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Criminal Miscellaneous Application No. 338 of 1974, decided on 22nd November 1974.

‑‑ S. 561‑A‑Proceedings under Ss. 363 & 380, P. P. C.---F. I. R. for alleged offences, statements of witnesses and other circumstances of case not inspiring any confidence in prosecution case as set up‑No chance of success to bring home guilt to accused‑Held, continuance of proceeding, in circumstances, would be misuse of process of Court and of law‑Proceedings quashed.

Khalid M. Ishaque and Raja Haq Nawaz for Applicants.

Babu Bhai Hudda for the State.

Date of hearing : 22nd November 1974.

This is an application under section 561‑A, Cr. P. C. for quashing pending proceedings under sections 363, 380, P. P. C. in the Court of Sub- Divisional Magistrate, Shikarpur, District Sukkur.

2. A somewhat detailed facts become necessary due to some unfortu nate incident between the parties later on which are as under:‑

That the applicants are brothers and sisters while applicant No. 6 is their father Applicants Nos. 1 and 2 are employed as Prentive Officer and Appraising Officer respectively in Customs House Karachi, while applicant No. 3 is employed as Inspector, Central Excise and Land Customs, Jacobabad. Applicants Nos. 4 and 5 are school going girls, while applicant No. 6 is Manager, Shikarpur Zamindari Co‑op. Bank Ltd. Shikarpur, District Sukkur.

3. On 23‑9‑1972 at Shikarpur a marriage took place between Naim Sabir Mughal applicant No. 1 and Mst. Dilshad stated to be aged 24 years a daughter of Agha Ghulam Nabi Pathan at which a dower amount of Rs. 50,000 was fixed. The marriage ceremony was attended by Mr. Aftab Ahmed Pathan the complainant parents of the girl and other citizens. Nikah was duly performed, a photostat copy of Nikahnama with English translation are Exhs. A and A‑1, which is supported by affidavits of the witnesses of the Nikah ceremony whose affidavits are Annexures B & C'.

4. It is alleged that some of the relations of the girl were not happy with the marriage and prevailed upon father and brother of Mst. Dilshad to take back the lady and got her divorced to be married later on in their own Pathan family. On false pretext Mst. Dilshad was taken away from Karachi where she had been living with her husband for some time to Shikarpur. But as soon as Mst. Dilshad came to know about the designs of her relations informed her husband about the scheme and apprehending danger to safety of herself and her un‑born baby she came to Karachi alongwith her husband applicant No. 1 on 28th November 1973.

5. This conduct of Mst. Dilshad offended her relations and on 29‑11‑1973 her brother complainant Aftab Ahmed and father Ziauddin Kinan Pathan came to Karachi in her pursuit, apprehending danger to her and life of her husband from the complainant party Mst. Dilshad swore an affidavit before City Deputy Collector First Class Magistrate, Karachi on 29‑11‑1973, photostat copy Annex. D', wherein she has stated that she is legally wedded wife of the applicant No. 1 and that after marriage she was living with her husband happily but due to some misunderstanding between her husband and her parents she was taken away by her parents who did not allow her to join her husband at Karachi nor allowed the husband to see her at Shikarpur and that on her request her husband reached at Shikarpur on 28th November 1973 and she accompanied her husband to Karachi with her free‑will and without undue influence and that while coming to Karachi with her husband the parent did not allow her even to bring wearing apparels or ornaments and other things and that she was married with the applicant on 23‑9‑1972 at Shikarpur and she was in possession of original Nikahnama. Marked D‑1', A photostat copy of a telegram, it is stated to have been signed by the applicant sent to the higher authorities wherein she showed apprehension to her and her husband's life from her family members and requested for legal protection. Marked D‑1.

6. Complainant and his father stayed in Karachi till 10th of December 1973 and when they failed to get back Mst. Dilshad they approached to local Police and on night between 12‑12‑1973 and 13‑12‑1973 the police alongwith some other persons of the complainant party, it is alleged forcibly entered the house of applicants Nos. 1 & 2, having failed to find Mst. Dilshad there the police took away applicant No. 2. The father and a servant applicant No. 6 to Police Station Sadar, Karachi and due to influence of the complainant party even colleagues of applicants and mamely Nazir Ahmed Alivi, an officer of Sea Customs, Karachi, were not spared and a complaint was filed at Karachi as well as one Noor Nabi Pathan was also harassed for the same reason.

7. On 15‑12‑1973 the police entered the flat and took away applicant No. 1 and Mst. Dilshad to Saddar Police, Karachi, in spite of the fact, they showed the documents that they are married, on the next day on 16‑12‑1973 a F. I. R. was got registered at Police Station Stuart Gun, Shikarpur by Agha Ziauddin Khan Pathan through his son complainant Aftab Ahmed Khan for alleged offences under sections 363, 380, P. P. C. marked 'F' and translation which is marked F‑1'. Thereafter applicant No. 1 and his wife were wrongfully confined by the Police from 15‑12‑1973 at Karachi and later she was taken away by police from Karachi in a police van and handed over to Superintendent of Police Sukkur a friend of complainant party on 18‑12‑1973. Can the same day applicants Nos. 4 and 5 their brothers Ahmed Fahim and Pervez, their sister Najma and her husband Sardar Ahmed were granted bail before arrest by the High Court and also some other relations. In the meanwhile habeas corpus petition was moved in the High Court whereby rule nisi was issued directing the police to produce test. Dilshad but the Sukkur Police reported that the lady is not traceable, copy of the report is marked J'. From 15‑12‑1973 to 21‑12‑1973, it is alleged, that Mst. Dilshad was never produced before any Magistrate in spite of the fact that there were sufficient Magistrates at Shikarpur and several Magistrates at Sukkur, the police chose to produce Mst. Dilshad at Rohri and allegedly got her statement recorded under section 164, Cr. P. G. on 21‑12‑1973 before Mr. Mohammad Yaqoob, the then Magistrate: and Civil Judge, Rohri, who had already been issued a 15 days notice of termination of service by the Government of Sind, Law Department copy of which is marked 'H'. After recording her statement Mst. Dilshad was taken away, it is alleged, by Agha Ziauddin bur on paper she is shown to have gone with 70 years old grand‑mother and till this day she has not been produced before any Court. Later on applicants Nos, 1, 2 and 6 were also taken away to Sukkur from C. I. A. Centre Karachi but subsequently granted bail.

8. Due to existing enemity with the complainant party and due to marriage with Mst. Dilshad, it is alleged that the complainant party tried to finish applicant No. 1 and thus on 26‑1‑1974 at Hathi Gate Shikarpur an attack was mounted by some armed persons of complainant side, and applicant No. 1 was not injured by gun shot at shoulder and to the process a horse was also hit. A F. I. R. under section 307/34, P. P. C. and 13(d1 Arms Act was registered at Police Station Stuart Gunj Shikarpur, Annexs. L & L‑1.

F. I. R. marked is 'M and M‑1'. It was pointed out be learned counsel for the applicants th.a during pendency of this application as no trace of Mst. Dilshad nor her grand‑mother has been found, S. H. O. Stuart Gunj Shikarpur has filed an F. I. R. dated 31st January 1974 wherein it is stated that after search it was learnt Agha Ziauddin or his some man had killed and done away with Mst. Dilshad Begum and her maternal grand‑mother Mst. Surraiya, be sides applicant No. 3 Saeed Ahmed Mughal a brother of applicant No. 1 had been murdered by the complainant party and a case had been register‑d under section 302/149, P. P. C and his relations Ahmed Faheem and Zubair Ahmed were seriously injured. This unfortunate incident is alleged to have occurred on 22‑6‑1974 at Shikarpur as per F. I. R.

9. I have heard Mr. Khalid. M. Ishaq and Raja Haq Nawaz, Advocates, it was argued by the learned counsel for the applicants that the alleged abductee is a major lady aged about 24 years and is legally wedded wife of applicant No. 5 and that there was no question of commission of offence cinder section 363/34, P. P. C. Her age certificate as well as photo of the couple are marked 'N & O' testify this fact. That it is not the case of the prosecution that any of the applicants went to the house of the complainant in this case, therefore no offence under section 380, P. P. C. could have been committed by them. Over and above statement under sec tion 164, Cr. P. C., allegedly made by Mst. Dilshad do not support the prosecution case and that there is no evidence of worth the name to support the prosecution case for the offences alleged against the applicant and that the most important witness was Mst. Dilshad who is not available and she might have been put to death or kept under ground, and if at all, any offence of theft was committed it was only Mst. Dilshad, who could have been involved in the case and not the applicants; besides some of whom are posted at different places out of District Sukkur, and that the whole proceedings are mala fide and are in fact being used as a clock to cover up the misdeeds of the complainant party and their collaboraters and that the entire prosecution case is clearly an abuse of process of Court as well as law, and that it would apparent from the record that the complainant party have involved the innocent school going girls applicants Nos. 4 and 5 in this case only to dishonour them and to take revenge, besides they cannot be involved for offences under sec tions 363/380 rear' with 34, P. P. C, yet the prosecution wants to drag there unnecessarily and that the delay in registration of the case is fatal arid the statements under section 161 of the two alleged witnesses marked R to R‑5 do not make out a triable case against the applicant. I see sufficient force in the arguments of the learned counsel for the applicants. In viewing the entire background of this unfortunate chain of incidents after marriage of Mst. Dilshad with the applicant No. 1 stated earlier, during which, applicant No. 3 lost his life and 2 other relations received serious injuries as well as Mst. Dilshad and his grand‑mother have disappeared from the scene presumbly murdered as reported by the police. A perusal of their F. I. R. dated 16‑12‑1974 for the alleged offences as well as the statements of 2 witnesses and the F. I. R. for the alleged offences under section 363/380, P. P. C. against the applicant, production of Mst. Dilshad before a Magistrate, at Rohri whose services had already been terminated which was gazettes, on 4th December 1973 and the alleged statement of Mst. Dilshad Begam before the Magistrate do not inspire any confidence in the prosecution case as set up. Top of it occording to her own statement under section 164, Cr. P. C. before the Magistrate she showed her age as 18 years. Even, if the age of the girl mentioned in the statement is accepted the girl was of marriageable age and had full liberty to marry whoever she wanted to according to the prevalent law. This is another lacuna in the prosecution case. Over and above when I compared the signatures of Mst. Dilshad Begum in the alleged statement shown on the photostat copy with the Nikahnama and other documents of the file, it becomes very doubtful even the signatures do not tally, therefore, the very statement, whatsoever its worth also becomes doubtful that, whether it was made by force or by her own volition. Disappearance of Mst. Dilshad and absence of any statement by her who could be only an important witness in support of the prosecution case with regard to alleged offences, appears to me a serious set back to prosecution of the case. There is nothing left in the prosecution case as set up of any chance of success whatsoever. 10. Mr. Babu, Bhai Hudda advocate for the State very candidly submitted that the way the prosecution was conducted and whatever evidence is on record, he is not in a position to oppose this application.

11. For the reasons given above, I am of the firm opinion that continuance of these proceedings in the present case would be a misuse of process of Court and of law as there is no chance of any success a to bring home guilt to the applicants as alleged. I, therefore, accept this revisional application and quash the pending proceedings against the applicants in this case.

S. Q. Petition accepted.

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