2010 Y L R 3000
[Quetta]
Before Qazi Faez Isa, C.J.
ATTA MUHAMMAD and another ---Petitioners
Versus
THE STATE and another ---Respondents
Criminal Quashment Applica tion No. (s) 06 of 2010, decided on 29th April, 2010.
(a) Criminal Procedure Code (V of 1898) ---
----S.561 -A--- Offence of Zinc: (Enforcement of Hudood) Ordinance (VII of 1979), S.11 ---
Abduction ---Quashing of F.I.R., application for ---Allegation in the F.I.R. was that accused
female was abducted by male accused with the help of his brothers ---Accused persons (male
and female), however, had stated that they got married and their Nikah was duly performed ---
Copy of Nikah Nama was attached with the applicat ion filed by them for quashing of F.I.R. --
-Complainant/ mother of alleged abductee appeared in the Court along with her counsel and
stated that alleged abductee had married without her permission and that if male accused was
to provide a lady member of his family for marriage to the complainant's daughter she would
compromise the matter and withdraw the complaint ---Fact that alleged abductee appeared in
the Court and denied her alleged abduction, there remained no case ---Alleged abductee had
married of her own free will which fact was not stated in the application, but also in the
affidavit submitted in the Court ---F.I. R. had clearly been lodged to harass accused persons
and to settle the scores ---High Court invoking its inherent powers, quashed the F.I.R., in
circum stances.
(b) Criminal Procedure Code (V of 1898) ---
----S.561 -A---Inherent powers of High Court ---Scope ---Section 561 -A, Cr.P.C. stipulated
that inherent powers vested in the High Court to prevent the abuse of the process of any
Court or o therwise to secure the ends of justice were not limited.
M.S. Khawaja v. The State PLD 1965 SC 287 and Mairaj Khan v. Gul Muhammad 2000
SCMR 122 ref.
Shaukat Ali Qadri for Petitioner.
Mrs. Noor Jehan Kahoor for the State.
Nadir Ali Chalgari for R espondent No.2.
ORDER
QAZI FAEZ ISA C.J .---Through this petition filed by Atta Muhammad son of
Mehmood Khan and Mst. Shah Gul wife of Atta Muhammad quashment of F.I.R.
No.113 of 2009 lodged at Police Station Saddar, Dera Murad Jamali, District
Naseer abad on 12 -6-2009 has been sought. In the said F.I.R. it is alleged that petitioner
No.2 was abducted by petitioner No.1 with the help of his brothers on the night of 11th
June, 2009.
2. The petitioners however state that on 9th June, 2009 they got marri ed and Nikah was
performed by Maulana Muhammad Younas of Killi Pirkani Abad, Sariab Road, Quetta,
copy of the Nikah Nama has been attached with the petition. It is further submitted that
the parents of the petitioner No.2 wanted to get her married to someo ne else without her
consent and F.I.R. has been lodged with mala fide intention and ulterior motives.
3. On 9th April, 2010 the following order was passed in this case: -
"Learned counsel for the petitioner has produced the originals of the affidavits ,
which according to the learned counsel confirm that the petitioners Nos. 1 and 2
freely entered into Nikah on 9 -6-2009. Mrs. Noor Jahan Kahoor, learned counsel
appearing for the State, states that the photograph of petitioner No.2 appearing
on the affida vit is a true likeness of the lady present in the Court today. Mrs.
Noor Jahan Kahoor has also separately enquired from petitioner No. 2 whether
she is married with petitioner No.1 and whether she wants to live with him on
her own free will. Mrs. Noor Jeha n Kahoor reports that having consulted the
petitioner No.2, she wants to live with the petitioner No.1 and further states that
petitioner No.2 has informed her that she is five months pregnant."
4. On 23rd April, 2010 the mother of the petitioner No.2, w ho lodged the F I R . ,
appeared along with her counsel Mr.Nadir Ali Chalgari, Advocate and stated that the
petitioner married without her permission and that if the petitioner No.1 was to provide
a lady member of his family for marriage to the complainant's s on, she would
compromise the matter and withdraw the complaint. Mr.Nadir Ali Chalgari, Advocate
tried to effect reconciliation, but failed.
5. In view of the fact that the alleged victim/abductee, namely Mst. Shah Gul (Petitioner
No.2) appeared before th e Court and denied her alleged abduction, there remains no
case, for those nominated in the F.I.R. to answer. The petitioner No.2 has married of her
own free will, which fact is not only stated in the petition but also in the affidavit
submitted in Court. Moreover, learned State counsel has reported that she has spoken to
the petitioner No.2 in the absence of petitioner. No.1 and that she is satisfied that the
petitioner No.2 decided to get married without any threat or pressure exerted on her and
that she was never abducted.
6. Section 561 -A, Cr.P.C., stipulates that the inherent powers vested in the High Court
to prevent the abuse of the process of any Court or otherwise to secure the ends of
justice are not limited. In the case of M.S. Khawaja v. The St ate PLD 1965 SC 287, the
Hon'ble Supreme Court held: -
"To quash a judicial proceeding in order to secure the ends of justice would
involve a finding that if permitted to continue, that proceeding would either
operate or perpetuate an injustice. To find a n `abuse' it would be necessary to see
in the proceeding, a perversion of the purpose of the law such as to cause
harassment to an innocent party, to bring about delay, or where the machinery of
justice is engaged in an operation from which no result in fu rtherance of justice
can accrue, and similar perverse results."
In the case of Mairaj Khan v. Gul Muhammad reported in 2000 SCMR 122 the following
dicta was laid down by the honourable Supreme Court: -
"The main consideration to be kept in view would be whether the continuance of
the proceedings before the trial forum would be futile exercise, wastage of time
and abuse of process of Court or not. If on the basis of facts admitted and patent
on record no offence can be made out then it would amount to abu se of process of
law to allow the prosecution to continue with the trial. If the facts of the present
case are scrutinized on touchstone of the above criteria then it would be obvious
that the further proceedings in the Court on the basis of impugned F.I.R . would be
sheer wastage of time."
The aforesaid judgment of the Hon'ble Supreme Court are fully attracted in the instant
case and if the criminal proceedings are permitted to continue the same would perpetuate
an injustice. The F.I.R. has clearly been l odged to harass the petitioners and to settle
scores. Under such circumstances the inherent powers of this Court are invoked and
F.I.R. No.113 of 2009 lodged at Police Station Saddar Dera Murad District Naseerabad is
quashed. S.H.O. Police Station Saddar, Dera Murad Jamali, District Naseerabad is
directed to ensure the safety of the petitioners, whenever the petitioners or either one of
them convey to the S.H.O. an apprehension to their security. Copy of this order to be sent
to the said S.H.O. for informat ion and compliance.
H.B.T./87/Q F.I.R. Quashed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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