' Through this petition, Mst. Zahida Parveen has sought special leave to impugn the judgment dated 26-1-2010 passed by Mr. Muhammad Abdul Nasir, Additional Sessions Judge, Gujranwala whereby he acquitted the respondent from the charges under section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 read with section 337-L(2), P.P.C. In a private complaint filed by the petitioner.
2. The facts as disclosed in the private complaint dated 29-3-2005 are as under:-- "That on 7-2-2002 she filed a complaint against her ex-husband and his brother for registration of a criminal case before DPO who entrusted the same to Incharge Police Chowki Khiali that she along with her mother and brother namely Javed Iqbal went to Chowki Khiali where Muhammad Afzal, ASI was Incharge of said chowki who kept the complainant sitting in his room till 10.00 p.m.
And then asked her brother and mother to wait outside the room. Thereafter the respondent asked the complainant to fulfil his sexual desire. The complainant refused and respondent hold the arms of the complainant and tried to put his hand on the Gereban of the complainant but failed as she resisted it. Thereafter respondent gave a severe beating to the complainant and on her hue and cry, her mother and brother came inside the room gnd got released the complainant from the clutches of the respondent. Thereafter respondent initiated proceedings against his brother under sections 107/151, Cr.P.C. And put him behind the police lock-up. The complainant got her medical examination, she filed an application to DSP dated 13-2-2002 but of no result. Earlier ske filed a private complaint of the same nature which was got dismissed as withdrawn fraudulently by her counsel that her grievance be redressed against the respondent.
3. The learned trial Court after necessary procedural and legal formalities summoned the respondent for facing trial and framed the charge against him on 20-2-2006 under section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 to which he did not plead guilty and claimed trial.
4. The petitioner appeared herself as P.W.1 and produced Mst. Mahmooda Bibi her mother as P.W.2 and Javed Iqbal her brother as P.W.3.
5. The learned trial Court, thereafter recorded statement of respondent under section 342, Cr.P.C.
Who while answering question No,4 Why this case against you and why the P.Ws. Deposed against you? The respondent gave the following answer:- "1 am innocent in this private complaint. I have falsely been implicated in the complaint due to the reason that on 2-2-2002 Muhammad Akram brother of the husband of the complainant along with Mubeen passing nearby police post with some domestic articles, complainant with the assistance of her brother Javed, Mehmooda mother tried to snatch the above said domestic articles. Due to this scuffle, they quarreled with each other and issued threats of dire consequences in front of the police post. Being a competent police officer, I took preventive action against both the parties. While taking preventive measure I registered Ruppat No,21 dated 2-2- 2002 against the above said both the parties. After that I arrested both the parties in preventive action and produced them before the competent court. The brother of the complainant was sent to judicial lockup due to non-submission of the bail bonds. I took the above said domestic articles into my possession vide recovery memo. Consequently, thus domestic articles were given on superdari to Muhammad Tufail husband of the complainant by the learned concerned Court. The complainant is professional blackmailer who has submitted various applications against the various persons. I have not committed any immoral act with the complainant in the police post.
The complainant obtained a bogus MLR with the connivance of the Medical Officer on the basis of self-suffered injuries only to strengthen the plaint. Complainant submitted an application against me to D.I.G. Gujranwala, the same was entrusted to the ASP, Civil Lines, Gujranwala for investigation and inquiry. The above said ASP summoned both the parties and investigated the matter. During the inquiry, the allegation levelled in the application was found false and no legal as well as departmental action was initiated against him. Due to the frivolous application, I was declared innocent by the ASP, Civil Lines, Gujranwala. The statement under section 342, Cr. P. C.
Was recorded by the learned Illaqa Magistrate and whole proceedings were likely to be concluded. When the complainant appeared before the learned subordinate Court and withdrew her complaint on 19-1-2005. Subsequently, complainant filed an application to restore of her complaint, as she was not willing to withdraw the private complaint and got her counsel obtained her signatures and the learned Judicial Magistrate on 14-3-2005 dismissed the application of the complainant. Subsequently, the complainant filed criminal revision against the order dated 14-3- 2005 and the learned Sessions Judge, Gujranwala dismissed the criminal revision on 18-3-2005.
Subsequently, complainant filed this, complaint by concealing the facts only to blackmail and pressurise me".
6. However, the respondent neither appeared as his own witness under section 340(2), Cr.P.C. Nor produced any evidence in his defence.
7. The learned trial Court finally through- the impugned judgment, dismissed the complaint and acquitted the respondent from the charge, hence this Criminal P.S.L.A. No,7/L of 2007.
8. In support of this petition, learned counsel for the petitioner submits that in view of the Medico- Legal Report and the statements of P.Ws., the petitioner successfully established her case against the respondent without any shadow of doubt, therefore, the learned trial Court erred in acquitting the respondent and dismissing the complaint.
9. We have gone through the impugned judgment and have also considered the arguments of the learned counsel for the petitioner.
10. The learned trial Court after appraisal of evidence came to the following conclusion:--
(i) There is no clear act attributed towards the respondent indicating intention of rape;
(ii) On the allegation of beating her neither the petitioner produced any MLR nor the same was got exhibited and even no lady doctor was either mentioned in the list of witnesses are got examined in the Court.
11. We have observed that the learned trial Court while arriving at the above noted conclusion did not commit any illegality or irregularity. There was no allegation by the petitioner that she was subjected to rape by the respondent. Her only allegation was that the respondent attempted to commit rape with her. However, from the perusal of evidence produced by the petitioner, it is established that the act of respondent does not constitute attempt to commit zina within the meaning of section 18 of the Offence of Zina (EnforcemeM of Hudood) Ordinance VII of 1979. A Full Bench of this Court in the case of "Javed lqbal and another v. The State PLD 1985 Federal Shariat Court 141 held that in order to constitute attempt to commit offence, it is necessary that there should be intention to preparation to commit the said offence", but in the instant case, the occurrence took place at the spur of the moment and there is no evidence produced". By her to prove that the respondent had any intention or preparation to commit zina with her, therefore, the learned trial Court committed no illegality or irregularity in acquitting the respondent from the charges under section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 read with section 337-L(2), P.P.C. As in the absence of any criminal intention or preparation to commit zina, the respondent could not be said to have attempted to commit zina with her.
12. So far as the allegation of petitioner that she was given beating by the respondent, no medical evidence in this respect has been produced by the petitioner. The MLC, if any, was never produced before the learned trial Court in order to constitute the offence within the meaning of section 337- L(2), P.P.C. Mere allegation by the complainant not supported by any independent evidence cannot constitute the offence complained against. Even P.W.2 Mst. Mahmooda Bibi mother and P.W.3 Javed Iqbal brother of the petitioner cannot be considered as independent or confidence-inspiring witnesses. Further, we find no justification for filing the second complaint after withdrawal of the first by the petitioner. Similarly, the petitioner while appearing as P.W.1 in her previous complaint though gave 2-2-2002 as the date of occurrence but as the second complaint (present one), she stated that the occurrence, took place on 7-2-2002. This difference of date with regard to the occurrence can also not be ignored while determining the veracity of petitioner's statement. Even otherwise, this is an appeal against the judgment of acquittal and the criteria for deciding appeal against conviction is different from the appeal against acquittal. It has been held time and again by the apex Court that the judgment of acquittal should only be interfered when the same is perverse and suffers from misreading of evidence, non-reading of evidence and a gross injustice has been done. It was further held by the apex Court mere difference of opinion regarding appreciation of evidence was no ground to set aside the acquittal, merely when the _finding after scrutiny in searching light was not found artificial, shocking or ridiculous (Reliance 2009 SCM R 985).
13. As the impugned judgment does not suffer from any of the above noted defects, therefore, we are not inclined to grant special leave to appeal to the petitioner against the impugned judgment and the same is dismissed in limine. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.