MUHAMMAD ANWAR Versus THE STATE

ORDER

This is an application by Muhammad Anwar, Maqbool Ahmad, Ghulam Mustafa sons of Muhammad Ishaque and their father Muhammad Ishaque son of Fateh Muhammad, under section 561‑A, Cr. P. C. for the quashment of proceedings pending against the petitioners in a case F. I. R. 24 Police Station Dahranwala, District Bahawalnagar, in the Court of Assistant Commissioner, Chishtian, District Bahawalnagar.

2. The facts giving rise to this petition are mentioned in the F. I. R. which was registered at the instance of Muhammad Yasin son of Abdur Rehman, on 20‑2‑1973, with Police Station Dahranwala District Bahawal nagar, under section 363/366, P. P. C. Muhammad Yasin complainant stated that four years prior to the occurrence his father died, leaving Mst. Sakina who was born on 8‑2‑1959 and was of the age of 14 years and 12 days on the day of occurrence. The complainant betrothed his sister to his cousin Muhammad Rafiq son of Muhammad Hassan. He had another uncle who was lambardar of chak No. 202/M and was unhappy over this alliance. The said Muhammad Ishaque was very keen to marry Mst. Sakina with his son Mustafa but as the complainant did not agree to this proposal he became annoyed and declared that he will forcibly marry Mst. Sakina with his son. In the month of December 1972, he went to his native village Hasan Khanwala in District Lahore. On 19th December 1.972, he came back to his house and found that his sister Mst. Sakina was absent. He was told by his wife Mst. Hajran that eight days prior to his arrival, Mst. Sakina was forcibly abducted at about evening time when she was going to the fields to attend the call of nature. She gave the name of the abductors as Muhammad Ishaque son of Fateh Muhammad and his two sons Muhammad Anwar and Maqbool Ahmad. On her bare and cry Umar Din son of Abdus Sattar, Muhammad Sharif son of Muhammad Ismail and Abdul Ghani son of Allah Bakhsh caste Arain, reached the place of occurrence but the abductors being the relations of Mst. Sakina assured the P. Ws. that this was a family matter and they need not interfere. Know ing the fact of abduction of Mst. Sakina, the complainant approached Muhammad Ishaque, his uncle, but he kept on making false promises to delay the matter and in the meanwhile he married Mst. Sakina to his son Muzaffar. The case was duly registered and investigated and the petitioners were ultimately apprehended.

3. A petition under section 561‑A, Cr. P. C. was filed on 29‑6‑1973 (Criminal Miscellaneous No. 377/Q‑73) .in this Court and the same was dismissed in limine, by my learned brother Saleem Mazhar, J. Another petition criminal Miscellaneous No. 772/Q‑74, was filed on 29‑11‑1973 by the same petitioners in this Court. It was admitted on 19‑12‑1973 and notice was issued to the State. In this connection Muhammad Yasin com plainant filed an application which was placed before the Court on 30-1‑1974 by which he requested that he be heard in the case as being the complainant against the petitioners and raised a preliminary objection that since the petitioner's earlier application was dismissed in limine, the present petition was not competent. It was also pointed out that it was incumbent upon the petitioners to file a copy of the dismissal order with their present petition so as the earlier dismissal of their petition should have come to the notice of this Court. Notice of this application was given to the learned counsel for the petitioners by this Court on 30‑1‑1974 and the case was adjourned to enable the petitioners to meet the application. The main petition has now come up. before me for final disposal as well as the application filed by Muhammad Yasin complainant.

4. The learned counsel for the complainant Muhammad Yasin has relied on Allah Banda and another v. Haji Akhy‑ud‑Din and others (1971 S C M R 367), in which it was held that successive applications for quashment of criminal proceedings without any fresh material, having been brought on record, were not maintainable. It was further held that such course would itself amount to abuse of process of Court. The above‑mentioned ruling is not applicable to the present case because the learned Judge of this Court while dismissing the earlier petition in limine, observed that the investigation by the police had not been completed and there was no challan before the trial Court. It is settled law that a case can only be quashed when the investi gating authorities have completed their investigation and have brought a case before the Court for trial. In this view of the matter it would be considered that it was not repetition of quashment petition but in fact their earlier petition was premature.

It has been further submitted that the challan has been put in the Court but no evidence has been recorded in this case, and unless and until some evidence has been recorded by the trial Court the petitioners were not competent to move application for quashment of proceedings. In support of his contention the learned counsel has relied on Sanober Khan v. State (P L D 1967 Pesh. 67) and Noor Zaman v. State (P L D 1967 Pesh. 361). Both the cases were decided by Mr. Justice Faizullah Khan. In Saner Khan's case a legal proposition was propounded:

"Whether the jurisdiction of the High Court under section 5611‑A, Cr. P. C. can be invoked when before recording any prosecution evidence, the facts alleged in the F. I. R. and sought to be proved, would constitute a criminal offence." '

His Lordship was pleased to hold after discussing this proposition that unless and until the evidence was led before the trial Court no petition could lie for quashment of proceedings under section 561‑A, Cr. P. C. In Noor Zaman's case a similar matter came before the same learned Judge who relying on Ghulam Muhammad v. Mazammal Khan (P L D 1967 S C 317) and Sanober Khan v. State (his Lordship's own judgment), confirmed his earlier decision.

The learned counsel for the petitioners on the contrary bas relied on Hukmat Khan v. State (P L D 1969 Pesh. 137) in which his Lordship Mr. Justice Shah Zaman Baber, has taken a contrary view and has held that if the facts and circum stances on the record indicate that no prima facie case has been made out against the accused, proceedings can be quashed even before recording the prosecution evidence. The learned Judge has relied on. F. S. Wahid‑ud‑Din v. Crown (P L D 1956 Kar. 489), S. P. Jaiswal v. The State (1953 Cr. L J 1018), Lasu Janu Pawar and another v. Emperor (1949 Cr. L J 203) and Rashid Akhtar Nadvi v. Irshad Ahmad Lodhi (P L D 1965 Lah. 492).

The point for consideration in the present case is whether the proceed ings before the trial Magistrate can be quashed in a case where the evidence has not yet been recorded. In Muzammal Khan's case (P L D 1967 S C 317) the Supreme Court laid down a general guideline for the High Court and observed :

The High Court should be extremely reluctant to interfere unless it can be said that the charges by itself than that of the evidence even if believed does not disclose any offence.

But the point in issue as given above was not under consideration before the Supreme Court and thus with all respect I do not contribute to the views taken in Sanober Khan's and Noor Zaman's cases mentioned above and feel myself in agreement to the views expressed in Rashid Ahmad Nadvi's case (P L D 1965 Lah. 492) wherein his Lordship Mr. Justice Muhammad Iqbal (as his Lordship then was) observed that :‑

"Doubtless, the power conferred on this Court under section 561‑A, Cr. P. C. is to do real and substantial justice for the administration of which alone Courts exist. It is the inherent power of the High Court to interfere with the proceedings of the lower Courts at any stage when it finds that an abuse of the process of law is being carried on in the trial of the case, or that such an interference is necessary to secure the ends of justice. There may be a case in which the prosecution on the face of it is illegal. Proceedings in such a case can be rightly quashed even though they may be at the initial stages. There may be other cases where a bare statement of the facts of the case may be sufficient to convince the Court that no case is made out against the accused and if the case is allowed to proceed, it would be a mock trial. In such cases and in other cases where the admitted circumstances of the case do not constitute the offence, this Court can proceed to remedy the wrong forthwith and quash the proceedings."

In view of the above discussion and the law laid down I feel there is no force in the preliminary objection raised by the learned counsel for the respondent/complainant.

5. The learned counsel for the petitioners has placed Annexure 'A', a nikahnama, on the record which proves that the nikah of Mst. Sakina was solemnised with Ghulam Mustafa petitioner on 24th December 1972, and was duly registered under the Family Laws Ordinance. She was given in marriage by her mother Mst. Fatima Bibi and her uncle Muhammad Ishaque petitioner, the father of her husband Ghulam Mustafa. It has been sub mitted that while filing the challan in the Court of the trial Magistrate the name of Ghulam Mustafa was deleted from the list of the accused and thus he was accepted as lawful husband of Mst. Sakina by the prosecution itself. On 3rd March 1973, Mst. Sakina appeared before the Duty Magistrate with First Class powers at Lahore. She declared herself as of 18 years of age and stated on oath that she was a lawfully wedded wife of Ghulam Mustafa and she was never abducted by any one, and in fact, a false case has been registered against the petitioners. A statement of Mst. Fatima Bibi, the mother of Mst. Sakina, has also been placed on the record by a Magistrate Ist Class, Chishtian, District Bahawalnagar, in which she also supported the statement of her daughter Mst. Sakina. Annexure 'D' is an attested copy of the order of the Magistrate First Class, Lahore, dated 13th March 1973, by which Mst. Sakina was permitted to accompany her mother, being sui Juris. Annexure 'F' is another statement of Mst. Sakina under section 164, Cr. P. C. recorded by a First Class Magistrate, Chishtian, District Bahawalnagar. Mst. Sakina was produced by the police before the Magistrate alongwith a medical certificate and she in her statement under section 164, Cr. P. C. exonerated the petitioners of all the charges and stated that she was happily married to Ghulam Mustafa petitioner and was living in peace with him. She levelled charges against the complainant Muhammad Yasin, who being step‑brother, was harassing the petitioners as well as herself, in order to grab her property which she inherited on the death of her father. Annexure 'G' is an attested copy of the order of Magistrate Ist Class Bahawalnagar dated 13th November 1973, which discloses that Mst. Sakina was produced before the said Magistrate by the police ; she was allowed by him to claim herself and to make her statement after thinking over the matter in a cool manner. She was informed by the Magistrate that she was a free agent to make a statement without fear. 1 here is an observation of the learned Magistrate that according to the medical certificate the age of Mst. Sakina has been certified as 16/17 years and being sui juris she was allowed to go with her mother. Annexure 'H' placed on the record reveals that in the opinion of the doctor Mst. Sakina was 16 to 16 years of age on 22nd February 1973.

It has been submitted that in view of the overwhelming evidence before the Court that Mst. Sakina was never abducted and was married to her cousin with her consent by her legitimate and legal guardian i.e. mother and uncle, it was a case of no evidence and the trial of the petitioners will be nothing but a mock trial and will amount to abuse of the process of Court. It has been further argued that under the Muhammadan Law when the girl reaches the age of puberty she is competent to enter into contract of marriage and she is at liberty to marry any one she likes. In case even if she has not attained the age of puberty even then she can contract marriage through her guardian if the match is equal. It has been further argued that in case the girl has not attained the age of puberty and she is minor, under the Muhammadan Law, father, paternal grand father howhigh‑so-ever; brother and other relations on the father's side in the order of succession enumerated in the Table of Residuaries, can give the girl into marriage. In default of paternal relations, the right devolves upon the mother, maternal uncle or aunt and other maternal relations within the prohibited decrees. In default of maternal kindered, it devolves upon the ruling authority. Reliance has been placed in this behalf on section 271 of the Muhammadan Law by D. F. Mullah.

In the instant case the age of the girl was 14 years and 12 days on the date when she is alleged to have been abducted by the petitioners. The complainant has produced her birth certificate in support of his contention that Mst. Sakina was a minor at the time of her abduction and the petitioner by removing her from lawful custody of her guardian have committed an offence under section 363, P. P. C.

In matter of determination of age medical opinion cannot override the evidence of birth certificate. The petitioners cannot take advantage of the medical examination by which Mst. Sakina has been declared between 16/17 years of age and the fact will remain uncontroverted that she was 14 years and 12 days on the day when she was alleged to have been removed from the lawful guardianship by the petitioners.

6. The learned counsel for the complainant has submitted that it has been established from the birth certificate of Mst. Sakina produced by the complainant that she was of the age of 14 years and 12 days when she was removed from the lawful guardianship and thus the consent of abductee of this age cannot absolve the kidnappers of offences under section 363 or 366, P. P. C. It is further contended that even if the marriage is proved with the abductor, it does not absolve the so‑called husband or the abettors of the offence committed by him qua his alleged wife and the marriage, for example the consent to marriage (which may or may not be marriage in the Muslims) to the circumstances does not absolve the kidnappers of offences under sections 363 and 366, P. P. C. The learned counsel for the complainant has borrowed this language from Mst. Iltaf Bibi v. Sate (P L D 1972 Lah. 121). In the above noted ruling the learned Judge while holding the above view further held that the consent of a minor female in matter of her abduction was no defence in a prosecution case for offences under section 363/366, P. P. C. On page 128 of the authority it was further observed that :‑

" . . if the statement of the abductee of 15 years of age exonerating the accused on the basis of her marriage after kidnapping/abduction is allowed to be used for quashment of prosecution under sections 363/3n6, P. P. C., it may mean a general licence for kindapping girls approaching their 15 years of age. In other words it will mean an indirect amendment in at least half a dozen punishing provisions in the penal law of Pakistan and also in other laws".

I have perused this ruling carefully and find that the facts of the present case are entirely different than those which came for scrutiny before the learned single Judge. In Iltaf Bibi's case three criminal Miscellaneous Applications Nos. 7688, 7743 and 7774 of 1970, were under‑consideration. In Criminal Miscellaneous No. 7888/70 the police registered a case under section 363, P. P. C. in respect of kidnapping of Mst. Hamida Begum, a minor girl aged about 15 years at the instance of her father‑ Muhammad Alain. The girl was removed from the lawful guardianship of her father by one Rehmat son of Karaman who was on friendly relations with Muhammad Alam, the father of the girl.

In Criminal Miscellaneous Nos. 7743 and 7774 of 1970 an F. I. R. was lodged at the instance of Mst. Bakht Bano under section 363/366, P. P. C. with the police that her son Muhammad Hussain had gone to Karachi to earn his livelihood and in his absence Mst. Raj Begum, his minor daughter aged 151 years was living with the complainant who was her paternal grand mother. One Muhammad Masood who was on friendly terms with the family of the minor, came to the house of Mst. Bakht Bano along with his wife and his sister. They enticed and took away Mst. Raj Begum, minor, from her custody.

As shown above the facts of the present case are totally at variance from the facts given in Iltaf Bibi's case (P L D 1972 Lah. 21).

7. The definition of kidnapping from lawful guardianship is given in section 361, P. P. C. It will be useful to reproduce the same in extenso:

"Whoever takes or entice any minor under fourteen years of age if a male, or under sixteen years of age if a female or any person of un sound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship".

The sentence of this offence has been provided under section 363, P. P. C. In the present case the complainant Muhammad Yasin cannot assume a status of guardian of Mst. Sakina. It is on the record that he is a step‑brother and according to the statement of v4st. Sakina the property left by her father was mutated in the name of Muhammad Yasin, her step brother, her mother and herself. She was married to Ghulam Mustafa, her, cousin. and was living with him. The marriage was solemnised with the blessing of her mother as well as of her real uncle. She denies ever living with her step‑brother and stated that her step‑brother Muhammad Yasin complainant was insisting on her to give up her share of inheritance. On her refusal to his illegitimate demand he threatened her husband as well D as her mother that he will take revenge by killing her mother and involving the entire family of her husband in some criminal cases. These facts have been given in the statement Annexure 'E' made by her before Rana Shaukat Ali Magistrate 1st Class, Lahore. In view of her statement it is crystal clear that she was never removed from the lawful guardianship and thus no offence under section 363, P. P. C. can be made out against the petitioners. Section 361 of Muhammadan Law lays down that the mother, brother and uncle are defacto guardian of a minor. Under section 348 of the save book it has been given that minority of male or female terminates when lie or she attains puberty. It is a matter of common knowledge that in this country the girls normally attain the age of puberty after 13 years. Of course it is a question of fact in each case and there may be cases where the girl may attain puberty even earlier or later. In case of Mst. Sakina there is ample medical evidence on the record that Mst. Sakina had definitely attained puberty because in Annexure 'H' it is stated that her breasts were well developed, her public and axillary hair were course and she was menstruing for the last three years.

8. In view of the above discussion the contention of the learned counsel for the complainant is without any substance and the petitioners' case is not covered by 11taf Bibi v. State cited by him. I have no hesitation to further hold that if a minor girl even not attaining the age (if puberty is married by her legitimate guardians under the Muhammadan Law the person with whom she is married is fully entitled to set up a defence against a charge under section 363, P. P. C. because as observed above sections 361, P. P. C. and 363, P. P. C. only come into display where a minor is removed from the lawful guardianship and not otherwise.

A In the light of the above discussion I am fully convinced that this is a case of no evidence and the trial of the petitioners, in the circumstances of the case, will be nothing but a mock trial. It will be tyranny of highest order to prosecute a husband, uncle and cousins of the so‑called abductee who has never complained of her abduction and is happily settled in the family and has also given birth to a child. I hereby accept the application and quash the. proceedings pending against the petitioners in the Court of the Assistant Commissioner, Chishtian.