inclusive) of the same Code, except upon a complaint made by some person aggrieved by such offence." If the aggrieved person is a woman, then on her behalf some other person can make a complaint, but with the leave of the Court. Section 500, P.P.C. falls in Chapter XXI of Pakistan Penal Code, as such the procedure provided in section 198, Cr.P.C. was to be followed.

10. The offence under section 500, P.P.C. is not a cognizable offence and in case of non-cognizable offence, the police cannot start investigation directly. For investigation of non-cognizable case, the police is required to obtain order of the Magistrate. The police, in such non-cognizable case, cannot register F.I.R. directly. Reliance in this respect can be placed on 1997 PCr.LJ 1128. In the instant case, the complaint was sent to the S.H.O. and directly F.I.R. was registered, which is an incurable defect. The S.H.O. could not investigate the case without prior approval of the Magistrate and registration of case under section 500, P.P.C. was, therefore, unlawful.

11. In the instant case, no doubt the allegation is of heinous nature. The photographs are also objectionable, but nevertheless, the case is to be decided on the basis of evidence produced and not on the basis of emotions. There is no evidence as to who took the photographs and when. There is also no evidence that photographs were actually E distributed in the street as no one from the street or even from the family has been produced to substantiate the allegation. There is also no evidence that the photographs were actually prepared through computer. The statement of alleged fiance of Mst. Sidra or her father was also not recorded. No independent witness was produced to support the case of prosecution. The mother of complainant in cross-examination of her statement stated that she herself had given the objectionable photographs to the I.O., whereas the case of the prosecution is that two photographs were recovered on the pointation of the accused Imran and other photographs were also produced by the accused. In these circumstances, the prosecution has failed to establish a case against the accused/ petitioner. The appeal in hand is, therefore, accepted and the appellant Imran' is acquitted of the charges levelled against him. He be released forthwith; if not required in any other case.

H.B.T./9/Isl. Appeal accepted.