1999SCMR1102 (PLP)

WAJIHUDDIN AHMED, J.

The appellant was awarded ten years' R.I., with the benefit of section 382-B, Cr.P.C., upon being tried and convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Such punishment imposed by the Sessions Judge, Bhakkar, on 2-10-1997 was upheld by the FSC on 9-12-1997. Prosecutrix Sarnia Bibi (P.W.9) had alleged that at 8-00 a.m., on 13-8-1996 while she was sweeping outside the door of her house the appellant called her into his own house by giving out that his mother was calling tier in the Baithak of the appellant's house. When Sarnia Bibi, aged 11-12 years, entered the Baithak the appellant allegedly bolted the door, brought out a pistol and threatened to kill her if she made any noise. The appellant also raised the volume of his tape recorder. In such a situation the appellant committed rape on the prosecutrix but because due to pain Sarnia Bibi still cried P.W. Muhammad Yousuf and Abdul Rasheed were constrained to knock at the door at which stage the appellant left the complainant and slipped into the interior of the house. There were efforts to bring about reconciliation between the parties which failed because the complainant's ailing father did not agree to condone the offence. As a result there was a delay of some four days in lodging of the FIR. Lady Dr. Falak Riffat (P.W. 5) who examined the victim was of the opinion that she was 11/12 years of age, was not habituated to sexual intercourse and her hymen was torn. The swabs sent for chemical examination were found to be stained with semen. The lady doctor's final opinion was that the victim had been subjected to sexual intercourse. About the virility of the appellant Dr. Muhammad Nawaz Khan (P.W. 6) who examined the former rendered a positive opinion. Leave was granted in this Court because the lady doctor had deposed the hymen to have healed which, in her opinion, usually took a period of one week. Hearing this appeal we are of the view that the victim was a young village girl with a plausible likelihood of a comparatively early recovery. Even otherwise, if the girl was completely healed, for healing can have more stages than one, the result may only tantamount to some further delay in the F. I. R. As to the apparent delay in lodging of the F.I.R., we cannot be unmindful of the prevailing taboos in our society. Even in modern day advanced societies, for and on account of the prevalent predilections, many a cases of rape go unreported. A victim of rape should not be penalized on account of ostensible delay in reporting what she has undergone. On the contrary, kindness, encouragement and understanding are the requirements to approbate a victim's difficult decision to purge the society of perpetrators of such heinous offences. Nothing also turns on the appellant's plea that no marks of violence were found on the person of the prosecutrix. The circumstances of the appellant e being of about 19/20 years of age and being armed with a deadly weapon are in themselves a sufficient explanation where the victim herself was of tender years. To crown everything, the story of the appellant that there was a family dispute of the appellant's family declining to give the hand of one of its daughters in marriage to complainant's brother is too far-fetched to inspire confidence. Besides being uncorroborated, it is absolutely improbable that the girl's family would play with her honour solely to settle such a score as above?mentioned. We have, accordingly, found no merit in this appeal and are constrained to dismiss it. M.B.A./M-305/S ??????????????????????????????????????????????????????? ??????????? Appeal dismissed. 1999SCMR1104 [Supreme Court of Pakistan] Present: Ajmal Mian, C. J. and Ch. Muhammad Arif J PAKISTAN LABUUR UNION, LAKSON TOBACCO COMPANY LIMITED through General Secretary

Petitioner versus NATIONAL INDUSTRIAL RELATIONS COMMISSIONISLAMABAD and 6 others

Respondents Civil Petition No.801 of 1998, decided on 13th October, 1998. (On appeal from the judgment, dated 27-4-1998 of the Lahore High Court, Rawalpindi Bench, Rawalpindi in Writ Petition No.361 of 1998).

Ss. 22-B (2)(a) & 22(8)(g)

Constitution of Pakistan (1973), Art. 185(3)--?Appeal before Full Bench of National Industrial Relations Commission--?Maintainability

Appeal against orders of Single Bench of National Industrial Relations Commission was filed before Full Bench which suspended order passed by Single Bench

Constitutional petition filed against orders of Full Bench of National Industrial Relations Commission was accepted by High Court on ground that in Full Bench there were two members instead of three as required under S. 22-B(2)(a) of Industrial Relations Ordinance, 1969--?Validity

Provisions of S.22-B(2)(a) of Industrial Relations Ordinance, 1969 having provided that Full Bench could not be less than three members, order passed by High Court was unexceptionable. M. Asghar Khadim; Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Petitioner. Sadiq Waraich, Advocate Supreme Court and Ejaz M. Khan, Advocate?-on-Record for Respondent No.5. Date of hearing: 13th October, 1998. AJMAL MIAN, C.J.

This is a petition for leave to appeal against the judgment of a learned Single Judge of the Lahore High Court passed in Writ Petition No.361 of 1998, filed by respondent No.5 Jeeway Pakistan Union Lakson Tobacco Limited, assailing two orders, dated 16-2-1998 passed by a Bench of respondent No. l National Industrial Relations Commission, allowing the same as follows:-- "In view of the above discussion, both the orders, of Full Bench, dated 16-2-1998 cannot be sustained and are set aside accordingly and it will be deemed that the appeals filed by respondents Nos.3 and 4 were pending before it. The Full Bench of the National Industrial Relations Commission will record its findings on the appeals filed by the respondents within a period of thirty days from today taking into consideration the objections of the parties, in particular the jurisdiction of the Commission to entertain the petition under section 22(8)(g) of the Industrial Relations Ordinance, 1969. Since both the orders of the Full Bench of the Industrial Relations Commission, dated 16-2-1998 have been set aside, all consequential action taken thereunder, including holding of referendum 17-2-1998, will be of no legal effect. The writ petition is allowed accordingly with no orders as to costs." The brief facts are that respondent No.5 (Jeeway Pakistan Workers Union Lakson Tobacco Company Limited) was certified as Collective Bargaining Agent (C.B.A.) under the provisions of the Industrial Relations Ordinance, 1.969 (hereinafter referred to as the I.R.O.) from 10-1-1996, in Lakson Tobacco Company Limited Rawalpindi (respondent No.7). Previous to the said Union, the petitioner had been acting as C.B.A. for the period of eight years. It appears that the referendum for elections of new C.B.A. was due in January, 1998. Respondent No.5 Union moved the Labour Department, headed by the Registrar of Trade Unions, Rawalpindi Region, alleging that several workers were performing their duties in the establishment of respondent No.7 for the last several years, but in violation of Standing Order No.2-A they were being treated as daily wagers and thereby respondent No.7 was avoiding payment of substantial amount towards Social Security Institution, Old Age Benefit Institutions, Workers Welfare Fund and Education Cess and so also gratuity, house rent, cost of living and other allowances. On the above complaint, inspection was carried out by the officers of respondent No.4 (Registrar of Trade Unions, Rawalpindi Region) and by their report, dated 15-1-1997 informed that 134 workers were found working for respondent No.7 without having any proper appointment letters. Thereupon, respondent No.5 represented to the employer for regularisation of service of such workers and having received no response, approached National Industrial Relation Commission through a petition under section 22-A (8)(g) of the I.R.O. for regularisation of the above workers and inclusion of their naives for voting purpose. The above application was taken up by a Single Member of the N.I.R.C., who initially appointed Deputy Registrar of the Commission for visiting the establishment, He, on investigation, found that 134 workers were actually working in respondent No.7. However, he verified the names of 40 persons who were regularly working in the establishment for the last 3/4 years but respondent No.7 had failed to regularise their services. He also reported that respondent No.7 did not cooperate with him. The learned Single Member on receipt of the above report by his order, dated 13-1-1998, directed respondent No.3 for regularisation of 40 workers referred to in the report of the above Deputy Registrar/Assistant Director Labour Welfare (inspection), Rawalpindi. Deputy Registrar/Assistant Director Labour Welfare (Inspection), Rawalpindi was also directed to complete the scrutiny in respect of remaining workers by 15-1-1998. By another order, dated 27--1-1998, the learned Single Member of the Commission further directed respondent No.4 for inclusion of the names of above 40 workers in the list of voters for the purpose of referendum. Against the above two orders of the learned Single Member of the Commission, Respondent N0.4 (Registrar of Trade Unions, Rawalpindi Region) and respondent No.7 (Lakson Tobacco Company Limited) preferred appeals before the Full Bench of the Commission, the Full Bench by its order, dated 16-2-1998 suspended the order, dated 13-1-1998 of the learned Single Member of the Commission. It also clarified that during the pendency of the appeals and interim order allowed by it, the proceedings in the main petition pending before the Single Bench shall not be prejudice. Respondent No.5 Union filed the above writ petition, which was allowed in the above terms on the ground that in the Full Bench there were two Members instead of three Members as required by subsection (2)(a) of section 22-B of the I.R.O. in the above terms. The petitioner Union has, therefore, filed the present petition for leave to appeal. In support of the above petition, Mr. M. Asghar Khadim, learned counsel for the petitioner, has vehemently contended that the High Court by taking the above view has rendered the provisions of subsection (4j of section 22-B of the I.R.O. redundant. The above contention is devoid of any force. It would be pertinent to reproduced subsection (2) and subsection (4) of the above section 22-B of the I.R.O- which reads as follows:-- "22-B. (2) For the efficient performance of the functions of the Commission, the Chairman shall constitute

(a) a Full Bench of the Commission which shall consist of not less than three members of the Commission; and (b)? as many other Benches of the Commission consisting of one or more members of the Commission as he may deem fit. (4) If any member of the Commission is absent from, or is otherwise unable to attend any sitting of the Commission or of a Bench consisting of more than one member of which he is a member, the proceedings of the Commission or Bench may continue, and the decision or award may be given or judgment or sentence may be passed in the absence of such member and no act, proceedings, decision, or award of the Commission or Bench shall be invalid or be called in question merely on the ground of such absence or of the existence of vacancy in or any defect in the Constitution of the Commission or Bench." A perusal of the above quoted subsection (2) indicates that clause (a) thereof lays down that a Full Bench of the Commission shall consist of three members. Whereas subsection (4) provides that if any member of the Commission is absent from, or is otherwise unable to attend any sitting of the Commission or of a Bench consisting of more than one member of which he is a member, the proceedings of the Commission or Bench may continue, and the decision or award may be given or judgment or- sentence may be passed in the absence of such member and no act, proceedings, decision, or award of the Commission or Bench shall be invalid or be called in question merely on the ground of such absence or of the existence of vacancy in or any defect in the Constitution of the Commission or Bench. The above two provisions i.e. subsection (2) and subsection (4) of section 22-B of the I.R.O. are to be construed in a manner which may be harmonious and should achieve the object intended by the law makers. According to above clause (a) of subsection (2) of section 22-B of the I.R.O. a Full Bench cannot be for less than three Members as the words used therein are "shall consist of not less than three members of the Commission". Whereas by virtue of above subsection (4-) the award or order of the Commission or of a Bench shall not be invalid for the reason that a Member of the same was not present in any of the proceedings. It may be observed that the above subsection is attracted to a case, where the original hearing was started by the required number of Members of Commission, or a Bench, but during the hearing for some reason one of the Members was unable to attend the proceedings. The intent of the legislation seems to be to avoid the delay in the disposal of the labour matters covered by various provisions of the I.R.O. of which the Commission has the jurisdiction. However, the above subsection (4) of section 22-B of the I.R.O. cannot be invoked in a matter where the original hearing of a case was started by a Bench comprising less than three Members. In the present case, the finding is that the original hearing in which the impugned orders were passed was done by a Bench comprising two members instead of three Members. In other words, for the purpose of the impugned order the matter was not heard by a Full Bench in terms of clause (a) of subsection (2) of section 22-B of the I.R.O. In this view of the matter, no exception can be taken) to the impugned order. Leave to appeal is, therefore, refused and the petition is dismissed. H.B.T./P-33/S ???????????????????????????????????????????????????????????? Petition dismissed.