Muhammad Younis Waggan Versus State
Order
Shamsuddin Abbasi, J .--- Through instant Crl. Misc. application, applicant Muhammad Younis has impugned the order dated 15.01.2024, passed by learned Civil Judge and Judicial Magistrate/PO Consumer Protection Court, Larkana, on final report in FIR No 123/2023 of Police Station Waleed registered under sections 365-B, 457, 34, P.P.C, submitted by the investigating officer in terms of Section 173, Cr.P.C for disposal of case under 'C' Class and learned Magistrate while concurring with the police report has disposed it of under 'C' Class.
2. Relevant facts as spelt out from the FIR are that the complainant Muhammad Younis Waggan lodged report at PS Waleed on 16.11.2023 at about 04:00 am, stating therein that he and his witnesses saw accused Mudasir, Muzamil both sons of Sher Muhammad and two unknown accused persons in his house. Accused Mudasir and Muzamil dragged his niece Fatima Batool daughter of Rizwan Ali aged about 13/14 years and two unidentified persons pointed their pistols towards them. Thereafter all the accused persons put her in the while colour Car without number in order to commit zina/marriage and FIR to the above effect was lodged.
3. During investigation, I.O has recorded the statement of alleged abductece Fatima Batool under section 161, Cr.P.C wherein she has denied the allegation of her abduction and has taken the plea that she being sui juris has contracted marriage by exercising her right of freewill with Mudasir On such statement, the I.O recommended instant case under canceled 'C' class.
4. Learned counsel for the applicant contended that the alleged abductee is minor, which is clear from School Leaving Certificate and FRC issued by NADRA available at pages-21 and 23 (annexure 'C' and 'D') respectively, wherein the date of birth of alleged abductee is shown as 10.07 2010, which shows that at the time of abduction, the age of Fatima Batool was 13 years, therefore, the marriage of abductee with co-accused Mudasir was illegal in terms of Sindh Child Marriages Restraint Act, 2013. He further contended that sufficient material has been produced before the I.O during investigation as well as learned concerned Magistrate yet the Magistrate has not considered the material and disposed of the mater under 'C' class, whereas, he was supposed to take cognizance of the case. Therefore, learned counsel prays that the impugned order may be set aside with direction to concerned Magistrate to take cognizance of the case under provision of Sindh Child Marriages Restraint Act, 2013. In support of his contentions, he has relied upon the cases of Ghulam Abbas v. The State and another (2014 PCr.LJ 858), Muhammad Safeer v. Additional Sessions Judge (West) Islamabad and others (PLD 2018 Islamabad 385) and Unreported case of Mst. Mumtaz Bibi v. Qasim and others passed on 03.01.2022 in Writ Petition No 4227 of 2021 by Islamabad High Court Islamabad.
5. On the other hand, learned counsel for the respondent No.6 submits that no such incident of abduction as alleged by the complainant in his FIR has taken place, that the alleged abductee being sui juris has contracted marriage with co-accused Mudasir; that on the application of the applicant, the medical examination was conducted by Medical Board to determine the age of alleged abductee. The Medical Board comprising with senior Professors including Dr. Bhagwandas, Assistant Professor, Department of Radiology SMBBMU, CMC Larkana, Dr Altaf Hussain Kakepoto, Dental Surgeon, CMC Hospital Larkana, Dr Kailash Kumar, Assistant Professor, Department of Radiology SMBBMU, CMC Larkana and Chairman Medical Superintendent, CMC Hospital Larkana, who unanimously opined that the age of Fatima Batool (the alleged abductee) is about 18 years. Hence the impugned order passed by learned Magistrate is in accordance with law and no illegality has been committed. Learned counsel also contends that now Fatima Batool has given birth to baby girl about five months back and she is mother of suckling baby and the complainant in order to drag respondent is pursuing the case Lastly learned counsel for the respondent has relied upon the case of Syed Afshan v. Syed Farukh Ali and 3 others (PLD 2013 Sindh 423).
6. Learned Addl. PG appearing for the State has supported the impugned order on the ground that preference should be given to ossification test conducted by the Medical Board in comparison to the School Leaving Certificate and FRC issued by the NADRA in favour of the Fatima Batool. Therefore, he submits that instant application merits consideration which may be dismissed.
7. Heard learned counsel for the applicant, learned counsel for the respondent No 6 and learned Addl. PG appearing for the State and perused the material available on record.
8. Applicant registered the FIR against accused nominated in the FIR with the allegation that they have abducted minor Fatima Batool (niece of the complainant) on the show of weapons. It is matter of record that learned Judicial Magistrate Sec-30 East Islamabad has passed order dated 07 12:2023, whereby learned Magistrate sent Fatima Batool to Darul Aman and her custody was shifted to Larkana. During investigation statement under section 164, Cr.P.C of Fatima Batool was recorded wherein she has denied the allegation of her alleged abduction and has taken stance the she being sui juris has contracted marriage with Mudasir by exercising her right of freewill. She further stated that the complainant has lodged false FIR against her husband. Investigating Officer has also recorded her statement under section 161, Cr.P.C, wherein she has reiterated the same facts as in 164, Cr.P.C statement. The applicant has approached to learned Magistrate to constitute medical board to determine the age of Fatima Batool, which application is available at page 47 (Annexure A) of the Court file and on that application Director General Health has constituted the Medical Board comprising of senior Professors including Dr Bhagwandas, Assistant Professor, Department of Radiology SMBBMU, CMC Larkana, Dr. Altaf Hussain Kakepoto, Dental Surgeon, CMC Hospital Larkana, Dr. Kailash Kumar, Assistant Professor. Department of Radiology SMBBMU, CMC Larkana and Chairman Medical Superintendent, CMC Hospital Larkana, who unanimously opined that the age of Fatima Batool (the alleged abductee) is about 18 years. Learned counsel for the respondent No.6 has informed that Mst. Fatima Batool has given birth to baby girl and now baby's age is five months. The main controversy involved in this case is whether the preference is to be given to the documents issued by School as well as NADRA or the Medical Board, who determined the age of Fatima Batool. In my considered view preference can be given to Medical Board who through ossification determined the age as 18 years. In this regard reliance can be had from the case of Muhammad Anwar v. Muhammad Suffyian and another (2009 SCMR 1073). At least this is not case of abduction as alleged in the FIR by the complainant. The learned Magistrate has rightly approved the summary under cancelled C class in terms of Section 173, Cr.P.C Therefore, impugned order passed by learned Magistrate is maintained. Consequently, instant. Crl. Misc Application being devoid of merits is dismissed. Let copy of this order be sent to concerned Magistrate, through Sessions Judge, Larkana, over fax.
JK/M-89/Sindh Application dismissed.