Irfan

IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

Crl.Misc. No._____________/2001 1.

Irfan Qaiser (Muhammad Qaiser) S/o Muhammad Akram, caste Bhatti, R/o 43/WB, Vehari.

2.

Muhammad Amjad S/o Yasin, caste Bhatti, R/o 55/WB, Vehari. Petitioners VERSUS

1. Muhammad Afzal S/o Muhammad Haneef, caste Arain, R/o Chak No. 43/WB, Vehari. 2. Additional Sessions Judge, Vehari (Javed Iqbal Saif). Respondents

Criminal Revision U/s 561-A Cr.P.C. against the order dated 8.8.2001 passed by Mr. Javed Iqbal Saif, learned Additional Sessions Judge, Vehari, by which the learned A.S.J. summoned the petitioners in a complaint case titled “M. Afzal Vs. M. Qaiser etc.” U/s-377 P.P.C. and 12-7/79 (EHO) No. VII. Respectfully Sheweth: 1. That the names and addresses of the parties have correctly been given for the purpose of their summons and citations. 2. That brief facts giving rise to this petition are that the respondent No. 1 alleged that on 23.10.2000 at 7:15 P.M. when he finished his job at the shop and was returning to his home at Pir Murad, while waiting for transport at Multan Octroi Post, two un-

identified persons riding a black Honda Motorcycle stopped near him and asked where he was going. He replied that he was going to his home, on which they offered him to drop him at his home. On his refusal, they forcibly boarded him on the motorcycle and pointed a pistol on his back and warned that if he made a noise he would be shot down. Both the accused by abducting in this way took him to the room of a DERA. Three person were already present there. They took liquor and forcibly poured into his mouth also. One out of the two who abducted him committed sodomy with him and again threatened not to make a noice. When all they went to sleep, he got escape from there. He alleged that on the next day i.e. on 24.10.2000, he submitted an application to the S.H.O. concerned, but no action was taken, then he submitted an application before the Incharge Monitoring Team, Vehari on 26.10.2000, in which he named the accused persons. This application was duly received and entrusted to the concerned S.H.O. for inquiry and report. During the proceedings initiated on application dated 26.10.2000, the complainant did not appear before the concerned Investigation Officer. However, the matter was thoroughly explored and the allegations levelled in application were found baseless and incorrect. In this connection, report No. 9 dated 5.11.2000 was also recorded. Copies of application dated 24.10.2000 and 26.10.2000 along-with Rapat dated 5.11.2000 are attached as Annexes “A, B & C” respectively. 3. That the respondent No. 1/complainant did not try to be medically examined intentionally and even when he was asked for medical examination, he refused, but with malafide intention, he submitted an application on 8.11.2000 and 10.11.2000 before the Magistrate and Deputy Commissioner, Vehari respectively, then the respondent No. 1 was medically examined on 11.11.2000 at 3.35 P.M. which was of course of no avail at this latest stage. Copy of Medico-legal Certificate is Annex “D”.

4. That during the same period, the complainant/respondent No. 1 filed a writ petition No. 1619/2000 before this Hon’ble Court in which an order dated 3.11.2000 was passed and the writ petition was disposed off. In compliance of this order, the complainant/respondent No. 1 submitted an application before the S.P. which was duly inquired/investigated by the panel of officers (Complaint Authority) consisting upon D.S.P. (HQ), D.S.P.

(CIA),

and

D.S.P.

(Legal).

During

this

inquiry/investigation, it was found that the allegations levelled against the petitioners are incorrect and baseless, moreover it was also found that all these allegations are levelled on the instigation of one Muhammad Ashraf, who had a personal enmity with petitioner No. 1 and others. This inquiry report was also submitted in the office of Deputy Registrar (Judicial) of this Hon’ble Court. The copies of writ petition, order, application of complainant and inquiry report are attached as Annexes “E, F, G & H” respectively. 5. That the petitioner now filed a private complaint against both the petitioners which was entrusted to the Magistrate for the proceeding U/s 202 Cr.P.C. The learned Magistrate after recording the Surcery evidence submitted a repot U/s 202 Cr.P.C. before the learned Trial Court/respondent No. 2, on which the petitioners are summoned vide order dated 8.8.2001. Copies of complaint, evidence, report of Magistrate and impugned order are attached as Annexes “J, K, L & M” respectively. 6. That the order dated 8.8.2001 is impugned inter alia on the following: GROUNDS a)

That the impugned order is against the facts of the case as well as against the law.

b)

That the impugned order is passed without application of judicial mind.

c)

That the impugned order is against the justice, natural justice and law of equity.

d)

That during the proceedings before learned Judicial Magistrate,

the

complainant/respondent

No.

1

suppressed the real facts intentionally and did not produce

the

evidence,

which

was

against

the

complainant or with conflict of the version of complainant/respondent No. 1. e)

That the factum of concealment on the part of complainant/respondent No. 1 proved that he did not come with clean hands in the court of law, as such he is not entitled for any relief.

f)

That the essence of section 377 P.P.C and section 12 (EHO) VII is “penetration”, which is not available as per medico-legal certificate and report of Chemical Examiner. In the absence of this very fact no punishment can be awarded on the ocular testimony of a single witness, so the further proceedings in this complaint case should be a futile exercise.

g)

That during the inquiry/investigation, it was proved that the allegations are false, frivolous and levelled against the petitioners being the tool of one Muhammad Ashraf who had personal enmity against the petitioner No. 1. From this fact, it is crystal clear that the petitioners are going to be involved with malafide intention and ulterior motive.

h)

That

during

surcery

evidence

the

complainant/

respondent No. 1 improved the evidence and by any means tried to involve the petitioners. i)

That the name of said Muhammad Ashraf S/o Asmatullah is very much figured in the list of witness and he also appeared as PW.1 during the Sursery evidence. This fact also proved the connivance between complainant party and said Muhammad Ashraf.

j)

That there is no corroborative evidence available on the file

for

the

ocular

evidence

of

the

complainant/respondent No. 1 as PW.1, because the rest of the evidence is having a base on the hear-say. Even the report of Chemical Examiner is not in favour of prosecution. Copy of report is Annex “N”. k)

That the impugned order if not set aside/quashed, will be a cause of humiliation and harassment to the petitioners.

l)

That the impugned order has caused a great miscarriage of justice to the petitioners. Keeping in view the above-mentioned facts, it is respectfully prayed that the impugned order dated 8.8.2001 for the summoning of the petitioners as accused may please be quashed/set aside in the interest of justice. Any other writ, order, direction or relief which this Hon’ble Court deems fit, may please be extended in the favour of petitioners to meet the ends of justice. Humble Petitioners,

Dated: ___________ Through: Hammad Afzal Bajwa, Advocate High Court, 28-District Courts, Multan. C.C. No. 20959

Sheikh Muhammad Faheem, Advocate High Court, 28-District Courts, Multan. C.C. No. 20176

CERTIFICATE: Certified as per instructions of the client, that this is the first Crl. Misc. on the subject matter. No such petition has earlier been filed before this Hon’ble Court. Advocate IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

Crl. Misc. No._____________/2001

Irfan Qaiser etc

.

Vs

Muhammad Afzal etc.

AFFIDAVIT of: Irfan Qaiser (Muhammad Qaiser) S/o Muhammad Akram, caste Bhatti, R/o 43/WB, Vehari.

I, the above named deponent do hereby solemnly affirm and declare that the contents of the above-titled Crl. Misc. are true and correct to the best of my knowledge and belief and nothing has been kept concealed thereto. DEPONENT

Verification: Verified on oath at Multan, this _____ day of November 2001 that the contents of this affidavit are true & correct to the best of my knowledge and belief. DEPONENT

IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

In re: C.M. No. _____________/2001 In Crl. Misc. No._____________/2001 Irfan Qaiser etc

.

Vs

Muhammad Afzal etc.

APPLICATION FOR DISPENSING WITH THE FILING OF CERTIFIED COPIES OF ANNEXURES. =========================================

Respectfully Sheweth: That certified copies of Annexures “

”

are not available. However, uncertified/photo state copies of the same have been annexed with the petition, which are true copies of original documents. It is, therefore, respectfully prayed that this Hon’ble court may please dispense with the filing of aforesaid copies of documents. APPLICANTS, Dated: __________

Through: Hammad Afzal Bajwa, Advocate High Court, 28-District Courts, Multan. C.C. No. 20959

Sheikh Muhammad Faheem, Advocate High Court, 28-District Courts, Multan. C.C. No. 20176

IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

In re: C.M. No. ____________/2001 In Crl.Misc. No._____________/2001 Irfan Qaiser etc

.

Vs

Muhammad Afzal etc.

DISPENSATION APPLICATION. AFFIDAVIT of: Irfan Qaiser (Muhammad Qaiser) S/o Muhammad Akram, caste Bhatti, R/o 43/WB, Vehari.

I, the above named deponent do hereby solemnly affirm and declare that the contents of the above-mentioned application are true and correct to the best of my knowledge and belief and nothing has been kept concealed thereto. DEPONENT

Verification: Verified on oath at Multan, this _____ day of November 2001 that the contents of this affidavit are true & correct to the best of my knowledge and belief. DEPONENT IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

Crl.Misc. No._____________/2001 Irfan Qaiser etc.

Vs

Muhammad Afzal etc.

INDEX S. No. NAME OF DOCUMENTS

ANNEXES PAGES

1

Urgent Form

2

Stamp Paper

3

Criminal Misc.

4

Affidavit

5

Copy of application to S.H.O.

A

6

Copy of application to the Incharge Army Monitoring Cell. Copy of Rapat dated 5.11.2000.

B

7 8 9 10 11

Copy of M.L.C. No. 1113/2000 Copy of Writ Petition No. 11619 along-with order dated 3.11.2000. Copy of application to S.P.

C D E&F G

12 13

Copy of Report of District Complaint Committee. Copy of complaint. Copies of interim order & evidence.

H J K

14

Copy of report U/s 202 Cr.P.C.

L

15

Copy of impugned order dt. 8.8.2001.

M

16 17 18 19

Copy of report of Chemical Examiner. Dispensation Application. Affidavit. Application for stay of proceedings.

N

20 21

Affidavit. Vakalatnama

PETITIONERS Dated: _________ Through: Hammad Afzal Bajwa, Sheikh Muhammad Faheem, Advocate High Court, Advocate High Court, 28-District Courts, Multan. 28-District Courts, Multan. C.C. No. 20959 C.C. No. 20176 IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

In re: C.M. No. _____________/2001 In Crl.Misc. No._____________/2001 Irfan Qaiser etc.

Vs

Muhammad Afzal etc.

Application for Stay of Proceedings.

Humbly Sheweth: 1. That the contents of the main petition may be treated as part and parcel of this application. 2. That the allegations levelled against the applicants are prima facie baseless and having no footing as proved in different inquiries/investigations. 3. That there is no independent evidence to corroborate the version of the complainant. 4. That the independent evidence like medical evidence and chemical report does not attract the commission of any offence. 5. That it is proved on the case that prosecution launched against the applicants is based on the personal enmity and complainant is used as a tool in this aspect. 6. That the learned Judicial Magistrate submitted a report under section 202 Cr.P.C. without application of judicial mind. 7. That the learned trial court summoned the applicants without any cogent and solid reason. 8. That the learned Judicial Magistrate has taken the cognizance of this matter and recorded the statement of the complainant without any lawful authority and jurisdiction.

9. That the impugned order has caused a continuous harassment and humiliation to the applicants. It is, therefore, respectfully prayed that further proceeding in the case titled “Muhammad Afzal etc. Vs. Muhammad Qaiser etc.” pending adjudication in the court of Muhammad Iqbal Saif, learned Additional Sessions Judge, Vehari, may please be stayed till the final disposal of the main petition. Any other relief which this Hon’ble Court deems fit, may pleased be granted in the interest of justice. Affidavit is attached. Humble Applicants Dated: __________ Through: Hammad Afzal Bajwa, Advocate High Court, 28-District Courts, Multan. C.C. No. 20959

Sheikh Muhammad Faheem, Advocate High Court, 28-District Courts, Multan. C.C. No. 20176

IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

In re: C.M. No. _____________/2001 In Crl.Misc. No._____________/2001 Irfan Qaiser etc.

Vs

Muhammad Afzal etc.

STAY APPLICATION. AFFIDAVIT of: Irfan Qaiser (Muhammad Qaiser) S/o Muhammad Akram, caste Bhatti, R/o 43/WB, Vehari.

I, the above named deponent do hereby solemnly affirm and declare that the contents of the above-mentioned application are true and correct to the best of my knowledge and belief and nothing has been kept concealed thereto. DEPONENT Verification: Verified on oath at Multan, this _____ day of November 2001 that the contents of this affidavit are true & correct to the best of my knowledge and belief. DEPONENT