STATE Versus SHAHBAZ KHAN

Applicants Muzaffar Ali and Waqar Haider, who are facing trial alongwith respondents Nos.2 to 4 for offence under section 11/16, Zina (Enforcement of Hudood) Ordinance 1979 in the Court of IIIrd Additional Sessions Judge, Hyderabad, have approached this Court and have sought quashment of said proceedings under section 561-A of Cr.P.C.

2. The facts in brief are that on 19-9-1991, one Raheem Bux Baladi lodged F.I.R. No.43/91 under section 11/16, Zina (E.O.H.) Ordinance at Bhitai Nagar Police Station, Hyderabad. He stated that he owned a motor-car show-room at Autobhan Road, Latifabad No.7, and on 17-9-1991, he alongwith his brothers Nabi Bux and Raheem Bux left for the said show-room leaving their sister Rahmida alone in the house situated in Al-Mustafa Phase II, Hyderabad. At 2-30 p.m. his relation Aziz Dadoo informed on telephone that Mst. Fahmida was abducted by applicants and others with intent to commit Zina upon her. Complainant came to his house and found Mst. Fahmida missing and after private search led to no clue about the abductee, he filed the F.I.R. The case was investigated and a challan was submitted on 3-10-1991 against applicants Muzaffar Ali, Waqar Haider and co-accused Muhammad Ali, Ghulam Mustafa and Riaz. Applicant Muzaffar Ali, Ghulam Mustafa and Riaz were shown in the challan as absconders. The applicants and respondents Nos.2 to 4 are facing trial in the Court of IIIrd Additional Sessions Judge, Hyderabad and the said proceedings are sought to be quashed through this application.

3. I have heard Mr. Gul Zaman Khan, learned Advocate for the applicants and Mr. K.M. Nadeem, learned A.A.-G. It is contended on behalf of the applicants that there is delay of two days in lodging the F.I.R, and no plausible explanation for such delay is shown, that Mst Fahmida had sworn an affidavit before Additional City Magistrate, Latifabad, Hyderabad in which she gave her age as 18 years and that she was not kidnapped by anyone but she wanted to marry applicant Muzaffar Ali of her own free will, that after swearing the affidavit Mst. Fahmida contracted marriage with applicant Muzaffar Ali on 17-9-1991 and that the age certificate of Mst. Fahmida issued by Police Surgeon, Karachi on 20th October, 1991 shows her age as 17 years. It is further contended that out of the wedlock, Mst. Fahmida has given birth to two children and in the circumstances no offence under section 11/16 of the Zina (E.O.H.) Ordinance would be made out and the criminal case is filed by the complainant so as to cause unnecessary harassment to the applicants and respondents Nos.2 to 4. According to the learned counsel, continuance of proceedings in these circumstances which would not end in conviction would be abuse of process of Court and the same are, therefore, liable to be quashed. In support of these contentions learned Advocate has referred to the cases of (1) Muhammad Saleem etc. v. The State 1990 P Cr. L J 971, (2) Zahid Hussain v. The State and 8 others 1990 P Cr. L J 1209, (3) Muhammad Ismail v. Amanullah etc. 1989 P Cr. J 1913 and (4) Allah Ditta and another v. The State P L D 1989 SC 744.

The learned A.A: G. has not disputed the facts of the case but has contended that before approaching this Court and invoking jurisdiction under section 561-A of Cr.P.C, the applicants should have moved the trial Court under section 265-K of Cr.P.C. and in case they did not succeed, they could approach this Court for relief under section 561-A of Cr.P.C. In support of this contention learned Advocate has relied on P L D 1986 Kar. 390.

4. I have gone through the entire record and have also perused the case ?law referred by the learned counsel. The incident occurred on 17-9-1991 but the F.I.R. was lodged on 19-9-1991 at 2-00 p.m. Complainant Raheem Bux has not given any explanation for the delay in lodging the report. Mst. Fahmida appeared before a Magistrate at Hyderabad on 17-9-1991 and swore an affidavit wherein she stated that she was major and wanted to marry applicant Muzaffar Ali of her free-will and that she was not abducted by anyone. She also stated in her affidavit that her father had expired and her mother wanted her to be married to a person whom she did not like. After the affidavit was sworn she contracted marriage with applicant Muzaffar Ali and as stated, that she has given birth to two children. The provisions of section 11/16 of the Ordinance are, therefore, not attracted, as no evidence better than that of Mst. Fahmida could decide the fate of case. Since she has completely negated the prosecution case, the case would necessarily end in acquittal may be after a prolonged trial. No useful purpose would be served as such to allow the proceedings to continue against applicants and respondents Nos.2 to 4. In arriving at this conclusion, I am benefited by the case-law referred by applicant's learned Advocate.

In the case of Muhammad Saleem etc. 1990 P Cr. L J 971 a learned Judge of this Court quashed proceedings under section 16/11 of the Zina (E.O.H.) Ordinance on the ground that the marriage between accused and abductee was proved through Nikahnama and it was observed that no Court on evidence available on record could convict the accused. In the case of Zahid Hussain 1990 P Cr. L J 1209 while dealing with the powers of this Court under section 561-A and those of the trial Courts under sections 265-K and 249-A, Cr.P.C, a learned Judge of this Court observed that these powers are co?extensive and both can be resorted to and proper course would be to approach trial Court first but High Court is not debarred from entertaining an application under section 561-A, Cr.P.C. directly in an appropriate case. In the case of Muhammad Ismail v. Amanullah etc. 1989 P Cr. L J 1913, proceedings under sections 4, 10(2), 16, Zina (E.O.H.) Ordinance, were quashed on the ground that direct evidence of Zina was patently missing. In the case of Allah Ditta and another v. The State P L D 1989 SC 744 (Supreme Court Shariat Bench) it was observed that act of Zina should be wilful as required by section 4. It was also observed that it would not be wilful in case accused raises plea of Nikah which is found to be bona fide and reasonably true. 1t was further observed that in such case prosecution would be failing to establish the case against accused beyond reasonable doubt and due benefit on this basic fact and principle should be extended to accused.

In the circumstances, I am of the considered view that continuance of proceedings would be abuse of the process of Court and I accordingly quash the same. Applicants or some of the respondents, who were attending the Court and are on bail, are discharged of their bail bonds:

N.H.Q./M-1951/K

??????????? Proceedings quashed.