2019 P Cr (PLP)

MUHAMMAD SALEEM JESSAR, J.

The petitioner Badruddin Chachar has filed instant Cr. Misc. Application with the prayer to issue rule nisi to respondents Nos.1 and 2 i.e. SSP Naushehro Feroze and SHO Bakhri to recover the alleged detenue namely Mai Muzamil from the custody of respondents Nos.3 to 7 amongst whom respondents 6 and 7 are real brothers of the alleged detenue, who may also be issued notices to produce the alleged detenue before this Court for recording her statement and set her on liberty after recording of her statement. Process issued against the respondents has been returned duly served, same is taken on record. Respondents Nos.6 and 7 have also vakalatnama of Mr. Sundar Khan Chachar advocate who has also put his appearance in court today. The official respondents Nos. 1 and 2 have filed their statements, which are taken on record. In their statements they have submitted that one Syed Nazeer Hussain Shah/respondent No.3 got registered FIR No.01/2018 under sections 452, 365-B, 395, 506/2, P.P.C. against present petitioner regarding abduction of alleged detenue Mst. Muzamil. Said case after due investigation has been challaned by them before the competent court of law having jurisdiction. Heard learned counsel for the petitioner, learned counsel for private respondents as well as learned D.P.G. appearing for official respondents. In fact, earlier the petitioner had filed Cr. Misc. Application No.808/2018 before this Court wherein he had made same prayers as made by him in the instant petition. The said petition was then not pressed by the petitioner and the same was dismissed as not pressed vide order dated 15.10.2018. Copy of the said order has been placed on Court file at page

23. It will be conducive to reproduce hereunder the contents of the said order: "Mr. Sundar Khan Chachar Advocate files power on behalf of respondents Nos. 4 and 5 and statement along with certain documents which is taken on record, copy whereof has been provided to learned counsel for applicant. Alleged detenue has been produced by private respondents and she states that she filed suit for dissolution of marriage before 1st Civil/Family Court, Kandiaro which has been decreed in her favour. She further states that she wants to go with private respondents. Looking to the above position, learned counsel for applicant does not press instant Crl. Misc. application which stands dismissed as not pressed. However, alleged detenue is set at liberty to go with private respondents Nos.6 and 7, her brothers." Learned counsel for the petitioner has not denied above position. However, he submits that after disposal of aforesaid petition, the alleged detneue is in contact on phone with the petitioner and she has told him that private respondents want to marry her with one stranger whom she dislikes and that she is ready to go with the petitioner. Learned counsel, therefore, prayed that the alleged detenue be brought before the Court and her statement be recorded. In support of his contentions he has placed reliance upon the case of Danish v. Mst. Fouzia Danish and another vide PLD 2013 Sindh

209. Conversely, Mr. Sundar Khan Chachar, learned counsel for private respondents opposed the petition on the ground that alleged detenue has already appeared before this Court on 15 10.2018 when she made a categorical statement that she would prefer to go with her parents/private respondents, therefore, confronting with her statement the petitioner did not press his earlier petition which was dismissed as not pressed, therefore, the petitioner under the law is debarred from filing fresh petition with the same prayer. He also pointed out that the alleged detenue has also filed Family Suit No.65/2018 before the Court of 1st Civil Judge/Family Judge Kandiaro for dissolution of marriage by way of Khulla which has been decreed in her favour vide judgment dated 11.10.2018 and the same has attained finality as the petitioner has not challenged the said judgment. He prayed that instant petition being frivolous having no merits, may be dismissed with heavy costs. In support of his contentions he has placed reliance on the cases reported as Muhammad Ramzan v. SHO and others (2011 MLD 337), Riaz Ahmed v. Muhammad Basher SHO Police Station Budiana, District Sialkot (1997 MLD 1352) and Khadim Hussain v. Ghulam Hussain and 3 others (1995 PCr.LJ 1570). Learned DPG submitted that the judgment passed by the Family Judge has attained finality and moreover, the alleged detenue had also appeared before this Court in earlier petition and she was set at liberty to go with her parents/brothers. He also prayed for dismissal of the petition. It seems that a competent Family Court has dissolved the marriage then existing between the petitioner and the alleged detenue vide aforesaid judgment. It would be advantageous to reproduce hereunder the relevant portion from the said judgment: "Hence the suit of the plaintiff is decreed in Ex-parte and marriage of plaintiff Mst. Muzamil Khatoon daughter of Sayed Zainul Abidin Shah with Defendant Badruddin son of Ziauddin Chachar is dissolved by way of Khulla in lieu of dower..." In view of this, apparently the petitioner has no matrimonial relations with the alleged detenue, thus he has no locus standi to file the instant petition, more particularly when his earlier petition with the same prayer has already been dismissed. It is also pertinent to point out here that even at the time of dismissal of his earlier petition, the marriage in between him" and the alleged detenue already stood dissolved by the Family Court as the order for dismissal of his earlier petition was passed on 15.10.2018 whereas the judgment regarding dissolution of marriage was passed on 11.10.2018 i.e. prior to dismissal order. In view of above facts, it is obvious that the instant petition has been filed by the petitioner in order to exert illegal pressure upon family of the alleged detenue so that they may meet with his unjustified demands. The facts and circumstances of the case of Mst. Fouzia (supra) relied upon by the petitioner's counsel are distinguishable from that of case in hand. In fact, in the cited case Mst. Fouzia had herself approached the Court for reconciliation and therefore it was considered that when the petitioner herself intends to reconcile the issue then it was permitted and in this case the alleged detenue has already appeared and categorically made a statement that she wants to go with her parents/brothers. Not only this, but she also filed suit for dissolution of marriage which has also been decreed. In view of above discussion, it seems that the petitioner has not come with clean hands and has filed instant petition with mala fide intention. In such like cases, Superior Courts have taken a serious view and have not appreciated such conduct on the part of the petitioners in such cases. In the case of Mohammad Ramzan v. SHO and others reported in 2011 MLD 337 [Lahore], honourable Lahore High has held as under: "The unjustified humiliation to the girls and their families brought before the courts by the police is an irreparable injury in the case of frivolous petitions filed under section 491, Cr.P.Code. It is observed with great concern that if such an application is found baseless or unjustified the court should seek guidance from Rules 16 and 17 referred above and it is necessary in such like cases to require the parties concerned, keeping in view their social status, to deposit a handsome security amount before proceeding any further in the petitions relating to females especially. It is abundant duty of the Court to see that Habeas Petition so filed, if was filed to disgrace the respondents, then, in appropriate cases while deciding these matters the petitioners should be burdened with costs/forfeiture of security so deposited and if court deems it necessary the security can be ordered to be paid to the respondents as compensation." In view of above facts and circumstances, while dismissing instant petition, the petitioner is imposed a cost of Rs.10,000/-. The petitioner present is directed to execute bond of Rs. 10,000/- through his surety. In case of his failure, the same shall be recovered from him as land revenue under the Land Revenue Act. The petitioner is also warned to refrain from initiating such false and frivolous litigation, otherwise he may be burdened with exemplary costs and other action as permissible under the law may also be taken against him. SA/B-13/Sindh Petition dismissed.