P L D 1984 Supreme Court 29 (PLP)

ASLAM RIAz HUSSAIN, J.-This petition by Muhammad .Saeed and 6 others is directed against the dismissal of their application for quashing the criminal proceedings based on a private complaint filed by Mst Nasreen Fatima against Muhammad Saeed etc., in a case under sections 6, 7 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, pending against the petitioners in the Court of Mr. Muhammad Younis, Additional Sessions Judge, Sargodha, dismissed vide the impugned , judgment dated 24-7-1983.

2. The facts giving rise to this petition are, briefly, that on 25-3-1982, Kazi Muhammad Rafiq made a report to the Inspector Incharge of the Police Station, Khushab to the effect that on the night between 24th and 25th of March, 1982, Muhammad Saeed petitioner had abducted his daughter Mst. Nasreen Fatima. It may be mentioned that Mst. Nasreen Fatima (respondent No. 2 herein) is a married woman and had been putting up with her father Kazi Muhammad Rafique. On the next day, i. e. on 26-3-1982, he lodged an F. I. R. with the police giving some more detailed version of the abduction of his daughter, naming Muhammad Saeed as well as two others, namely the real mother and the brother of Saeed. During the investigation Mst. Nasreen Fatima was recovered and lodged in Darul Amaan from where she was produced before a Magistrate Ist Class on 10-4-1983, who recorded her statement under section 164, Cr. P. C. In the said statement she completely exoneratad the accused and stated that, in fact, her husband was a vagabond, drunkard and used to beat her ; that she used to earn her own livelihood by doing labour; that she lived with her father after leaving her husband's. house; that her father told her that she was not needed by the family and that they would send her with her husband against her will. She stated further that no one had abducted her nor had any one done anything by force with her. It is noted by the Magistrate that after completion of her statement the Magistrate wanted to send her with her father but, the latter said that he (i. e. her father) did not wish to keep her in his house. The police found the accused person named in the F.I.R. to be innocent and the case was finally cancelled by the concerned Magistrate on 8-9-1982. But the very next day a private complaint under sections 6, 11 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was lodged by Mst. Nasreen Fatima in the Court of the Sessions at Sargodha, in which as many as 7 persons including the father, mother and one brother of Muhammad Saeed and four other persons (all of them are petitioners herein), were accused. It was also stated in the said complaint that after having abducted Mst Nasreen Fatima, Muhammad Saeed had committed rape on her.

3. The learned Sessions Judge transferred the case to Additional Sessions Judge, Sargodha, who in turn, marked it to the Magistrate Ist Class for inquiry under section 202, Cr. P. C. After holding inquiry the learned Magistrate sent his report to the learned Additional Sessions Judge, who issued non-bailable warrants against the accused-petitioners on 10-10-1982. Feeling aggrieved the petitioners filed quashment application under section 561-A, Cr. P. C. before the High Court for quashment of the proceedings.

4. It was urged before the High Court, inter alia; (i) that a private complaint could not have been entertained by the learned Additional Sessions Judge, Sargodha, directly and (ii) that the occurrence had taken place in Khusbab, as such the learned Additional .Sessions Judge, Sargodha did not have the jurisdiction to entertain and try the matter. Both these contentions were repelled by the High Court. The learned Single Judge in Chamber observed that the Additional Sessions Judge had not taken cognizance of the private complaint in the first instance but did so only when the report of the inquiry under section 202, Cr. P. C., had been submitted to him, and secondly, it is the prosecution's own case that after. abduction the accused had taken Mst. Nasreen Fatima from place to place and had also been brought to Sargodha. Therefore, in view of the provisions of. section 181 (4), Cr. P. C., the learned Additional Sessions Judge had jurisdiction to entertain and adjudicate upon the matter. The High Court, therefore, dismissed the quasbment application vide the impugned judgment dated 24-7-1983. Hence the present petition.

5. Before us the learned counsel for the petitioners urged both the abovementioned contentions, but we find no force in them as no exception can be taken against the view expressed by the High Court, with which we agree respectfully.

6. The counsel for the petitioners then argued that, in any case, the complaint filed by Mst. Nasreen Fatima is not likely to succeed' and the petitioners are bound to be acquitted and should not therefore, be permitted to be subjected to humiliation and harassment which is the only purpose for which the relatives of Mst. Nasreen Fatima have made her institute this complaint against the petitioners and other members of their family.

7. After having gone through the contents of the report dated 25-3-1982; the F.

1. R. ; the statement made by Mst. Nasreen Fatima under section 164, Cr. P. C. , dated 10-4-1982 and the private complaint filed by her, we feel that i there is force in the submission noted in para. No.

6. Mst. Nasreen Fatima is a grown up married woman and could not be induced to accompany the accused in the manner alleged by her. Moreover, there are variations in the version of the incident and drastic change have been made by including more accused each time the matter was reported to the police or to the Court through the private complaint. We are, therefore, inclined to agree with the learned counsel for the petitioners this is an attempt on the part of the complainant party to dishonour the petitioners because of the bad blood existing between the parties. Considering all the facts of the case in the light of the material before us, we feel that this is a fit case for quashment of proceedings in respect of a private complaint filed by Mst. Nasreen Fatima under sections 6, 11 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, pending in the Court of Mr. Muhammad Anwar, Additional Sessions Judge, Sargodha. We, therefore, convert this petition into appeal; accept the same and. quash the proceedings in the above-noted complaint case. M. z. M.? Appeal accepted. P L D 1984 Supreme Court 32