1989SCMR474 (PLP)

SHAFIUR RAHMAN, J.‑‑This Criminal Petition came up for hearing on 9th of March, 1987 at Rawalpindi but was dismissed for non‑prosecution as none attended for the petitioner. An application for its restoration dated 2nd of April, 1987 was filed stating therein that intimation of the inability of the petitioner or. his counsel to attend the case at Rawalpindi had been given in good time to the Court. We did not find any trace of it on the record. A reference to the despatches made from this Registry to Rawalpindi by Courier Service shows that on the 5th of March, 1987 an application for adjournment in case C.P. No.4/1987 filed by Mr.Muzaffar Hassan, Advocate‑on‑Record for the petitioner, was sent there. We have got from the record the files of C.P.4/1987 and by way of abundant caution also C.P.No.4/1987 available in this registry and find that no such application of Mr. Muzaffar Hassan is found on these files as well. Taking it to be a case of a slight clerical misdescription as Mr. Muzaffar was the Advocate‑on‑Record in this petition, we accept the explanation and allow the restoration. The petitioner seeks leave to appeal against the judgment of the Federal Shariat Court dated 29‑4‑1986 whereby a petition filed by the petitioner was dismissed in limine on the basis of the decision given by this Court m Muhammad Azam v. Muhammad Iqbal (P L D 1984 S C 95). The petitioner being the father of Syeda Fatima alias Shabana filed a complaint dated 3rd of April, 1983 after having got an F.I.R. recorded in respect of the same matter on 5th of March, 1983. The grievance was that his daughter had been kidnapped/abducted from his house and compelled to marry the accused respondent. According to the petitioner an offence under sections 11 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance was made out. The petitioner ‑furnished material to show that at the time of her abduction her age was 15‑1/2 years. The Additional District and Sessions Judge, Karachi recorded the statement of the complainant under section 200, Cr.P.C. and sent the complaint to Additional City Magistrate, Liaqatabad who recorded the statements of two witnesses and returned back the file to the Additional Sessions Judge. The statement of Syeda Fatima earlier recorded by the Magistrate was taken note of. He disposed of the matter by holding as hereunder:‑‑ "In the light of above arguments and after perusal of recorded 164, Cr.P.C. statement of prosecutrix and the report of learned Magistrate I find that it is the case of abduction of a girl, the daughter of complainant and the cases of abductions are always disposed of on the statements of prosecutrixes. In this case the prosecutrix has admittedly married with accused since then at her own accord and with her sweet will. So far as question of her age is concerned she was aged about 16 years at the time of alleged incident and as she has crossed the age of 15 years and was running in 16th year of her age she cannot be treated as minor at that time. The above prosecutrix has given complete go by to the allegations of her father the complainant against accused and has not at all supported the case of complainant in police before Magistrate. Thus police did not arrest the accused as mentioned by learned Magistrate in his inquiry report. Thus in absence of any support by prosecutrix against accused prima facie no case is made out against him. 1, therefore, finding no prima facie material in the above complaint dismiss it under section 203, Cr.P.C. It was against this order that a petition was filed before the Federal Shariat Court which was dismissed in limine. The learned counsel for the petitioner contended that not only the age of the daughter was 15‑1/2 years at the relevant time, there was evidence to show that she had been compelled to marry the respondent. A finding of fact on evidence has been recorded and we do not see any defect in it. Besides, if the legality and the effectiveness of a marriage duly registered is challenged, then the decision of this Court in Azam's case as pointed out by the Federal Shariat Court would be attracted. We find no merit in the petition and leave to appeal is refused. MA.K./G‑150/S Leave refused.