On 20-5-2002 a murder took place and Muhammad Iqbal, the son of the present complainant/respondent No,1 was charged therein. The accused had absconded. The police exerted pressure on the complainant and the members of his family for the production of the said accused and in this process the complainant and his sons were reportedly arrested, kept in police custody for considerable long period and, to justify the detention before the Magistrate, a case under section 107/151, Cr.P.C. Was registered against them. Subsequently on 31-5-2002 at 1-00 a.m.
(midnight) the police again raided the house of the complainant and assaulted and insulted the members of the family. During this process, the present petitioner allegedly pulled away the sheets covering the heads of the womenfolk and they were also beaten. As a result of thorough search of the house at midnight, without any search warrant, the licensed short guns of the sons of the complainant were shown to be in possession of other sons who were booked under, section 13 Arms Ordinance.
2. Consequently Ghulam Siddique, complainant, filed a private complaint against Shafiullah S.- I./S.H.O. Police Station Paroa (the present petitioner) on 12-6-2002 in the Court of Civil Judge/Judicial Magistrate and the learned Judicial Magistrate did not take cognizance of the said complaint which was discharged. The complainant filed a revision petition and the learned Sessions Judge held that since some of the offences stated in the complaint were not triable by the Court of learned Magistrate, therefore, the order of discharge may be treated as order of transmission of the complaint to the Court of Session. Hence he marked the complaint to the learned Additional. Session Judge for further proceedings. This order was challenged before this Court in a quashment petition which was accepted on 12-11-2003 by holding that the learned Sessions Judge could not take cognizance of the case unless a Case is sent to it in accordance with the provisions of sections 190(2) and 183(1) of the Cr.P.C. Hence by setting aside the order of the learned Sessions Judge, the case was remanded to the learned Judicial Magistrate for transmission of the case to the Court of Session in accordance with law. The case was accordingly transmitted and it was allocated to the learned Additional Sessions Judge who entertained the complaint and recorded the statement of the complainant and the case was fixed for framing of charge.
3. The present petitioner filed an application for deleting section 354-A, P.P.C. And for entrusting the case to the Judicial Magistrate concerned. The learned Additional Sessions Judge, after hearing the counsel for the parties, rejected the application for deletion of the charge on the only ground that the case has been sent up to the Court of Session on the direction of this Court merely because of the existence of the said charge. This rejection of the request has been challenged through this criminal revision.
4. Arguments heard on behalf of the parties and record perused.
5. Section 354-A, P.P.C. Reads as under:-- "354-A. Assault or use of criminal force to woman and stripping her of her clothes.--Whoever assaults or uses criminal force to any woman and strips her of her clothes and, in that condition exposes her to the public view, shall be pupished with death or with imprisonment for life, and shall also be liable to fine."
7. Analysis of the above section indicates that two basic ingredients are to be satisfied to attract the said penal provision. Firstly; that the woman should be stripped off the clothes and secondly; that she should be exposed to public view in such condition. Learned counsel for the complainant had argued that removal of `Dopatta' from the head of a Muslim lady amounted to the stripping off her clothes and the exposure of hairs to the members of the family as well as to the raiding police party amounted to the exposure of the woman in that condition to the public view. Hence, he argued that section 354-A, P.P.C. Was strictly applicable and the learned Additional Sessions Judge has properly appreciated the nature of the offence. The word "stripping" is defined in Webster New World College Dictionary as "to remove the clothing or covering from a person and making him or her naked". The word also means "the undressing of the person". While further explaining the term, an explanation is mentioned therein in these words, "strip implies the pulling or tearing off clothing, outer cover, etc. And even connotes forcible or even violent action and total deprivation" .
8. Section 354-A, P.P.C. Was added by an amendment of the P.P.C. The original offence of section 354, P.P.C. Related to the outraging the modesty of a woman and the insertion of a new section after section 354, P.P.C. Indicated the will of the legislature that section 354-A, P.P.C. Shall be the aggravated form of section 354, P.P.C. Where not only the woman is molested but she is deprived of her clothes and exposed naked to the general public. The removal of `Dopatta' from the head of a lady does not fall within the purview of the said penal clause. Although the action of the police is highly condemnable that instead of using the talent and resources for the arrest of the real culprit the innocent family members are put to torture and they are compelled, by the use of such third degree methods, to procure the surrender of the accused. The practice cannot be approved and the involvement in such practice is required to be handled seriously. However, it is equally necessary that while proceeding against the illegal act of a police officer another illegality in the form of subjecting him to improper charge should not be committed, illegalities should be rectified through lawful means but not through a subsequent illegality. The removal of headgear cannot be considered to be total deprivation of the clothes of woman moving without `Dopatta' is never considered to be naked in any sense of the term. It is correct that the entire body of the female (except the face, the hands and the feet) is considered to be sacred and ordained to be covered.
The removal of "Chaddar" is considered to be the height of insult and violation of the privacy of females in our culture, however, the interpretation of the removal of "Chaddar" from the head cannot, in any case, be termed as stripping off the clothes or making a female naked.
9. In view of the above discussion, while condemning the entire occurrence in its manner and purpose, with all force, I have to hold that section 354-A, P.P.C. Shall not at all be applicable to the circumstances of the case as stated in the complaint. There was no intention of the respondent to insult the ladies. This is supported from the complaint itself that during the unfortunate occurrence the respondent had warned the ladies to remain away which means that the womenfolk was neither the target of the raiding police party nor the alleged removal of "Dopatta" was aimed at exposing the ladies to the public view with ulterior motives. The movement of a piece of cloth from a part of body accidentally during the process of grappling with someone else shall not amount to the offence as defined.
10. Hence by accepting this revision petition, the impugned order of the learned Additional Sessions Judge is set aside. Section 354-A, P.P.C. Is deleted from the panel of charges and the case is transferred to the Court of Senior Civil Judge/Judicial Magistrate, D.I. Khan for further proceedings.