P L D 1963 (W (PLP)

Date of hearing : 26th February 1963. This is a criminal reference by the learned Additional Sessions Judge, Karachi (Mr. Mehdi Ali Siddiqui), recommending that the order dated 28‑6‑61 of the Additional City Magistrate, Karachi (Mr. Azizuddin Ahmad), cancelling the previous order of the S.D.M., Karachi (Mr. Abrar Hasan Khan), granting exemp tion under section 205, Cr. P. C. to the above‑named respondents be set aside on the two‑fold ground that the latter Magistrate Mr. Azizuddin Ahmad had no power to overrule the order of Mr. Abrar Hasan Khan and secondly, that even if section 205, Cr. P. C. did not apply to the case, it was open to Mr. Azizuddin Ahmad under the provisions of section 363, Cr. P. C. to dispense with the personal attendance of the accused persons.

2. The brief facts giving rise to this matter are that one Mst. Bashiran lodged a report at Kalakot Police Station on 2‑1‑1961 at 9‑35 p.m. against the respondents 1 and 2 stating that earlier that evening these two respondents along with one Haji Muhammad had abused and assaulted her. At first the police entered a report in the non‑cognizable register but later after receiving the medical opinion, they challaned a case under section 324/34, P. P. C. against the two respondents and enlarged them on bail. These two respondents later voluntarily appeared in the Court of Mr. Abrar Hassan Khan on 19‑1‑1961 when an application under section 205, Cr. P. C. was presented to that Magistrate by Mr. Abdul Hai Qureshi, appearing on behalf of these two respondents, pointing out that they are pardanashin women who are not accustomed to appearance in public much less in Criminal Courts. On this Mr. Abrar Hassan Khan was pleased to dispense with the personal attendance of these two respondents and allow them to be represented by their Advocate. Thereafter on account of some administrative reasons this case was transferred to the file of Mr. Azizuddin Ahmad on 13‑6‑1961 and on 27‑6‑1961 an application was made on behalf of the complainant to this Magistrate for cancellation of the exemption from personal appearance allowed to these two respondents and this second Magistrate Mr. Azizuddin Ahmad on 28‑6‑1961 passed an order cancelling the exemption allowed to these two respondents by the previous Magistrate Mr. Abrar Hassan Khan. Against this order of Mr. Azizuddin Ahmad dated 28‑6‑1961 a revision application was presented on behalf of these two respondents to the Court of the Additional Sessions Judge, Karachi, which has resulted in the present reference.

3. Mr. Rustom Kaikobad, appearing on behalf of the A. A: G., supported the reference and contends that the second Magistrate had no authority to upset or set aside the order passed by the first Magistrate who incidentally happened to be a Sub‑Divisional Magistrate. I have also heard Mr. Abdul Hai Qureshi, appearing on behalf of the two opponents who has referred me to column 4 of the Second Schedule to the Criminal Procedure Code where it is shown that in the case of an offence under section 324, P. P. C. a summons should issue fn the first instance. Mr. Qureshi has also invited my attention to the language of section 205, Cr. P. C. which says that‑ "whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused, and permit him to appear by his pleader."

4. I have considered the arguments advanced before me at the Bar in this matter. I agree with M. Kaikobad that the second Magistrate had no authority to upset or set aside the order of his predecessor Magistrate. I also agree with the Advocate of respondents Nos. 1 and 2 that for an offence under section 324, P. P. C. a summons should issue in the first instance and section 205 Cr. P. C. did apply to the proceedings in this case when exemption under this section was granted to these two respondents by Mr. Abrar Hassan Khan. It matters not that these two respondents had previously been arrested by the police and enlarged on bail after the police had registered a case under section 324/34 P. P. C. against them. The Second Schedule to the Code of Criminal Procedure makes it plain that for an offence under section 324, P. P. C. a summons may issue in the first instance, and this being a case under section 324, P. P. C. within the purview of section 205, Cr. P. C., Mr. Abrar Hassan Khan was perfectly right in granting exemption to these two ladies.

5. Moreover, there are a number of reported cases of the former Court of the Judicial Commissioner for Sind under section 205, Cr. P. C. in which it has been laid down that‑ "section 205 is one which should be freely utilized in such a country as Sind where so much prejudice exists against the appearance of females in public and where procedure of law is frequently abused in order to gratify private malice." The above quotation is from a case reported in Mst. Asu and another v. The Emperor (A I R 1931 Sind 37) but there are several cases earlier in point of time to the same effect.

6. Accordingly, I accept this reference, set aside the order of Mr. Azizuddin Ahmad dated 28‑6‑1961 and restore the previous order of Mr. Abrar Hassan Khan dated 19‑1‑1961 granting exemption under section 205, Cr. P. C. to these two respondents in this case. K. B. A. Reference accepted.