P L D 2007 Supreme Court 48 (PLP)

KHALIL-UR-REHMAN RAMDAY, J.

A son of Sultan respondent namely, Irfan (respondent No.8), enticed away/abducted a daughter of one Muhammad Yamin (respondent No.4), namely Mst. Samrina. An F.I.R. bearing No.66 was recorded on 13-4-2004 at Police Station Kallur Kot of District Bhakkar. It is alleged that Sultan respondent thereafter maneuvered a compromise with the family of the said Mst. Samrina i.e. Yamin respondent and others as a result of which compromise, a female of the said Sultan party was agreed to be given away to a member of the said Yamin party. The axe fell on one Mst. Shamim Akhtar, a daughter of Nazir (respondent No.9) and whose only fault was that she was a daughter of a sister of the above-mentioned Irfan accused of Mst. Samrina's abduction case. She was agreed to be given away to a brother of the said Mst. Samrina, namely, Muhammad Ameer (respondent No.5). This Mst. Shamina Akhtar was, however, only eight years of age when her alleged Nikah was consequently performed with the said Amir respondent.

2. On receiving this information, Mallee Khan, S.I. of Police Station Kallur Kot recorded an F.I.R. bearing No.90 at the said Police Station on 29-3-2006 for the alleged commission of an offence punishable under section 310-A read with section 109 of the Pakistan Penal Code. It appears on record that some of the accused persons secured their release on bail whereafter Sutlan respondent filed a writ petition in the Lahore High Court bearing Writ Petition No.4529 of 2006 seeking quashment of the said F.I.R. which was allowed essentially on the ground that the said offence under section 310-A was added to the P.P.C. on 11-1-2005 while the alleged occurrence had taken place on 27-9-2004 and that in view of the provisions of Article 12 of the Constitution the said new offence could not operate retroactively.

3. Aggrieved of the said order, the State is before us impugning the same.

4. On a notice issued, the said Mst. Shamim Akhtar has been produced before us by the members of her family. Her father Nazir respondent, her maternal grandfather Sutlan respondent and others are also present being assisted by Mr. Ghulam Farid Sanotra, Advocate Supreme Court.

5. The learned counsel for the parties have been heard.

6. The learned High Court was right in holding that the amendment brought in section 310 of the P.P.C. prohibiting the giving of a female, in marriage or otherwise as Badl-i-Sulah and the consequent addition of section 310-A in the said Code making the same an offence had been enacted and enforced through the amending Act No.1 of 2005 with effect from 11-1-2005 and the same could not be allowed to act retrospectively to cover the present occurrence which had taken place much earlier.

7. We may add yet another reasons which would militate against the attraction of the offence of section 310-A, P.P.C. to the facts of the present case. What is an offence created by said provisions is giving of a female, in marriage or otherwise as "Badl-i-Sulah" which is a concept confined only to the offences affecting the human body i.e. the offences mentioned in Chapter XVI of the Pakistan Penal Code which offences had since been made compoundable i.e. which admit of "Sulah". But in the present case, Mst. Shamin Akhtar minor was given away in marriage to Amir respondent on account of a compromise in a case of enticement/abduction of a female which offence was not compoundable and thus did not admit of "Sulah". There was thus no question of the female in question having been given as "Badl-i-Sulah" in terms of the Pakistan Penal Code which, therefore, could not bring the matter within the ambit of section 310-A of the P.P.C.

8. Be that as it may, the fact remains that an F.I.R. could not have been quashed or the same could not have even been cancelled only because a section of a law creating 'an offence which was mentioned in the F.I.R. did not stand made out but it could have been done only and only if it could be declared that no offence whatsoever was disclosed by the facts alleged through such an F.I.R. or a complaint etc.

9. This was not the situation in the present case because even if it is presumed that an offence under section 310-A, P.P.C. was not attracted in the present case then the provisions of section 13 of the offence of Zina (Enfocement of Hudood) Ordinance No.VII of 1979 which had escaped the notice of the High Court and which section was a re-enactment of the repealed provisions of section 372, P.P.C., did at least prima facie, stand attracted in the present case.

10. In this view of the matter, we find that the quashment of the F.I.R. in question within about two months of the lodging of the same without permitting the investigating agency to collect evidence in the matter enabling then the competent Court to determine whether some offence did or did not stand made out or attracted, was not justified.

11. Consequently, this petition is converted into an appeal which is allowed as a result whereof the impugned order dated 25-5-2006 passed by the Lahore High Court in Writ Petition No.4529 of 2006 is set aside. The Incharge of the Police Station Kallur Kot shall now be free to proceed with the said F.I.R. in accordance with law.

12. As has been mentioned above, some of the accused persons of the present case appeared to have been admitted to bail by some learned Magistrate before the said F.I.R. was quashed. With the quashing of the said F.I.R. the said bail granted to them ceased to be in the field and moreso when the said bail did not ensure for an offence punishable under the said section 13 of Ordinance No.VII of 1979. The competent police officer would, therefore, be at liberty to arrest the persons accused of the commission of the said offence in accordance with law while the said accused persons would be free to move the competent Court with a fresh application for grant of bail to them. M.H./S-65/S Appeal allowed.