This judgment will dispose of Crl.Appeal No, 282 of 2006 filed by Muhammad Afzal who was convicted and sentenced by learned Additional Sessions Judge, Talagang, District Chakwal, vide judgment dated 10.06.2006 as under:-- To undergo six months RI with fine of Rs, 10,000/- and in default thereof, one month SI on two counts under Sections 211 and 500 PPC.
To pay compensation of Rs,25,000/- on each count to the complainant and in default thereof, the same would be liable to be recovered by attachment and sale of movable property through revenue department as arrears of land revenue.
2. Criminal Appeal No, 284 of 2006 filed by Mst. Amir Bano and Mst. Sardar Bano, appellants shall also be disposed of through this single -judgment. The appellants were convicted and sentenced by learned Additional Sessions Judge, Talagang, vide judgment dated 10.06.2006 as under:-- To pay fine of Rs, 10,000/- each on each count and in default thereof, one month SI each under Sections 211/500 PPC. They were also directed to pay compensation of Rs,25,000/- each on each count to the complainant and in default thereof, the amount will be recovered by attachment and sale of their movable and immovable properties through revenue department.
3. The brief facts leading to filing of the complaint out of which the prosecution case are that Mst.
Amir Bano in case FIR No, 70 dated 19.07.1994 under Section 18 Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 are that she is resident of Dhok Kanjala Dakhi Patwali. She was divorced by her husband Abdul Majeed 20/22 years ago due to issueless and she resides with her mother. Yesterday on 18.07.1994 at Deegar wela, when she was grazing her goats near the Dhok, Ghulam Hussain son of Sher Zaman, who was also grazing his cattle, came nearby the complainant with bad intention. He caught hold her from her hair and pushed her on the ground and sat on her chest. He started to put of her clothes forcibly and during this scuffle, her clothes were torn, which are lying in her house and can be produced thereafter. On her hue and cry, her mother Mst. Bakhat Bano and Muhammad Afzal her relative reached at the spot, who escaped her from his clutches. The case was thoroughly investigated by the local police and ultimately was cancelled.
4. Feeling aggrieved with the cancellation of the FIR, Mst. Amir Bano filed a complaint against Ghulam Hussain under Section 18 Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 which was dismissed by the learned Additional Sessions Judge.
5. After dismissal of private complaint filed by Mst. Amir Bano, Ghulam Hussain complainant filed, a private complaint under Article 7 Offence of Qazf (Enforcement of Hadd) Ordinance VIII of 1979 and under Sections 500, 211 and 109 PPC.
6. The brief facts of the private complaint filed by Ghulam Hussain complainant are that he is Muslim by faith having age of 70/75 years; that on humanitarian basis, he was helper of complainant of murder case against brother 'of accused Muhammad Afzal, who was sentenced to death as such Muhammad Afzal was bent upon to take revenge from complainant; that Muhammad Afzal with connivance with Mst. Amir Bano and Mst. Sardar Bano managed a false case against the complainant under Article 18 Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 on 18.07.1994 and Mst. Sardar Bano and Muhammad Afzal were mentioned as eye- witnesses; that then complaint was filed by the accused which was also dismissed and thereafter revision was also dismissed by the Hon'ble Federal Shariat Court, hence the complainant filed present private complaint against the accused.
7. It is pertinent to mention here that after filing of complaint, learned Magistrate made a reference to the learned Sessions Judge about the case being triable by the learned Sessions Judge and finally the matter was entrusted to learned. Additional Sessions Judge on 23.07.1996 who held that the offence under Article 7 ibid was not applicable due to the statement of learned counsel for the complainant and as such the case was again sent back being triable by learned Magistrate but thereafter learned Magistrate completed trial and on 08.04.2006, it was observed that under Defamation Amendment Act, 2004, Section 500 PPC was declared to be triable by the Court of Sessions and finally the complaint was tried by the learned Additional Sessions Judge.
8. It is contended by learned counsel for the appellants in both the appeals that learned Additional Sessions Judge could not have convicted the appellants under Section 211 PPC because complaint was not filed by the complainant as required under Section 195(1)(b) Cr.P.C; that as far as conviction and sentence awarded to the appellants under Section 500 PPC is concerned, i,e, not legal one because under exception to Section 8 of Section 499 Cr.P.C, no conviction in such like cases can be awarded; that complaint was filed before the competent Court by the appellants i,e, learned Additional Sessions Judge; that Ghulam Hussain complainant besides filing a complaint under Sections 500, 211 and 109 PPC also filed a civil suit before Civil Court for malicious prosecution against the present appellants, which was dismissed. Then, according to learned counsel, the complainant was justified after the judgment of Civil Court in not filing complaint under Article 18 Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 against Ghulam Hussain complainant of this complaint in which appellants have been convicted and sentenced by learned Additional Sessions Judge; that as far as judgment of Civil Court whereby suit filed by the complainant for malicious prosecution against the appellants is concerned, no appeal was filed so judgment of Civil Court had attained finality.
9. It is maintained that the conviction and sentence which has been awarded to the appellants in the complaint, it was filed through special attorney, who appeared on behalf of Ghulam Hussain complainant before trial Court. Learned counsel has relied upon PLJ 2006 Criminal Cases Karachi 111 to submit that no complaint can be filed through a special attorney; that there are two conflicting judgments, one passed by learned Civil Judge in suit filed by Ghulam Hussain for malicious prosecution against the appellants which was dismissed while the other rendered by learned Additional Sessions Judge whereby the appellants were convicted and sentenced.
10.It is argued that Mst. Amir Bano in support of her version has produced her mother Mst. Sardar Bano that no woman would coin a story putting at peril against her modesty; that learned Additional Sessions Judge had dismissed the complaint of Mst. Amir Bano after seeing Amir Bano and Ghulam Hussain and not on the basis of facts and circumstances of the case. The nutshell of arguments of learned counsel the appellants in both the appeals are entitled to acquittal.
11.Learned DPG submits that initially Mst. Amir Bano had lodged FIR under Article 18 Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 against Ghulam Hussain complainant, which was cancelled after thorough investigation after the inquiry conducted by an officer not below the rank of DSP; that against the order of learned Additional Sessions 'Judge, Mst. Amir Bano went in criminal revision before Hon'ble Federal Shariat Court, which was also dismissed; that learned Additional Sessions Judge after weighing the evidence of prosecution and discussing the same has convicted the present appellants; that as far as objection of learned counsel for appellants regarding Section 211 PPC is concerned, i,e, proper one; that as far as Section 500 PPC is concerned, learned DPG supports the judgment of learned trial Court.
12.I have heard learned counsel for the parties especially learned counsel for the appellants at length. This case has a chequered history. Initially Mst. Amir Bano lodged FIR No, 70 dated 19.07.1994 about an occurrence which took place on 17.08.1994 against Ghulam Hussain complainant of private complaint. This case was thoroughly investigated by local police including the DSP concerned, who recommended and verified the investigation and came to the conclusion that case filed by Mst. Amir Bano was totally false and recommended for cancellation and ultimately this case was cancelled. Thereafter, Mst. Amir Bano filed a private complainant against Ghulam Hussain under Section 18 Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979. She produced preliminary evidence, after recording the evidence, Mr. Kazim Ali Malik, the learned Additional Sessions Judge summoned Ghulam Hussain and he after observing his physique and age had dismissed the complaint filed by Mst. Amir Bano.
13. For the just decision of the case, Paragraphs No, 3 & 4 from the said order of learned Additional Sessions Judge dated. 20,04.1995 are reproduced below:- "3. After having failed to get challaned the accused, the complainant has filed this private complaint with the same allegation. Besides the complainant, her mother and Muhammad Afzal afore-mentioned also made statements as preliminary witnesses. One of the grounds which weighed with the police while disbelieving the prosecution story was extreme old age of the accused. In order to arrive at a right conclusion I also summoned the accused to ascertain his age.
From his appearance he was aged about 75/80 years. The complainant is aged about 45 years.
The disparity between the ages of the accused and the complainant would lead this Court to conclusion that it was impossible for the could man to over power the complainant or remove her clothes. The accused is also of week structure and comparatively the complainant is well built. I am unable to agree with the complainant that the accused, who is extremely old and week was in a position to through the well built complainant on the ground. In my view a slight push by the complainant is sufficient to through away the old accused. After seeing the accused and the complainant I am in agreement with the investigators that it was not possible for the old accused to commit the alleged offence.
4. The complainant says that she offered resistance to the accused as a result he wearing clothes were torn. This saying of the complainant has not been supported with any medical evidence. Had the accused thrown the complainant on the ground and had she offered resistance, then she would have certainly received some scratches/injuries on her person. Absence of injuries is a strong circumstance which negates the charge."
14.Against the order dated 20.04.1995, passed :by learned Additional Sessions Judge, Mst. Amir Bano, filed a revision petition before the Hon'ble Federal Shariat Court in its revisional jurisdiction which was heard by a Division Bench consisting of Mr. Justice Khalil-ur Rehman Khan and Mr. Justice Muhammad Shafi Muhammadi, who vide their order dated 18.03.1996, dismissed the revision petition. Paragraph No, 3 of the judgment is reproduced below for the just decision of this case:-- "The first thing that we have noted is that Mst. Amir Bano complainant as well as two witnesses, namely, Mst. Bakht Bano and Muhammad Afzal in their statements made improvements which on the face of it show deliberate attempt to involve the respondent/complainant. The complainant .as observed by the learned Additional Sessions Judge is an old man aged 75 years and also has a weak structure as compared to the complainant who is also present in the Court. Learned Additional Sessions Judge does not appear to be wrong in coming to the conclusion that the complainant in this age and with weak structure would not have been able to over-power the complainant. We are conscious that the weak structure of the complainant and his old age alone would not furnish sufficient basis for dismissing a complaint but keeping in view the stand taken in the preliminary evidence by the interested witnesses we are satisfied that the complainant would not have succeeded in her case even of full trial had been held. Learned counsel for the State also supports the judgment of the learned Additional Sessions Judge and states that in the facts and circumstances of the case interference in revisional jurisdiction is not called for. The substantial justice as such have been done we do not find any justification to interfere within the revisional jurisdiction. The revision petition, therefore, fails and is dismissed accordingly."
15.It was thereafter then Ghulam Hussain filed a complaint under Sections 500, 211 and 109 PPC against Mst. Amir Bano, her mother Mst. Sardar Bano and Muhammad Afzal before learned Additional Sessions Judge as Section 500 PPC is triable by learned Sessions Judge or by learned Additional Sessions Judge. He also filed a civil suit for malicious prosecution against three appellants which was dismissed on 22.02.2006, though some portion of the judgment has been read before me and that matter was decided on the basis of evidence produced by the complainant and the witnesses who appeared before the learned trial Court.
16.Learned counsel for the appellants has relied upon PLJ 2006 Criminal Cases Karachi 111 to submit that complaint could not have been filed through General Attorney. Although the complaint was filed by Ghtdam Hussain through his General Attorney Sardar Hussain his son but he himself appeared before the learned trial Court as PW-.
1. He was fully cross-examined by the appellants.
He also produced Ijaz Hussain PW-2 and Amir Muhammad Khan RW-3. All the three witnesses have appeared before learned trial Court and they have been fully cross-examined by the appellants and learned trial Court convicted and sentenced the appellants as mentioned above. I have also gone through the General Power of Attorney given by Ghulam Hussain complainant on stamp paper which is Ex. P1 stating the reason given by him that he is very old man and cannot follow up the complainant personally but he appeared as PW-.1 before the learned trial Court. The judgment cited by the learned counsel for appellants is not applicable in the peculiar circumstances of this case.
17.It is next argued that the case of appellants is covered by exception 8th of Section 499 PPC, it is totally wrong because exception 8th of Section 499 PPC is reproduced below:-- "Eighth Exception. Accusation preferred in good faith to authorized person. It as not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation."
18.A bare perusal of above said section would show that this exception is totally inapplicable in this case because Mst. Amir Bano appellant had levelled false allegations against Ghulam Hussain and the same were not levelled in good faith as it is the pre-requisite of the exception.
19.After having heard learned counsel for the parties and going through the evidence on record, I am of the view that conviction and sentence u/S. 211 PPC against appellant is set-aside for the reasons that it was rightly argued by learned counsel for the appellants that it is hit by Section 195(1)(b) Cr.P.0 and was also conceded by learned Deputy Prosecutor General. So far as, conviction u/S. 500 PPC is concerned, Ghulam Hussain complainant has proved his case against the appellants through confidence inspiring evidence and there is no merit in both the appeals, which are hereby dismissed.
20.The appellants have filed both the appeals in the year 2006 and they have not paid the amount of fine and also the compensation as ordered by the learned trial Court up till now; they are directed to pay the amount of fine and also the amount of compensation within one month from today, failing which, they shall be taken into custody and will suffer the sentence provided in lieu of amount of fine and compensation. As far as conviction and sentence awarded by learned: Additional Sessions Judge to Muhammad Afzal appellant is concerned, the same is maintained only to the extent of Section 500 PPC.