Bibi Tabassum Nazli vs Muhammad Nazir etc.

PSLA No. 22 of 2013.

Bibi Tabassum Nazli Muhammad Nazir etc.

1.15.01.2014 Sardar Muhammad Ejaz Khan, Advocate for the petitioner.

Through the instant petition filed in terms of Section 417 (2-A) Cr. P.C. seeking grant of special leave to appeal against the order of acquittal of respondent No.1 and 2 dated 19.8.2013 passed by the learned Additional Sessions Judge, Jand who dismissed the private complaint of the petitioner filed under sections 452, 354, 376,511, 365-B/34 P.P.C. against respondents No.1 and 2.

2.Briefly facts of the case are that Bibi Tabasum Naazli, petitioner levelled allegations against respondents No.1 and 2 along with an unknown accused was that on 29.07.2013 at about 6.30 a.m, the accused along with an unknown came on Wagon No.3550-RIR and entered into house of the complainant whereas Muhammad Nazir accused/respondent No.1 had shown his intention to commit Zina with her upon which she refused and thereafter the accused started physical assault upon her and also tried to take her in a room. During this scuffle her shirt was torn. The

complainant also alleged that the accused also tried to take her along with them but on hue and cry of the complainant, the witnesses were attracted there and the accused ran away. It was also stated that she informed her father Smundar Khan about the occurrence on telephone. On the arrival of her father, she submitted application for registration of the case to the SHO of Police Station Basal on 05.06.2012 for registration of case but the SHO did not accede request of the petitioner/complainant. Being aggrieved of the conduct of the SHO, the petitioner/complainant filed petition under section 22-A/22-B Cr.P.C before the learned Ex-Officio Justice of Peace/Additional Sessions Judge, Jand who dismissed the same vide order dated 19.8.2013, hence this petition.

3.Learned counsel for the petitioner has contended that there is sufficient evidence available on record to connect respondents No.1 and 2 with the commission of alleged offence. It is further contended that involvement of the respondents is well established from the record and testimony of eye witnesses including the evidence of the petitioner which is based on truth, therefore, the impugned judgment regarding acquittal of respondents No.1 and 2 is the result of misreading and non-reading of the evidence which is not sustainable in the eye of law.

4.I have carefully considered the arguments of the learned counsel for the petitioner and minutely perused the available record.

5.Initially Bibi Tabassum Nazli, petitioner filed a private complaint under the aforesaid sections in the court of learned Judicial Magistrate Section 30. On reference by the learned court, above referred private complaint was withdrawn from the said learned court and the same was entrusted to the learned Additional Sessions Judge, Jand by the learned Sessions Judge, Attock on 05.08.2013 whereas the petitioner filed fresh private complaint before the learned Sessions Judge, Attock, who entrusted the same to the learned Addl. Sessions Judge, Jand on 29.7.2013 where cursory evidence of the petitioner along with her witnesses were recorded on 13.8.2013. The petitioner/complainant had nominated three persons, namely, Muhammad Nazir and Abdul Rashid along with an unknown ac cused person in the complaint. After the occurrence, the petitioner submitted written application to the SHO of Police Station Basal on 05.8.2012 for registration of case but the SHO, Police Station Basal refused to record the statement of the petitioner/complainant. Being aggrieved of the conduct of the SHO, the petitioner/complainant filed petition under section 22-A, 22-B Cr.P.C before the learned Ex-Officio Justice of Peace/Additional Sessions Judge, Jand in

respect of the same transaction which is subject matter of the private complaint. The record annexed with this petition reflects that the complaint was filed by the petitioner on 29.07.2013 against respondents No.1 and 2 after elapse of one year. After recording of cursory statements of Bibi Tabbasum Nazli, complainant as PW-1, Muhammad Haroon as PW-2, and Karam Khan as PW-3, the learned trial court proceeded to dismiss the complaint vide the impugned order dated 19.08.2013 by concluding that there was no convincing evidence available against respondents No.1 and 2 and dismissed the complaint in limine. The complainant while appearing in the witness box as PW1 stated that respondents No.1 and 2 along with one unknown person entered into her house on 29.07.2013 at about 6.30 a.m. when she was busy in her household work and they forcibly caught hold of her and tried to take her inside the room and in this process her shirt was torn. She raised hue and cry but they closed her mouth. She further stated that the accused made attempt to outrage her modesty and on hue and cry, Karam Khan, Haroon and Buland Khan were attracted there and they rescued her from clutches of the accused. She reported the matter to the police station and called her father through telephone. On the other hand, in the application addressed to the SHO she did

not mention this fact as also in the application under section 22-A, 22-B Cr.P.C. filed before the learned Ex. Officio Justice of Peace/ASJ that respondents No.1 and 2 along with an unknown person came on Wagon No.3550-RIR and entered into the house of the complainant with the intention to commit zina whereas Muhammad Nazir accused/respondent No.1 had shown his intention to commit Zina with the complainant and upon her refusal they started physical assault upon her. She also alleged in the petition that the accused tried to take her forcefully in a Wagon but she did not depose this fact before the court and only stated that on her hue and cry, witnesses were attracted there and accused ran away. Sufficient contradiction are available in the statements of PW-2 and PW-3 wherein PW-2 stated that “on seeing us, they ran way” whereas PW-3 stated that “accused ran away after seeing me”. In their cursory statements made by PW-1 to 3 introduced a new date of occurrence i.e. 29.7.2013 instead of 29.7.2012 as well in the instant petition whereas in the private complaint, the petitioner stated that occurrence was taken place on 29.07.2012. It appears that she as well as her witnesses have not made consistent statements. It is also pertinent to mention here that the complainant stated in her statement before the court that during scuffle her shirt was torn, whereas PW-3 stated that “they had

taken off clothes of complainant and she was naked”. It is also noticed that PW-3 had not mentioned in his statement before the court presence of each other and he stated that he was present in his house when he heard hue and cry as his house is situated nearby the house of the complainant whereas PW-2 stated in his statement that he and Karam Khan PW-3 heard hue and cry and were attracted and saw that accused persons were scuffling with the complainant and on seeing them, they ran away. From the perusal of the application for registration of case (Exh.PG) submitted by father of the complainant reveals that said application was submitted by one Buland Khan son of Sikandar Khan and not by Samundar Khan (father of the complainant), whereas application moved by petitioner/complainant Ex.PH reveals that occurrence took place on 29.07.2012 and on the application Ex.PG version of the complainant side was incorporated in the police file through case diary No.1 para No.4. On 29.07.2012 cross version under sections 354/452 P.P.C was registered and later on, on the application of petitioner/complainant offences under sections 376/511 P.P.C. were added. The investigation was not joined by the petitioner/complainant as well as her witnesses as brother and uncle of the petitioner were declared proclaimed offender and challan under section

512 Cr.P.C in case F.I.R. No.134 dated 29.07.2012 registered under sections 342, 337-A(ii), 337-F(v), 337-F(i), 148, 149 P.P.C. at Police Station Basal, District Attock has been submitted. Above referred F.I.R. was got registered on the statement of Muhammad Nazeer/respondent No.1 and this fact was also suppressed by the complainant and cross version was also found false and ultimately the same was cancelled. The possibility of false implication of respondents No.1 and 2 by the petitioner/complainant at the instance of her real brother and uncle cannot be ruled out. In view of contradictory statements of complainant as well as PWs, there is no need to summon respondents No.1 and 2 to face trial in the private complaint. Even otherwise, the petitioner and her witnesses have failed to prove the guilt against the respondents. More over, the petitioner while appearing as PW-1 has not deposed a single word that respondent No.1 registered a criminal case against the real brother and uncle of the complainant and others. Likewise, PWs-1 to 3 in their whole deposition have not mentioned the correct date of occurrence. The witnesses were inimical towards respondents No.1 and 2 and a criminal case has already been registered against the real brother and uncle of the complainant/petitioner along with others and as such they are not truthful witnesses. The petitioner

has failed to prove the alleged allegations against the respondents in the light of above observations.

6.I have also taken note of the settled principle of criminal jurisprudence that unless it can be shown that the judgment of the lower court is perverse or that it is completely illegal and no other conclusion can be drawn except the guilt of the accused or there has been misreading or non- reading of evidence resulting in miscarriage of justice and as such the impugned order cannot be interfered with. In this case the complainant has not been able to bring on record adequate incriminating evidence against the respondents which connect them with the commission of alleged offence.

7.In view of what has been discussed above, I find no merit in this petition, which is hereby dismissed in limine.

(Aalia Neelum) Judge Approved for reporting.

Judge Hamid/*