MUHAMMAD SALIM and 2 others vs THE STATE
This application under Section 561-A of the Code of Criminal Procedure 1898 sought the quashing of criminal proceedings initiated under Section 11/16 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979, arising from an F.I.R. alleging the kidnapping of a minor girl for illicit intercourse. The core legal question was whether criminal proceedings should continue when the alleged victim, a sui juris adult, voluntarily entered into a valid marriage with the accused prior to the registration of the F.I.R. The High Court held that the evidence, including the victim's statement under Section 164 of the Code of Criminal Procedure 1898 and medical reports confirming her majority, established that she was a legally wedded wife who married of her own free will. The Court determined that continuing the prosecution would constitute an abuse of the process of the Court and result in unnecessary harassment, as conviction was impossible on the available evidence. Consequently, the Court exercised its inherent powers to quash the proceedings, establishing that where allegations are demonstrably false or legally unsustainable, the High Court must intervene to prevent abuse of process.
- Can the High Court quash criminal proceedings under Section 561-A of the Code of Criminal Procedure 1898 if the evidence indicates no possibility of conviction?
- Does the voluntary marriage of an adult woman to the accused negate a charge of kidnapping under the Offence of Zina (Enforcement of Hudood) Ordinance 1979?
- Is the continuation of criminal proceedings against an accused considered an abuse of process when the alleged victim consistently supports the accused's version of events?
- Section 561-A, Code of Criminal Procedure 1898
- Section 11, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 16, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 164, Code of Criminal Procedure 1898
' This is an application by Muhammad Salim, Mst. Hanifa alias Nanney and Abdul Ghaffar, under section 561-A, Cr.P.C. Praying that the proceedings arising out of F.I.R. No,259 of 1986, Police Station Shah Faisal Colony, Karachi, under section 11/16 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979, pending in the Court of 1st Additional Sessions Judge (East) Karachi, be quashed.
2. On 19-11-1986 at 8-10 a.m. Muhammad Sarwar lodged F.I.R. At Police Station Shah Faisal Colony, Karachi, alleging therein that applicants Muhammad Salim and Mst. Hanifa have kidnapped his minor daughter Mst. Zahida Parveen with intent that she may be subjected to illicit intercourse. A case under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was registered. During the course of investigation it transpired that Mst. Zahida Parveen who is aged about 18 years had married with applicant Muhammad Salim of her own free will and the Nikah was solemnised on 15-11-1986 at Bahawalpur. Mst. Zahida Parveen was produced before Police Surgeon, Karachi for examination on the point of age and she was found to be 16 years old. During this period Mst. Zahida Parveen was produced before a Magistrate who recorded her 164, Cr.P.C.
Statement in which she admitted the above facts. After completing the investigation the applicants were sent up to stand trial.
3. Admittedly Mst. Zahida Parveen is the legally-wedded wife of applicant Muhammad Salim. The photo copy of Nikahnama is on record. Mst. Zahida Parveen who was examined by Medical Superintendent, B.V. Hospital, Bahawalpur on 23-11-1986 was found to be 18 years old. She was a grown up lady and had married with applicant Muhammad Salim of her own free will which is evident from 164, Cr.P.C. Statement which she made before A.C.M. (East) Karachi.
4. The power conferred on the High Court under section 561-A, Cr.P.C. Is for doing real and substantial justice. This power is to he exercised in exceptional cases, but where it appears to the Court that there is an abuse of process of Court then there should not be any hesitation in exercising such power. Instances are not lacking where allegations were even found to be so obviously false that even though if believed they would not constitute an offence. Mst. Zahida Parveen has attained the age of majority. She had entered into the marriage bond on 15-11-1986, three days prior to the lodging of F.1.R. Shc has all along supported the case of applicant Muhammad Salem by stating that she had married with him of her own free will. Under these circumstances the continuance of proceedings against the applicants in a case under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, will amount to unnecessary harassment. The result is obvious and no Court on such evidence can convict the applicants on the I aforesaid charge.
5. I have, therefore, come to the conclusion that the case against the applicants must be quashed.
The application made under section 561-A, Cr.P.C. Is allowed and the proceedings pending against the applicants before the additional Sessions Judge (East) Karachi, in Crime No,259 of 1986, Police station Shah Faisal Colony, Karachi, are hereby quashed.
Cited by 4 cases
- MUHAMMAD ZIA-UR-REHMAN vs S.H.O., POLICE STATION ACE, KHANEWAL and others 2010 MLD 1770
- SHAHNAZ AKHTAR alias RANO and another vs STATION HOUSE OFFICER, POLICE STATION, ADIVISION, DISTRICT SHEIKHUPURA and 2 others 2000 YLR 2242
- STATE Versus SHAHBAZ KHAN 1994 PCRLJ 1700
- ZAKIUDDIN And ANOTHER vs THE STATE 1991 P Cr. L J 1428