This revision is directed against the order dated 9-2-2002 passed by the learned Additional Sessions Judge, Bahawalpur whereby he has dismissed application filed by the petitioner for summoning respondents 1 to 3 to face trial in the complaint filed by the petitioner under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) read with sections 392/342/506/109/34, P.P.C.
2. Facts of the case, in brief, are that a private complaint under section 10(4) of the Ordinance read with sections 392, 342, 506, 109/34, P.P.C. Was filed by the petitioner in the Court of Special Judge, Anti-Terrorism Court, Bahawalpur wherein it was alleged that the petitioner was a student and virgin girl. She alongwith her parents was residing in Major Colony, Bahawalpur. Safdar Hussain brother of the petitioner had friendly relations with one Imran Hanif, who happened to be the real brother of respondents Nos. 1 and 2. Their families were also on visiting terms. On 15-5-1999 at about 8-00 p.m. Lubna Sarfraz, the respondent No.3, alongwith her husband, the respondent No. 1, came to the house of the petitioner on a motor car and asked her father to allow the petitioner to go alongwith them as, according to them, they had arranged a function in the house of Muhammad Asad situated at Trust Colony, Bahawalpur. As the petitioner was allowed to accompany the aforenamed accused persons, they took her to the house of said Muhammad Asad and asked her to sit in the Drawing Room where, Imran Hanif and Muhammad Asad were already present. After a while, Lubna Sarfraz and her husband Sarfraz Hanif slipped away while Imran Hanif and Muhammad Asad took out their pistols, caught hold of the petitioner and committed Zina-bil-Jabr with her, turn by turn, by putting her in fear of death. After satisfying their lust both the accused persons went out and bolted the door from outside. After some time Sarfraz Hanif and Irfan Hanif came in the drawing room whereupon, the complainant narrated the entire incident to them. Both, however, turned a deaf ear and said that whatever was done by the culprits with her, she deserved it. After some time the petitioner's father, in order to take her back, came at the house of said Muhammad Asad alongwith his friend Musharraf Hussain whereupon, Imran Hanif and Sarfraz pushed the petitioner out of the house and closed the door. The petitioner disclosed the entire incident to her father who, in turn, also inquired from the aforenamed accused persons as to why they had victimized the petitioner? Both replied that whatever they had wished they did and what he can do, should do. It was further alleged in the complaint that the matter was immediately reported to the police but since the accused persons were influential, therefore, the F.I.R. Was not registered. In the circumstances, she moved an application before the Area Magistrate and also got herself medically examined on 28-5-1999. Father of the petitioner also appeared before the S.S.P. And narrated the entire incident to him whereupon, a case vide F.I.R.
No.215 of 1999, under section 10(4) of the Ordinance and 392/342/506/109/34 of the P.P.C. Was registered on 30-5-1999 at Police Station Cantt. Bahawalpur. It was further alleged that despite registration of case, since, neither the accused persons were arrested nor were they associated with the investigation, rather, police wanted to cancel the case, therefore, per force the complaint was filed.
3. Mr. Muhammad Sharif Bhatti, Advocate, learned counsel for the petitioner has contended that in spite of the fact that evidence produced by the petitioner was sufficient, for issue of process against all the accused persons nominated in the complaint, the learned trial Judge only summoned Imran Hanif and Muhammad Asad to face trial and neither any order-regarding summoning or non-summoning of respondents 1 to 3 was passed nor any reason was specified.
He has added that as the learned trial Judge after framing the charge proceeded with trial of case against Imran Hanif and Muhammad Asad, the petitioner herself appeared as P.W.1 while another prosecution witness namely Muhammad Nawaz Bhatti was examined as P.W.2. Since the petitioner in her above statement on oath too, has not only categorically charged respondents 1 to 3 for taking her away from her house by deceitful means but has unequivocally stated that they had facilitated the accused persons namely Imran Hanif and Muhammad Asad to commit Zina-bil- Jabr with her, therefore, the learned trial Judge ought to have summoned and charged them for the offence, as well. He has maintained that since application filed by the petitioner for summoning respondents 1 to 3 too, was dismissed by the learned trial Judge without assigning any reason, vide order dated 9-2-2002, therefore, the impugned order may be set aside and the learned trial Judge be directed to decide application of the petitioner on merits after evaluating the entire material available on record.
4. Mr. Mumtaz Hussain Bazmi, Advocate, learned counsel for the respondents, on the other hand, while controverting the contention raised by the learned counsel for the petitioner has submitted that since the learned trial Judge by not issuing process against the respondents 1 to 3 had impliedly dismissed the complaint filed by the petitioner to their extent, therefore, he was not obliged to pass any order on the application filed by the petitioner subsequently, for issue of process against them.
5. Mr. Muhammad Sharif Janjua, Advocate, learned counsel for the State has submitted that it does not, from perusal of both the orders dated 7-12-2001 as well as 9-2-2002, imply as to why the process was not issued against respondents 1 to 3? He has added that since sufficient material in the shape of the statements of the witnesses, during inquiry under section 202, Cr.P.C. As well as at the trial, was available on record, therefore, the learned trial Judge was under legal obligation to decide application filed by the petitioner, on merits, after recording reasons.
6. I have given my anxious consideration to the respective contentions of the learned counsel for the parties and have also perused record of the case carefully.
7. Record reveals that the complaint filed by the petitioner was dismissed by the learned Special Judge, Anti-Terrorism, Bahawalpur vide order dated 25-11-1999, which order was assailed by the petitioner before the Lahore High Court at Bahawalpur Bench. Consequently the order of the learned Special Judge, Anti-Terrorism was set aside and the case vide judgment dated 17-10-2000 was remanded, for trial, to the Court of Special Judge, Anti-Terrorism, Bahawalpur. It would be pertinent to mention here that in the meantime owing to amendment in Anti-- Terrorism Act, 1997 the case was transferred to file of learned Additional Sessions Judge, Bahawalpur who, after hearing the petitioner, issued process on 7-12-2001, only against two of the accused persons namely Imran Hanif and Muhammad Asad. The petitioner filed a revision petition before this Court with the prayer that the order of the learned trial Court dated 7-12-2001 may be modified to the extent that he may. Be directed to issue process against the remaining accused persons as well but since in the meantime, the learned trial Court proceeded with trial of the case and after - framing charge also recorded statements of two witnesses namely Mst. Riffat Yasmeen, the petitioner as P. W.1 and Muhammad Nawaz Bhatti, as P. W.2, therefore, the petitioner withdrew the revision as he wanted to make an application before the trial Court for summoning the rest of the accused persons in the light of the statements of the aforenamed witnesses recorded at the trial.
Record further reveals that an application in this regard was submitted by the petitioner before the trial Court which was taken up for hearing on 9-2-2002 and the following order was passed:-- "Earlier accused persons namely Imran Hanif and Muhammad Asad were summoned as accused to face the trial leaving aside Sarfraz Hanif, Lubna Sarfraz and Irfan Hanif vide order dated 7-12-2001 and it is not the stage to give any finding upon the evidence produced by the complainant, even in the context of summoning of Sarfraz Hanif etc. As accused. Further there is no mentioning in the instant application that the said order dated 7-12-2001 was challenged before any appellate forum. It is now at this stage the complainant's learned counsel disclosed that the said order has been assailed before Honourable Federal Shariat Court and is fixed for 18-2-2002. The instant application is misconceived and the same being without any substance is hereby dismissed. To come up for complainant's evidence on 13-2-2002."'
It would be pertinent to mention here that in while issuing process against Imran Hanif and Muhammad Asad the learned trial Judge has neither assigned any reason as to why the issue of process, against the rest of the accused persons, was withheld nor it was mentioned as to whether the complaint to their extent was dismissed or not. It would be advantageous to reproduce hereinbelow relevant portion of the order dated 7-12-2001 as well which reads as follows:-- "As the Court while passing the order under section 204, Cr.P.C. Has to appreciate evidence tentatively without appreciating the same deeply. So I am of the view that from the evidence on record there are sufficient grounds to proceed against respondent No.1 Imran Hanif and respondent No.5 Muhammad Asad. Let bailable warrants in the sum of Rs.20,000 be issued against both the abovesaid respondents to procure their attendance to face the trial for 20-12-2001.
Complainant is directed to place copies of necessary documents on the file to provide the same to the accused as per law. Process be issued forthwith."
It would be pertinent to mention here, that in a complaint case though a Magistrate or any other Court, while having a recourse to section 202, Cr.P.C. May, pending inquiry postpone the issue of process yet, it cannot be done unless reasons are recorded. Needless to point out that the Court, after inquiry, shall also be competent to dismiss the complaint as a whole or against any or some of the accused persons under section 203, Cr.P.C. Yet, again, it cannot be done unless, statement of the complainant on oath and result of the inquiry, if made, are considered, reasons are recorded and the Court in its own independent judgment, comes to the conclusion that there was no ground to proceed further. The use of word "shall" in latter part of section 203, Cr.P.C. Denotes that the provision is not permissive but imperative and recording of reason is the condition precedent for dismissal of the complaint. Non-recording of the "reasons", therefore, would make the order a nullity, because dismissal of complaint requires a judicial order. In this view I am fortified by the following reported judgments:-- (i)Ms. Zeba Bakhtiar v. Arshad Sarni Khan and 5 others 1988 SCM R 922, (ii)Kedar Ram and others v. Ram Bharosa AIR 1952 Vindhya Pradesh 49, (i.e)Ratanshah Kavasji v. Keki Behramsha and others AIR (32) 1945 Bom. 147.
Here it would be beneficial to have a glance at sections 202 as well as 203, Cr.P.C. Which read as follows:-- "Section 202. Postponement for issue of process.---(1) Any Court, on receipt of a complaint of offence of which it is authorised to take cognizance, or which has been sent to it under section 190, subsection (3), or transferred to it under section 191 or section 192, may if it thinks fit, for reason to be recorded, postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case itself or direct any inquiry or investigation to be made by any justice of the peace or by a police officer, or by such other person as it thinks fit for the purpose of ascertaining the truth or falsehood of the complaint: Provided that, save where the complaint has been made by a Court, no such direction shall be made unless the complainant has been examined on oath under the provisions of section 200.
(2)A Court of Session may, instead of directing in investigation under the provisions of subsection (1), direct the investigation to be made by any Magistrate subordinate to it for the purpose of ascertaining the truth or falsehood of the complaint.
(3)If any inquiry or investigation under this section is made by a person not being a Magistrate, or justice of peace or a police officer such person shall exercise all the powers conferred by this Code on an officer---in-charge of a Police Station, except that he shall not have power to arrest without warrant.
(4)Any Court inquiring into a case under this section may, if it thinks fit, take evidence of witness on oath.
"Section 203. Dismissal of complaint.---The Court before whom a complaint is made or to whom it has been transferred, or sent may dismiss the complaint, if,- after considering the statement on oath and (if any) of the complainant and the result of the investigation or inquiry (if any) under section 202 there is in his judgment no sufficient ground for proceeding. In such cases he shall briefly record his reasons for so doing. "
From bare perusal of the above provisions it implies that legally the complainant is entitles to know as to why his complaint was dismissed and for what reasons so that hi- may consider to approach the revisional Court. Being kept in ignorance of the reasons clearly prejudices his right to avail remedy against "the Order" and if, the matter is taken to the revisional Court, renders his task before the Court even more difficult. This view receives support from the case of Chandra Deo Singh v. Prokash Chandra Bose alias Chabi Bose and another AIR 1963 SC 1430.
It appears from perusal of the record that by the time, the impugned order was passed, earlier revision filed by the petitioner was pending as it was withdrawn subsequently on 18-2-2002. Be that as it may, fact remains that neither any reason was assigned, by the learned trial Judge, as to why issue of process, against the rest of the accused persons, was withheld nor it was specified as to whether the complaint to their extent was dismissed nor application filed by the petitioner, in that regard was decided on merits.
'Upshot of the above discussion is that order dated 9-2-2002 passed by the learned Additional Sessions Judge, Bahawalpur is set aside and he is directed to proceed with the case, after deciding application filed by the petitioner, for summoning the rest of the accused persons, in accordance with law. This revision petition is allowed in the above terms.