1993 P Cr (PLP)

M.D. Khoso for Petitioner. Wajahat Hussain for the State. Date of hearing: 9th May, 1993. This is a petition moved under section 561-A, Cr.P.C. by one Mst. Hakam Mai, with a prayer that a case registered against her and others, vide F.I.R. No.42, dated 23-1-1988, under section 10/16, Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, at Police Station City Shujabad, District Multan, be quashed.

2. One Mst. Bilqees daughter of Jan Muhammad was married with Abdul Rasheed about 7 years before registration of the case, in village Khairpur, Tehsil Shujabad. As an army personnel, Abdul Rasheed served for some time at Sukkur and developed friendship with one Behram Khan Jahnwari, who was on visiting terms with the family and was suspected to have cultivated illicit intimacy with Bilqees, who deserted her husband and filed a suit for dissolution of marriage in the Family Court at Jacobabad on 5-12-1987. Mst. Manzoor Mai, widow of Jan Muhammad, mother of Mst. Bilqees made an application on 17-1-1988 before the Ilaqa Magistrate, Shujabad, who ordered the police to register a case against the accused persons, Behram Khan etc. alleged to have abducted away Bilqees with an immoral purpose. On a subsequent application made to the Magistrate, Mst. Bilqees also was arrayed as a co-accused.

3. It is submitted that this criminal case had actually been got registered as a counterblast to the suit for dissolution of marriage instituted by Mst. Bilqees against her husband Abdul Rasheed. Mst. Bilqees on 15-3-1988 filed a private complaint in the Court of the District Magistrate, Sukkur, against her husband, Abdul Rasheed, and his three relatives, for being proceeded against for commission of offences under section 341/323/382/506(2)/34, P.P.C., stating that after having been turned out of doors by her husband she (Bilqees complainant) had been putting up with her brother, Ghulam Hussain, at Ghari Sabhayo, District Jacobabad. On 14-3-1988 she with her brother had come to Sukkur for shopping, when her husband and his accomplices assaulted them, caused injuries to Ghulam Hussain, and made an attempt by use of criminal force to abduct her away, and she was also deprived of an amount of Rs.5,000.

4. In the case under the Hudood laws, registered at Police Station City Shujabad, all the accused Behram Khan etc. were challaned. Others absconded away, but Hakam Mai was arrested and her case was separated from the others under section 512, Cr.P.C. and the trial proceeds against her.

5. According to Hakam Mai petitioner, it is a false case having been registered one and a half months after the alleged incident, and the evidence is of hearsay character, as Haji Abdul Rehman and Sardar Ahmad had subsequently made Manzoor Mai and her son-in-law Abdul Rasheed aware of Mst. Bilqees having been seen going in company of Behram Khan etc. To counteract the action brought for dissolution of marriage by Mst. Bilqees, this criminal case had been got registered against her, as also her sympathisers. The case, according to the petitioner, being false, on the face of it, is liable to be quashed.

6. I am afraid, the aforesaid grounds urged by the petitioner are not enough to convince the Court that it is entirely a concocted or untruthful story that had been incorporated in the F.I.R. It will however be open to the accused to establish their aforesaid assertion and prove their innocence, on participation in the proceedings of trial. As regards Hakam Mai petitioner, however, this Court fords itself inclined to take a different view anti a lenient one. She is resident of a place in District Sukkur and claims to be a `Pardanasheen' old lady, and has been coming all the way from Sukkur to Shujabad to face trial in the Court of an Additional Sessions Judge at Shujabad. The police is either not taking any interest; else, other accused have slipped away to far-off places in Sindh, as the main accused Behram Khan and his male accomplice Qurban Ali have not been apprehended and God knows when will it be possible for the police to arrest them and bring them before the trial Court. Hakam Mai is sister of Behram Khan and Qurban Ali is her son. If, as is evident, Bilqees had cultivated illicit relations with Behram Khan, or otherwise was a consenting party to her disappearance or elopement with him, he (Behram Khan) obviously stood in need of no one else for taking her away; and it appears that his family members, Qurban Ali and Hakam Mai, were unnecessarily implicated, to bring pressure upon the family to force Behram Khan to sever connections with Bilqees and restore her to her husband Abdul Rasheed. Thus, so far as Hakam Mai is concerned, the proceedings of trial have now taken turn of either an exercise in futility, or the same amount to abuse of process of law, and it will only be in the fitness of things and in the interests of justice that she be saved from continued agony, as also from the rigors of trial.

7. Learned counsel for the petitioner has ably endeavoured to lay hands upon case-law on the subject and has cited relevant rulings, as Haji Muhammad Aslam v. Muhammad Aslam and others 1990 S C M R 211, Anand Ram v. Moti Ram P L D 1987 Quetta 230, Mian Munir Ahmad v. State 1985 S C M R 257, Syed Arshad Ali and others v. -Naveed Raza and another 1984 P Cr: L J 585, Abdul Ghafoor v. The State 1984 P Cr. L J 381, Mirza Naseem Beg v. Muhammad Iqbal and others 1981 S C M R 315, Muhammad Anwar v. State 1980 P Cr. L J 823 and Aun Saeed Hashmi v. State and others P L D 1976 Kar.

786. The principle enunciated is that High Court's jurisdiction under section 561-A, Cr.P.C. is co-extensive with the trial Court's jurisdiction under section 249-A and section 265-K, Cr.P.C. and is in fact wider than that and cannot be controlled by or subjected to the latter provisions. If the High Court, on examination of the material of a case, comes to the conclusion that interference by it is warranted and would advance the ends of justice, the wronged person must not be forced to approach the trial Court, in the first instance, for his or her acquittal, on facing regular trial. There is nothing to debar the High Court from entertaining such an application in appropriate cases and from exercising its powers under section 561-A, Cr.P.C. at any stage. If a criminal case has assumed the form of an exercise of mala fide, malicious and vindictive nature; even though it was not initially attended by malice or ill-will, and if continuance of proceedings has brought in its- wake manifest harassment, extreme inconvenience and untold agony for the accused, the High Court ought to exercise his inherent powers and step in, to prevent abuse of process of law, and the fact chat the accused has not yet moved the trial Court under section 249-A or 265-K, Cr.P.C. must not be permitted to stand in the way of the High Court in proceeding to secure ends of justice, in exercise of its inherent powers under section 561-A, Cr.P.C.

8. In the instant case, the poor, lady, as already said, has been facing trial for commission of an apparently serious offence under the Hudood laws, over several years, and the proceedings are not coming to close. As and when the male accused are arrested, they shall of course be brought before the Court to face these offences. No purpose of the prosecution would be served and interests of justice would not be advanced in keeping the case against Hakam Mai aimlessly lingering on. I, therefore, proceed to quash the case, so far as Hakam Mai accused is concerned. A copy of this order shall be conveyed to the trial Court. N.H.Q./H-87/L Petition allowed.