2011 PLP 1108 (MLD)

SYED ZAKIR HUSSAIN, J.

I have recorded the statement of Mst. Reena who is abductee and P.W. of the case F.I.R. No.5 of 2010 which is now pending before the learned IIIrd Additional Sessions Judge Karachi (East). I have also recorded the statement of the Investigating Officer of the same. Both the statements are reproduced as follows: Deposition of Ms. Reena (1) "On 4-7-2009 five persons already known to me being members of the same community entered my house at 12 noon and on gunpoint abducted me and also took away golden ornaments weighing 14 tolas and cash of Rs.4,84,750 which were lying as B.C. collected by my aunty. They forcibly took me with them pn their vehicle and confined me somewhere in Karachi for 7 days thereafter they took me to Khyber Pakhtunkhwa Province where they kept me in different places. During my confinement the culprits Abdul Haseeb and his brother Murad committed rape upon me and I was subjected to torture repeatedly until my father approached the Hon'ble Sessions Judge Mardan and the Police secured me and produced me before the learned Sessions Judge who handed over my custody to my father and we came back to Karachi. My father had already reported the matter of my abduction to the Police which was entered in daily station diary and thereafter it was converted into F.I.R. No. 5 of 2010 which was investigated and two culprits namely Hazrat Ali and Fakhar Alam were arrested. The culprit namely Abdul Haseeb got pre arrest bail from the Court of Sessions Judge, District East. The culprit Murad who was arrested subsequently is now confined in jail. The last one accused whose name is Gohar Ali and his parentage is Shams-ur-Rahman has not been arrested. I was sent to hospital where I was subjected to medical examination and the doctor gave his opinion as of torture and sexual assault on me. My statement under section 164, Cr.P.C. was recorded by the learned Magistrate during investigation of my case and. I made a detailed statement over there. On 22-5-2010 I had married with my cousin namely Gul Faraz. I was not married prior to the said marriage either with accused Abdul Haseeb or anybody else. I have not committed the offence of illicit marriage. The accused Abdul Haseeb influenced the Police through some Rangers Officer of Colonel level and under such influence succeeded in lodging F.I.R. of a concocted story of illicit marriage against my so-called legitimate marriage in which he claimed to be my husband and the Police registered the F.I.R. bearing No.331 of 2010 on 30-6-2010 against me, my father and his family members. We obtained bail before arrest from the concerned Court in the said F.I.R. Now Police has submitted the challan against me and others in the said F.I.R. before the concerned Court. Both the cases are pending in the Court of IIIrd Additional Sessions Judge, Karachi (East) namely Mr. Abdullah Channa who is not impartial and therefore, I having reasonable apprehension of getting no fair justice, decided to file the transfer application and therefore, we have come to this Court. Deposition of SIP Sajiad Hussain the I.O. of the case F.I.R. No.5 of 2010 I am the Investigating Officer of the case F.I.R. No. 5 of 2010 of Police Station Jamshed Quarters, Karachi which pertains to the offence of abduction and zina etc. in which Mst, Reena is abductee and witness. She was also examined under section 164, Cr.P.C. by the concerned Judicial Magistrate in which she has supported the case of prosecution against nominated culprits including, one Abdul Haseeb. To my knowledge said Abdul Haseeb lodged the F.I.R. No. 331 of 2010 in the same Police Station against Mst. Reena and others on the false and concocted story of his marriage with Mst. Reena levelling allegations that she has married illegitimately against the legitimate marriage and therefore, committed an offence applied in the matter. In the said F.I.R. father of Mst. Reena and her uncles and other family members are also nominated to have committed the same offence by abetment. The I.O. SIP Muhammad Pervez of my Police Station had knowledge of my case pertaining to the said F.I.R. and that of my investigation and so also he had knowledge of the fact that my witness Mst. Reena has been made accused in the said subsequent F.I.R. along with her father who is also witness in my case F.I.R. The SIP Muhammad Pervez also knew that my investigation was appropriate and I obtained sanction for prosecution from my department and that the F.I.R. No. 331 of 2010 carried a false claim and was nothing but a counter blast to frustrate the justice and my case, yet knowingly, SIP Muhammad Pervez submitted charge-sheet which is a parallel prosecution story to that of mine, and hence there appears altogether two different versions and charges whereby the complainant or victim of one case is accused in the other case, which is against public interest. SIP Muhammad Pervez to my knowledge, charge-sheeted the matter for the purpose of trial against the witness of my case with the sanction obtained on his part from the same source or channel by way of concealment of the facts of the earlier case based on F.I.R. No. 5 of 2010 and or by misrepresentation of thereof." The I.O. SIP Muhammad Pervez has not been able to answer the. Court's query that as to how two parallel prosecution cases of altogether different, stories are justifiable. In the circumstances, I am of the view that the case of the accused Abdul Haseeb in F.I.R. No.331 of 2010 being false, warranted prosecution of no charge-sheet for prosecution or trial etc. The same deserved to be disposed of as "B" class, which has not been done, and in that regard, the officer involved in this false and futile exercise, are liable for action both in criminal and on administrative sides as per law. This matter pertains to the prayer of transfer of both the cases in which Mst. Reena and her father are parties and in which, they are allegedly facing an unwarranted conduct of the learned trial Judge and owing to which, they have lost confidence in him. The sessions case or proceedings on the charge-sheet pertaining to the F.I.R. No.' 331 of 2010 is liable to be quashed in the circumstances, as the same as Already pin pointed, is nothing but an attempt to win-over the opposite party and to frustrate justice. The same on the other hand, is not likely to entail conviction and pendency thereof, will be nothing but an abuse of process of law. Consequently, the present application is converted into Criminal , Miscellaneous Application and the proceedings pertaining to the case F.I.R. No.331 of 2010 pending before the concerned Judicial Magistrate, Karachi (East), are hereby ordered to stand quashed. The application requesting transfer of the other case arising out of F.I.R. No. 5 of 2010 however, seems to be backed not by mere apprehension (of getting no justice in the matter from the concerned Presiding Officer) rather by substantial reasonings, therefore, it is ordered that the case proceedings pertaining to F.I:R. No.5 of 2010, shall stand withdrawn from the Court of the learned IIIrd Additional Sessions, Judge, Karachi (East) and transferred to the Court of learned Sessions Judge, Karachi (East), with the direction that he would proceed with the case on day to day basis. The I.O. (of the case FIR. No.5 of 2010) is bound down to produce all the witnesses before the Court on each date and he would get ready with all other material pertaining to the evidence of the case (required to be produced in Court, together with or through, the witnesses) and he will be available in the Court with no fault in appearance at all. The date of the matter is fixed as 15-9-2010, which is date of hearing in the matter already, in the Court of the IIIrd Additional Sessions Judge wherefrom, the case now stands transferred in the above terms. The C.C.P.O, Karachi is directed to look into the matter of criminal negligence of the SIP Muhammad Pervez and the officer who registered the F.I.R. and others found responsible in the matter and after taking appropriate action thereafter, submit report to this Court. For carrying out this exercise, he would be at liberty to hold inquiry at his own level or otherwise. In case, the above negligence constitutes any offence concerned officials will be booked for prosecution and trial accordingly. This transfer application stands disposed of in the above terms. The office is directed to allot number to this application as Criminal Miscellaneous Application accordingly. H.B.T./A-48/K Order accordingly.