' HASNAT AHMAD KHAN, J.---Through this petition, the petitioners, have challenged the order dated 22-6-2007 passed by a learned Additional Sessions Judge Mianwali, whereby the order dated 18- 4-2007 passed by the learned Magistrate section 30, Mianwali, had been set aside and the application moved by the petitioners before the trial Court for amendment of the charge, had been accepted.
2. Brief facts of the case are that Muhammad Afzal/respondent No,2 lodged F.I.R. No,97 dated 23-11- 2006 with Police Station Chakralah, District Mianwali, in respect of offences under sections 354/109, P.P.C. After due investigation, a report under section 173, Cr.P.C. Was submitted by the police before the concerned learned Magistrate section 30, Mianwali, whereupon the said Court took the cognizance of the matter and charged the accused under section 354, P.P.C. Being dissatisfied respondent No,2 moved an application dated 26-2-2007, before the said Court for amendment of the charge from section 354, P.P.C. To section 354-A, P.P.C. Besides, the complainant/ respondent No,2, moved another application for cancellation of the bail bonds submitted by the petitioners before the concerned Magistrate Section 30, pursuant to the order dated 28-11-2006, passed by Mirza Jawad Ahmad Baig, learned Additional Sessions Judge, Mianwali. However, both the said applications were dismissed by the said learned Magistrate vide a consolidated order dated 18-4- 2007 with the following observation:-- "If after the recording of evidence of the parties, it appears that the offence under section 354-A, P.P,C. Is made out then the charge will be amended accordingly and the accused will be proceeded in accordance with law".
3. Aggrieved of the said order respondent No,2 filed Criminal Revision No,14 of 2007 before the learned Sessions Judge, Mianwali, The said criminal revision came up for final hearing before Mirza Jawad Ahmad Baig, learned Additional Sessions Judge, Mianwali, who accepted the criminal revision vide order dated 22.-6-2007, whereby the learned trial Court was directed to submit the judicial file to the learned Sessions Judge Mianwali for necessary orders.
3-A. In support of this petition the learned counsel for the petitioner contends that even a bare reading of the F.I.R. Makes it crystal clear that the provisions of section 354-A, P.P.C. Are not attracted, as neither the clothes of the victim were stripped off by the accused during the alleged occurrence nor was anybody else present at the scene except the complainant and his son; that the learned revisional Court committed illegality while upsetting the well-reasoned order passed by the learned trial Court, and that the impugned order being illegal and without jurisdiction is not sustainable.
4. Conversely, learned Deputy Prosecutor General assisted by learned counsel for respondent No,2 has tried to defend the impugned order dated 22-6-2007, passed by the learned revision Court on the grounds that the provisions of section 354-A, P.P.C. Are fully attracted to the case in hand and that though the occurrence was not seen by the public-at-large but the place of occurrence being a thoroughfare, it cannot be said that the victim was not publicly exposed.
5.Now to expound the proposition before me I would like to have a comparative study of both the relevant provisions of the law. Section 354, P.P.C. Reads as under:-- "Assault or criminal force to woman with intent to outrage her modesty.---Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be like 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."
' While section 354-A, P.P.C. Is reproduced as under:-- "Assault or use of criminal force to woman and stripping her of her clothes.--Whoever assaults or uses criminal force to any woman and stripes her of her clothes and, in that condition exposes her to the public view, shall be punished with death or with imprisonment for life, and shall also be liable to fine."
5. After comparing the provisions of both the said sections and going through the relevant record I have gathered that initially the case was registered against the petitioner under section 354, P.P.C.
Then, after thorough investigation, a report under section 173, Cr.P.C. Was submitted by the police for the trial of the accused under section 354, P.P.C. After taking cognizance the trial Court had framed the charge under section 354, P.P.C. I have further concluded that the application moved by the respondent No,2 for reframing charge under section 354-A, P.P.C. Was dismissed by the learned trial Court after advancing sound reasons. I also find that the allegations as contained in the F.I.R., lodged at the behest of the respondent, prima facie, do not attract the provisions of section 354-A, P.P.C. The plain reading of the said provision of P.P.C. Would reveal that to attract the said penal provision, two conditions must be fulfilled, firstly there should be stripping of the clothes and secondly the victim in that condition be exposed to the public view. To attract the provisions of this section both the said conditions must co-exist. In this case, according to complainant himself the clothes of the victim were just torn and not stripped off. Secondly the second pre-requisite for the application of section 354-A, P.P.C. Regarding exposure of the victim to the public at large, prima facie, is also missing.
6. There is another aspect of the matter that the offence under section 354-A, P.P.C. Is punishable with death or imprisonment for life. Originally section 354-A, P.P.C. Was not a part of the Pakistan Penal Code. But as the law can never remain static it evolves with time as life's experiences shape the thinking of those who frame it. With the change of norms and behavior of the society the legislature keeps on amending the law to cope with the novel, advance, improvised, aggravated, growing, evolving and mind blowing techniques of the criminals/hoodlums. Section 354-A, P.P.C.
Was added in the year 1984 after commission of offences of outraging the `modesty of women by exposing them to public view after stripping off their clothes. Thereafter this provision was enacted by the legislature to deter the outlaws from exposing the ladies to the public view after stripping of their clothes. As the said offence can be punished with death, therefore, one should be very careful to indict the accused under the said section. It is an established principle of interpretation of the statute that while interpreting a penal clause, the interpretation beneficial to the accused 'should be preferred.
8. I have further concluded that while passing the impugned order the revisional Court failed to observe that the prosecuting agency while registering the case and submitting challan itself had found that it was a case falling within the provisions of section 354, P.P.C. The trial Court while taking cognizance and framing charge was also of the same view. Besides, prosecution's evidence in this case has yet to be recorded. At present material it is not safe to indict the petitioner under section 354-A, P.P.C.
9. For what has been discussed above, I find that the order dated 22-6-2007 passed by the learned Additional Sessions Judge, Mianwali revisional Court suffers from illegality, therefore, the petition in hand is accepted and the impugned order dated 22-6-2007 is set aside and that of learned trial Court dated 18-4-2007 is restored.