1. MUHAMMAD ALI MAZHAR, J.---This application is brought by the applicant under section 561-A, Cr.P.C. to challenge an order passed by the IInd Civil Judge and Judicial Magistrate, Mirpur Mathelo on 3-7-2010, whereby, he disagreed with the police report submitted under section 173, Cr.P.C. and referred to the Crime No, 108 of 2010 for session trial.
2. ' The brief facts of this case are that the complainant Mst. Samina lodged F.I.R. No, 108 of 2010 at Police Station Mirpur Mathelo, District Ghotki on 25-5-2010 under sections 354-A and 353, P.P.C. In the F.I.R., it was stated by her that on 25th, May 2010, she was on duty at CCU Building, near Civil Hospital, Mirpur Mathelo accused Wahid Bux with an unknown person came and said why she does not keep friendship with him, thereafter both accused forcibly hugged her, started kissing and hold her bosoms. During her resistance, accused Wahid Bux torn her clothes and when she cried, staff members Nazeer Ahmed and Akbar Ali came there and on seeing them, both accused crossed the wall and run away. On her compliant, police registered F.I.R. under section 354-A and 353, P.P.C.
3. ' The District Public Prosecutor, Gotki, opined on 23-6-2010 that in view of the evidence brought on record and contents of F.I.R. and statement of witnesses, offence under section 354-A, P.P.C. is not made out. He further stated in his opinion that let the case against the absconding accused Wahid Bux be challaned for the offence punishable under sections 354 and 353, P.P.C., on the basis of his opinion, police submitted report under section 173 in the court. On 3-7-2010, the learned Magistrate Mirpur Mathelo, declined .to accept the report with 'the observation that Investigation Officer mala fidely and dishonestly converted a case of section 354-A, P.P.C. into section 354, P.P.C. which is punishable up to two years while section 354-A, P.P.C. is punishable with death or life imprisonment. According to the learned Magistrate, the case under section 354-A, P.P.C. was made out therefore, while disagreeing with the report, he referred to the matter to the Session Court for- taking cognizance and trial.
4. ' Learned counsel for the applicant argued that while passing the impugned order, the learned Magistrate failed to consider the ingredients of section 354-A, P.P.C. No opportunity of hearing was provided to the applicant. The case was properly investigated and SIO rightly came to the conclusion that no case was made out under section 354-A, P.P.C. He further argued the CCU Building was not a public place and from the statement of the complainant, it is clear that no case under section 354-A, P.P.C. is made out. According to the learned counsel, the material collected by the Investigation Officer during investigation was not properly. considered by the learned magistrate, therefore, the impugned order is liable to be set aside. In support of his, arguments, he relied upon the following reported judgments:--
(1) PLD 2008 Lahore 308 (Karam Dad and another v. State and another). In this judgment section 354-A was considered by the learned judge of Lahore High Court and held that two conditions must be fulfilled to attract the provisions of section 354-A, P.P.C, firstly there should be stripping of the clothes of the woman and secondly to expose her in that condition to public view, and both conditions must be co-exist. In the same judgment it was further held that while interpreting the penal clause, the interpretation beneficial to the accused should be preferred.
5. (2)1989 PCr.LJ 1453 (Muhammad Ashraf v. The State). In this case, the learned single judge of Lahore High Court held that the penal provisions are to be construed strictly and liberal construction is not permissible. Offence under section 354-A, P.P.C. is not proved unless the woman. is exposed to public view. In the present case, the evidence brought on the record falls short of this definition, because neither Mst. Sajida Bibi P.W.5 was exposed to any other member of the public except the accused and inmates of the house, nor there is evidence on the record that the so- called place was a public place. In the same judgment it was further held 'public view' means and includes seeing or looking by the people of a nation, state or community, as a whole.
(3) 2009 SCM R 913 (Qadir Shah and others v. State). In this judgment, the honorable Supreme Court has held that occurrence had taken place in the fields, clothes of the victim were just torn and not stripped off and she was not exposed to public-at-large as no one from general public was present at the scene of incident, case against accused, therefore, did not fall within the ambit of Section 354-A, P.P.C., but was hit by section 354, P.P.C.
6. ' In rebuttal, the learned counsel for the respondent No:2 argued that the CCU Building of Civil Hospital is a public place, therefore, section 354-A, P.P.C. fully applies. He further argued that offence was committed in the premises of Government hospital which is a public place and many persons viewed the complainant. SIO recorded further statement of the complainant from which a case under Section 354-A is clearly made out. According to the learned counsel, the applicant is notorious blackmailer and ample record against him is available. Finally, he argued that the order passed by the learned Magistrate is just and proper order and does need any interference. In support of his arguments, he relied upon the following judgment:-- 1996 PCr.LJ 620 (Zulfiqar and 2 others v. The State). In this judgment, the honorable Federal Shariat Court held that motive for the commission of the offence had been proved. Independent ocular evidence was available on record to show that the wife of the complainant was dragged by the accused as a result of which her clothes were torn and she had become naked. Process of dragging of the victim by the accused during which her clothes were torn was a deliberate and voluntary action of the accused to strip her of her clothes. Although the occurrence had taken place in a privately owned land, yet the public had free access to that place and it could be seen by every one who might have been present there at that time, which had the effect of exposing the victim to the public view. Conviction and sentence of accused were upheld in circumstances.
7. ' The learned A.P.-G. argued that the report of police is not binding upon the court and the learned Magistrate did not act in excess of his jurisdiction, however, he stated that let the Magistrate first record the statement of complainant and if from her statement the ingredients and pre-requisite of section 354-A, P.P.C. are made out, then off course, he may referred to the matter for the Sessions trial. The learned counsel for the respondent No,2 also conceded to this suggestion.
8. After hearing the learned counsels, I have reached to the conclusion that in order to attract section 354-A, P.P.C. three conditions must be fulfilled which are as follows:-- (i)assault with criminal force to a woman; (ii)stripping her of her clothes; and (iii)exposing her to the public view in that condition.
9. ' For ready reference, 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 use 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."
10. ' In the judgment, reported in 2004 PCr.LJ 1972, (Hasnain. Ali v. State), the learned Judge of this court, while deciding a bail application, held that the words "strips her of her clothes and in that condition exposes her to the public view" are very important words and this section applies only in those cases where after stripping off the clothes the lady is made naked and exposed to the public view. The intention of the Legislature while incorporating section 354-A, P.P.C. by Criminal Procedure (Amendment) Ordinance, XXIV of 1984 is that no woman should be assaulted by using criminal force and stripping her of her clothes and in such position, exposed to the public view. Section 354- A, P.P.C. has been incorporated to protect the modesty and honour of the woman and if anyone exposes her for public view in way in which no woman would like to appear in public by stripping her clothes such person is liable to be prosecuted under section 354-A, P.P.C. It is not necessary that woman should be completely nude to attract section 354-A, P.P.C. If substantial part of her clothes has been torn in such a way that the same exposes her body and the woman has been exposed in such humiliation for the view in general public so as to humiliate her in that condition the requirement to attract under section 354-A, P.P.C. has been satisfied. In the judgment reported in 2009 SCM R 913, the honorable Supreme Court held that the plain reading of section 354-A, P.P.C. reveals that to attract the said penal provisions, 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.
11. Both the conditions must co-exist to bring the case within the ambit of section 354-A, P.P.C.
12. ' The judgments cited by the learned counsel for the applicant are quite applicable regarding the implication, applicability and interpretation of section 354-A, P.P.C. so far as, the judgment of honorable Federal Shariat Court, cited by the learned counsel for the respondent No,2 is concerned, this case was decided after evidence in which the honorable Federal Shariat Court held that motive for the commission of the offence had been proved. Independent ocular evidence was available on record to show that the wife of the complainant was dragged by the accused as a result of which her clothes were torn and she had become naked. Although the occurrence had taken place in a privately owned land, yet the public had free access to that place and it could be seen by every one who might have been present, there at that time, which had the effect of exposing the victim to the public view.
13. ' In the present case, if at any time, the learned Magistrate is of the view that the offence under Section 354-A is made out, he may refer to the matter for Session Trial. In order to deal such type of situation, legislature has already provided specific provision under section 347, Cr.P.C. which reads as under:-- "347. <u>Procedure when, after commencement of trial, Magistrate finds case should be tried by Court of Session or High Court:</u>---If in any trial before a Magistrate, before signing judgment, it appears to him at any stage of the proceedings that the case is one which ought to be tired by the Court of Session or High Court, he shall send the case to the Court of Session or High Court, for trial."
14. The above provision of law fully empowers the Magistrate that before signing judgment, if it appears to him at any stage of the proceedings that the case is one which ought to be tired by the Court of Sessions or High Court, he shall send the case to the Court of Session or High Court, for trial. Originally, the F.I.R. was lodged under sections 351 -A and 353, Cr.P.C. but on the opinion of District Police Officer, challan was submitted under Section 354 and 353 P.P.C. which was not accepted by 'the learned Magistrate. Section 9 of the Sindh Criminal Prosecution Service (Constitution, Function and Powers) Act, 2009, relates to the powers and functions of the prosecutors who are made responsible for the conduct of prosecution on behalf of Government.
15. Subsection (3) of section 9 provides that a police report under section 173 of the code including a report of cancellation of the F.I.R. or a request for discharge of a suspect or an accused shall be submitted to a court through the prosecutor appointed under this Act. Subsection (4) provides that the prosecutor shall scrutinize the report or the request and may return the same within three days to the officer in charge of police station or investigation officer as the case may be, if he finds the same to be defective, for removal of such defects, as may be identified by him. In the F.I.R. complainant has stated that Wahid Bux with an unknown person came and said why she does not keep friendship with him, thereafter both accused forcibly hugged her, started kissing and hold her bosoms. During her resistance, accused Wahid Bux torn her clothes and when she cried, staff members Nazeer Ahmed and Akbar Ali came there and on seeing them, both accused crossed the wall and run away. Though police report is not binding on the Magistrate but facts remains that the necessary element and decisive consideration for the applicability of section 354-A, P.P.C. is an assault or use of criminal force to any woman and stripes her of her clothes and in that condition exposes her to the public view which is real question that calls for determination by the learned Magistrate which is at present uncertain and can only be resolved once, the trial is commenced and statement of the complainant is recorded.
16. ' As a result of above discussion, the impugned order dated 3-7-2010 is set aside with the direction to the learned Magistrate to commence the trial, record the statement of complainant and if from her statement, is appears to him that a case under section 354-A, P.P.C. is made out, he shall immediately send the case to the court of Session for trial. The learned Magistrate shall record the statement of complainant within a period of one month.
17. ' The Criminal Miscellaneous Application is disposed of in the above terms.