Mst. RUKHSANA YASMEEN vs Malik MUHAMMAD DIN and 6 others

' The necessary facts giving rise to the present revision petition are that on 27-12-1998 Mst.

Rukhsana Yasmeen petitioner had lodged F.I.R. No,870 at Police Station Sargodha Road, Faisalabad for offences under section 452/337-A(ii),/337- L(ii)/337-F(i)/337-H(ii)/148/149, P.P.C. Wherein it had been alleged that respondents Nos.1 to 6 had trespassed into the house of the petitioner and had caused injuries to the petitioner and others while committing rioting. The local police, however, did not find the allegations contained in the F.I.R. To be correct and upon completion of investigation a recommendation was made by it for discharge of the accused persons. Aggrieved with that development the petitioner filed a private complaint in respect of the same incident on 14-4-1999 which was entrusted to the learned Additional Sessions Judge, Faisalabad for disposal. In the private complaint lodged by the petitioner an offence under section 354-A, P.P.C. Was also invoked by the petitioner and it was mentioned in the private complaint that although the said offence had also been committed by respondents Nos.1 to 6 in the incident mentioned above but on account of ulterior motives the local police had failed to invoke the said offence in the abovementioned F.I.R.

After having become seized of the said private complaint the learned Additional Sessions Judge, Faisalabad required a learned Magistrate to hold an inquiry under section 202, Cr.P.C., and upon completion of his inquiry the learned Magistrate recommended summoning of respondents Nos.1 to 6 to face a trial as, according to him, the allegations leveled by the petitioner prima facie appeared to be correct. Thus, vide order, dated 23-11-1999 the learned Additional Sessions Judge, Faisalabad summoned respondents Nos. l' to 6 to face a trial. Subsequently on 14-1-2000 respondents Nos.1 to 6 filed an application before the learned Additional Sessions Judge, Faisalabad praying therein that the case should be transferred to the Court of the learned Ilaqa Magistrate on account of the fact that the provisions of section 354-A, P.P.C. Did not stand attracted to the facts of the case and all the other offences mentioned in the private complaint were triable by a Magistrate. That application of respondents Nos.1 to 6 was accepted by the learned Additional Sessions Judge, Faisalabad vide order, dated 10-2-2000 and the case was resultantly transferred for trial by the learned Ilaqa Magistrate. That order passed by the learned Additional Sessions Judge, Faisalabad on 10-2-2000 has been assailed before this Court by the petitioner through the present revision petition.

2. I have heard the learned counsel for the parties and have gone through the record with their assistance. In support of this petition it has been argued by the learned counsel for the petitioner that there was no legal or factual justification available with the learned Additional Sessions Judge, Faisalabad to transfer the case to the learned Illaqa Magistrate as the private complaint filed by the petitioner as well as the preliminary evidence brought on the record in support thereof clearly made out a case under section 354-A, P.P.C. It has further been argued that the learned Additional Sessions Judge, Faisalabad could not review his own order, dated 23-11-1999 especially when no fresh material was available before him for taking a different view of the same matter. As against that the learned counsel for the respondents Nos.1 to 6 has maintained that in view of the law declared by this Court in the case of Muhammad Ashraf v. The State (1989 PCr.LJ 1453) the ingredients of the offence under section 354-A, P.P.C. Were not present in the allegations leveled by the petitioner and, therefore, the learned Additional Sessions Judge, Faisalabad was quite justified in sending the case to the learned Ilaqa Magistrate for holding a trial of the remaining offences mentioned in the private complaint. The learned counsel for the State has agreed with the submissions made by the learned counsel for the petitioner and has supported this petition:

3. After hearing the learned counsel for the parties and going through the record of the case appended with this petition it has been noticed by this Court that in the narration of the incident contained in the private complaint as well as in the preliminary evidence brought on the record by the complainant through the statement of the eye-witnesses the necessary ingredients of an offence under section 354-A, P.P.C. Were prima facie available so as to warrant a trial of respondents Nos.1 to 6 for the said offence apart from the other offences alleged in the private complaint. It was specifically mentioned in the private complaint as well as in the preliminary evidence produced by me petitioner that the accused party had torn away the clothes of the petitioner and had made the petitioner naked and in the said naked condition she had been dragged out of her house into a public street. A reference to the provisions of section 354-A, P.P.C.

Shows that the said offence is attracted whenever somebody assaults or uses criminal force to any woman and strips her 'of her clothes and in that condition exposes her to the public view.

According to the petitioner's allegations respondents Nos.1 to 6 had caused injuries to the petitioner and then her clothes were torn away where after she was dragged from her house into a public street. Her dragging into a public street surely exposed her to the public view and it was irrelevant whether some outsider had in fact seen her in that condition or not. It may be observed with respect that unfortunately this aspect of the matter had not been properly considered in the abovementioned judgment rendered by a learned Single Judge of this Court referred to by the learned counsel for respondents Nos.1 to 6.

4. It appears that the learned Additional Sessions Judge, Faisalabad in his order, dated 10-2-2000 as influenced by the fact that the F.I.R. Lodged by the petitioner earlier one did not contain a reference to section 354-A, P.P.C. However, the learned Additional Sessions Judge had overlooked the fact that while summoning respondents Nos.1 to 6 to face trial through order, dated 23-11-1999 he had expressly referred to the said F.I.R. And at that stage an absence of a reference to section 354-A, P.P.C. In the F.I.R. Had not deterred the learned Additional Sessions Judge, Faisalabad from issuing process against respondents Nos.1 to 6 in respect of the said offence. It is clear from the record that while passing the impugned order, dated 10-2-2000 the learned Additional Sessions Judge, Faisalabad had no basis available to him to review his earlier order, dated 23-11-1999 especially when no fresh material had become available in that regard during the interregnum.

5. It may further be observed by this Court that once he had summoned respondents Nos.1 to 6 to face a trial in the abovementioned complaint case it was not proper for the learned Additional Sessions Judge to, on an application submitted by the accused party, hold a trial before a trial to assess at a premature stage whether the evidence available at that stage disclosed or not commission of one of the offences regarding which process had already been issued against the accused party. It goes without saying that if ultimately it is found that the necessary ingredients of an offence under section 354-A, P.P.C. Are not available in this case then respondents Nos.1 to 6 may ultimately be acquitted of the said charge. The impugned exercise regarding premature re- assessm ent of the evidence/material by the learned Additional Sessions Judge was, 'thus, hardly called for at such a stage in the circumstances of the case.

6. For what has been discussed above I have no hesitation in concluding that the impugned order passed by the learned Additional Sessions Judge, Faisalabad was incorrect, illegal and improper and the same warrants interference by this Court in exercise of its provisional jurisdiction. This revision petition is, therefore, allowed and the said order passed by the learned Additional Sessions Judge, Faisalabad on 10-2-2000 is hereby set aside.

Revision .