ORDER K.M. KHURSHID, J.- This revision petition under Section 439 Cr.P.C, is directed against order dated 19.11.1995 passed by the learned Additional Sessions Judge, Lahore, whereby he dismissed the complaint of the petitioner filed against the respondents under Section 5, Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 read with Sections 419,420,467 and 471 PPC.
2. It was contended in the complaint that the petitioner was married to Mst. Maqsoodan i.e. Respondentia No.2 through her father i.e. Respondent No.1 on 6.3. 1981. This marriage was allegedly arranged by the parents of the parties. Two sons and a daughter were born from the aforesaid wedlock. It is alleged that the respondent No.2 Mst: Maqsoodan was shown as virgin at the time of her marriage with him and that her age was given as 25 years. Later on the petitioner came to know that he was defrauded as the age of respondent No.2 was 31 years and not 25 years as claimed by her in the Nikah deed. Likewise she was previously married anti remained un-divorced.
The petitioner allegedly inquired into the matter and came to know a week earlier to the institution of the complaint, that respondent No.2 was earlier married to Captain Muhammad Imran on 28.3.1980 and that as such she was not virgin as claimed by her during Nikah with him. The petitioner instituted the complaint that he was defrauded and as a consequence deprived of house hold effects valuing lacs of rupees. It was further alleged in the complaint that respondent No.2 was guilty of the offence of zina as she was never allegedly divorced by her earlier husband namely Captain Muhammad Imran.
3. Lastly it was contended that the petitioner was under bona fide impression that respondent No.2 was his legally wedded wife under Shariah, but alter the knowledge of the above-mentioned facts, he thought that he was cheated and defrauded.
4. The complaint was constituted in the Court of Illaqa Magistrate and was sent up for trial to the Court of session. It came up before the learned Additional Sessions Judge, Lahore who recorded the statement of the complainant and came to the conclusion that the complaint was filed with ulterior motive and that there was no sufficient reason to proceed with it. In this respect the learned Additional Sessions Judge concluded that marriage between the petitioner and respondent No.2 was solemnized on 6.3.1981 and they remained as husband and wile will the marriage ended after the petitioner had divorced respondent No.2 in March. 1995. The petitioner admitted in his preliminary statement that a suit for maintenance was filed against him and a decree was passed regarding pay ment of maintenance to the minor children in the year 1987. As such it was held that the present complaint was a counter blast of the said decree and has been filed in order in deprive the minor children of the maintenance allowed by denying them legitimacy.
5. In the present petition, the learned counsel for the petitioner contended' that the learned Additional Sessions Judge acted in haste to dismiss the complaint with in holding a proper inquiry as envisaged by Section 202 read with Section 204 (J.P.C. In this context it was contended that the learned trial Judge had to see whether a prima facie case was made out or not and that he had not to give a finding regarding the acquittal or conviction, production of Nikah deed Ex.PB showing marriage between respondent No.2 and Captain Muhammad Imran was enough to show that there was a case worth of judicial test. It was, therefore, alleged that the learned trial Judge fell in error and committed material irregularity in dismissing the complaint after recording the statement of the complainant alone.
6. I have considered the foregoing submissions. It is true that there is Nikah deed Ex.PB which shows that Nikah of Maqsood an Lai a Rukh daughter of Major Maula Bukhsh was solemnized with Captain Muhammad Imran on 2S. 3.1980, but there is also a Nikah deed between Mst. Maqsoodan daughter of Major Maula Bukhsh with Captain Habib-ur-Rehman i.e. The present, petitioner showing the date of Nikah as 6.3.1981. The petitioner/complainant had lived with respondent No.2 as her husband which gave birth to three children as aforementioned. It cannot be said that during this long period of wedlock the petitioner/complainant remained un-aware of the marriage of respondent No.2 with aforesaid Captain Muhammad Imran. Even otherwise the offence of zea cannot be presumed because the petitioner was also wedded with respondent No.2 and she was shown to be a free woman. If her marriage subsisted with Captain Muhammad 1 mi an the latter would have bot kept quiet to challenge the subsequent Nikah. The marriage is a public affair and not a secret matter, nor it can be kept hidden particularly when both the spouses have been residing together and were enjoying (if any) of the complaint and the result of investigation or inquiry (if am under section 202 Cr.P.C. The wording of section 203 Cr.P.C, does not make it mandatory that an inquiry' should be necessarily ordered under section 202 Cr P.C. Before the provisions of aforesaid section are to be invoked. On the contrary it is clear that the Court is competent to dismiss the complaint .After taking into account the statement of the complainant or if an inquiry has already been directed under section 202 Cr.P.C, then after considering the result of such investigation or inquiry, on its coming to the conclusion that in its judgment no sufficient ground existed to proceed further with the complaint. In the instant case, the learned Additional Sessions Judge had come to the conclusion after considering the statement of the petitioner/complainant that the complaint was mala fide and as such had dismissed the same.
7. The finding of the learned Additional Sessions Judge is based on these statement of the complainant and the averments in the complaint itself. It has not been shown to me that the view taken by the learned Additional Sessions Judge is perverse, arbitrary or capricious so as to call for interference on the revisional jurisdiction of this Court. The Revision Petition being meritless is dismissed in limine.
Tanker involved in this case to find out the actual persons behind this transportation. The investigation was kept silent on this important issue. Even the Registration look of the truck was not brought to light, rather it was suppressed, so that the ownership of the truck be kept hidden. Such an act leaves hq other impression except to believe that certain accused were given cover by the police. It is unbelievable that only one person was driving a tanker with such huge quantity of ^ charas without any conductor or helper and with only Rs'.2000/- in his pocket. But ai the same time I cannot believe that the accused/appellant was innocent. He appears to an employee or a small fish of a big gang involved in the transportation ol narcotics. It cannot be believed that he had come from Ziarat of a shrine and was falsely implicated by the police at about 2300 during night hours. Hts own stand that main accused were lei to go proves his presence at the spot as well as his knowledge about the main accused persons.
However the most alarming aspect of this case is non-production of the seized material in the Court as admitted by P.W.1. Hameedullah. Regarding this aspect of the case the learned trial Judge observed that "P.W.1, did not state that the narcotics was not present in the Court.
He just mentioned about the absence of certain bags. If there was any confusion about this fact, the accused could have requested the Court to verify the fact whether the alleged narcotics' whs present in the Court o- not but no such request was made.
These observations of the learned trial Court have no sound foundation at all. It is foot the duty of the accused to make such request particularly after asking specific question on that point. It is the duty of the Court to verify whether the incriminating material has been produced in the Court by the prosecution or not.
The Court cannot convict any accused merely on the statements of the witnesses without production of the incriminating material. This point can be explained with the help of an example.
Suppose an accused is being tried by a Court under Section 13 C.D of the Arms Ordinance under the charge that he was having a pistol without license. It is possible for the prosecution to produce more than hundred witnesses who might have said that one pistol had been recovered by the police from the accused but if the prosecution fails to produce the pistol then the said accused cannot be convicted on the ground that more than hundred witnesses had given evidence in support of the prosecution version and the accused had not requested the Court for the production of that pistol. Same is the position in this case. The ev idence of P.W.
1. On this point runs as under: {{Urdu Text}} This statement leaves no doubt that the seized material was not produced in the Court. If it is believed that some of the bags were not produced as presumed by the learned trial Court even then it was necessary to mention the number of bags and 4- their weights separately so that the defence could ask the witness where the other bags had gone. If certain bags were missing, then it was necessary for the Court to inform the higher authorities about this fact so that the missing bags could not be used by the police against innocent persons. I am therefore, unable to embrace the observations made by the trial Court regarding recovery of the huge quantity of charas. In such circumstances the recovery of charas would be treated to have been proved to the extent of that quantity which was sent to the Chemical Examiner i.e. 5 kg only. Similarly giving up second mushir of recovery by the prosecution can be ignored if the said mushir had been a public mushir and was to traceable. But when both mushirs are from the same police party and are police official too then giving- up the second mushir was not proper.
5. Upshot of the above discussion is that the prosecution has proved its case to the extent of recovery of charas weighing only 5 kg instead of proving recovery of huge quantity of charas as alleged against the appellant. 1 therefore consider it proper to modify the sentences of the appellant as under:
(a) Sentence of imprisonment is reduced from 4 years to 2 years and six months.
(b) Sentence of whipping is dropped and
(c) Sentence of fine is reduced from Rs.10,000/- to Rs.5,000/- (in default thereof 3 months' S.I.)
The appellant would be entitled to the benefits of Section 382-B Cr.P.C, also. With these modifications in the sentences, the appeal is dismissed.