2015 PLP 161 (MLD)

HASAN FEROZ, J.

By this order I intend to dispose of Criminal Misc. Application moved under section 561-A, Cr.P.C. in F.I.R. No.114/2013 (The State v. Vikram), under section 365-B, P.P.C. lodged at Ibrahim Haideri Police Station, Karachi, against orders dated 21-5-2013 and 30-5-2013 passed by Vth Judicial Magistrate Malir at Karachi. The applicant on being aggrieved, by the above orders moved the present application seeking set aside the impugned orders and for issuance of direction for reinvestigation of the F.I.R. No.114/2013.

2. The brief facts of the case are that complainant Arif Masih lodged F.I.R. No.114/2013 under section 365-B P.P.C. at Ibrahim Haideri Police Station Karachi stating therein that he is teacher at Saint Patrick's School on 18-5-2013 when he was on duty at about 2-00 p.m. his wife informed on phone that his niece Cheryl D/o Late Manzoor Masih is not at home. He reached at home and started searching Cheryl and thereafter he came to know that Vikram son of Pervez Joseph abducted his niece with intention to commit Zinah. Cheryl Manzoor has also taken away cash and gold with herself, details of which will be given later.

3. Learned counsel for the applicant has contended that the impugned order passed by the learned Vth Judicial Magistrate Malir is bad in law and contrary to the facts, unjust, inequitable, harsh and perverse and the same is non-reading of the objections raised by the applicant so also the material evidence produced by the applicant, lacks of the judicial application of mind appears that the Presiding Officer has not considered documentary evidence placed on record. The learned Vth Judicial Magistrate Malir has not considered this plea of the applicant while disposing of the matter. The accused person is involved in heinous crime as he has abducted a school going girl who is under 16 years of age and studying in Class VIII at Saint Patrick's School. She was residing at her maternal grandmother's house. As her father, mother and all family members have expired in Jinah Hospital bomb blast on 5-2-2010, since then the applicant and his mother are taking care of the abductee. Learned counsel has contended that "Christian Marriage Act, 1872" minor cannot contract marriage without consent of her parents or guardian unless attain the age of 21 years, whereas the present abductee is under 16 years old who entered in an invalid marriage under Christian Marriage Act 1872 and prayed to set aside the order dated 21-5-2013 and 30-5-2013 and issue direction for reinvestigation of the F.I.R. No.114/2013 from some other competent police officer. He relied upon 2010 PCr.LJ 961.

4. The learned A.P.G. has raised legal objection regarding maintainability of the instant application under section 561-A Cr.P.C. It has been argued that the instant criminal miscellaneous application does not lie against the order passed under section 173, Cr.P.C. by Magistrate. He has further submitted that the order passed on report under section 173 Cr.P.C. submitted by Police before the concerned Magistrate for its approval and the order of the Magistrate is an administrative order and cannot be termed as judicial order against which remedy in terms of revision or through filing the application under section 561-A, Cr.P.C. is provided under the law. He has placed reliance on PLD 1985 SC 62, PLD 1994 SC 281 and PLD 2001 Lahore(sic). Mr. Muhammad Akbar Awan, learned counsel for the respondents Nos.3 and 4, contended that after passage of the order by Vth Judicial Magistrate which is well within the ambit of section 173, Cr.P.C. and the prayer of applicant for setting aside order dated 21-5-2013 and 30-5-2013 and seeking direction for reinvestigation of the F.I.R. is without force and it is a case of no evidence wherein the abductee has been examined under section 164, Cr.P.C. and recorded her voluntariness as to marriage and for going with her father-in-law, therefore, there is no illegality or irregularity in the orders passed by Magistrate as such the application merits no consideration.

5. I have given anxious consideration to facts and law and find that the order passed by the Magistrate on the report of police under section 173, Cr.P.C. has been assailed under the inherent power vested in this Court I have also in my mind that the Judicial Magistrate has recorded statement under section 164, Cr.P.C. statement of sui juris wherein she has stated before the Magistrate as to her voluntariness of marriage and as such the order passed by him on report of police under section 173, Cr.P.C. embodies in it the essence of 164, Cr.P.C. statement made before him.

6. I am of considered view that a case triable by Sessions Court cannot be cancelled by Order of Magistrate however the Magistrate is required to act judicially, fairly and honestly while passing order on the report under section 173, Cr.P.C. and after going through the material available before him. In the present case the material which has been considered by the Magistrate particularly statement under section 164 Cr.P.C. of abductee and her free will to lead herself, heavily clouds the ingredients of section 365-B, P.P.C. for which two basic essentials are necessary that removal of woman from one place to another under compulsion or through inducement by deceitful means and the object of such removal must be to compel her to marry any person against her will or in order that she could be forced or seduced to illicit intercourse as has been held in 2010 PCr.LJ

182. Reliance is placed on 2005 YLR 1939.

7. I have also in my consideration PLD 1985 SC 62 wherein Magistrate concurring with police report does not function as a criminal Court and order of cancellation of criminal case is not amenable to revisional jurisdiction of a High Court as some of his powers and duties are administrative, executive, which he discharges not as Court but as a persona designata however, a Magistrate even while concurring in cancellation of case is required to judicially examine the report under section 173, Cr.P.C. fairly, justly and honestly. Whereas in the instant case inasmuch as the alleged abductee is shown in F.I.R. to have taken away jewelry and other articles and thereafter her free will and her statement under section 164, Cr.P.C. recorded as sui juris contrary to the version of F.I.R. shakes credibility of F.I.R. and the Magistrate is empowered to pass an order under section 173, Cr.P.C. in given spectrum as the alleged abductee contracted marriage without compulsion or any inducement and her statement to such effect under section 164, Cr.P.C. supports the case of the respondents. However, the aggrieved party is free to institute complaint on the same facts and the same Magistrate does not even after passing of such an order render himself functus officio as has been held in PLD 1985 SC 62.

8. In view of the above, I do not find any force in the present application under section 561-A, Cr.P.C. which is dismissed accordingly. MH/A-107/Sindh Application dismissed.