P L D 1963 (W (PLP)

S. H. Jafri for Respondent. Dates of hearing : 7th and 15th June 1963. This is a petition under section 435/439/561‑A, Criminal Procedure Code, by Mushtaq Ahmed and his real brothers, Manzur Ahmed and Gulzar Ahmed, who are being prosecuted in the Court of the Additional City Magistrate, Quetta for the alleged commission of offences under sections 363 and 366, P. P. C. 2. The prosecution was launched on the report of Muhammad Amin at the Police Station, Qaidabad, Quetta on the 5th of December 1961, alleging that the petitioners had kidnapped his minor daughter, Mst. Shagufta Perveen, whose age was stated to be 152 years. The police, after investigation, put in challan against the petitioners on the 28th of January 1962, in the Court of the District Magistrate, Quetta, which was forwarded for trial to the City Magistrate, Quetta, on the 29th of January 1962. Since then twenty‑seven hearings in the case have taken place, the last one being on the 26th of March 1963, when the position as depicted in the order of the presiding officer was that none of the remaining prosecution witnesses who had still to be examined was present. It was observed in the order that special efforts should be made for the service of the prosecution witnesses and no further opportunity will be allowed. But in the meanwhile the petitioners filed the present petition in this Court. On the 25th of April 1963, to which the case had been adjourned, the learned Magistrate in a lengthy order decided to give a last chance to the prosecution to produce the remaining witnesses at the next date of hearing which was fixed for the 23rd of May 1963. It was observed in the order that "the prosecution had failed to produce any of the remaining P. Ws. in spite of the fact that on the last date of hearing it was ordered that all the remaining witnesses must be produced". 3. It appears from the proceedings of the case that the Additional City Magistrate commenced recording the prosecution evidence on the 26th of March 1962, when one P. W. only was examined. Three others were examined on the 31st of March 1962 and in quite a few further hearings ten more were examined, in a piecemeal manner when on the 27th of July 1962, it was directed that all the rest of the P. Ws. be summoned for the 22nd of August 1962. Since then, about fifteen hearings have taken place in the case between the dates the 22nd of August 1962 to the 25th of April 1963, during which only one witness P. W. 14 was examined on the 23rd of October 1962, and the case has been adjourned from one date to another during this period owing to the absence of the remaining prosecution witnesses. The record of the proceedings also discloses that repeatedly the prosecution was given a last chance to conclude its case but it failed to do so. Besides the absence of the witnesses, the case was adjourned twice on the 28th of January 1963 and the 29th of January 1963, because of the reasons as recorded in the orders of these dates that the Prosecuting Inspector who was incharge of the case for the prosecution was not in attendance. The personal appearance of two accused persons, Manzur Ahmed and Gulzar Ahmed, was dispensed with by the Magistrate on the 6th of September 1962, but Mushtaq Ahmed the third petitioner, has been in constant attendance at all the hearings of the case, each time after travelling a distance of 300 miles from his home town, Kashmore to Quetta, only to be told that the hearing was infructuous as the prosecution witnesses were not available. 4. I can realise the difficulties of the prosecution in procuring the services of its witnesses and a reasonable latitude should not be grudged to the prosecution in the matter of production of witnesses, specially in cases where the witnesses are of vital importance and the delay in effecting their service is due to reasons not attributable to the negligence or default of the prosecution. But this latitude has a determinable limit and, to my mind, it would be an abuse of the process of the Court if the prosecution were allowed to go on merrily to produce its witnesses as it chose to do so and be contented with merely routine orders from the Court of issuing process for the witnesses without the prosecution itself making an effective and a conscious effort to have the service of the witnesses effected or to arrange for their production in Court. The case in hand illustrates the indifference of the prosecution to see that the witnesses are served and produced in Court, and I consider that undue indulgence was shown to the prosecution in this case by allowing it repeated adjournments to produce its witnesses, although a number of times it was noted that no more opportunity would be allowed. As stated above, the presiding officer has once again on the 25th of April 1963, allowed a last opportunity to the prosecution to produce its witnesses. But in view of the previous history of the case, the "last opportunity" seems to have lost all real signifi cance. Even so, I would not have disturbed that order to stile the prosecution, although not without unfairness to the accused, if it were not for the reason that according to my reading of this case it is absolutely useless on the part of the prosecution to pursue this case and in fact its continuance constitutes an abuse of the process of the Court. The charge against the petitioner is based on the sole allegation that Mst. Shagufta Perveen, the alleged kidnapee, is a minor, below sixteen years of age. 5. The facts disclosed from the file are that Mst. Shagufta Perveen has married Mushtaq Ahmed. In this connection it would be useful to refer to the Judgment of the Division Bench of the Karachi High Court, comprising my learned brothers A. S. Faruqui and Wahid‑ud‑din Ahmed, JJ. in Writ Petition No. 108 of 1962, filed by Mushtaq Ahmed petitioner against Mirza Muhammad Amin, father of Mst. Shagufta Parveen (reported as P L D 1962 Kar. 442 for the issue of a writ of habeas corpus which gives a history of the events leading to the marriage of Mst. Shagufta Perveen with Mushtaq Ahmed, petitioner on the 2nd of December 1961, in accordance with provisions of the Muslim Family Laws Ordinance, 1961, and before she did so she was medically examined by Dr. Razia Sajjad at the Civil Hospital, Quetta, on the 8th of November 1961, and vide the certificate issued by Dr. Razia Sajjad (Photostat copy on the file) she was at the time about eighteen years of age. A certificate was also obtained from the Directorate of Education, Quetta Kalat (a photostat copy is on the file) showing her date of birth to be 12th of September 1941. Mst. Shagufta Perveen had made a statement before Syed Darbar Ali Shah, District Magistrate, Quetta‑Pishin, on the 10th of January 1962 that she had willingly married Mushtaq Ahmed. It appears that at some stage after the marriage she was taken away by her father, Muhammad Amin, but was not allowed to return to her husband, leading the latter to file the writ petition, referred to above. Her production before the Bench was ordered in that writ petition where she appeared and made a statement, affirming once again that she was a major and had married Mushtaq Ahmed of her own free choice. 6. The entire case of the prosecution hinges on the small point that Shagufta Parveen was a minor when she was allegedly taken away from the custody of her father and in proof of her minority the mainstay of the prosecution is allegedly her birth entry contained in the register of the births of the City of Jhelum, This register was summoned by the trial Court and the entry pertaining to Mst. Shagufta Parveen is exhibited as Exh. P. W. 12/A at serial No. 886. I have examined this entry and I have not been able to escape the impression that in its various columns it has patent signs of erasures and over-writings. I do not consider that the prosecution can lay much store by this entry to prove its point. The girl, Mst. Shagufta Parveen, has appeared before me today and from her appearance it is safe to say that she had crossed the age of minority by a wide margin. In these circumstances, I consider that it will be an abuse of the process of the Court to allow the prosecution case to bang on any further, and it would be obviously unfair to the accused persons, in the circumstances of the case, to let them remain in the agony of the trial of a case which as stated above in the ultimate result is bound to end in a failure. To my mind, the relentless desire of Muhammad Amin, the father of Mst. Shagufta Parveen, to continue the prosecution of the petitioners and indirectly of his daughter only reflects an abduracy of attitude on his part not to be reconciled to a situation that has become inevitable and which he must accept with good grace, viz., the wedlock of his daughter and the petitioner Mushtaq Ahmed, which Mst. Shagufta Parveen herself has willingly sponsored and accepted and which Muhammad Amin must also bless in the best interest of his daughter and the family. I accept the petition and quash the criminal proceedings pending in the trial Court against the petitioners in respect of the alleged abduction of Mst. Shagufta Parveen. K.B.A. Proceedings quashed.