2016 PLP 1180 (MLD)

SHAHNAWAZ TARIQ, J.

By this single order, I intend to dispose of C.P.No.S-2439 of 2015, filed by petitioners Mst. Wazeeran and Dur Mohammad seeking protection to their lives and liberty and Cr.M.A.No.S-371 of 2015, filed by them assailing the order dated 23.06.2015, passed by learned Judicial Magistrate, whereby Investigation Officer was directed to submit Challan against them.

2. Relevant facts narrated in Constitution petition are that petitioner No.1 Mst. Wazeeran contracted marriage with petitioner No.2 Dur Muhammad without consent of her parents whereupon respondents No.4 to 11, who are her family members and close relatives, became annoyed and respondent No.4 Mohammad Bux lodged FIR No. 75 of 2015 at Police Station, Ubauro, under section 365-B, P.P.C. against petitioner No.2 and his 4 other family members regarding forcible abduction of petitioner No.1 on gun point. It is further averred that after registration of aforesaid FIR, respondents Nos.4 to 11 held a Jirga and declared the petitioner No.1 as 'Kari' and wanted to murder both the petitioners; when petitioners came to know about such Faisla, declaring them as 'Karo Kari', they approached respondent No.3, SHO Police Station Ubauro to provide them protection against the serious harassment caused by the private respondents, but respondent No.3 failed to provide them protection. It is further alleged that after registration of said FIR, respondents Nos.4 to 11 forcibly entered into the house of petitioners, but they succeeded to flee away by scaling over the wall of their house. Subsequently due to intervention of neighbors, petitioners again reached their house and found that 5 Tola Gold, 200 grams silver, 2 buffalos, two cows, two calf, 32 goats, were missing which were taken away by the respondents along with other utensils of house. Petitioners made complaint to respondent No.3, SHO Police Station Ubauro regarding highhandedness of respondent Nos.4 to 11, but he neither paid any heed nor initiated any legal action against said respondents. Respondent No.4, who is Zamindar and influential person of the locality, is compelling the petitioner No.2 to return the hand of petitioner No.1 otherwise he will be murdered. Petitioners are hiding themselves on different places due to serious apprehension to their lives at the hands of respondents. It is further prayed that official respondents may be directed not to register any false FIR against the petitioners and provide them protection against private respondents.

3. In Criminal Misc. Application No.S-371 of 2015, applicants stated that they contracted their marriage out of their love affairs against which Muhammad Bux, father of applicant No.1 Mst. Wazeeran, lodged PLR No.75 of 2015, under sections 365-B and 452, P.P.C. During the course of investigations, Investigating Officer recorded the statements of PWs, independent witnesses as well as statements of applicants and after considering their Nikahnama and other documentary proof, Investigation Officer submitted summary report under 'B' Class before learned II Civil Judge and Judicial Magistrate, Ubauro, but learned Magistrate did not agree with the report and directed Investigating Officer vide order dated 23.6.2015, to submit Challan against proposed accused persons including applicant No.2, Dur Muhammad. Applicants prayed to set aside order dated 23.06.2015, passed by the II Civil Judge and J.M Ubuaro and restrain SHO Police Station Ubauro not to cause arrest of applicants along with other nominated accused in FIR.

4. Petitioner No.1 Mst. Waziran present in Court submitted that she being sui-juris performed her Nikah with petitioner No.2 Dur Muhammad out of their love affair on 22.04.2015, and since then spouses are residing together happily neither petitioner No.2 kidnapped her nor forced her for their marriage. She further stated that she had also filed a criminal misc. application before Judicial Magistrate, Lahore, for protection against her father Muhammad Bux and uncle Muhammad Mumtaz, who became annoyed and are issuing serious threats to both the petitioners and also lodged false FIR No.75 of 2015, at Police Station Ubauro, under section 365-B, P.P.C.

5. ASI Hakim Ali, Investigating Officer of the crime is present in Court and he was directed to record statement of petitioner No.1, Mst. Wazeeran, who recorded her statement and has filed copy of the same which is taken on record, whereby she reiterated same facts that she was not kidnapped by the petitioner No.2, but they have contracted their marriage without any pressure and undue influence.

6. Learned AAG undertakes to provide protection to the petitioner as and when they will approach the concerned police. Mr. Athar Hussain Abro, Advocate files vakalatnama on behalf of respondent No.4, Muhammad Bux, which is taken on record and he submitted that Challan has already been submitted against the accused persons and case is pending before the learned trial Court.

7. Bare perusal of impugned order emanate that learned Judicial Magistrate has not appreciated the summary report including other material placed before him by Investigating Officer judiciously, and vide impugned order directed the Investigating Officer to submit Challan against the petitioners. Undeniably, statement of petitioner No.1 supported with her nikahnama was sufficient to contradict the averments and allegations narrated in FIR.

8. It is well settled that after submission of Challan, accused approach the trial Court and agitate his innocence by filing application for his acquittal instead of invoking Constitutional jurisdiction of the High Court under article 199 of Constitution of Pakistan. However, in present case, Investigating Officer has conducted investigation in appropriate and proper manners and after verifying the authenticity of Nikahnama of petitioners, he submitted summary report under 173, Cr.P.C. under "B" class, which has invalidated the allegations made in FIR and such negation has created a valuable right in favour of accused. Conversely, it was mandatory for the learned Magistrate to scan the summery report supported with relevant record with a prudent mind and pass appropriate and well discussed order while declining summery report and simultaneously taking cognizance of the alleged offence and directed Investigating Officer to submit Challan against accused, but learned Magistrate has declined such summery report in the mechanical manners and without any justification and mentioning valid grounds.

9. Indeed, perusal of impugned order passed by learned Judicial Magistrate from the face of it seems to be illegal and contrary to the settled norms of justice as well as law laid down by the honourable apex Court and in such cases where a gross illegality or material irregularities have been committed, High Court has to exercise its jurisdiction to save innocent persons from mental agony and injustice.

10. As sequel of above discussion, impugned order dated 23.06.2015, passed by the Court of learned II-Civil Judge and J.M. Ubauro, being incompetent and devoid of any legal substance stands set aside. Consequently, summary report submitted by the Investigating Officer in Crime No.75 of 2015, in "B" class is accepted in "C" class. Considering the above circumstances, instant Constitution petition and criminal miscellaneous application stand disposed of in the above terms. However, petitioners are apprehending their life risk at the hands of the private respondents, who have declared them as Karo Kari, therefore, SSP Mirpur Mathelo and SHO Ubauro are directed to ensure protection of both the petitioners strictly in accordance with law especially against the private respondents. Copy of this order may be transmitted to SSP Mirpur Mathelo and SHO Ubauro for information and compliance. RR/W-1/Sindh Order accordingly.