2010 PLP 1234 (MLD)

WAQAR HASSAN MIR, J.

Through this petition under section 561-A, Cr.P.C., the petitioner has assailed the order, dated 22-2-2010, whereby the learned Additional Sessions Judge, Sarai Alamgir, dismissed the application filed by the petitioners under section 265-K, Cr.P.C. for their acquittal in the case F.I.R. No.456, dated 7- 10-2008.

2. Briefly stated the facts of the present case are that, respondent No.2/complainant lodged an F.I.R. No.456, dated 7-10-2008 under sections 376/380/342/506, P.P.C, at Police Station Sadar with the allegation that her son namely Khalid Qayyum was married with Mst. Nousheen Bibi, who heard the noise of whispering of her daughter-in-law, namely Mst. Nousheen Bibi with Sajid Mehmood (petitioner No.1), who indulged themselves in committing zina with their consent at the 1st floor of the house. The respondent No.2 through telephonic message called the persons nominated in the F.I.R. and other people of the vicinity, who came at site and gave severe beatings to both the petitioner. No.1 and Mst. Nousheen Bibi, hence the F.I.R., After submission of the challan in the Court, the charge has been framed and when the case was fixed for evidence, the petitioners moved an application under section 265-K, Cr.P.C. and the learned trial Court vide order, dated 22-2-2010 dismissed the same. Hence this petition in which the following prayer has been made:-- "It is, therefore, humbly prayed that while accepting this criminal revision petition, the order, dated 22-2-2010 may please be set aside while allowing the application moved under section 265-K, Cr.P.C. consequently the F.I.R. and the consequent proceedings may be quashed in the interest of justice."

3. Learned counsel for the petitioner contends that from the bare perusal of the F.I.R., no offence under section 376, P.P.C. is made out and as per section 375, P.P.C., which has been postulated, no offence is constituted as the victim so far was not medically examined and has also categorically made the statement under section 161, Cr.P.C. denying all the allegations. He further contends that at the most, the offence, which is made out against the petitioner, is under section 496-B, P.P.C. Learned counsel has also objected to the implication and mischief of section 375 (fourth) of P.P.C. by controverting that as the lady was married therefore, she is a "Mohassna" if act of her was to be kept alive, a complaint is to be filed under section 496-B for fornication by her husband otherwise also looking into the medical evidence produced by prosecution.

4. Heard. Before proceeding further, it would be relevant to reproduce the definition of sections 375 and 496-B, P.P.C., which were substituted by Protection of Women Act, VI of 2006, and reads as follows: Section 375 Rape-A man is said to commit "rape" who except in the cases hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the five following descriptions. First: Against her will. Secondly: Without her consent. Thirdly: With her consent, when her consent has been obtained by putting her in fear of death, or of hurt. Fourthly: With her consent when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly. With or without her consent, when she is under (fourteen) years of age. Section 496-B (Fornication) "(1) A man and a woman not married to each other are said to commit fornication, if they wilfully have sexual intercourse with one another.

5. In order to understand what is difference between the above two reproduced sections, it is necessary to know the meaning of "Fornication", which according to Black's Law Dictionary, eighth edition means as under:-- "(1) Voluntary sexual intercourse between two unmarried persons fornication is still a crime in some states, such as Virginia. Voluntary sexual intercourse with an unmarried woman. At common law, the status of the women determined whether the offence was adultery or fornication-adultery was sexual intercourse between a man, single or married, and a married woman not his wife; fornication was sexual intercourse between a man, single or married, and a single woman" Thus from the collective reading of above reproduced sections coupled with the definition of the fornication, it is manifest, that there is no reasonable grounds to believe that section 376, P.P.C. is made out against the petitioner. Even otherwise as the lady was married therefore, she is a "Mohassna" and if her act was to be kept alive, then a complaint is to be filed under section 496-B for fornication by her husband. In the present case, the F.I.R. was lodged by Mst. Saleema Begum, the mother-in-law of lady, which is not sustainable in the eyes of law. In the light of what has been discussed above, I am of the opinion that the proceedings conducted in the present case by the learned trial Court cannot sustain, thus the same are hereby quashed under section 561-A, Cr.P.C. However, if so advised, the husband of lady (Mst. Nousheen) may institute a complaint under section 496-B, P.P.C. substituted by Women Protection Act, 2006 with the consequence the application under section 265-K, Cr.P.C. has become infructuous. This petition is accordingly allowed. N.H.Q./S-84/L Petition allowed.