1980 P Cr (PLP)

Mohammad Ali Shaikh for Appellant A. B. Laghari for the State. Date of hearing 17th December, 1979. This is an application for quashment of proceedings pending under section 498/34, P. P. C. read with sections 10‑16 of Zina (Enforcement of Hudood) Ordinance, 1979. The case against the two applicants was based on F. I. R. lodged on 4th December, 1979 under section 498/34, P. P. C by complainant Allah 13ukhsh, who claims to be the uncle of the applicant No. 2 Mst. Zulekha. It was alleged that Mst. Zulekha was married with one Misri about 10 months back and she was carrying a child from him. It was further alleged that 20 days ago the complainant was informed by Warayam that he saw Zulekha w/o Misri came out from the house and she had golden ornaments on her person and new clothes and she sat in the jeep with Yaseen Awan applicant No.

1. Complainant, thereafter, went to the house of Misri and saw the door of house opened, Mst. Zulekha was missing and luggage was lying scattered.. The complainant then went to Yaseen Awan, who promised to return her after two days but did not return her and kept the complainant on false hopes and eventually told the complainant that he would not return her. Complainant had also stated in the F. I. R. that senses of Misri are not in order. The F. I. R. concluded that Yaseen Awan abducted Mst. Zulekha who as on illicit terms with Yaseen Awan. I may note here that this F. I. R. has given an explanation of delay for a period between 2 to 3 days but there is no reasonable explanation for the 20 days' delay which is suggested in the F. I. R. itself. Mr. Mohammad Ali Shaikh has challenged the proceedings as false and mala fide and an abuse of the process of the Court. He has filed an affidavit of Mst. Zulekha in original with her photograph attached where she has stated that her husband Misri maltreated her and kept her engaged for hotel visitors. This affidavit was sworn before F, C. M., Hyderabad on 4th December, 1978, and it alleges that Misri has driven out Mst. Zulekha. The photostat copy of the plaint in Family Suit No. 429/78 has also been filed where Mst. Zulekha had prayed for dissolution of marriage with Misri and alleged that she was being used by Misri for prostitution purposes. The plaintiff also alleged that there was no payment of maintenance. This complaint was filed on 4th February 1979. This suit for dissolution was decreed ex parte on 2nd July, 1979. The plaint and the affidavit above referred thus clearly establish that Mst. Zulekha had come out of the house of Misri on 4th December, 1978, and therefore, the allegations of Allah Bukhsh made on 4th February, 1979 that Warayam had seen Mst. Zulekha leaving the house of her husband Misri about 20 days before the filing of F. I. R. (which would be approximately meaning 15th of January, 1979) was evidently a false allegation as she had come out or driven out much earlier on 4th December 1978. The F. I. R. was thus made in a suspicious manner and alleged false date of offence. In any case the affidavit and plaint clearly showed that Zulekha herself came out of the house or had been driven away by the husband, and therefore, the responsibility of Yaseen Awan could not be established for the purpose of taking her away from the house of her husband. The suit of Mst. Zulekha had been decreed ex parte on 17th July, 1979, which shows that her husband Misri was not interested in keeping her as his wife. Mr. Mohammad Ali Shaikh has shown me M. Asghar Khan v. Fariduddin Masood (P L D 1974 Lah.1) where it was held that a woman cannot be made co‑accused in a case under section 498, P. P. C. and therefore the case against Mst. Zulekha was completely unfounded and is to be quashed against her on this account as well. The counsel further pointed out that the Offence of Zina Ordinance No. 7 of 1979 was enforced on 10th February, 1979, and therefore, the offence in this case having been alleged to have taken place on or about 15th January, 1979 and even the F.

1. R. having been lodged on 4th February, 1979, much earlier than the enforcement of Zina Ordinance on 10th February, 1979 therefore, none of the provisions of Zina Ordinance B is applicable in this case. The submission is quite justified. Zina Ordinance is not retrospective in operation, and therefore, offence committed before 10th February, 1979 could not involve the accused in the offence. Mr. A. B. Leghari, Advocate appearing for the State, states that decree in the Family Suit being ex parte it may be set aside eventually, thereafter, section 498, P. P. C. would be applicable. I do not agree, in view of the allegations made by Mst. Zulekha in the plaint and her affidavit, and the provisions of section 498, P. P. C. could hardly be made applicable. She has clearly alleged that she was maltreated by her husband and was driven out of her house. In such circumstances where would be the question of enticing her away from the house of the husband. She has given a clean defence to Yaseen Awan. Moreover, the F. I. R. C having been found to be false in respect of the date of the offence, and thereafter no reasonable explanation of delay having been found the very initiation of the proceedings is coupled with suspicion, and therefore, allowing the continuation of such proceedings would be completely futile and would amount to abuse of the process of the Court. The proceedings are therefore quashed. Proceedings quashed.