Wednesday, 25 February 2015

Quashment in Qazf Case

PLJ 2010 Cr.C. (Lahore) 190
Present: Maulvi Anwar-ul-Haq, J.
STATE--Petitioner
versus
Dr. MAQSOOD HUSSAIN etc.--Respondents
Crl. Revision No. 444 of 2008, heard on 14.01.2009.
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 435 & 200--Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, Art. 3--Suo Moto case--Impugned order--Issuing warrants of respondents and proceedings--Respondent filed a complaint against several persons praying that people who have directly or indirectly contributed in instigating, supporting, organizing and publishing material allegating zina-bil-jabar on plaintiff may kindly be convicted under law of Qazaf--A case was registered on complaint of alleged victim lady against respondent u/S. 10 of offence of Zina (Enforcement of Hudood) Ordinance of 1979--She filed an application in Court of duty Magistrate stating some media persons harassed her and got an application drafted and thumb marked as result whereof case has been registered against respondent--She prayed that her statement be recorded u/S. 154 Cr.P.C. which was recorded u/S. 154 Cr.P.C.--Statement was recorded and ultimately case was cancelled--Offence of Qazaf was not made out upon a reading of entire complaint as also statement of respondent--Offence as defined in Art. 3 of Offence of Qazf (Enforcements of Hadd) Ord. VIII of 1979 has not been imputed against any of persons summoned by ASJ--Contents of FIR can be taken to be imputation of Zina against respondent by said alleged victim lady but then he himself proceeds to exonerate her completely--Case being not made out at all of Qazf liable to hadd or liable to Tazir--It may be noted that Ss. 10 to 13 of Ord. VII of 1979, have since been omitted upon promulgation of Protection of women Act, 2006--Impugned order was incorrect illegal and improper--Proceedings conducted were wholly irregular--Criminal Revision and Crl. Misc. were accordingly allowed.   [Pp. 193 & 194] A, B, C, D, E & F
Criminal Procedure Code, 1898 (V of 1898)--
----S. 200--Respondent filed a complaint against several persons praying that people who have directly or indirectly contributed in instigating, supporting, organizing and publishing material allegation zina bil jabr on plaintiff may kindly be convicted under law of Qazaf--Statutory provisions--Violation of--Section 200 Cr.P.C. Lays down that a Magistrate taking cognizance of an offence in complaint shall at once examine complainant upon oath--Substance whereof shall be reduced to writing and shall be signed by complainant and Magistrate--It is evident on face of record that without any reason recorded in writing in file ASJ despite fact that respondent was present kept on adjourning case--Other glaring fact on record is that complainant had not been examined on oath--Case is not covered by any of sub-clauses of Proviso to S. 200 Cr.P.C--This by itself is sufficient for quashment of impugned proceedings.      [P. 193] C
1996 MLD 604, ref.
Mr. Tahir Munir Malik, Addl. Advocate General, Punjab for State.
Ch. Tanveer Ahmed Hanjra, Advocate for Respondent No. 2 & 3.
Kh. Saeed Ahmed, Advocate (on behalf of Mr. Naeem Sehgal, Advocate Respondent No. 4.
Mr. Mahmood A. Sheikh, Advocate for Respondent No. 8.
Mr. Irfan Aizad, Advocate on behalf of Mr. Ibrar Majlal, Advocate for Respondent No. 11.
Ch. Ali Muhammad, Advocate for Respondent No. 12.
Mr. Aftab Ahmad Bajwa, Advocate for Respondent No. 13.
Miss Farzana Shahzad Khan, DPG.
Date of hearing: 14.1.2009
Judgment
This judgment shall decide Criminal Revision No. 444/08 and Cr.Misc. No. 1331-M/08.
2.  Proceedings of this case were initiated under Section 435 Cr.P.C. vis-a-vis the impugned order and the proceedings of the learned ASJ, Lahore. Cr. Misc. No. 1331-M/08 was also filed by one of the aggrieved persons and the matters were proceeded accordingly.
3.  On 9.4.2008 Maqsood Hussain Respondent No. 1 in both these cases filed a complaint against several persons 36 in number, named therein as defendants, with the following prayer:--
"Under these circumstances, it is most humbly prayed that the people who have directly or indirectly contributed in instigating, supporting, organizing, and publishing the material, allegating Zina-bil-Jabar on the plaintiff may kindly be convicted under the law of Qazaf in the interest of justice. As the plaintiff has been through the offence of Hadd Law so similarly the accused may also be framed under the same offence and the costs may also be awarded and other relief which the honourable Court may consider deem fit may kindly be awarded."
The complaint came up before Mr. Muhammad Bakhsh Masood Hashmi, ASJ, Lahore, on 9.4.2008. He marked the Respondent No. 1 present and adjourned the case to 11.4.2008 for his statement. On this date again his presence was marked but the case was adjourned to 18.4.2008. Against presence of Respondent No. 1 was marked and the case was adjourned to 22.4.2008. On this date, it was noted that no one is present and the case was adjourned to 29.4.2008 for appropriate ordeRs. On 29.4.2008 against it was noted that none is present and the case was adjourned to 13.5.2008. On this date, it is noted that the preliminary evidence has been partly recorded and the case was adjourned to 20.5.2008 for remaining evidence. On 20.5.2008 a counsel (unnamed) was marked present and the case was adjourned to 27.5.2008. On this date an unnamed counsel was marked present and the case was adjourned to 3.6.2008. On this date the Respondent No. 1 was marked present and his request for adjournment to produce documentary evidence was granted. On 9.6.2008 again some counsel was marked present but the case was adjourned to 16.6.2008. On this date the learned ASJ was on leave. On 23.6.2008 the Respondent No. 1 was marked present and the case was adjourned on 1.7.2008. On this date the Respondent No. 1 tendered several documents mentioned in the order and closed his evidence. The case was adjourned for arguments to 5.7.2008. On this date the learned ASJ proceeded to issue warrants of Respondents No. 1 to 14, 32 and 35.
4.  The petitioner in Cr. Misc. No. 1331-M/08 is represented by Mr. Aftab Ahmad Bajwa, Advocate. Mr. Tahir Munir Malik, Additional Advocate General assisted the Court on call while in response to notices issued in the Criminal revision several respondents put in appearance through their learned counsel as detailed above.
5.  The learned counsel representing several persons against whom the warrants were issued by the learned ASJ contend that the impugned order is without jurisdiction and void. Their contention is that provisions of Section 200 Cr.P.C. have been grossly violated. It is being vehemently argued that no case of Qazaf as defined in law stands made out upon the entire reading of the complaint. The Respondent No. 1 put in appearance on 21.7.2008 in both these cases. On his request the case was adjourned to 25.7.2008. Thereafter, he absented himself and did not put in appearance despite notices issued by this Court. The case has accordingly been heard. The learned Additional Advocate General is of the opinion that proceedings have not been conducted in accordance with the mandatory provisions of law.
6.  I have gone through the records. The details of the proceedings have already been stated above. The examination of the complaint reveals that on the complaint of Mst. Ajeeba Jabeen Respondent No. 1 case FIR No. 647 was registered at P.S. Gowalmandi, Lahore, vide Rapat No. 33 dated 6.12.2005 under Section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance No. VII of 1979 read with Section 506 PPC. According to the contents of this FIR, the said lady stated that she is a resident of Muzaffarabad (AJK). She was injured during the earthquake and came to Lahore for treatment and is admitted in the Ward reserved for the earthquake affected persons in Mayo HospitalLahore. On the night of Saturday Dr. Maqsood came to her and told her to come down with her X-Ray report. She went with her X-Ray report to Dr. Maqsood where he committed "Ziadati" with her. She reported the matter to the Nurses who told her to keep quiet while the Doctor threatened her that in case she disclosed anything she will be killed. She prayed that the Doctor be proceeded against. Thereafter, she filed an application in the Court of the Duty Magistrate, Lahore, stating that on the night between 3/4-12-2005 at 10.30 p.m. she went to show her X-Ray to Dr. Maqsood who was not present. She waited for some time and thereafter the Doctor examined X-Ray and she came back to her bed. On 6.12.2005 some media persons harassed her and got an application drafted and thumb marked as a result whereof the case has been registered against Dr. Maqsood. She prayed that her statement be recorded under Section 154 Cr.P.C. The statement was recorded and ultimately the case was cancelled.
7.  Before I proceed further, I may note here that in the said complaint in para-8 the Respondent No. 1 has stated that he had been trained in the West where it is quite normal to have a cup of tea with a patient. To visit patients at home and also in private. "After her evening out with me she was harassed and victimized by the hospital staff." He has completely exonerated Mst. Ajeeba Jabeen and, in fact, has prayed that she was defamed more than him and has ended up with stating that they were in love with each other and she had been made to marry against her wishes.
8.  Section 200 Cr.P.C. lays down that a Magistrate taking cognizance of an offence on complaint shall at once examine the complainant upon oath. The substance whereof shall be reduced to writing and shall be signed by the complainant and the magistrate. It is evident on the face of the record that without any reason (at least recorded in writing in the file) the learned ASJ despite the fact that the Respondent No. 1 was present kept on adjourning the case. Of course, on a few occasions for his absence. The other glaring fact on record is that the complainant had not been examined on oath. The case is not covered by  any  of  the  Sub-Clauses  of the Proviso to Section 200 Cr.P.C. To my mind, this circumstance by itself is sufficient for quashment of the impugned proceedings. Reference be made to the case of Qari Ghulam Mustafa v. Muhammad Yunus and others (1996 MLD 604).
9.  Apart from the said violation of the statutory provisions couched in mandatory language, I am in agreement with the learned counsel for the parties that the offence of Qazf is not made out upon a reading of the entire complaint as also the statement of the Respondent No. 1. The offence of Qazf is defined in Article 3 of the Offence of Qazf (Enforcement of Hadd) Ordinance No. VIII of 1979 as follows:--
"3. Qazf. Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes an imputation of `zina' concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm the reputation, or hurt the feelings, of such person, is said, except in the cases hereinafter excepted to commit `qazf."
10.  I have examined the complaint and the statement of the Respondent No. 1 and in the entire complaint or the statement the offence as defined in the said law has not been imputed against any of the persons summoned by the learned ASJ. The contents of the said FIR can be taken to be the imputation of zina against the respondent by the said Mst. Ajeeba Jabeen but then he himself proceeds to exonerate her completely. I, therefore, do not find a case being made out at all of a Qazf liable to Hadd or liable to Tazir. It may be noted that Sections 10 to 13 of the said Ordinance No. VII of 1979, have since been omitted upon promulgation of Protection of Women Act, 2006, on 2.12.2006.
11.  Coming to the impugned order dated 5.7.2008 itself, I have no manner of doubt in my mind that although it is stated in the order that the learned ASJ has perused the whole file yet the impugned order itself speaks that it has been passed without examining the file and certainly without any application of mind thereto. The reason being that there is not a word in the entire complaint or the statement that any of the persons summoned by the learned ASJ can be said to have committed the offence of Qazf as defined Section 3 of the said Ordinance No. VIII of 1979.
12.  I may further note here that in the complaint, 36 persons were named as defendants. The learned ASJ has picked up Respondents No. 1 to 14, 32 and 35. There is not a word in the order as to how he has distinguished the cases of the said persons vis-a-vis the persons he has not summoned.
13.  Having, thus, examined the records, I do find that the impugned  order  is  incorrect,  illegal  and improper. All the proceedings conducted are wholly irregular. Both the Criminal Revision and Cr. Misc. No. 1331-M/08 are accordingly allowed and the impugned order dated 5.7.2008 of the learned ASJ, Lahore, issuing warrants against the persons mentioned therein is set aside and the proceedings are quashed.
(Sh.A.S.)   Revision allowed.

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