2013 PLP 1120 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, C.J.

Brief facts of the case are that the appellant got registered an F.I.R. bearing No.633 dated 25-11-2006 under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, at Police Station Airport, Rawalpindi, against the respondent Abdul Ghaffar. The police submitted a complete challan against the respondent before the competent Court. The learned trial Court vide judgment dated 19-3-2009 acquitted the respondent. Feeling aggrieved, the appellant preferred Criminal Appeal before the Lahore High Court, Rawalpindi Bench which also met the same fate vide order dated 15-4-2009. Thereafter the appellant approached this Court by filing Criminal Petition No. 356 of 2009, against the judgment dated 15-4-2009 passed by the High Court and the said Petition came up for hearing on 2-7-2009 and the I.O. of the case was directed to appear and produce Mst.Nadia Mushtaq without fail. During the course of pendency, it was noted that the police could not effect the recovery of Nadia Mushtaq. Directions were issued to the police from time to time and they had been doing their best, but no progress had been made. The case was dismissed by this Court vide order dated 27-1-2012, the relevant portion of the said order is reproduced herein below:-- "As far as the evidence is concerned, prima facie no sufficient evidence is available on record to interfere with the order of acquittal, although after passing of the impugned judgment more investigation was carried out against the respondent. Without commenting upon the merits of the case, but following the principles of law that innocence of an accused after acquittal in a case ordinarily does not call for interference, for the time being the listed petition along with Human Rights Cases are dismissed. However, we direct the concerned police to continue with the investigation of the case and no sooner any progress is made, the same shall be transmitted to the Registrar of this Court".

2. Now the CPO, Rawalpindi, has submitted a report (C.M.A. No.71 of 2013) stating therein that on receipt of the above order, a special team was constituted for recovery of the alleged abductee Mst. Nadia Mushtaq and the team continued its efforts for her recovery. On 2--2-2013, on the basis of secret information the Investigating Team along with Qazi Fazal-e-Haq brother of the abductee, who himself is a Police Constable, raided at the house situated in village Lab Mir, Islam Pura, Abbottabad Road, Mohra Chowk and recovered Mst. Nadia Mushtaq along with her two children. On 6-2-2013, the abductee was produced before the learned Special Judicial Magistrate, Rawalpindi, and her statement under section 164, Cr.P.C. was recorded.

3. We have gone through the report submitted by the CPO Rawalpindi. The detail of the instant case at present is not required to be given except pointing out that Mst. Nadia Mushtaq daughter of Mushtaq Ahmed was allegedly abducted and despite registration of the case at Airport Police Station, Rawalpindi, she could not be recovered. Some suspects were involved in challan but they were ultimately acquitted of the charges and ultimately the matter came up before this Court. During the proceedings about 30 directions were issued but the police failed to recover the abductee. As such an order dated 27-1-2012 was passed, the relevant portion of same has already been reproduced hereinabove.

4. It is being painfully noted that the police due to its negligence could not effect recovery even despite lapse of six years and ultimately Qazi Fazal-e-Haq, brother of abductee who is a Police Constable on account of his personal efforts succeeded in tracing out the whereabouts of his sister Mst. Nadia Mushtaq. Therefore, the matter was brought to the notice of RPO, who deputed police party for her recovery and ultimately she was recovered from Hassan Abdal. She got recorded her statement under section 164, Cr.P.C. alleging that Rab Nawaz, Head Constable, Islamabad Police had abducted her and subjected her to sexual intercourse and ultimately the said Rab Nawaz forcibly got her married with his brother Ashfaq Ahmad. After some time, she was sold to some other person in the area of Basham and from there again she came back and for the second time contracted marriage with Ashfaq Ahmed. The statement of Mst. Nadia Mushtaq recorded under section 164, Cr.P.C. has been placed on record wherein she narrated the story about the excesses meted out to her by different persons but at present she is the wife of Ashfaq Ahmed, who is the real brother of Rab Nawaz. Mst. Nadia Mushtaq stated that from this wedlock, two children were born.

5. We have been informed by the police that three accused, namely, Rab Nawaz, Ashfaq Ahmed and Asad have been arrested whereas the efforts are being made for causing arrest of the remaining accused and one of them, namely Nazeer Ahmed is residing in UAE and the process for his deportation from the UAE to Pakistan has been initiated. Mr. Israr Abbasi, SSP (Operation)' Rawalpindi, is directed to take necessary steps to conduct investigation fairly and honestly. Although the abductee Mst. Nadia Mushtaq has been recovered but the question for examination remains i.e. as to why the system of police has failed to effect recovery despite issuance of directions to them from time to time (about 30 times) and ultimately she has been recovered by the efforts of her brother. However, we have gone through the reports submitted during this period under the signatures of the senior officers offering different excuses for not effecting recovery inasmuch as they tried to persuade the Court that she had died and DNA test of a dead body after exhumation was also got conducted and at one stage it was alleged that after abduction she had been taken, to the Province of Sindh.

6. In this view of the matter, Mr. Israr Abbasi, SSP (Operation) Rawalpindi is directed to go through the progress reports submitted in compliance of the orders of this Court passed from time to time for effecting recovery of Mst. Nadia Mushtaq and submit a comprehensive report within 10 days pointing out the names of the persons of Police Department, who had failed to discharge their duties as the version of the complainant from the very beginning was that the person who had abducted her daughter had some connection with Rescue 15, Islamabad, but no investigation was carried out in those directions.

7. So far as Mst. Nadia Mushtaq is concerned, she is the best judge to decide either to stay with her parents or her husband, as the case may be.

8. Adjourned to a date after two weeks. MWA/M-34/SC Order accordingly.