Find a Lawyer

Criminal Revision No.41 of 1985, heard on 29th May, 1985.

‑‑‑Ss. 435, 439 & 561‑A‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10‑‑Private complaint‑‑Reasonable grounds to proceed‑‑Complainant an eye‑witness of Zina‑‑Two witnesses of extra‑judicial confession before Panchayat supporting her‑‑Finding of doctor examining girl, positive‑‑Reasonable grounds, held, existed to proceed further and process should have been issued to decide matter on merits after recording evidence‑‑Order dismissing complaint set aside in circumstances.

Ch. Muhammad Sulleman for Applicant.

Nemo for Respondent No.1 (absent).

A.I. Qarni for the State.

Dates of hearing: 28th and 29th May, 1985 .

This is revision application filed under sections 439 and 435, Cr.P.C. read with section 561‑A, Cr.P.C. Grievance of the petitioner Mst. Mukhtar Begum is that she had filed a direct complaint in the Court of XIth Additional Sessions Judge at Karachi (Mr. Hasan Shah Bukhari) against her husband namely Abdul Razzak for offence under section 10 of Zina Ordinance alleging that her husband has been committing rape with her daughter Nasreen Akhtar aged 16 years from her previous husband. It is further stated by Mr. Mukhtar Begum that she had seen with her own eyes her husband Abdul Razzak having sexual intercourse with her daughter Nasreen Akhtar and on her protests she was turned out from the house by her husband and he divorced her. He still continues living in the house alongwith Nasreen Akhtar daughter of complainant. Complainant and Abdul Razzak have four children from their wedlock.

Main grievance of the complainant is that proceedings were not carried further in spite of the fact that there was satisfactory evidence available to prove the charge. Learned Additional Sessions Judge examined complainant under section 200, Cr.P.C. and then examined two more witnesses under section 20Z namely Muhammad Yousuf and Khadim Hussain who have both supported the complainant in the assertion that there were proceedings before the Panchait in which Abdul Razzak had admitted his illicit connections with Nasreen Akhtar and promised to refrain from it in future. In spite of that direct complaint was dismissed, vide order dated 13‑3‑1985.

It is submitted by the learned counsel appearing for the petitioner before me that Mst. Mukhtar Begum requested the trial Court to send Mst. Nasreen Akhtar for medical examination which was done and the report had also come from the Doctor as well as; from the Chemical Examiner with regard to the swabs taken from the private part of the girl in question. The learned trial Judge did not open those envelopes to find out as to what were the findings of the Doctor and the Chemical Examiner and rushed with writing the order dismissing the complaint. There is also on the record copy of the order dated 6‑4‑1985 in which it is stated that learned trial Judge had in fact opened the envelopes on 13‑3‑1985 but this assertion is not supported by any evidence and the order dismissing the complaint on 13‑3‑1985 is conspicuously silent about the medical report.

Choudhry Muhammad Sulleman, Advocate has drawn my attention to an application on the record filed by the counsel for the complainant with prayer that sealed envelopes which had come from the Doctor and the Chemical Examiner be opened to find out the findings of the experts with regard to the allegation of Zina. This application is dated 13‑3‑1985. It is alleged by Mr. Choudhry Muhammad Sulleman that on this application dated 13‑3‑1985 is deleted and changed to 14‑3‑1985 and this was done at the instance of the learned trial Judge. He further stated that his junior counsel by name Doctor Hameed Ahmad was present in the Court and the date 13‑3‑1985 was deleted by the learned trial Judge and the junior counsel was asked by the learned Judge to put date 14‑3‑1985 underneath and his initial.

Be that as it may what I really feel is that when petitioner Mukhtar Begum claims to be an eye‑witness to Zina between her husband and her daughter and further that she has seen it with her own eyes and this fact is further supported by other two witnesses who were present in the proceedings of Punchait where extra‑judicial confession was made by Abdul Razzak and he also gave categorical assurance to discontinue this illicit affair and particularly when the finding of the Doctor is also positive that Mst. Nasreen Akhtar is used to sexual intercourse, I strongly feel that there are reasonable grounds to proceed further with the matter and the process should have been issued and the case should have been taken in hand for recording of evidence to be decided later strictly according to law and merits. I set aside the impugned order and send the case back to learned Sessions Judge, Karachi so that he should himself try this case or mark it to another Additional Sessions Judge with the exception of the Judge who has already dealt with it before. It is further directed that case should be processed further and dealt with strictly according to law and completed within two months.

S.A. Appeal accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.