2005 P Cr (PLP)

This criminal revision is filed against the order, dated 19-4-2004 of the Additional Sessions Judge, Kasur, dismissing the complaint of the petitioner Altaf Hussain under section 7 of Qazf Ordinance.

2. As against three respondents cited in the revision petition, notices were only issued to respondent No.1 (The State) and respondent No.2 (Master Habibullah).

3. Leaned counsel for the petitioner argues with great emphasis that the impugned order of the trial Court suffers from misreading of the record and consequently the impugned order, dismissing the complaint, is manifestly illegal. He submitted that the trial Court has not considered the allegations contained in the complaint and there is no application of mind.

4. The respondent No.2 Master Habibullah filed an application before the D.S.P., Kasur, levelling allegations against the petitioner Muhammad Altaf to the effect that he committed Zina with the daughter of respondent No.2 Muhammad Sharif. It is further asserted in the application that Muhammad Altaf brought a pistol on the spot but he decamped on the hue and cry of respondent No.2 Muhammad Sharif. The application filed by respondent Master Habibullah in verbatim has been reproduced in para.2 of the complaint filed by the present petitioner but unfortunately, the learned trial Court did not consider the same. F.I.R. No.267 was registered against the respondent No.2 and challan was put up against him but finally he was acquitted by order, dated 19-4-2004 of the Additional Sessions Judge, Kasur on application under section 265-K, Cr.P.C.

5. The above F.I.R. was filed by the State through Muhammad Sharif against whose daughter alleged Zina was committed by the present petitioner, as is agitated by Master Habibullah in his application dated 11-6-2003.

6. Master Habibullah is present with his counsel and stated that he did not file any application before the police levelling allegations that the present petitioner committed Zina with the daughter of Muhammad Sharif.

7. The learned trial Court recorded the evidence in the complaint filed by Altaf Hussain and found no material to convict the respondent No.2 Master Habibullah and consequently dismissed the complaint.

8. I have gone through the evidence on the record and I am of the opinion that the trial Court did not examine the whole case with due care and caution. In fact, he did not summon the record in earlier proceedings consisting of F.I.R. against Master Habibullah, in which the later was acquitted. Earlier criminal proceedings against Master Habibullah seem to have been filed by Muhammad Sharif against whom Master Habibullah, who levelled allegations of Zina by the present complainant with the daughter of Muhammad Sharif. It was the bounded duty of the trial Court to have gone through the complaint, where the application dated 11-6-2003 filed by Master Habibullah was reproduced in verbatim. The facts stated in the complaint were crucial for the decision of the case.

9. The complainant Altaf Hussain appears as P.W.1 and deposed that on 11-6-2003 Master Habibullah moved an application levelling allegations of Zina against the complainant to the effect that the latter committed Zina with the daughter of Muhammad Sharif. The matter was investigated and the police found the application to be false. P.W.2 Muhammad Yousaf also corroborated the statement of P.W.1. Similar is the statement of P.W.3 whose evidence has been rejected by the trial Court on the ground that the name of the girl was not disclosed, with whom Zina was committed.

10. Complainant closed his case after tendering in evidence photostat copy of application earlier filed by Master Habibullah, who is school teacher in Cheena Arla, District Kasur and before me flatly denied the filing of any application before the police, in which allegations of Zina are allegedly against the complainant. To my mind plea of respondent No.2 Master Habibullah is absolutely false, denying the filing of the application. P.Ws. appeared in the complaint and testified filing of the application by Master Habibullah. In the earlier case filed by Muhammad Sharif, the mater went up to the Court and order dated 19-4-2004 by the Additional Sessions Judge, Kasur, was passed acquitting the respondent No.2 Master Habibullah. However, in the present case, Altaf Hussain is the complainant and has independent right to retrieve his grievances.

11. After having gone through the evidence on record and judgment of the trial Court, I am of the view that the entire record was not before the trial Court in default of which the impugned order suffers from misreading of the important evidence. There is no positive finding on the allegations contained in the complaint by the complainant against respondent No.2.

12. In view of the above, the impugned order dated 19-4-2004 of the Additional Sessions Judge, Kasur is set aside and the complaint of the petitioner is restored. It is directed that respondent No.2 Master Habibullah shall be summoned by the trial Court to face trial in the complaint filed by the petitioner Altaf Hussain, which may be concluded within six months.

13. With the above observations, the revision petitioner is accepted and the case remanded. H.B.T./89/FSC Petition accepted.