This writ petition has been brought from an order, dated 20th May, 1981 of Ch. Muhammad A slam, Sessions Judge, Sahiwal whereby he dismissed a revision petition filed by the petitioner against an order, dated 23rd October, 1980 of Rai Muhammad Amin, Magistrate Section 30, Sahiwal who while summoning the respondent Riaz Ahmad Khan on a complaint of the petitioner under section 342, P.
P. C. Refused to summon him under section 376, P. P. C.
2. The brief facts of this case are that the petitioner's transfer appli* cation arising out of the complaint filed by her was pending with this Court during which pendency the petitioner filed this writ petition.
3. The petitioner originally filed a complaint under section 376/342, P. P.. C: against the respondent Riaz Ahmad Khan addressed to the Ilaqa Magistrate, Dera Rahim, District Sahiwal alleging that the petitioner had cast an information to the police of Dera Rahim against one Sher and the other Dallu that they were keeping certain arms without any licence on which they felt offended and threatened the petitioner that they would abduct her young daughter as a retaliation to that. The petitioner addressed an application to respondent No, 1 Riaz Ahmad Khan five months ago complaining about the threat given to her by the above-said persons. The respondent No, 1 accepted illegal gratification of Rs, 2,000 from Sher etc. But at the same time called the petitioner for inquiry as to her application. The respondent No, 1 took her to his house where no other family member of the respondent was present. She was confined in a room duly bolted. She was kept in confinement upto evening. By 7-00 o'clock respondent No, 1 committed rape upon her despite her entreaties. She raised cries upon which that lady who had accompanied her to that place before, came by. She after coming out of the house of the respondent narrated the incident to Ahmad and Shahadat, her co. Villagers. After the incident she reported the matter to the Circle Inspector Noor Shah who by taking the side of the respondent deceitfully did not get the petitioner medically examined and instead helped the respondent. The petitioner repeatedly made various applications to the Martial Law Authorities as a result of which a case was registered against the respondent and he was thereby suspended. The respondent got the investigation of the case transferred to an officer who was his friend. The petitioner as a reason for filing the complaint stated that she expected no fair play from the police.
4. The learned Magistrate examined the petitioner and also recorded the statements of two other witnesses produced by her. In his order dated 23rd October, 1980 he observed that the police bad registered a case under section 376/342, P. P. C. At the instance of the petitioner which was cancelled after investigation. The petitioner who had produced two witnesses had failed to produce Mt. Nooran who accompanied her to the quarter of the respondent S.H.O. The petitioner who was 36/40 years old did not get herself medically examined after the commission' of the alleged offence, which could have served as a corroboratory item. The statement of the petitioner was shorn of any corroboration in that behalf from any other witness. In the absence of a medical report and the independent evidence direct or circumstantial, there was no probability of proving the commission of the offence of Zina, as such, the accusation of rape stood unproved against the respondent. The respondent, therefore, was exonerated from the accusation of rape. However, from the preliminary statements of the two witnesses a prima facie case under section 342, P. P. C.
Against respondent No, 1 appeared as made out. The learned Magistrate as a result of his finding summoned respondent No, 1 under section 342, P. P. C.
5. Being aggrieved therefrom the petitioner filed a revision petition which came to be decided by the learned Sessions Judge, Sahiwal. The learned Sessions Judge after mentioning the fact that the complainant/ petitioner as alleged had told Ahmad and Shahadat about the incident observed : - - "The complainant had not got herself medically examined. According to her statement, another woman named Nuran stayed outside the room in which she had been confined but she had not raised the alarm from inside. The statement of the complainant that rape was committed on her, finds no corroboration from any quarter and reasonable grounds do not exist to believe that the offence under section 376, P. P. C. Was committed by the accused-respondent. There being direct and circumstantial evidence to the effect that the complainant had been confined in a room, reasonable grounds existed to believe that the accused-respondent committed the offence under section 342, P. P. C. The learned Magistrate, therefore, rightly declined to summon the accused- respondent for the offence under section 376, P. P. C. There is no illegality in the impugned order which cannot be interfered in revision."
6. In this writ petition the learned counsel for the petitioner has contended that both the Courts have misread the statements and have acted without lawful authority in not keeping in view the provisions of into a 202, Cr. P. C. Which provision requires a Court only to look a case with a limited aspect so as to see whether a prima facie case is made out or not. As to the absence of the medical examination it has been alleged within the complaint that she was deceitfully deprived of that item of evidence and she being an illiterate lady cannot be put under any blame in that behalf. The question in issue is that whether the petitioner is truthful as her statement. Both the Courts have miserably failed to see that her subsequent conduct is quite corroboratory as to her allegatio, s and in this behalf both the Courts have not weighed the statements of two witnesses from this angle. In a case of rape the subsequent conduct of the prosecutrix is always regarded as relevant and corroboratory. As to her failure to produce Mst. Nooran, the learned Magistrate could very well ask the petitioner to produce her or could himself summon her. In support of the petition the learned counsel for the petitioner has relied upon Shaukat Masih v. The State , it was a case of1 Zina-bi/-Jabr. While dismissing the appeal of the convict the learned Shariat Court opined in answer to the arguments raised for the convict that the evidence of penetration was missing in view of the absence of the report of the Chemical Examiner on the vaginal swabs and there was complete lack of corroboration of the evidence of Mst. Asmat Bibi prosecutrix, that in the circumstances of the case the evidence of Amanat and Mahboob (to-whom the lady narrated the incident immediately thereafter) provided sufficient corroboration if any corroboration of the statement of Mst. Asmat Bibi was to be considered legally as necessary. It was however, not necessary that the evidence of penetration must have been in the form of the Chemical Examination, the evidence of Mst. Asma t Bibi about the penetration was very clear and they had no reason to disbelieve her on that score.
7. The learned counsel for respondent No, 1 has in reply maintained that the statement of the petitioner on the question of rape completely lacks corroboration. There is no medical evidence so as to prove the rape as having been committed upon her. The petitioner has not pointed out any misreading of any portion of the statement on the part of both the Courts. The learned trial Magistrate has considered the statements thoroughly and the learned Sessions Judge himself as well while exercising the revisional jurisdiction has examined the entire record so as to come to his conclusion. The case is only, if at all, that of wrongful confinement according to the statements of the witnesses from which the rape cannot be presumed. A person cannot be charged of a heinous offence without any material. The police case had been rightly cancelled after investigation. The re-appraisement of the evidence cannot be done within the exercise of the writ jurisdiction. The case has been thoroughly examined by the learned Sessions Judge who also comes to the same conclusion as is reached by the learned Magistrate. Unless there is some direct evidence the accused/respondent cannot be charged of the offence of rape. The statement of a prosecutrix in a rape case must have at least independent eorroboration. The evidence of the prosecutrix cannot be accepted at its face value. There is complete absence of independent evidence to that effect.
There existed an enmity between the petitioner and respondent No, 1 because the husband of the petitioner.Was challaned by the respondent in a case under section 307/325, P. P. C. The learned counsel has relied in support thereof on Tariq alias Tahira v. Haji Allah Dita and another , in which it was held that the re-appraisal of evidence was not to be allowed in the exercise of the constitutional jurisdiction of the High Court. Moeezuddin v. The State , in a criminal appeal the learned Court observed "In a case allegation of rape of the present kind where there is no independent eye-witness and the only evidence is that of the prosecutrix herself and of those to whom it was reported, the Courts are not left with any objective test for gauging the truth of the story of the prosecutrix. Expert examination of the person of the prosecutrix and of the garment she had worn at the time and of the place where the rape took place in sine qua non in such cases."
In Samundar Khan v. The State , it was held that the evidence of the prosecutrix carrying on at the relevant time as professional prostitute a very strong evidence was required to substantiate the offence. The mere statement of the woman that she was raped without any specific allegation that the intercourse was without her consent, was insufficient in the absence of any corroboration.
8. The order which has been subjected to this writ petition was passed on 20th May, 1981 and the writ petition was instituted on 11th October, 1982. In this context the petition no doubt suffers from laches running over a period of about one year and four months, for which the explanation of the petitioner is that the delay in filing the writ petition is not deliberate but due to the fact that the petitioner being an illiterate lady was quite in ignorance of the law and was misguided. From her side she had been putting up various applications for the redress of her grievance to the wrong authorities. This writ petition would have been thrown out alone on the question of laches but for the importance of the matter since both the Courts acted on a wrongful assumption of the2 3 4 relevant law going to the very foundation of the jurisdiction and the very exercise of the same.
There is another reason for looking into this aspect of the case and to rectify the wrong that is that the complaint upto this time has not been proceeded with beyond the point of summoning of the respondent under section 342, P. P. C. So the interference even now will not be out of the context.
9. The scope and object of inquiry under section 202, Cr. P. C. Is only to the extent of finding out that whether exists a prima facie case to proceed with or not, beyond this whether conviction can take place or not is a consideration affiliated with a full-fledged trial and not with an inquiry into the complaint where only the truth or falsehood of the complaint is to be ascertained. In Chandra Deo Singh v. Prokash Chandra Bose alias Chabi Bose and another , it has been held under section 202 (1), Cr. P. C. That for determining the question whether any process is to be issued or not what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of inquiry. As stated in subsection (1) of section 202 itself the object of the inquiry is to ascertain the truth or falsehood of the complaint but the Magistrate making the inquiry has to do this only with reference to the intrinsic quality of the statements made before him at the inquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by the persons examined at the instance of the complainant.
In Abdul Hamid and 2 others v. Abdul Aziz , a learned Judge of this Court has observed that the purpose of an inquiry under section 202, Cr. P. C. Is merely to see whether or not the process should be issued against the persons named in the complaint. It should not partake the character of a full pressed rehearsal for the trial. The Magistrate entrusted with the proceedings under section 202, Cr.
P. C. Has no jurisdiction to weigh the evidence as if he has to find out whether or not the prosecution has succeeded in proving the case.
In Mustafa Rahimy v. Motilal Chonilal , it has been observed that under section 202, Cr. P. C. While dismissing a complaint the reasons for the same should be based on inferences or facts arising from or disclosed by (i) the complaint, (ii)the examination of the complainant, (iii) the investigation, if any, made under the powers conferred by section 202, Cr. P. C. Anything outside it is extra-judicial and must be discarded.
In Lt.-Col. (Rid.) G. M. Nizamuddin v. Irshad Hussain Khan and another , it has been held that the powers of a Magistrate nude section 202, Cr. P. C. Are not designed to clothe him with powers of such deep appreciation of evidence as is required at the time of the final judgment: In Abdul Majid v. M. D. Mansoor 'Ali and 14 others , it has been held that the inquiry under section 202, Cr. P. C. Is restricted only to the ascertainment of the truth or falsehood of the complaint. The purpose of inquiry under section 202, Cr. P. C. Is only to see if the allegations in the complaint are true or false and whether in the circumstances process should be issued against the accused. An inquiry or:investigation in this section is designed to afford the Magistrate an opportunity either of confirming or removing such hesitation as he may feel in respect of issuing process against the accused.
10. From the observations made in both the impugned judgments as set out in paragraphs Nos. 4 and 5 of this judgment which need not to be repeated here, it is quite clear that both the Courts have exercised their jurisdiction beyond the scope of section 202, Cr. P. C. The consideration which have prevailed with both of them for non-summoning respondent No, 1 under section 376, P. P. C.
And rather in the language of the learned trial Magistrate exonerating the respondent from the offence under section 376, Cr. P. C. Cannot be regarded as akin to the scope of section 202, Cr. P. C.
Though such consideration are open at the trial. The main argument advanced by the learned counsel for the respondent can only be considered after the trial takes place. The writ petition is accordingly accepted. Both the impugned orders are declared as without lawful authority and of5 6 7 8 9 no legal effect being nullity. The same are hereby set aside. The learned trial Magistrate is directed to re-consider the summoning of the respondent under section 376, P. P. C. Consistent with this judgment. In the circumstances of the case there is no order as to costs. PLD 1982 F SC 19 1983 P Cr. L J 1088 PLD 1963 Dacca 908 PLD 1963 Lah. 357 AIR 1963 SC 1430 1983 P Cr. L J 2241 6 P Cr. L J (1907) 85 PLD 1966 Kar. 653 1969 P Cr. L J 692