2005 PLP 827 (YLR)

Amir Ajam Malik for the Complainant. Khalid Shamshad Rana for the State. Date of hearing: 15th March, 2004. This petition is directed against order, dated 16‑6‑2003 passed by the learned Additional Sessions Judge, Bahawalpur, in case F.I. R. No.405 of 2001 registered at P. S. Khairpur Tamewali for offences under sections 16/10(2), Offence of Zina (Enforcement of Hudood) Ordinance, 1979, whereby the learned Judge acquitted co‑accused Mst. Nasreen Akhtar of the charges but framed charge against the petitioner for offence under section 16 of the Ordinance. The relevant facts are that on the statement of Irshad Ahmad, above‑noted F.I.R. was registered on 19‑12‑2001 for offence under section 16, Offence of Zina (Enforcement of Hudood) Ordinance. During investigation, section 10(2) of the Ordinance was added. The prosecution case as per F.I.R. was that Nazir Ahmad‑petitioner, who used to visit the house of complainant, developed relationship with Mst. Nasreen, wife of the complainant, who was stopped from visiting the house. However, the meetings continued. While the complainant was away at Mailsi, Mst. Nasreen left her house. During search P. Ws. informed the complainant that they had seen Mst. Nasreen in the company of Nazir Ahmad‑petitioner, who were riding a motorcycle. The complainant approached Nazir Ahmad who promised to return Mst. Nasreen Mai. As the promise was not fulfilled, the matter was reported to the police. After completion of investigation report under section 173, Cr.P.C. challan was prepared for offence under sections 16/10(2). Offence of Zina (Enforcement of Hudood) Ordinance against the petitioner as well as Mst. Nasreen and they were sent up to face trial. The learned Trial Court, vide order, dated 16‑6‑2003, acquitted Mst. Nasreen for the reason that no incriminating evidence was available. However, the learned Trial Court in its wisdom framed charge under section 16 of the Ordinance against the petitioner. Hence, this petition.

3. Learned counsel for the petitioner was that no incriminating evidence was avail le against the petitioner, as, according to the prosecution case, Mst. Nasreen had eloped with Nazir Ahmad and in the case of elopement, the question of abduction does not arise. Conversely, learned counsel for the complainant has argued that the petitioner and Mst. Nasreen wife of the complainant, were seen together by Ahmad Bakhsh and Abid Hussain, P. Ws. and, therefore, it cannot be said that it was a case of no evidence. He has further argued that the petitioner has been named in the F.I. R. Learned counsel appearing on behalf of the State has adopted the line of arguments of the learned counsel for complainant.

4. I have heard the learned counsel for the parties and have perused the available record.

5. It has been noticed that the matter was reported to the police after a delay of 2‑1/2 months; that it was admitted in the F. I. R. that Mst. Nasreen and the petitioner were on visiting terms. Statement of Mst. Nasreen was recorded under section 164, Cr.P.C. by the Area Magistrate on 8‑2‑2002. A perusal of the same reveals that she had categorically denied that she was abducted by the petitioner. According to above‑noted statement, Mst. Nasreen Mai had left her house out of her own, as the complainant used to subject her to torture. According to her, she was living with her parents. Even if it is believed for the sake of argument that Mst. Nasreen was seen by the witnesses while she was riding a motor cycle which was being driven by the petitioner, even then it cannot be presumed that the petitioner had taken or enticed away Mst. Nasreen with the intent to commit Zina with her.

6. The upshot of the whole discussion is that no cogent incriminating evidence is available against the petitioner to warrant his conviction. In the circumstances, the continuation of proceedings against the petitioner before the learned trial Court would be an exercise in futility and an abuse of process of Court. Thus, I allow this petition and quash the proceedings pending against the petitioner before the learned trial Court. H.B.T./N‑127/L Proceedings quashed.