1999 P Cr (PLP)

After sometime the case proceeded against two accused namely Ramzaan and Jani, after their arrest while accused Hakim and applicant Akbar Ali were declared as proclaimed offenders vide order, dated 31-10-1993 of the learned Additional Sessions Judge, Shahdadpur and the case against them was placed on dormant file. Two accused namely Jani and Ramzaan were, however, tried and convicted under section 11 of Zina Ordinance and sentenced to suffer R.I. for three years and fine of Rs.2,000 vide judgment, dated 20-3-1994. Both the convicts had preferred appeals against their convictions and they were later on acquitted by the Honourable Federal Shariat Court vide judgment, dated 19-11-1995. The applicant has now on 4-6-1998 approached this Court and has prayed that "in view of the contention of the Federal Shariat Court judgment dated 19-11-1995 and the affidavit of Mst. Kausar Parveen the proceedings pending in Crime No. 87 of 1989 under sections 11 and 16 of Zina Ordinance of Police Station Tando Adam, where the applicant is shown as absconder, may be quashed". The grounds raised by the learned counsel for the applicant are that the Honourable Federal Shariat Court has set aside the judgment passed by the trial Court on 20-3-1994, rule of consistency will apply, applicant has got four children out of the wedlook with Mst. Kausar Parveen, Mst. Kausar Parveen has filed her affidavit denying abduction and that the applicant did not have any knowledge about the criminal case lodged against the applicant. The learned counsel for the applicant has placed reliance on the following case law:

(1) 1997 PCr.U 1271, (2) 1972 SCMR 194, (3) 1992 PCr.LJ 155, (4) 1993 PCr.LJ 1468 and (5) 1994 PCr.LJ 1700. I have heard the learned counsel for the applicant and have also gone through the case law relied upon, in support of the applicant's case. I am not really impressed by the contentions raised by the learned counsel on behalf of the applicant. The applicant was admittedly a neighbour of the complainant whose daughter he allegedly abducted. It would hardly appeal to be true to a prudent mind that the applicant never had any knowledge about criminal case having been lodged against him for more than nine years. It does not again appear to be a truthful statement that the applicant remained unaware with regard to the process of B.Ws. and N.B.Ws. being issued by the trial Court till his case was separated and his case kept on dormant file. It has not been denied that the alleged abductee remained with the applicant right from the day of complainant's report till today as a result of abduction or a valid marriage. Be that as it may, there can be no denial of the fact that the star witness of prosecution namely Mst. Kausar was detained by the applicant and kept away from the trial Court before whom she was to be examined as an important witness. In a criminal case of abduction when abductee/P.W. is not examined or produced for examination by the prosecution, the prosecution definitely gets a fatal blow and becomes very weak case for conviction. Honourable Federal Shariat Court was not seized of the case of the applicant or his co-accused Hakim and that is why the merits of the case against the applicant and co-accused Hakim have not been discussed in the judgment. The learned counsel perhaps aims at getting the benefit from this Court which was not granted/extended to them by the Federal Shariat Court. The facts which are borne out on the record are that the applicant remained absconding for about nine years and during that period the abductee Mst. Kausar remained with him. The applicant was ultimately declared as proclaimed offender and a fugitive from law. If the applicant wanted to produce her before Court he could do it much more earlier to put up his case. There was no honest purpose in not bringing her before Court, particularly when the applicant claims that he had married with Mst. Kausar 2/3 days before the. incident and she is his wife. The case law relied upon by the learned counsel in my humble view is not applicable to the facts and circumstances of this case and the same are not relevant and are distinguishable. The applicant can move the trial Court as he has adequate remedy available to him rather than moving this Court under its inherent jurisdiction which has to be exercised in more appropriate cases where continuance of the proceedings before the trial Court would amount to abuse of the process of Court or are mala fide, coram non judice and are without jurisdiction. Reference may be made to PLD 1992 SC 353 and PLD 1997 SC

275. This criminal miscellaneous application was dismissed in limine by me by a short order, dated 10-7-1998 after hearing the learned counsel. These are the reasons for the same. N.H:Q./A-235/K . Petition dismissed.