1980 PLP 985 (SCMR)

ASLAM RIAZ HUSAIN, J‑This petition for Special Leave to appeal filed by Bashir Ahmad Sajid is directed against the order of a learned Single Judge of the High Court dated 9th of October 1978 whereby he quashed the proceedings under sections 365, 368 and 376, P. P. C. pending against Zahir Ahmad, Major Nasir Ahmad and Muhammad Bashir respondents, in the court the Third Additional Sessions Judge, Karachi. The allegations against the respondents briefly are that on the .22nd of May 1974 respondent Zahir Ahmad abducted Mst. Ghazala Zareen daughter of Bashir Ahmad Sajid (complainant‑petitioner). She is 25 years old and is an educated girl; having done her graduation in Arts At the time of the incident she was employed as Assistant Manager in the Cotton Export Corporation Karachi. It is alleged that after the abduction Zahir Ahmad and Ghazala left in a car for upcountry. During the night they stayed at a petrol pump Next day they reached Sukkur from where, they boarded a P. I. A. plane and went to Lyallpur, from there they went in a bus to Sargodha where they stayed in a hotel. Major Nasir Ahmad respondent, a brother of Zahir Ahmad respondent, met them there. Zahir Mst. Ghazala were married at Sargodha and she also signed the Nikahnama. Two days later she swore on affidavit before the A. D. M. Sargodha to the effect that she had married Zahir Ahmad respondent of her own free will. Muhammad Bashir, the third respondent, is an Advocate of a Sargodha who had produced Mst. Ghazala before the Magistrate for swearing the affidavit. In the meanwhile Bashir Ahmad Sajid the father of Mst. Ghazala, lodged an F. I. R. After the investigation respondent No. 1 was accused of offence under section 366; 376 while respondents Nos. 2 and 3 were accused of an offence under section 368, P. P. C. The proceedings against the respondents commenced in the month of May 1974, but no material progress was made and even the statement of the main witness, namely Mst. Ghazala, was not recorded. Her statement was however recorded in the High Court during the hearing of a bail application, where she was confronted with love letters addressed by her to Zahir Ahmad which she admitted having written and signed, but added that she had been compelled to write the same. After about 4 years, in September 1978, the respondents filed an application under section 561‑A, Cr. P. C. for quashment of the proceedings pending against them. The application was contested by the petitioner but as it was allowed, the petitioner has filed this petition for leave. In allowing the respondent's quashment application, the learned Judge pointed out that the complaint against the respondents had been filed in A May 1974, and that the case had made practically no progress. Further it would appear the Chief Justice of the Sind and Baluchistan High Court had directed on 3‑7‑1974 that Mst. Ghazala's evidence should be recorded forthwith, but this order had been flouted, although more than 4 years had passed. The learned Judge also noted that Mst. Ghazala was a Graduate, was employed as Assistant Manager in the Cotton Export Corporation, and she had also admitted having written and signed love letters to the respondents. Accordingly in the circumstances, as the learned Judge was not satisfied by the explanation given on Mst. Ghazala's behalf about her letters, he held that the complaint was abuse of the process of the Court and quashed it. Mr. Iftikhar Ahmad criticised the view of the learned Judge that the petitioner's complaint was an abuse of the process of law, but after hearing learned counsel, we are satisfied that the view taken by the learned Judge was the only correct view and the petitioner has no case on merits. Learned counsel however relied on an order of this Court in Khushi Muhammad and others v. The State (1979 S C M R 94) and submitted that section 249‑A of the Criminal Procedure Code had been repealed by implication by section 561‑A, therefore the learned Judge had erred in law in allowing the respondents' application under section 561‑A. Although the submission of the learned counsel is supported by the observation of this Court in Khushi Muhammad's case, with the utmost respect, we have to observe that provisions of sections 249‑A and 561‑A are somewhat different, and in our humble opinion, the view taken in Khushi Muhammad's case requires further examination. We therefore grant leave only to examine the question whether section 249‑A has by implication repealed section 561‑A of the Criminal Procedure Code. Security in the sum of Rs 1,

000. The appeal to be made ready on the present record with liberty to the parties to file additional documents. Finally as the appeal turns on short point of law of considerable importance we direct that it should be fixed for hearing as soon as it is ready. Order accordingly.