2018 P Cr (PLP)

SHAHID HAMEED DAR, J.

The petitioners, Muhammad Akbar, Muhammad Mushtaq alias Makha and Irfan alias Mithu have questioned through this revision petition, the validity of order dated 10.12.2014, whereby they have been summoned by the learned Sessions Judge, Toba Tek Singh to stand trial in a private complaint-case filed by Sana Bibi (respondent No.1) for offences under sections 376, 338-A, P.P.C.

2. Succinctly speaking, the respondent-lady has alleged that Muhammad Akbar and Muhammad Mushtaq alias Makha (petitioners Nos. 1 and 2) forcibly entered into her house and committed rape on her about five/six months before, when her parents had gone outside to do some labour; they threatened her of murder, if she narrated this fact before anyone; she kept silent, which emboldened them to rape her even two/three times more, due to which she fell pregnant; whereafter, they (petitioners) joined by Irfan alias Mithu (petitioner No.3) forcibly took her to a lady doctor at Adda Phlora, where her pregnancy was aborted; she was seen in the company of the offenders by Zaheer. The respondent-lady's maternal uncle Abid Hussain, on a suspicion, got lodged FIR No.67/14, dated 18.2.2014 under sections 376, 338-A, P.P.C., at Police Station Rajana (Toba Tek Singh) against Aamir alias Kali and Imran alias Mani accused; though they were least concerned with the above incident, as she wanted action against the petitioners, therefore, she filed a private complaint, which was dismissed due to non-prosecution on 12.4.2014, whereafter she instituted another complaint-case against the petitioners, which was fixed by the court on 22.5.2014; it was on 21.5.2014 that her real sister suddenly expired; she and her family members were busy in her funeral, when some police officials together with the accused (petitioners) entered her house in the evening and forcibly took her and her brother Muhammad Nadeem with them on their vehicle; they threatened her, if she did not withdraw her case, she and her brother would be Murdered in an encounter; they were forced to appear before the trial court, where their thumb-impressions were obtained in the absence of their counsel for dismissal of the complaint; it is why she/respondent-lady filed third complaint against the above-said persons.

3. Learned counsel for the petitioners has submitted that the impugned order is illegal as it has been passed in flagrant violation to the settled principles of criminal justice; the law does not debar instituting subsequent complaint on the same facts, if the earlier one has not been decided on merits; the report formulated by the learned judicial magistrate under section 202, Cr.P.C. has been differed with by the learned trial court mindlessly, as facts of the case categorically revealed that the respondent-lady's complaint was conspiratorial and based on mischief; after dismissal of the first complaint of the respondent-lady due to non-prosecution and the second one as withdrawn, the third one on the trot ought to have been nipped in bud, but learned trial court did it otherwise and made the impugned order gratuitously, which may be annulled and the petitioners may be saved from undue harassment as schemed by the respondent-lady.

4. On the contrary, learned counsel for respondent No.1 has submitted that the petitioners have been rightly summoned through the impugned order by the learned trial court as respondent-lady produced cursorily convincing evidence against them at the initial stage; a repeated complaint on the same facts is not barred by law, unless so declared by the previous dismissal order of the (trial) court, basing its argument on some legal compulsiveness; the impugned order is wholly legal, therefore, it may be sustained and the instant petition may be dismissed.

5. Learned Deputy Prosecutor General Punjab, last in the line, has submitted that he found little in the impugned order to deem it legal and defend it meaningfully.

6. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record. It is appropriate to jot down the admitted facts in chronological order to resolve the controversy between the parties, as follows:- i) an FIR was lodged on 18.2.2014 about the same allegation by one Abid Hussain, real maternal uncle of the alleged victim against Amir alias Kali and Imran alias Mani, who are not respondents herein; ii) the prosecutrix rendered statement under section 161, Cr.P.C. in the above FIR-case on 18.2.2014 to the effect that she had been raped and loaded by Aamir alias Kali accused, who thereafter, joined by his co-accused got her pregnancy aborted; iii) a challan under section 173, Cr.P.C. had been submitted against the above persons before the learned Additional Sessions Judge, Toba Tek Singh, where their trial was conducted and they were acquitted of the charge on 28.4.2014; iv) first complaint filed by the respondent-lady against the petitioners was dismissed for non-prosecution on 12.4.2014 under section 247, Cr.P.C.; v) the second one on the subject was dismissed as withdrawn after the respondent-prosecutrix made an exonerating statement in favour of the accused/petitioners before the trial court on 22.5.2014, besides, she tendered a sworn affidavit before the court to the same effect, the same day; vi) in the third complaint on the subject, the impugned order qua summoning of the petitioners under section 204, Cr.P.C. has been passed, which is the focal point for discussion herein.

7. It is pertinent to mention here that third complaint on the trot against the petitioners has been filed by the respondent-prosecutrix exactly on the same facts, that she incorporated in her previous two complaints, which were, chronologically, dismissed for non-prosecution and as withdrawn on 12.4.2014 and 22.5.2014, respectively. In the last one that she filed, she rendered statement under section 200, Cr.P.C. on 11.10.2014 and Zaheer son of Fazal Mehmood made cursory statement under section 202, Cr.P.C. on 11.10.2014. These statements were so wavered and insufficient that learned Judicial Magistrate, Toba Tek Singh, who conducted inquiry under section 202, Cr.P.C., prepared a negative report with the observation that the complainant wanted to falsely implicate the respondents (petitioners) in a case of heinous nature. Learned Sessions Judge, Toba Tek Singh, the trial court, however, differed with this report and summoned the respondents/petitioners under section 204, Cr.P.C. through the impugned order, which appears to have been made in a mindless manner, as the relevant record was, apparently, not consulted before its pronouncement. The prosecutrix categorically mentioned in paragraph 4 of her complaint that her maternal uncle Abid Hussain had got registered an FIR about the same incident against Aamir alias Kali and Imran alias Mani, but she did not consider them guilty of the offence. The investigation-record of this case (FIR No.67/14, dated 18.2.2014, under sections 376, 338-A, Police Station Rajana, district Toba Tek Singh) could have been examined to see if the alleged victim -joined investigation therein or not. Learned trial court also did not benefit itself from her statement that she had rendered on 22.5.2014 before another sessions court (Additional Sessions Judge, Toba Tek Singh) during pendency of her second complaint on the subject, whereby she dubbed the respondents/petitioners innocent and asked for dismissal of her complaint as withdrawn, which was accordingly done by the court. This statement was thumb marked by her and attested by her learned counsel then. It was also thumb marked by her real brother, Muhammad Nadeem as the identifier.

8. The record of FIR No.67/14 (supra) has been requisitioned and examined, which disclosed that Sana Bibi (respondent No.1) made statement under section 161, Cr.P.C. therein on 18.2.2014 with the contention that she had been repeatedly raped for about four/five months by Aamir alias Kali accused, due to which she got loaded, whereafter he along with his co-accused Imran alias Mani forcibly took her to an unknown lady-doctor, who off-loaded her with the help of her nursing staff. She named two persons Shahid Hanif and Maqsood Ahmad as eye-witnesses of the offence of miscarriage. The investigating officer prepared challan against both the accused under section 173, Cr.P.C. on 9.3.2014 and 5.4.2014 and submitted it before the trial court, where they were tried and acquitted on 28.4.2014, as submitted by the learned counsel for the parties. In her first complaint, which was dismissed due to non-prosecution on 12.4.2014, the respondent-prosecutrix invented a new story in aforementioned terms against the petitioners, mentioning them as her violators and abortifacients. As mentioned earlier, it was dismissed due to non-prosecution on 12.4.2014, whereafter she instituted another complaint with identical allegations and it was dismissed as withdrawn, after she labelled the respondents/petitioners innocent and asked for dismissal of her complaint as withdrawn through her statement before the trial court on 22.5.2014. These proceedings took place in presence of her learned counsel as is evident from the order of the said day. She, however, mentioned in the complaint that her learned counsel was not present then, which is a sheer lie on her part. She also swore an affidavit to the said effect and submitted it before the trial court on 22.5.2014. Though learned trial court did not record acquittal of the respondents/petitioners in the said order, yet, it may be inferred that they had no less than been acquitted of the charge by the court, when it recorded that the complainant/prosecutrix labelled them innocent. The orders of dismissal of previous complaints must have been examined by the learned trial court, before passing the impugned order, but it did not look at any and summoned the arraigned respondents (petitioners) under section 204, Cr.P.C., almost blindfoldedly. It was the duty and obligation of the trial court in scrutinize the contents of the complaint, nature of allegation made therein, supporting material in support of accusations, the object intended to be achieved, the possibility of victimization and harassment, the other relevant record, if any, to ensure itself that no innocent person against whom allegations were levelled should suffer from the ordeal of time consuming and cumbersome process of law. It has been held by the Hon'ble Supreme Court of Pakistan in Zafar and others v. Umar Hayat and others (2010 SCMR 1816) that "it is also settled principle of law that the provisions as contained in sections 202 to 204, Cr.P.C., if read together would show that a proper safeguard has been provided by the Legislature which showed its such intention by using the words "if any" and "sufficient grounds for any" in section 203, Cr.P.C. and accordingly the frivolous and vexatious complaints must be buried at their inception where no prima facie case is made out. See Abdul Wallah Khan's case (2000 SCMR 1904). It is also settled principle of law that everyone has a right to approach the court for redressal of grievances but the same is subject to condition that sufficient grounds for issuance of process is made out." It can easily be gathered from the attending circumstances of the case that no sufficient ground was available for summoning the respondents, the petitioners herein, but it was not given a serious thought by the court at the time of issuing process to them. The impugned order appears to have been made without proper application of mind and it is not in consonance with the dictum laid down by the apex court in Muhammad Saleem's case, reported as 2001 SCMR 1738. The delay of four months in filing the complaint has also been ignored by the trial court, though no explanation was made available by the complainant-lady. It is also settled principle of law that although no such limitation is prescribed in criminal prosecution, yet, it is undeniable, the longer a complaint is delayed, the lesser would the chances of its being true, more particularly when it is based on oral evidence. The afore-noted judgment of the apex court emits light in this context as well.

9. In view of what has been discussed above, this revision petition is allowed and the impugned order of the trial court is set aside. Consequently, the complaint filed by the respondent-lady is dismissed. JK/M-175/L Revision allowed.