Muhammad Mobin, Muhammad Arif, Zulfiqar Haider and Shahid Younas petitioners along with Muhammad Ashraf (petitioner in W. P. No. 6054(78) were tried by the Summary Military Court No. 37, Lahore, for an offence under Martial Law Regulation No. 3. They were all convicted and sentenced to one year---s R. I. Each.
2. The petitioners have assailed their conviction and sentence by means of these two writ petitions.
This judgment will dispose of these writ petitions.
3. The allegations against the petitioners are that on 18-121978 at about 1-00 p. m. In Karam Street near Chaughtai High School, Gari Shahu, they insulted the modesty of the girl students by uttering objectionable words, saying "Sohnion Basta Bhari hey, Mein Utha Loon" etc. And thus committed an offence punishable under Martial Law Regulation No. 3.
4. The petitioners denied the allegations . Against them. They however, produced no defence. All the petitioners pleaded innocence and submitted that they had been involved in this case falsely.
5. Prosecution produced four witnesses in support of its case namely, Muhammad Sana Ullah P. W.
1 A. S. 1. Ghulam Muhammad P. W. 2, Aziz Ahmad P. W. 3 and Noor Ahmad P. W: 4.
6. Record of the case was produced by Kh. Muhammad Afzal, learned Additional Advocate-General and the same has been perused with the help of learned counsel for the parties.
7. Muhammad Sana Ullah A. S. I. P. S. Naulakha appeared as P. W.
1. He stated that he received an application Exh. L from S. H. O. Naulakha to carry out investigation. On 19th November, 1978 he along with 6 Constables in plain clothes and 3 civilian witnesses went to Chughtai Girls School, Gari Shahu at about 12.00 noon. He divided the police party into two groups of 5 each. He made one group to stand to the Eastern side of Karam Street on which Chughtai School was located while the other group stood on the Western side of the street. He had ordered both the groups to start walking towards Chughtai School whenever a group of girls emerged from the School gate and also asked them to keep an eye on the activities of the 5 accused persons/petitioners in the case who were standing in front of the house of one Zulfiqar Haider petitioner/accused which was located about 100 yards away from the school: At about 1-00 p. m. a group of about 6 girls came out of the school gate and started walking towards the house of Zulfiqar Haider petitioner/accused.
In the meantime both the groups of police started closing up towards the house of Zulfiqar Haider.
When the group of 6 girls were passing by the house of Zulfiqar Haider, all the 5 accused started saying "Sohnion Basta Bhari hey, Mein Utha Loon" etc. All the six girls got frightened and kept on walking on their respective destinations. After which, he along with others, apprehended all the five petitioners. He wrote a complaint Exh. M and sent it to P. S. Naulakha through Muhammad Hanif Constable, on the basis of which a formal F.
1. R. Exh. N was recorded by Khadim Hussain, A. S. 1. This version of the occurrence was supported by Ghulam Muhammad P. W. 2, Aziz Ahmad P. W. 3 and Noor Ahmad P. W. 4.
In the cross-examination Sana Ullah P. W. 1 stated that he had not received any complaint prior to this incident. He further deposed that he did not receive any complaint against any of the petitioners from any teacher or girl of Chughtai Girls High School. He further deposed that he did not enquire from the people of Mohallah about complaint Exh. L nor did he make any such inquiry from the guardians of the girls who had given the complaint in writing to the higher authorities. It may be noted that no public witness belonging to this locality had joined the investigation. Sana Ullah A. S. I. Had stated in cross-examination that he did not feel it necessary to join public witnesses from the locality in. The investigation as he had already three public witnesses with him.
He has also deposed that the public witnesses, namely, Abdul Aziz and Ghulam Muhammad P. Ws.
Were collected by him from the "roundabout" located outside the Police Station, Naulakha. These witnesses were standing there already. He also candidly admitted that the three public witnesses in this case had also been made witnesses by him in other cases which were investigated by him.
P. W. 2 Ghulam Muhammad stated that he had appeared as a police witness in 4/5 cases prior to this occurrence. Similarly, P. W. 3 Aziz Ahmad admitted that he had appeared as a police witness in 3/4 cases. He also added that he did not know what particular remarks were passed by the accused individually as they had their backs towards him. He stated that he heard these remarks when he was at a distance of about 5 paces from the petitioners. He said that whenever police calls him to be a witness in a case he readily obliged. Noor Ahmad P. W. 4 was in no better position.
He has appeared as police witness in 4/5 cases prior to this occurrence.
8. Learned counsel for the petitioners have argued that this was a case of no evidence and that all: the three public witnesses were police touts and stock witnesses and their testimony cannot be relied upon in the present case. It was further argued that no girl had appeared as a witness in the case and accordingly the offence of intending to insult the modesty of a woman had not been made out against the petitioners.
9. Martial Law Regulation No. 3 reads as follows: "Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the -privacy of such woman shall be punished.
Maximum punishment 10 years' Rigorous Imprisonment and/or whipping up to 30 stripes.
This Martial Law Regulation is a verbatim reproduction of section 509 of Pakistan Penal Code except for the sentence. The sentence under the Martial Law Regulation is 10 years' rigorous imprisonment/or whipping upto 30 stripes, whereas the sentence provided under section 509, P. P.
C. Is only a simple imprisonment for a term which may extend to one year, or with fine. Or with both.
The offence under the Penal Code is noncognizable. It is bailable and compoundable with the permission of the Court.
10. A person who insults the modesty of a woman in a public place is guilty of public nuisance under section 294, P. P. C. This section reads as: "294. 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."
One whose act goes beyond the words and gestures may be guilty of assault or a use of criminal force punishable under section 354, P. P. C. Which is -to the following effect: "354. Whoever assaults or uses criminal force to any. Woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years or with fine, or with both."
The present section 509, P. P. C. Applies to an act which is not punishable either as one or the other, but which is nevertheless an outrage of female modesty. Such would be singing of an obscene song, the making of an indecent proposal or the exposure of `ones' nude person-acts which become punishable by reason of their depraved suggestiveness. This section makes an offence when a person, intending to insult the modesty of any woman, utters any words, makes any sound or gesture or exhibits any object, intending that such word or sound shall be heard or that such gesture or object shall be seen, by such woman. Thus it would appear that it is not necessary that the woman should be the complainant, but the complaint should specify the particular woman or women whose modesty has been insulted. If this is not done there will be no material to justify a conviction under section 509, P. P. C. It is also not sufficient to state in the complaint that the modesty in general even of a small class of women has been offended. It is obvious that there should be some person, i. e. Some known individual whose modesty was insulted by intentional act of the accused because it is quite obvious that it would depend very much on the age, experience, religious views and so forth of any particular woman whether an act committed was calculated to shock her modesty or not. Expression used to an innocent girl or expression used to a prostitute might have very different effect.
11. It may also be noted that section 509, P. P. C. Lays emphasis on the fact that the words uttered by a person should be intended to be heard and that such words should be in fact heard by such woman in order to constitute an offence. There can be therefore, no offence, unless the accused's intention that his words or sound shall be heard by the woman is accompanied or followed by its being actually so heard, of which there must be evidence. Unfortunately there is no evidence in the present case to show that the objectionable words uttered by the petitioners were in fact heard by the girls. None of the girls whose modesty was intended to have been insulted has come forward to support the case of the prosecution. The ingredients of the offence under section 509 are (a) that the accused uttered the words or made a sound or gesture etc. In question, (b) that such words, sound or gestures were intended by the accused to be heard or seen by some women, (c) that thereby he intended to insult the modesty of that woman. Thus there must be some individual woman whose modesty Was been outraged and there must be an allegation in the complaint that the action complained of had insulted the modesty of a particular woman or women and not merely of any class or order or section of woman. This is not forthcoming in the present record. It is however not necessary that the individual woman or women should herself or themselves make a complaint. I find support of this view from Khair Muhammad v. Emperor 25 Cr. L J 904 and Commentaries on the Penal Code by Sir Hari Singh Gour (7th Edition) and Law of Crimes by Ratan Lal).
12. As I have shown above that Martial Law Regulation No. 3 is verbatim reproduction of section 509, P. P. C. Except of course for the quantum of sentence. I accordingly hold that any conviction under Martial B Law Regulation No. 3 can only be upheld and sustained if the ingredient of an offence under section 509, P. P. C. Are forthcoming in the record.) These ingredients are not forthcoming in the present record as discussed] above.
13. Learned Additional Advocate-General has relied upon Muhammad Sharif v. State PLD 1957 SC (Pak.) 201 and argued that the offence against the petitioners was proved in the instant case. The facts of this case are clearly distinguishable. In that case the report was lodged. By one of the girls and there was evidence that the accused had followed a group of college girls who were holidaying in a public place and passed indecent remarks, made obscene gestures to them and asked one of them to sing a love song. It was held by the Supreme Court of Pakistan that the entire conduct of the accused intended an insult to the modesty of the girls and that- by the application of section 34, P. P. C. Other members of the party would also be vicariously liable for the offence.
14. Even otherwise, as noted in the earlier part of discussion all the three public witnesses in this case are stock witnesses of the police. The present conviction is clearly based on testimony of these procured stock witnesses closely associated with the police. Conviction cannot be sustained on this account as well.
15. In view of the above discussion I hold that the offence under Martial Law Regulation No. 3 had not been brought home to the petitioners by the evidence adduced . By the prosecution in this case. Moreover no reasonable person would convict the petitioners on the kind of evidence adduced by the prosecution in this case. The impugned conviction and sentence is set aside. They petitioners are set at liberty forthwith, unless they are nut wanted in any other criminal case.
This writ petition is accepted without any order as to costs.