1999 PLP 2520 (YLR)

Manzoor Ahmad complainant got recorded F.I.R. No.12, dated 9‑1‑1998 at Police Station Luddan, District Vehari under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 about the abduction of his married daughter Mst. Ummay Kalsoom wife of Muhammad Yasin by Noor Muhammad, Muhammad Zaman, Bashir Ahmad son of Muhammad Sarwar, Bashir Ahmad son of unknown and Mst. Raheban daughter of Wali Dad. Earlier to the registration of F.I.R. No.12 of 1998, Manzoor Ahmad filed Writ Petition No.2880 of 1998 as well as Criminal Miscellaneous No.484‑H of 1998 for the recovery of Mst Ummay Kalsoom. The grievance of the petitioner is that instead of arresting the accused persons the S.H.O., Police Station LWd4 District Vehari is harassing her by calling her to the police station who is desirous to place her in the column of accused persons as according to her, the S.H.O. is pestering her to compromise with the accused party as they are influential persons She filed this petition getting restrained the accused of the case as well as the S.H.O., Police Station Luddan, District Vehari from harassing her in any manner.

2. The comments have been submitted. An inquiry was also conducted by the Deputy Superintendent of Police, C.I.A., Vehari who has expressed that Mst. Ummay Kalsoom was the consenting party and that to put the pressure upon the accused from whom her father is desirous to grab the money this petition has been filed.

3. I have heard the learned counsel for the contesting parties as well as the learned Additional Advocate‑General and gone through the record before me. The main contention of the learned counsel for the petitioner is that the petitioner was forcibly removed who was threatened to death and due to that she was taken here and there to different Courts. He maintained that Mst. Ummay Kalsoom is not the accused of the case who cannot be harassed by the police. On the contrary learned counsel for the accused party as well as the learned Additional Advocate‑General laid the emphasis that Mst. Ummay Kalsoom herself joined the accused persons and for that reason she is the co‑accused. I would express that Mst. Ummay Kalsoom is a married lady and for that matter she cannot be treated as accused under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. According to the definition of Zina contained in section 4 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 ‑a man and a woman are said to commit ' Zina' if they wilfully have sexual intercourse without being validly married to each other. In the instant case Mst. Ummay Kalsoom is the wife of Ghulam Yasin and the said marriage still subsists. She has not obtained any decree for dissolution of marriage. Any of the accused cannot take the plea/defence of valid marriage with her. In this view of the matter the opinion of the Deputy Superintendent of Police, C.I.A., Vehari need not be given the weight. The statement of Mst. Ummay Kalsoom has been recorded by the police. She was under the grip of the accused party and cannot be said to have consented in the matter. Consequently, she cannot be harassed by the police either summoning her frequently at the police station or placing her in the column of the accused persons.

4. Consequently, I accept this writ petition and direct the respondents not to harass Mst. Ummay Kalsoom petitioner. The S.H.O., Police Station Luddan shall not treat Mst. Ummay Kalsoom as the accused of the case who is directed to submit the challan against the accused persons according to the statement of Mst. Ummay Kalsoom recorded under section 161 of the Code of Criminal Procedure. The needful shall be done within the period of 15 days from today failing which Mst. Ummay Kalsoom shall be entitled to move this Court for proceeding against the S.H.O. for contempt of Court. Q.M.H./M.A.K./U‑24/L Petition allowed.