' The applicants Muhammad Ali, Mst.Bushara Sultana, Shoukat Ali and Nasir Ali have filed the present application under section 561-A, Cr.P.C. For abashment of proceedings presently pending against them under sections 342, 354. 506, 323, 355, 356 and 504, P.P.C. Read with section 34, P.P.C.
In the Court of A.C.M. No, 1 (South), C .1.A , Karachi.
2. The then trial Court acquitted the applicants herein and co-accused respondent No,3 Dr. Naheed Sultana under section 249-A, Cr.P.C., on 13-12-1990.
3. Being aggrieved with the above order the respondent No,2 Mst. Husan Bano filed a Criminal Revision Application in Sessions Court, which was registered as Criminal Revision Application No,7 of 1991. This revision application came to be finally heard by the learned Vth Additional Sessions Judge, Karachi. Who by his order dated 9-3-1994, set aside the order under section 249, Cr.P.C., passed by the then trial Magistrate Syed Shahzad Ali Naqvi, Special Magistrate, C.I.A., Karachi, on 13-12-1990. By his above order the learned Vth Additional Sessions Judge, Karachi, was pleased to remand the main case to the trial Court with direction to examine the remaining prosecution witnesses and afford proper opportunity to the parties to present their case and thereafter pass fresh order according to the merits of the case. It is in these circumstances that the applicants named hereinabove, who are accused in the main case, have moved this application for quashment of order dated 9-3-1994, passed by the learned Vth Additional Sessions Judge, Karachi, wherein it was stated that no useful purpose would be served if the applicants are retired as all the material witnesses were examined by the prosecution and that the examination or remaining witnesses will not advance the case of prosecution any further.
4. The facts of the case are that the respondent No,2 Mst. Husan Bano, lodged first information report against the applicants and respondent No,3 Dr. Naheed Sultana and Dr. Zafarul Islam and his wife namely Mst.Khalique Fatima on 5-1-1983 under sections 342.
354. 506, 323, 504, P.P.C. Read with section 34, P.P.C. The allegations against the applicants and other co-accused named herein were that on 3-1-1983 when the respondent No,2 along with her daughter went to the house of the applicants in connection with the hand of respondent No,3 Dr. Naheed Sultana (who is daughter of applicant Muhammad All and Mst. Bushra Sultana), all the applicants and respondent No,3 and five unknown persons and co-accused Dr. Zafarul Islam and his wife Mst. Khalique Fatima were present at the house of applicant No,1. It is alleged that the respondent No,3 took No,2 Mst. Shaheen daughter of the respondent upstairs. The applicant No,1 and two unknown persons, who were wearing beards had caught hold of her (respondent No,2) put off her Pajama and applicant No,1 kissed her, spitted on her anus and his son applicant No,3 Shoukat Ali took her naked photograph. It is alleged that she was given fist and kick blows by all of them and she was made to sit down stairs. Thereafter, applicant No,1 Muhammad Ali and his two sons Shoukat Ali and Nasir Ali also went upstairs. After about half an hour the daughter of respondent No,2 namely Mst. Shaheen came down stairs. The applicants gave them oath and told respondent No,2 to bring her son Jaffer and daughter Shaheen again and thereafter, after threatening them not to report the matter to authorities threw the respondent No,2 and her daughter Shaheen out of house, after beating and abusing them. It is further alleged that the respondent No,2 was informed by her daughter Shaheen that respondent No,3 Naheed Sultana closed her inside a room where after the applicants Nos.1, 3 and 4 entered in the said room and all the three made her naked and the applicant No,1 put his finger in her private part due to which she started bleeding. Mst. Shaheen raised cries but she was told by applicant No,1 to remain quite by showing a knife to her. The respondent No,2 further alleged that applicant No,4 Nasir Ali then became naked and lay by the side of her daughter Mst. Shaheen where after applicant No,3 Shoukat 'Ali took her naked photographs. It is alleged that applicant No,3 Shoukat All then lay by the side of Shaheen and applicant No,4 Nasir Ali took her photographs, whereafter she was sent down stairs.
5. After registration of F.I.R. a large number of witnesses were examined during the course of investigation. None of them, however, implicated the applicants and other co-accused named in the F.I.R. The version given in the F.I.R. Was found to be false and according to final report which is Annexure 'B' to the main application a case under section 182, P.P.C. Was ordered to be registered against first informant Mst. Husan Bano, who is respondent No,2 herein.
6. Thereafter. The applicants filed a suit for damages for malicious prosecution against the respondent No,2 named herein. During pendency of the suit, however, the applicants were sent up to stand trial vide a charge-sheet filed in the Court of the learned Special Magistrate on 7-12-1986.
7. The Martial Law Authorities also made enquiries into the genuineness of the complaint made by respondent No,2 Mst. Husan Bano and they also found it to be false and she was advised to refrain from lodging such complaints in future. Annexure C-1 which is a photostat copy is annexed to the main petition in this regard.
8. The proceedings against co-accused Dr. Zafarul Islam and his wife Mst. Khalique Fatima were, however, quashed by this Court on 31-1-1989 vide order passed in Criminal Miscellaneous Application No,219 of 1988.
9. The case, however, proceeded against the applicants and the respondent No,3 in the trial Court, where statements of as many as eight prosecution witnesses, namely complainant/respondent No,2 Mst. Husan Bano. Syed Razi Jaffer Rizvi. Mst. Shaheen Qasim Rizvi, Syed Haider Ali, Mst, Azima Rizvi, Mst. Bihi Bai and Abdul Aziz alias Haji were recorded. Thereafter, the applicants and the respondent No,3 moved application under section 249-A, Cr.P.C. And the said application was allowed by the learned trial Magistrate on 13-12-1990 as started above.
10. I have heard Mr. A.Q. Halepota, learned counsel for the applicants, Mr. I.A. Hashimi, learned counsel for the complainant/ respondent No,2, Mst. Husan Bano and Mr. Muhammad Saieh Panhwar, learned Advocate for A.-G. For the respondent No,1/State. I have also gone through the statements of all the eight prosecution witnesses, who were examined by the trial Court. The order under section 249A, Cr.P.C. And order passed in revision by the learned Vth Additional Sessions Judge, Karachi, have also been perused by me.
11. In this case in all fifteen witnesses were cited in the charge-sheet. Out of these witnesses all the material witnesses seem to have been examined by the prosecution.
12. The perusal of the impugned order passed by the learned Vth Additional Sessions Judge, Karachi, showed that he was of the view that evidence of the remaining six witnesses should have been recorded before deciding the case pending against the applicants and respondent No,3 who were accused therein. Since all the prosecution witnesses were not examined, the learned Vth Additional Sessions Judge, passed the impugned order directing the trial Court to pass fresh order on the merits of the case after examining all the remaining prosecution witnesses.
13. Mr. A. Q. Halepota, learned counsel for the applicants has argued that it was within the domain and competence of trial Court to pass orders under section 249-A, Cr.P.C. At any stage of trial proceedings, if he upon consideration of material placed before him came to the conclusion that the charge was groundless and that there was no probability of the accused being convicted of any offence. He further submitted that all the material prosecution witnesses were examined. The witnesses who remained to be examined were all formal witnesses. Out of the witnesses at least five were police officers whose evidence even if taken would not advance the case of prosecution.
In this case no recovery of any photographs or any other incriminating material was made from any of the applicants and respondent No,3 who is also co-accused in this case. In the circumstances, it was argued that the evidence of these police officials is formal in nature. The only remaining witness is the lady doctor namely Kauser Nasreen who was posted as a Medical Officer in Civil Hospital, Karachi, at the time of incident. The said lady doctor examined both the respondent No,2, Mst.Husan Bano and her daughter Shaheen on 5-1-1983. The copies of the two medical certificates, which have been produced along with the main application, show th'at no abrasion or laceration was found on any part of the body of the respondent No,2 (Mst. Husan Bano) and that of Mst. Shaheen, who was having menses at the time of her medical examination and no abrasion or laceration was found at her vulva and no abrasion or laceration was found at her hymen which was intact. It is, thus, argued by Mr. A.Q. Halepota, that in the face of these two medical certificates, the testimony of Lady Doctor Kauser Nasreen, who is reported to be out of country, would not advance the case of prosecution and the allegation remained unsubstantiated by medical evidence. It was, therefore, unnecessary to examine any of the remaining prosecution witnesses.
14. Mr. A. Q. Halepota, learned counsel for the applicant further submitted that the order passed by the learned trial Magistrate was based upon correct appraisal of evidence produced by the prosecution and there was no justification for interfering with the said order under the revisional jurisdiction vested in the learned Vth Additional Sessions Judge, Karachi, under section 439-A, Cr.P.C. The scope of revision against acquittal being limited, interference with such order could be made only if in the trial Court there was misreading of evidence on record or inferences were drawn from evidence which were perverse or any irregularity was committed which vitiated the trial. Mr. A.Q. Halepota, has thus, submitted that the impugned order is liable to be quashed.
15. Mr.A.Q Halepota, placed reliance on the case of Hamida v. The State (PLD 1973 Kar.478) and that the case against the applicants and respondent No,3 was bound to end in acquittal, there being no probability of the accused being convicted, the learned trial Magistrate rightly passed order under section 249-A, Cr.P.C. Reliance was also placed by Mr. A.Q. Halepota, on Badaruddin v. Mehr Ahmad Raza, Additional Sessions Judge, Jhang and 6 others (PLD 1998 SC 399) wherein it was held that powers under section 249-A, Cr.P.C. Could be exercised at any stage.
16. Mr. I.A. Hashmi, learned counsel for the respondent No,2 submitted that no abashment was possible in this case as there was overwhelming evidence against the applicants Mr. I.A. Hashmi, further submitted that it was not necessary for the respondent No,2 to challenge the acquittal of applicants and respondent No,3 by way of appeal and that she could competently file revision application. In this regard he placed reliance on Abdul Latif v. Bagga Khan and another PLD 1996 SC 152, Muhammad Khalid and 2 others v. Muhammad Ashfaq and another 1986 PCr.LJ 115 and Janab Gul v. Aslam Khan PLD 1965 (W.P.) Pesh.
193.
17. Mr. Muhammad Saleh Panhwar, the learned Advocate appearing on behalf of A.-G. For the State adopted the arguments of Mr. 1.A. Hashmi, and argued that the impugned order did not call for interference.
18. I have carefully considered the arguments of all the learned counsel and gone through the evidence adduced by the prosecution. I have also gone through the order passed by the learned trial Magistrate under section 249-A, Cr.P.C. And that passed in revision by the learned Vth Additional Sessions Judge, Karachi. I find that ordet dated 13-12-1990 was passed by the learned trial Magistrate after considering all the aspects of the prosecution case. He came to conclusion that after examination of eight material witnesses there was no probability of the accused be, g convicted. He was, therefore, pleased to acquit the applicants and respondent No,3 Dr. Naheed Sultana under section 249-A, Cr.P.C. The learned Vth Additional Sessions Judge, Karachi. Who heard the revision application, ordered retrial of the accused herein solely on the ground that six witnesses yet remained to be examined. He did not otherwise find any fault with the order of the acquittal passed by the learned Magistrate. I am of the considered view that the examination of remaining police witnesses would not advance the case of prosecution any further. As far as Lady Doctor Kauser Nasreen is concerned her evidence too even if recorded would not carry the case of the prosecution any further in view of the two medical certificates issued by her. The said certificates showed that there were no marks of violence on the person of respondent No,2, Mst.
Husan Bano and her daughter Mst. Shaheen, The chemical analyser's report (Annexure "R') was also negative. In the circumstances no useful purpose would, therefore, be served if Lady Doctor Kauser Nasreen was examined. The incident in this case allegedly occurred on 5-1-1983. More than seventeen (17) years have passed but the trial has not yet been concluded. The applicants and their daughter respondent No,3 have undergone the ordeal of trial for all these years. In the circumstances the order of retrial of the applicants and respondent No,3 Naheed is not warranted by law. Particularly when the witnesses, who were not examined before the acquittal of the applicants would not have advanced the case of prosecution any further. In this regard, reference can be made to the case of Hamida (supra). In this report the (late) Hon'ble Chief Justice Tufail Ali Abdul Rehman (as he then was) held: "that if a case which cannot possibly succeed is allowed to continue, this must result in harassment of the accused persons whose acquittal is in any way certain and that this would be an abuse of process of the Court and that in any event under section 561-A, Cr.P.C. An order to quash the proceedings would be one which would secure the ends of justice."
19. Besides, the learned trial Magistrate could acquit the accused under section 249-A, Cr.P.C. At any stage of the proceedings.
20. In view of the facts and circumstances discussed above, the order of retrial passed by the learned Vth Additional Sessions Judge, Karachi, on 9-3-1994 is hereby quashed. The order of the learned trial Magistrate dated 13-12-1990, whereby the applicants and their daughter Dr. Naheed were acquitted under section 249-A, Cr.P.C. Is a just and proper order and it did not call for any interference in the provisional jurisdiction vested in the learned Vth Additional Sessions Judge, Karachi.