2011 SCMR 723 (PLP)

IJAZ-UL-HASSAN, J.

Respondent Hassan Khan was tried by learned Additional Sessions Judge, Karak at Takhti Nasrati, in case F.I.R. No.163 dated 14-10-2003 registered under section 354-A/34, P.P.C. at Police Station Takhti Nasrati, District Karak. At the conclusion of trial, vide judgment dated' 2-6-2005, respondent was convicted under section 354-A, P.P.C. and sentenced to life imprisonment with fine of Rs.20,000 and in default of payment of fine, to undergo further two years' R.I. The respondent was also made liable to pay Rs.50,0000 as compensation under section 544-A; Cr.P.C. to Mst. Fazal Begum, victim or in case of default to undergo six months S.I. with benefit of section 382-B, Cr.PC. The respondent, feeling aggrieved, filed appeal before learned Peshawar High Court, Peshawar which was partially accepted and after converting the conviction of the respondent from section 354-A/34, P.P.C. to section 354/34, P.P.C., respondent was convicted to suffer two years' R.I. with a fine of Rs.20,

000. Hence instant petition for leave to appeal by Mst. Fazal Begum.

2. We have heard in detail Messrs Shahzad Akbar Khan, Advocate for the petitioner, Barrister Zahoor-ul-Haq, Advocate for respondent No.1 and Attaullah Khan Tangi, learned Additional, Advocate-General, N.-W.F.P. representing the State. We have also gone through the record with their assistance.

3. It is mainly contended by learned counsel for the petitioner that overwhelming evidence was available on the file to prove that respondent was guilty of an offence under section 354-A/34, P.P.C. for outraging the modesty of his aunt Mst. Fazal Begum, which has not been appreciated in its true perspective, resulting in grave miscarriage of justice and that learned High Court was not justified to show leniency by converting the conviction of the respondent from section 354-A/34, P.P.C. to section 354/34, P.P.C.

4. Learned counsel for respondent No. 1, on the other hand, refuted the argument of learned counsel for the petitioner, supported the impugned judgment on all counts and contended that analysis of section 354-A, P.P.C. would indicate that two basic ingredients are to be satisfied to attract the penal provision of the section, firstly, the woman should be stripped off the clothes and, secondly, 'she should be exposed to public view in such condition. Both the ingredients according to learned counsel are missing in this case justifying conversion of the conviction from section 354-A/34, P.P.C. to section 354/34, P.P.C.

5. Learned counsel for the State, however, supported the contentions of learned counsel for the petitioner whole heartedly.

6. After hearing learned counsel for the parties, we feel that a case for reappraisal of the evidence is made out. Leave to appeal is accordingly granted in this petition to examine in detail, inter alia, the contentions of learned counsel for the parties. N.H.Q./F-14/SC Leave granted.