1977 P Cr (PLP)

2. Hence this revision petition which was admitted by this Court on 26-3-1976, to examine whether the trial Court had the jurisdiction to proceed with this case as the complaint was not lodged by the husband of the lady but by her father who was under obligation to seek permission of the Court under section 199, Cr. P. C. before doing so. However, this Court declined to suspend the sentence of the petitioners under section 426, Cr. P. C.

3. The brief facts of the case are that Mst. Riaz Begum was married to Muhammad Younis, on 23-3-1968. As Muhammad Younis was serving in the Army, therefore, Mst. Riaz Begum was living with her father Lai Khan complainant. Muhammad Sadiq and Muhammad Ashraf petitioners were dealing in milk business and used to come off and on to the house of the complainant In the course of their visit, Muhammad Ashraf petitioner developed infatuation for Mst. Riaz Begum and thus they developed illicit relations with each other. About two months prior to 12-3-1970, the date of filing complaint before the trial Court. Mst. Riaz Begum was enticed away by both the petitioners with the help of their co-accused Mst. Sardari. Efforts were made by Lal Khan through a jirga to get cost. Riaz Begum restored but his efforts did not meet with any success. Ultimately he lodged a complaint before the trial Court.

4. I have heard the learned counsel for the petitioners as well as for- the State and have perused the record of this case carefully with their assistance Learned counsel on behalf of the petitioners has assailed the impugned judgments on the following grounds :- (i) that the order of the learned trial Court was without jurisdiction as it violated the mandatory provisions of section 199, Cr. P. C. (ii) that the facts of the case only disclose that Mst. Riaz Begum was seen in the company of the petitioners and no evidence was led to show that she was in any way enticed away with intent that she may have illicit intercourse with Muhammad Ashraf petitioner or an actual sexual intercourse was committed with Mst. Riaz Begum knowing that she was legally wedded wife of another person.

5. To appreciate the legal objection raised by the learned counsel for the petitioners it would be useful to reproduce section 199, Cr. P. C. "Section 191.-No Court shall take cognizance of an offence under section 497 or section 498 of the Pakistan Penal Code, except upon a complaint made by the husband of the woman, or, in his absence by some person who had care of such woman on his behalf at the time when such offence was committed, In support of his legal objection the learned counsel has relied on a number of authorities which are as under :- A I R 1934 Lah. 86 ; A I R 1934 Lah. 122 ; P L D 1974 Kar.

146. In the first two authorities contained in A I R the learned Judges held that it was incumbent upon the person in the absence of the husband to seek permission of the Court while initiating proceedings under section 497/498 P. P. C. The learned trial Court as well as the learned Sessions Judge arrived at the conviction of the petitioners overruling this objection on the ground that as the Court itself proceeded with the case, the permission was presumed. A similar matter came before his Lordship Mr. Justice Tufail Ali A. Rehman (as his Lordship then was) in a case reported as The State v. Ashfaq Khan and others (P L D 1974 Kar. 146) and after discussing at length the implication of section 199, Cr. P. C. and various authorities in this behalf, his Lordship came to a positive conclusion that even if a Magistrate proceeds with the case, this will not be assumed that he is granted express permission as required under section 199, Cr. P. C. Learned counsel appearing on behalf of the State has submitted that in fact this was an irregularity curable under section 537, Cr. P. C. and therefore, the instant case was not hit by section 199, Cr. P. C. as no failure of justice has occurred in this case. I am afraid, I do not agree with the contention of the learned counsel for the State for the reason that the irregularity is something different than that of jurisdiction. The former could be cured under section 537, Cr. P. C. but if the Court proceeds without jurisdiction, 10 section 537, Cr. P. C. does not come to its rescue. Following with respect the view taken by his Lordship Mr. Justice Tufail A. Rehman (as his Lord ship then was), I will not hesitate to hold that the learned trial Court was first bound to apply its mind to the prayer for the permission if any placed on the record on behalf of the complainant and then to expressly permit him to lodge a complaint on behalf of the husband.

6. While dealing with the case on merits, I find that the only, evidence which has come on the record against the petitioners is that Mst. Riaz Begum was seen in their company, and nothing else. No witness has come forward to state that Mst. Riaz Begum was in any way enticed away and the inten tion of the petitioners was to commit adultery with her. An evidence of this type could have been brought on the record by producing certain witnesses who had either seen Mst. Riaz Begum living under the same roof with Muhammad Ashraf petitioner or about the fact that when she was allured by deception or by tall promises to break her family life and to enter into an illegitimate intimacy with Muhammad Ashraf petitioner, she was so pursuaded by the accused person. In Abdul Malek v. State (P L D 1963 Dacca 798), the learned Judge of that Court placed reliance on Mahadeo Rama v. Emperor (A I R 1943 Bom. 179) wherein it was held :- " It is not very easy to say what 'taking away' means, but I think there must be some influence, physical or moral, brought to bear by the accused to induce the wife to leave her husband in order that her leaving may amount to taking away by the accused, and there is no evidence in this case of any physical or moral pursuation on the part of the accused." Similarly in Hossaini Methor v. Emperor (38 Cr. L J 986) it was held " . . . . . . That to bring section 498 into operation there must be some influence operating on the woman or co-operating with her inclination at the time the final step is taken which causes a severance of the woman from her husband, for the purpose of causing such step to be taken."

7. In view of the law laid down and the evidence on the record, I also find that no case is made out against the petitioners even on merits. The objection raised by the learned counsel for the petitioners on legal plan as well as on facts, has succeeded, therefore, I accept the revision petition, set aside the conviction and sentence of the petitioners and acquit them. They shell be released forthwith unless they are wanted in some other case. Revision allowed.