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Criminal Appeal No.32/L of 1983, decided on 28th January, 1984.

‑‑‑Ss. 202, 203, 528 & 537‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 197y), Ss. 10, 11, 16 & 20‑‑Additional Sessions Judge not competent to send case to Magistrate under S.202, Cr.P.C. for enquiry as Magistrate being subordinate to Sessions Judge only and not to Additional Sessions Judge‑‑Objection not raised before trial Court, rather complainant duly participated inquiry proceedings‑ Complainant, held; estopped to raise such objection at appellate stage‑ Words "any Court" used in 5.202, Cr.P.C. include Additional Sessions Judge also‑‑Magistrates are, therefore, subordinate to Sessions Judge for purpose of S.528, Cr.P.C.‑‑Defect, if any, curable under S.537, Cr.P.C.‑‑ [Interpretation of statutes].

‑‑‑Ss. 10, 11, 16 & 20‑‑Trial Court while dismissing private complaint relying on order of Magistrate and not discussing evidence in detail---Trial Court, held, should have written a speaking order expressing his own clear opinion on merits instead of relying upon report of Inquiry Magistrate‑‑Shariat Court, however, refused to remand case after scrutiny of evidence recorded by Magistrate and Additional Sessions judge, finding there being no useful purpose to be served by remanding case and prolonging litigation unnecessarily in circumstances.

‑‑‑Ss. 10, 11, 16 & 20‑‑Penal Code (XLV of 1860), S.379‑‑Criminal Procedure Code (V of 1898), S.417‑‑Appeal against acquittal‑‑One of accused persons initially cited as witness and his statement under S.164, Cr.P.C. also recorded‑‑Subsequently due to her strained relations with her husband (brother of complainant) she was included amongst accused persons‑‑Victim of Zina deaf and dumb and unable to explain herself‑ Recovered privately although case was registered with police‑‑Story of abduction doubtful and unusual‑‑Victim of Zina a deaf and dumb person only eye‑witness of offence‑‑Exact date of recovery of abductee by complainant privately, not known as such her medical evidence also not helpful‑No evidence available regarding allegation of theft by accused‑ No probability of conviction of accused of any offence after remand of case found‑‑Appeal against acquittal dismissed in circumstances.

Sh. Ahmad Khan Baloch for Appellant.

Ch. Muhammad Ibrahim for Respondent.

Mian Nusratullah for the State.

Dates of hearing: 21st and 22nd November, 1983.

‑ This is an appeal under section 20 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) against the order, dated 18‑11‑1982 of the Additional Sessions Judge, Faisalabad, whereby the private complaint filed by‑Ghulam Muhammad, appellant was dismissed under section 203 of the Code of Criminal Procedure.

2. The brief facts of this case are that Abdul, a real brother of Ghulam Muhammad appellant was deaf and dum and was married to Mst. Saidan respondent. Out ‑of this wedlock a son was born, who is alive and was about 3 years old at the relevant time. Mst. Saghiran the alleged abductee was living with the appellant Ghulam Muhammad as she lost her parents in the childhood. She was deaf and dum. It is alleged that the relations of Mst. Saidan respondent with her husband abdul were not cordial. She quarrelled with her husband and went to her parents' house. About one month thereafter she alongwith Ishaq, Sarishta, Mat. Sardaran, Mst. Shamim, Muhammad Yousaf and Muhammad respondents came to the house of her husband Abdul and stayed there for the night. In the morning the complainant Ghulam Muhammad and other members of his family went out to the fields for their usual work but Mst. Saidan and her companions remained back in the house. It is alleged that the accused persons enticed away Mst. Saghiran who as mentioned above was deaf and dum. It is further alleged that Mst. Saidan also took away some ornaments with her. On their return from the fields, Ghulam Muhammad complainant and others found Mst. Saghiran absent from the house. During her search the complainant party was informed by Sadiq and Arif that they saw that Yousaf and others accused persons had taken away Mst. Saghiran in a wagon with them towards Jaranwala. According to the complainant, Mst. Saghiran was taken away with the object of performing her Nikah with Yousaf accused illegally. The complainant enquired from Mst. Sardaran and Ishaq accused who were alleged to have confessed that Nikah of Mst. Saghiran was to be performed with Yousaf and for this purpose she was abducted. The complainant alongwith others went to the house of Muhammad accused at Head Ballokt, but the accused was not present in the house. Mst. Saghiran on seeing the complainant and his companions started weeping and Mat. Saidan accused disappeared from the house. Mat. Saghiran told them that Yousaf accused had been committing Zina‑bil‑Jabr with her. Ghulam Muhammad complainant lodged the report under section 16/11 of the Ordinance with the police on 23‑5‑1981. The police started the investigation, prepared site plan and recorded the statements of the witnesses under section 161, Cr.P.C. and got Mst. Saghiran medically examined and took her swabs. The police also arrested Ishaq and‑Sarishta accused. The statement of Mst. Saghiran who is deaf and dum was also recorded on 28‑6‑1981 with the help of Master Abdul Shakoor, who is said to be an expert for deaf and dum children. Mst. Saidan accused filed. a writ petition in the High Court and also filed a suit for dissolution of mrriage. The police during the investigation came to the conclusion that the complainant party in order to obtain money, filed present complaint. The Investigating Officer, therefore, recommended the cancellation of the case. This was first approved by P.S.I. and then by Prosecuting Inspector and finally by P.D.S.P. Consequently the complaint filed by Ghulam Muhammad complainant with the police was cancelled. The complainant then on 9‑9‑1981 filed a private complaint in the Court of Illaqa Magistrate, Jaranwala against Mat. Saidan, Ishaq, Sarishta, Mst. Sardaran, Mst. Shamim, Yousaf and Muhammad son of Ilyas under section 10/11/16 of the Ordinance and section 379 of P.P.C. Since the case was exclusively triable by the Court of Sessions, the Illaqa Magistrate sent the said complaint to the Court of Sessions Judge, Faisalabad and directed the complainant to appear before that Court on 19‑9‑1981. Nobody appeared before the Sessions Judge on 19‑9‑1981 and the case was, therefore, adjourned to 3‑10‑1981 on which date the learned Sessions Judge entrusted this case to Mr. Muhammad Akram Baitu, Additional Sessions Judge, for necessary action and 'directed the complainant to appear before that Court on 13‑10‑1981. The learned Additional Sessions Judge, after recording the preliminary statement of Ghulam Muhammad complainant on 18‑3‑1982, sent the case for enquiry under section 202, Cr.P.C. to Mr. Saadat Ali Chaudhary, Magistrate Section 30 and directed the complainant to appear before that Court on 31‑3‑1982. The learned Magistrate recorded the preliminary statements of Ismail (P.W.1) Nausher (P.W.2) Mallah (P.W.3) arid Muhammad Arif (P.W.4). The learned Magistrate vide his report, dated 2‑8‑1982 after discussing the evidence came to the conclusion that abduction of young girl from the village in broad daylight was not only difficult but almost impossible and that the real dispute was between Mst. Saidan and her husband Abdul. Since Mst. Saidan was not willing to live in the house of her husband Abdul, therefore, a false case was concocted against the accused persons. The learned Magistrate further found that there was no evidence available on the record against the accused persons to prove the allegation of Zina and theft. He, therefore, opined that the ends of justice required dismissal of the complaint.

3. On the receipt of the report from the Magistrate the learned, Additional Sessions Judge heard the complainant and after perusal of the record and the statement of the complainant earlier recorded by him he dismissed the complaint under section 203 of the Code of Criminal Procedure.

4. Hence this appeal.

We have heard at length the learned counsel for the parties and have also perused the entire material available on the record.

5. It is vehemently contended by the learned counsel for the appellant that learned Additional Sessions Judge was not competent to send the case under section 202, Cr.P.C. to the Magistrate for enquiry. According to him the learned Additional Sessions Judge could try the case himself but he had no power to send it to the Magistrate for enquiry because the Magistrate was not subordinate. to him. Reliance in this behalf is placed upon section 528, Cr.P.C. according to which the Magistrates are subordinate to the Sessions Judge. In support of this argument he has also cited some authorities. In reply it is argued by Mr. Nusrutullah the learned counsel for the State that such objection should have been raised before the lower Court and the appellant should not be allowed to raise this question at this stage before this Court. According to him the complainant not only did not raise this objection before trial Court but duly participated in the enquiry before the Magistrate. He is, therefore, estopped to raise this objection at this late stage. It is further argued by him that the words "any Court" used in section 202 of the Code of Criminal Procedure would include the Additional Sessions Judge. It is further pointed out by the learned State counsel that according to clause (1‑C) of section 528 of the Code of Criminal Procedure it is only for that particular section and not in general that the Magistrates are said to be subordinate to the Sessions Judge. The words "for the purpose of this subsection" under the explanation of this subsection are quite clear to support this inference. Alternatively it is argued that the defect if any is cureable under section 537 of the Code of Criminal Procedure.

6. Another argument advanced by the learned counsel for the appellant is that the learned Additional Sessions Judge has not applied his mind independently but has only endorsed the view of the Magistrate expressed in the report. No doubt the learned Additional Sessions Judge has not himself discussed the evidence in detail and has perused the record. Although he has considered the statements of the complainant it would have been better if he had written a speaking order expressing his own clear opinion on merits. The prayer of the appellant is that we should remand the case to the trial Court for decision afresh in accordance with law. We are not inclined to agree with him. We have minutely scrutinized the statements of the witnesses recorded by the Additional Sessions Judge as well as by the enquiry Magistrate and have heard the lengthy arguments for the counsel for the parties and find that no useful purpose will be served by remanding the case and thereby prolonging the litigation unnecessarily. It is not disputed that initially Mst. Saidan was cited as a witness and her statement under section 164, Cr. P. C. was recorded in that capacity in which she clearly stated that she was not abducted by anyone but she of her own free‑will went to her parents' house. However, subsequently due to her strained relations with her husband Abdul, brother of Ghulam Muhammad complainant /appellant, she was also included among the accused persons. The grievance of the complainant now is regarding the abduction and Zina committed with Mst. Saghiran. She was allegedly recovered by the complainant privately not through the police, although the case was registered with the police. Moreover, the going of the accused persons the house of the complainant and staying there for the night and next morning going of the members of the complainant party to the fields, leaving the accused persons alone in the house is highly doubtful and unusual. Further, abduction of Mst. Saghiran in broad daylight from the village is also unbelievable. She is deaf and dumb as stated above. She is present in the Court today but she is unable to explain herself. She is the only witness of Zina allegedly committed with her she was medically examined on 24‑5‑1981 and her exact date of recovery by the complainant privately is not known. In such circumstances her medical evidence also would not help the complainant. It is not disputed even by the learned counsel for the appellant that there is no evidence regarding the allegation of theft by the accused persons.

7. After careful perusal of the material available on the record and hearing counsel for the parties, we are clearly of the view that in the circumstances of the case there is no probability of the accused being convicted of any offence after the remand of the case to the trial Court. We are, therefore, inclined to agree with the arguments of the counsel for the State.

8. For the foregoing reasons we find no substance in this appeal and the same is hereby dismissed.

M. A. K.

Appeal dismissed.

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