2011 Y L R 2768
[Quetta]
Before Muhammad Hashim Khan Kakar, J
GHULAM RASOOL ---Applicant
Versus
THE STATE through Police Station Sohbat Pur District Jaffarabad and
another ---Respondents
Criminal Quashment No. S -12 of 2011, decided on 5th August, 2011.
(a) Criminal Procedure Code (V of 1898) ---
----S. 156 & 561 -A---Constitution of Pakistan, Art.199 -Application for quash ment ---
Investigation -"-Investigation was t he right of the Police and it should come to its natural
conclusion without interference ---Proceedings under Art.199 of the Constitution, were
competent against any criminal inquiry or investigation, if the same would encroach upon any
fundamental right gu aranteed by the Constitution or violated some other law or was
motivated by some mala fide reasons.
(b) Criminal Procedure Code (V of 1898) ---
----S. 561-A---Penal Code (XLV of 1860), Ss.365/147/149 ---Abduction ---Quashing of F.I.R.,
application for ---Alleged abductee in her affidavit had stated that she being aged about 21
years was well and sufficiently in a position to think for her future betterment without any
coercion, interruption of any kind; that she wanted to marry with accused, who had seriou s
love and affection for her and that he was ready to accept her; that she had decided to marry
with him on her choice by exercising her right of free -will---Registered Nikah Nama was
executed between accused and alleged abductee ---According to said Nikah Nama age of
alleged abductee was 21 years and said Nikah Nama was witnessed ---Dower' amount
Rs.50,000 was also written therein ---Alleged abductee also appeared in the court and had not
supported the prosecution case and had sought quashing of F.I.R. lodged by her father against
accused ---Alleged abductee being sui juris, having lawfully married each other, offence as
alleged in F.I.R. was not made out ---Conviction of accused, in circumstances, was not
possible and continuance of the investigation against ac cused would simpliciter amount to
unnecessary harassment and abuse of the process of law ---Application for quashing F.I.R.
was allowed and F.I.R. registered against accused under S.365, P.P.C., was quashed, in
circumstances.
Ali Hassan Bughti for Applic ant.
Abdul Sattar, D.P. -G. for the State.
Date of hearing: 29th July, 2011.
ORDER
MUHAMMAD HASHIM KHAN KAKAR, J. ---This is an application for quashment of an
F.I.R. No.34 of 2011, under section 365 read with sections 147 and 149 of the P.P.C.,
registered at Police Station, Sohbat Pur, District Jaffarabad on 21st June, 2011 at about 5 -30
p.m. at the instance of Majid Ali son of Mir Hassan, caste Khosa (father of the abductee Mst.
Ghazala) for an offence of abduction, alleged to have taken place on 19th June, 2011.
2. It is alleged in the aforesaid F.I.R. that Mst. Ghazala, daughter of the complainant, has
been enticed and abducted by the applicant, who was driver of the Suzuki vehicle, hired by
the management of Health Project, launched by the Go vernment of Balochistan, for the
purpose of pick and drop of the project employees.
3. Learned counsel for the applicant contended that very registration of the F.I.R. is result of
mala fides, thus, the same is liable to be quashed. He further contended that the alleged
abductee Mst. Ghazala, being sui juris, with her own free will and consent, and by exercising
her constitutional fundamental rights, contracted marriage with the applicant in accordance
with the injunctions of Islam, without any pressure o r coercion from any corner. Mst.
Ghazala is living with the applicant as his legally wedded wife, thus, the F.I.R., which is
outcome of mala fides and dishonest intentions on the part of the complainant, ought to have
been quashed.
4. On the other hand, Mr. Abdul Sattar Durrani, Deputy Prosecutor -General, representing the
State, has taken a stand that the truth or falsehood of the allegations in the F.I.R. will be seen
by the police during course of investigation and, thereafter, by the trial court and th e
quashment of the F.I.R., at this stage, would be nothing, but tantamounts to interfere in the
investigation of the police.
5. It is true that the investigation is the right of the police and should come to its natural
conclusion without interference, b ut there are also no two opinions on the point that
proceedings under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 are
competent against any criminal inquiry or investigation, if the same encroaches upon any
fundamental right guara nteed by the Constitution or violates some other law or is motivated
by some mala fide reasons.
5. I have heard learned counsel for the parties and given my anxious consideration to the
arguments advanced by them and have also gone through the material p laced on file. Before
reaching to a conclusion, it would be advantageous to reproduce the relevant abstract from
the affidavit of alleged abductee Mst. Ghazala, copy whereof is annexed with the instant
petition:
"That I am VIRGIN lady, Muslim, Adult, age d about 21 and am -well and sufficiently
in a position to think for my future betterment without any coercion, interruption of
anyone of any kind of whatsoever in nature.
That I want to marry with one Mr. Ghulam Rasool son of Abdul Sattar, Muslim,
Adult, resident of Fageera Goth, Gadap Town, Scheme 33, Karachi Superhighway,
who has serious love and affection for me and he is ready to accept me, therefore,
serious love, affection and attachment have been developed in my mind in his favour
resulting thereof, I have decided to marry with him on my choice by exercising the
rights of FREE WILL".
6. The petition is also accompanied by a registered Nikah Nama dated 25th June, 2011,
executed between the applicant and alleged abductee Mst. Ghazala. According to th e said
Nikah Nama, her age has been shown as 21 years. Soba Khan son of Muhammad Yousaf and
Ali Nawaz son of Shah Nawaz have been shown as witnesses of the marriage between the
parties, whereas the dower amount has been written as Rs.50,000 deferred.
7. Besides the above mentioned documentary evidence, the alleged abductee Mst. Ghazala
also appeared before this court on 29th July, 2011 and has not supported the prosecution case
and has sought quashment of the F.I.R. lodged by her father against the applic ant. The
applicant and Mst. Ghazala, being sui juris, have lawfully married each other and in these.
circumstances, the offence, as alleged in F.I.R. No.34 of 2011, is not made out, thus, the
conviction of the applicant, in the attending circumstances, is not possible and continuance of
the investigation under these circumstances against the applicant will simpliciter amounts to
unnecessary harass ment and abuse of the process of law. I am of the considered view that
under Art.4(2)(b) of the Constitution, n o one shall be prevented from or be hindered in doing
that which is not prohibited by law; and, admittedly, the law did not prohibit the applicant
and Mst. Ghazala from marrying each other and also does not prohibit them from living
together as husband and wife. Article 4(2)(b) speaks as under: -
(4) Right of individuals to be dealt with in accordance with law, etc. (1) To enjoy the
protection of law and to be treated in accordance with law is the inalienable right of
every citizen, wherever he may be, and of every other person for the time being
within Pakistan.
(2) In Particular (a)
(b) no person shall be prevented from or be hindered in doing that which is not
prohibited by law; and
8. It would be relevant to mention here the learned counsel for the applicant, at the very
outset, contended that the applicant has directly approached this court for anticipatory bail as
well as for quashment of Crime No.34 of 2011, as his life is at stake and he is prevented from
approaching the concerned court. Ther e is no cavil to the proposition that Article 35 of the
Constitution makes it the duty of the State to protect the marriage, the family and the mother
and the child, therefore, whenever any person is threatened with the violation of any of the
rights which have been guaranteed to him under the Constitution, he can invoke the
constitutional jurisdiction under Article 199 of the Constitution and inherent powers of this
Court as envisaged under section 561 -A of the Code of Criminal Procedure, seeking
protectio n of the Court against any official agency to enforce his rights under the
Constitution. The proceedings, therefore, under Article 199 of the Constitution, are
competent against any criminal inquiry and investigation, if the same encroaches upon any
fundam ental rights guaranteed by the Constitution or is motivated for some mala fide reasons.
For all that has been stated above, the continuance of the proceedings against the applicant in
a case under section 365 read with sections 147 and 149 of the P.P.C. will amount to
unnecessary harassment. The result is obvious and no court on such evidence can convict the
applicant on the charge levelled. The result is that the application is allowed, consequently,
F.I.R. No.34 of 2011, registered under section 365 rea d with sections 147 and 149 of the
P.P.C. at C Police Station Suhbat Pur, District Naseerabad, is hereby quashed.
H.B.T.183/Q Application allowed.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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