1990 P Cr (PLP)

Abdul Khair for Applicants. K.M. Nadeem, A.A.‑G. for the State. Date of hearing: 3rd October 1989. This is an application by Muhammad Salim, Mst. Hanifa alias Nanney and Abdul Ghxffar, under section 561‑A, Cr.P.C. praying that the proceedings arising out of F.I.R. No.259 of 1986, Police Station Shah Faisal Colony, Karachi, under section 11/16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, pending in the Court of 1st Additional Sessions Judge (East) Karachi, be quashed.

2. On 1,9‑11‑1986 at 8‑10 a.m. Muhammad Sarwar lodged F.I.R. at Police Station Shah Faisal Colony, Karachi, alleging therein that applicants Muhammad Salim and Mst. Hanifa have kidnapped his minor daughter Mst. Zahida Parveen with intent that she may be subjected to illicit intercourse. A case under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was registered. During the course of investigation it transpired that Mst. Zahida Parveen who is aged about 18 years had married with applicant Muhammad Salim of her own free will and the Nikah was solemnised on 15‑11‑1986 at Bahawalpur. Mst. Zahida Parveen was produced before Police Surgeon, Karachi for examination on the point of age and she was found to be 16 years old. During this period Mst. Zahida Parvcen was produced before a Magistrate who recorded her 164, Cr.P.C. statement in which he admitted the above facts. After completing the investigation the applicants were sent up to stand trial.

3. Admittedly Mst. Zahida Parveen is the legally‑wedded wife of applicant Muhammad Salim. The photo, copy of Nikahnama is on record. Mst. Zahida Parveen who was examined by Medical Superintendent, B.V. Hospital, Bahawalpur on 23‑11‑1986 was found to be 18 years old. She was a grown up lady and had married with applicant Muhammad Salim of her own free will which is evident from 164, Cr.P.C. statement which she made before A.C.M. (East) Karachi.

4. The power conferred on the High Court under section 561‑A, Cr.P.C. is for doing real and substantial justice. This power is to he exercised in exceptional cases, but where it appears to the Court that there is an abuse of process of Court then there should not be any hesitation in exercising such power. Instances are not lacking where allegations were even found to be so obviously false that even though if believed they would not constitute an offence. Mst. Zahida Parveen has attained the age of majority. She had entered into the marriage bond on 15‑11‑1986, three days prior to the lodging of F.I.R. She has all along supported the case of applicant Muhammad Salim by stating that she had married with him of her own free will. Under these circumstances the continuance of proceedings A against the applicants in a case under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, will amount to unnecessary harassment. The result is obvious and no Court on such evidence can convict the applicants on the l aforesaid charge.

5. I have, therefore, come to the conclusion that the case against the applicants must be quashed. The application made under section 561‑A, Cr.P.C. is allowed and the proceedings pending against the applicants before the B Additional Sessions Judge (East) Karachi, in Crime No.259 of 1986, Police Station Shah Faisal Colony, Karachi, are hereby quashed. SA./M‑988/K Proceedings quashed.