Through this criminal revision petition, the order dated 08.06.2023, passed by learned Addl.
Sessions Judge/GBV/Special Court, Pasrur has been challenged, whereby the learned trial Judge while deleting the offence under Section 354 PPC of the charge, has held that since all the remaining offences are not scheduled offences, and as such are exclusively triable by the Court of learned Judicial Magistrate and consequently, referred the file to the learned District and Sessions Judge, Sialkot for its further entrustment to the court of competent jurisdiction for trial.
2. Precisely, necessary facts for disposal of instant revision petition are that the petitioner had lodged a criminal case vide FIR No.323 dated 15.09.2020, offences under Sections 354/337-F(i)/ 337-A(i)/337-L(2)/452/147/149 PPC with Police Station Sabaz Peer, District Sialkot with the allegation that on 03.09.2020 at about 8.30 a.m., respondents No.2 to 13 along with one Saeen, armed with sotas made criminal trespass in her haveli, caught hold her; Niamat Ali raised lalkara that he be killed; Waseem, started collecting articles, snatched Rs.50,000/- from mother of the petitioner and gave beating to the complainant and her mother. The accused persons caught hold Ameen Bibi, the petitioner's mother, from her hair, dragged her at thoroughfare in naked condition exposing her to the people of the vicinity.
3. It has borne out from the record that after some investigation, an interim/incomplete report was submitted under Sections 354/337-F(i)/337-A(i)/337-L(2)/452/147/149 PPC on 13.04.2021; after taking cognizance, the learned Magistrate 1st Class, Pasrur on 16.09.2021, framed the charge against the accused persons namely Muhammad Saeen, Samra Bibi, Muhammad Waseem, Nargis Bibi, Humaira Bibi and Niamat Ali accordingly, to which, they pleaded not guilty and claimed trial.
On 23.05.2022, a complete challan was also sent to Court under the same offences, whereupon the learned Judicial Magistrate 1st Class, Pasrur, once again framed the charge on 05.10.2022, to which the accused pleaded not guilty and claimed trial and the case was adjourned for prosecution's evidence. The learned Magistrate Section 30, Pasrur, later-on, vide his order dated 14.02.2023 made the observations to the effect that:- "as per Amendments in criminal law in shape of Anti Rape Act, 2021, a Special Court for dealing with the matters relating to gender violence and rape offences etc. is designated and above said matters are to be heard by same Court constituted in this regard, therefore, this court has no mandate to hear the matter any longer. Resultantly as per circular No.3289 dated 14.10.2022 issued by the Worthy Sessions Judge, Sialkot, this case file is humbly transmitted to the GBV/Special Court of Pasrur for 23.02.2023."
The learned Addl. Sessions Judge/GBV Court, Pasrur, on 23.02.2023, upon receiving the case file, proceeded with the case and vide his order dated 24.03.2023, after framing the fresh charge against the accused persons for the same offences i.e. under Sections 147/149, 452, 337-F(i)/337- A(i)/337-L(2) and 354 PPC, to which the accused pleaded not guilty and claimed trial, summoned the prosecution's evidence. Thereafter, the learned Addl. Sessions Judge/GBV/Special Court, Pasrur, vide his impugned order dated 08.06.2023, apart-from deleting the offence under Section 354 PPC of the charge, ordered to place the file before the learned Sessions Judge, Sialkot for its onward entrustment to the Court of learned Judicial Magistrate Section 30, Pasrur with the following observations:- "Record of instant case has been meticulously apprized while keeping in juxta-position Anti Rape (Investigation and Trial) Act, 2021. Preamble of ibid Act reflects that it came into existence to ensure the expeditious redressal of rape and sexual abuse in respect of women and children and in recent amendment bill 2022 in the Anti Rape Act (Investigation and Trial) Act, 2021. Word "sexual offenders" has been used for the such culprits, whereas, the instant case as per factual matrix available on record is simple case of fight and house tress-pass. To solidity the version of complainant no recovery memo of torn apparels of alleged victim finds placed on record.
Moreover, intention to outrage modesty for the purpose of rape or sexual abuse to bring this case under the pail of special Court constituted under Section 3 of the ibid Act is missing. Hence, Court is of the considered opinion that offence "under Section 354 PPC" is not made out. Thus same is deleted. Remaining offences which are already existence or made out from the available record are not scheduled offences and exclusively triable by the Court of learned Judicial Magistrate.
2. Ergo in the given facts and circumstances propriety demands that instant case which heard and adjudicated upon by the concerned Court of learned Judicial Magistrate Section 30. So the instant file be placed before Worthy District & Session Judge Sialkot on 14.06.2023 to seek its benign indulgence for appropriate orders."
4. Arguments heard and record perused.
5 The entire controversy, described above, has since arisen due to deletion of Section 354 PPC of the charge, therefore, it appears to be expedient to reproduce the said provision for its examination in depth being quite relevant "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 likely 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". The assault or use of criminal force with intent to outrage the modesty of a woman, by an offender is the foundational requirement to constitute the offence under Section 354 PPC. Since the word "modesty" has not been defined in the Pakistan Penal Code, therefore, a resort shall have to be made to its dictionary meanings and import. Black's Law Dictionary refers to "modesty" as a quality of decency or propriety, particularly regarding dress, demeanor, or behavior, without providing its specific definition in the context of sexual offenses. In the Oxford English Dictionary "modesty" is defined as "behavior, manner, or appearance intended to avoid impropriety or indecency." In Cambridge Dictionary as "the quality of not being too proud or confident about yourself or your abilities; the quality in women of behaving and dressing in ways that do not attract sexual attention." The word "modesty", was interpreted by the Indian Supreme Court, in the case of "Rupan Deol Bajaj v. KPS Gill (AIR 1996 SC 309), influencing the legal thought in Pakistan as "modesty is an attribute associated with a woman, and it is the essence of a woman's womanhood. An act that violates the dignity of a woman may be considered as outraging her modesty." Moreover, sexual abuse having its nexus with the Act, also has been defined in Black's Law Dictionary as "any physical or non-physical act of a sexual nature performed on another person without their consent, including molestation, harassment, exploitation, or any other act intended to sexually violate the victim." In Oxford English Dictionary as "the action or an act of subjecting someone to unwanted sexual activity." In Merriam-Webster Dictionary as "the infliction of sexual contact upon a person by forcible compulsion; also: engaging in sexual contact with a person who is below a specified age or incapable of giving consent." In Cambridge Dictionary as "the harmful use of sexual actions or words towards another person, especially a child, in a way that is against the law." In UN Definition (General Context) as "actual or threatened physical intrusion of a sexual nature, whether by force or under unequal or coercive conditions." In view of above described definitions of modesty and sexual abuse, it may be observed that an act outraging a woman's modesty (Section 354 PPC) escalates to sexual abuse if the following elements are found present (1) Presence of Sexual Intent (a) "modesty" involves actions that are indecent but may not be overtly sexual (b) Sexual abuse explicitly includes sexual intent to exploit, harm, or degrade. (2) Physical Violation (a) "modesty" can be outraged without physical contact (e.g. verbal harassm ent), (b) Sexual abuse typically involves physical acts like groping, molestation, or assault, but it can also include non-physical coercion (e.g., forcing someone to view explicit material). (3) Severity and Impact (a) Actions that insult modesty may offend dignity or decency but stop short of sexual harm. (b) Sexual abuse causes deeper emotional or physical harm and violates the victim's bodily autonomy.
6. Moreover, it is settled that the Courts are supposed to interpret the law in such a manner that the same may not defeat the object of legislation under interpretation rather it should be made in aid to the legislature. Reference can be made to the case of "Tahir Naqash and others vs. The State and others"(PLD 2022 Supreme Court 385), "Abwa Knowledge Pvt. Ltd. and another vs. Federation Of Pakistan and another" (PLD 2021 Lahore 436), "Muhammad Asghar and 3 others vs. Station House Officer and 2 others" (PLD 2020 Lahore 87). The Preamble of any statute is deemed to be a key to understand and interpret its provisions. Reliance is made upon the cases of "Ismaeel vs. The State" (2010 SCMR 27), "Khan Gul Khan and others vs. Daraz Khan" (2010 SCMR 539), "Muhammad Tariq Khan vs. Khawaja Muhammad Jawad Asami and others" (2007 SCMR 818) and "Fazal Dad vs. Col.(Rtd.) Ghulam Muhammad Malik and others" (PLD 2007 Supreme Court 571). The object and purpose of The Anti-Rape (Investigation and Trial) Act, 2021, hereinafter to be called as The Act, has fully been embodied in its preamble, which in its verbatim is reproduced for better comprehension. "An Act to ensure expeditious redressal of rape and sexual abuse crimes in respect of women and children through special investigation teams and special Courts providing for efficacious procedures, speedy trial, evidence and matters connected therewith or incidental thereto." It may be relevant to state that in a case titled "Sumaira Vs. The State etc."(2024 P.Cr.L.J 1783), this Court emphasized the aims and objects of the Anti-Rape (Investigation and Trial) Act, 2021 and held that: "Parliament has enacted the Anti-Rape Act to assure various fundamental rights guaranteed by the Constitution and to discharge obligations under international law to address the issue of sexual violence and bring offenders to justice. To this end, the Act provides for efficient procedures, speedy trials, evidence and matters connected therewith or incidental thereto. It may be highlighted that being a special legislation, it has precedence over all other general laws on the subject it covers....
The Anti-Rape Act aims to effectively deal with the rape and sexual abuse crimes mentioned in its Schedules (which are hereinafter referred to as the "Scheduled Offences") committed against women and children. It outlines a framework to check the said crimes by establishing (i) Anti- Rape Crisis Cell, (ii) Special Sexual Offences Investigation Units, (ii) Independent Support Advisors,
(iv) Special Prosecutors, (v) Special Courts, (vi) a register of sex offences, and (vii) Fund to carry out the purposes of the Act. Each thread is meticulously braided; a break in any of them would render the statute ineffective. In light of the principles discussed above, the courts must interpret the Anti-Rape Act liberally and purposively. They must adopt the construction that advances rather than defeats the statute's objectives."
7. In order to achieve the envisioned objectives behind the Act, right from the stage of investigation to the conclusion of trial, the legislature has incorporated several provisions providing a coherent mechanism to ensure its effective implementation. A Judge of Special Court shall have to be appointed for a period of three years on the terms and conditions, to be determined by the Federal Government. He can only be removed before expiry of his tenure if he is found guilty of misconduct.
However, a Judge of Special Court can be transferred, during his tenure as aforesaid to another Special Court within the same Province by the Chief Justice of the High Court concerned after recording reasons. The trial of the scheduled offences, as defined in Section 2(f) and 2(g)
["Schedule" annexed to this Act]& [as set out in the Schedules against a "victim" or a "child" as defined in this Act] ordinarily has to be conducted by the Special Court, within whose territorial jurisdiction, the offences have been committed. While considering the gravity and sensitivity as well as its implications on the society, a timeline of four months has been provided for expeditious disposal of the cases registered under scheduled offences. The Special Court for achieving the aforesaid purpose has been mandated not to accede to request for adjournments more than two times during the trial of the case, out of which, one adjournment shall be subject to payment of cost by the person seeking adjournment, to quell the unhealthy trend of causing delay in trial to achieve their hidden objectives on one pretext or the other by the parties. In case, the defence counsel, does not appear after two consecutive adjournments in the Court for furtherance of proceedings, the Court may appoint another defence counsel with at-least seven years standing in the criminal matters, out of a penal of defence counsels/Advocates, to be maintained by the Special Committee, to defend the accused. The appointment of a defence counsel with such standing, as aforesaid, would ensure that the accused is represented through a mature and experienced lawyer, possessing reasonably sufficient experience and a legal acumen to rule out the possibility of any improper defence representation. In addition to above, in case of an appeal by an aggrieved person against judgment passed by the Special Court, the same shall preferably be decided within a period of six months. To control the unnecessary delay for the expeditious decision of an appeal, a restriction has also been placed by prescribing that not more than two consecutive adjournments on behalf of the parties shall be granted even at appellate stage. It is very important to highlight that upon commencement of the Act, the trial of scheduled offences pending in other Courts shall stand transferred to Special Court having jurisdiction under this Act.
The Special Court shall proceed with the case from the stage at which it was pending immediately before its transfer and shall not be bound to recall or re-hear any witness who had already given evidence and may act on the evidence and procedure already adopted and complied with respectively before the transfer of the case by the previous Court. It is settled proposition of law that a Special Law has to prevail over the ordinary provision of law. Reliance in this regard may be placed upon cases reported as "Muhammad Iqbal Vs. Nasrullah" (2023 SCMR 273) and "Syed Mushahid Shah Vs. Federal Investment Agency" (2017 SCMR 1218). Any amendment in the existing law or utterly a new legislation, unlike the substantive law, relating to the procedure shall be operative retrospectively. Reliance may be placed upon cases reported as "Commissioner Inland Revenue, Lahore Vs. Messrs Millat Tractors Limited, Lahore and others" (2024 SCMR 700),"Muslim Commercial Bank Limited Vs. Muhammad Anwar Mandokhel and others" (2024 SCMR 298) and "Maqbool Ahmad and another Vs. The State" (2007 SCMR 116). The Act has not taken away either the right of a fair trial duly guaranteed in Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 or right of appeal of the parties. It has changed the forum of trial only for the purpose of expeditious disposal of the cases involving the scheduled offences by specially trained Judicial Officers in this regard. In course of a trial, if the Special Court is of the opinion that any of the offences with which the accused has been charged is not a scheduled offence, the Court shall record its opinion under Section 16(3) of the Act, akin to the exercise of power under Section 227 of the Code of Criminal Procedure, 1898, i.e. "power to alter or add to any charge at any stage before judgment is pronounced has been vested with the Court trying an offence, however such alteration or addition shall have to be read and explained to the accused", which is also applicable to the proceeding before the Special Court, because the Court has to try him for scheduled offences. A Special Court, however can also try an accused for other offences, though not listed in the schedule, if the same had been committed along-with the scheduled offences, being un-segregable and concomitant to each other, having their inter-se deep nexus, including where the provisions of the Anti-Terrorism Act, 1997 (Act XXVII of 1997) are invoked or invokable in respect of offences under this Act. It is quite axiomatic that an accused charged with a minor offence, having lesser sentence cannot be convicted and sentenced for an offence entailing graver sentence, without giving him the opportunity by way of framing of charge afresh and also giving him the opportunity to defend himself, though vice versa is permissible.
8. In order to examine an important aspect of the matter as to whether it is advisable for a criminal Court trying an offence, to order the deletion of an offence during the trial by making a tentative assessm ent of the material on record, without recording evidence (examination-in-chief, cross- examination and re-examination of the witnesses), as laid down in the case of "Asad Nawaz vs. Zulifqar Afzal Khan and Others" (2019 P.Cr.L.J 883), "Daim vs. The State" (2021 P.Cr.L.J 958), for giving its conclusive finding on that regard. Suffice it to observe that in view of power vesting with the Court under Section 16(3) of the Act read with Section 227 Cr.P.C, as discussed above, it is the prerogative of the Court to exercise its power at which stage of trial, it deems appropriate. Besides the above, a Court, trying an offence, is also equipped with vast powers to acquit the accused of the charge at any stage of the proceedings, if it comes to the conclusion that on the basis of incriminating material/evidence available on record, there exists no probability of the accused being convicted of any offence.
9. Perusal of record reveals that in the instant case, the observations as contained in the impugned order dated 08.06.2023 passed by the learned Addl. Sessions Judge/GBV/ Special Court, Pasrur, that "instant case is simple case of fight and house trespass, no recovery memo of torn apparels of alleged victim finds placed on record, intention or outrage modesty for the purpose of rape or sexual abuse to bring this case under the pail of special Court constitute under Section 3 of the ibid Act is missing, hence, the offence under section 354 PPC is not made out, thus is deleted" have not been found by this Court to be unfounded, at present. No illegality, perversity or jurisdictional defect in the impugned order has been found, calling for any interference by this Court justifying the revisional power for setting aside the impugned order.
10. For what has been discussed above, instant petition having no substance is hereby dismissed.
I appreciate the efforts of Mr. Ejaz Ahmad Sipra, Civil Judge/Research Officer who collected and provided relevant material in support of question involved in this case.