Cr.Misc.Application No.S-85 of 2009.

 

 

 

 

Muhammad Zubair                  v/s         The State

 

 

 

1.For Katcha peshi.

2.For hearing of MA 1103/09.

                              -

 

 

 

15.05.2009.       Mr.Noor Hassan Malik, advocate for the applicant.

                  Complainant present.

                  Mr.Imtiaz Ali Soomor, Asstt.A.G.

                              -

 

 

ARSHAD NOOR KHAN,J.-  By this application under section 561-A, Cr.P.C, the applicant has challenged the order dated 21.3.2009 passed by the learned Additional Sessions Judge (H), Sukkur in Sessions Case No.05/2006 The State v Farooque Sattar and others whereby application under section 265-K, Cr.P.C filed by the present applicant, was dismissed.

 

            The facts leading to the present application in brief are that on 31.10.2003 Mst.Zeenat aged about 14 years daughter of the complainant Muhammad Yasin, who was the student of 9th Class, was missing and according to him Mazhar  Punjabi  resident  of  Chanot  Punjab, with his friends has abducted her. The said Mazher Punjabi alongwith his wife Mst.Samina and son Umar used to reside with him without rent and one Rana Idress Rajput and Rasheed alias Mama Punjabi oftenly used to visit on which the complainant asked to Mazhar Punjabi to vacate the house on which Farooq requested for some days. On 16.10.2003 in morning time the daughter of the complainant namely Mst.Zeenat went to school and he went to workshop on his job when he returned at noon time, found that his daughter Mst.Zeenat did not return to home. At about 2-30 pm the guests of the complainant namely Muhammad Rehan and Javed came to him, who informed him that his daughter, who was in uniform of the school, was seen with Mazhar Punjabi, Mst.Samina wife of Mazhar Punjabi, Umar, Rana Idress, Rasheed alias Mama and Farooq Malik were going towards Bus stand Rohri and on enquiry they informed him that they are going to visit Locoshed. After hearing such information, the complainant went to the house of Mazhar, which was lying closed and then he went to Locoshed to the daughter of Rana Idress and Rashied alias Mama, which were also lying closed. He thereafter started search of his daughter but did not succeed, as such FIR as stated above, was registered.

 

            During the course of investigation, the accused Manzoor Sultan and Aijaz Ahmed were arrested and the remaining accused were declared absconders. It has further born out from the record that after about 1 year and 25 days the further statement of the complainant was recorded by the Investigating Officer and thereafter again another further statement of the complainant, was also recorded by the Investigating Officer on 5.8.2006 showing  his doubt in the present applicant, therefore the present applicant was arrested and was charge-sheeted before the leaned trial Court The complainant had also filed application before the honourable Supreme Court, which was registered as Human Right Case No.3410/2006, which was disposed off on  06-10-2006 on the ground  that since Mst.Zeenat has contracted marriage with one Mazhar alias Azher and the law had already adopted its course, therefore, human right case was disposed off.

 

            The present applicant after his arrest filed application under section 265-K,Cr.P.C but the learned trial Court did not concede the averments and contention of the learned counsel for the applicant and dismissed the same hence the present application.

 

            I have heard Mr.Noor Hassan Malik, learned counsel for the applicant, Complainant Muhammad Yasin in person and Mr.Imtiaz Ali Soomro, learned Assistant Advocate General for the State.

 

            The learned counsel for the applicant vehemently contended that the applicant has been implicated solely on the further statement of the complainant recorded after 3 years of the incident on 5.8.2006 whereby he showed his doubt in the present applicant who being relative of the actual culprits might be in the knowledge of the address and clue of his daughter, therefore, he may  include in the investigation. According to him, the said suspicion of the complainant in any way is not sufficient to implicate the present applicant simply because the applicant is the relative  of the actual culprit and since no material then the further statement of the complainant, is available on record, as such the case could not be ended in the conviction of the applicant as the proceedings against the present applicant would be abuse of the process of the court, as such the applicant may be acquitted from the charge under Section 265-K, Cr.P.C. In support of his contention he has relied upon the case reported in PLD 2008 Karachi 310.

 

            Learned Assistant Advocate General appearing for the State, frankly conceded that apart from the further statement of the complainant recorded on 05.08.2006 no other material is available on record against the present applicant, therefore, he will not support the order passed by the learned trial Court.

 

            The complainant present in Court reiterates that the present applicant must be in knowledge about the whereabouts of his daughter as the applicant is the relative of the accused  who kidnapped his daughter, as such his acquittal at this stage will cause prejudice to his case.

 

            I have considered the arguments advanced on behalf of the parties and have gone through the material available before me.

            There is no dispute to the proposition that the daughter of the complainant, namely Mst.Zeenat was missing from 15.10.2003 as he had gone to school and thereafter she did not return. The complainant lodged the FIR wherein he in detail has narrated  the whole facts of the incident coupled with the name of all the persons allegedly involved in the abduction of his daughter and initially the name of the present applicant, was not mentioned in the FIR. It is after about 3 yeas of the incident, the complainant recorded his further statement on 5.8.06 wherein he showed his suspicion in the present applicant who being relative of the actual culprits might be in the knowledge of whereabouts and address of the daughter  and because of his such statement, the present applicant was arrested by the police but to the satisfaction of the complainant, the whereabouts of his daughter could not be enlightened because of the arrest of the present applicant. Apart from the suspicion of the complainant in the present applicant, no allegation against the present applicant, is available on record or the complainant has implicated him in any other manner then the suspicion expressed by him. It is also an admitted fact  that the complainant had filed Human Right Case bearing No.3410/06 before the honourable Supreme Court and the honourable Supreme Court vide order dated 6.10.2006 disposed off the said human right case with the observation that the investigation was conducted and two persons were arrested. By the time further evidence could be gathered and it was reported that Mst.Zeenat had contracted marriage with one Mazhar alias Azher an the persons who were allegedly involved in the case have since been challaned and in these circumstances, the law had taken its course, therefore, no further action was warranted and human right case was disposed off. A perusal of this order passed by honourable Supreme Court shows that Mst.Zeenat had contracted marriage with one Mazhar alias Azher and presently no allegation against the present applicant is available on record even to show that he is in knowledge about the whereabouts of the daughter of the complainant or he participated the marriage of his daughter with that Mazhar alias Azher. The learned trial Court while dismissing the application u/s 265-K, Cr.P.C filed by the applicant has relied upon the case of the State through Advocate General Sindh High Court of Karachi v Raja Abdul Rehman reported in 2005 SCMR 1545, wherein the circumstances of that case are entirely different which were the proceedings under section 3&4 of Prohibition (EHO) Order, 1979. Whereas the present case is entirely on different footing and the facts and circumstances of the present case, are entirely different so far as the case of present applicant is concerned. The case law relied upon by the learned counsel for the applicant also supports the submission advanced by him.

 

            After examination of the material available before me as well as the further statement of the complainant dated 5.8.2006, I am of the opinion that the complainant has simply shown his suspicion in the present applicant about the whereabouts and address of his daughter and suspicion how so strong, it may be, could not be the result of the conviction against the persons against whom, the suspicion has been shown and in my opinion since this suspicion of the complainant is not sufficient to record any conviction, as such the case against the present applicant, in any way, could not be ended in his conviction finally and the proceedings against him, would be an abuse of the process of the Court.

 

For all the aforesaid facts and

circumstances, the application is allowed, the order dated 21.3.2009 passed by the learned Additional Sessions Judge (H), Sukkur, is hereby set aside and the applicant is acquitted from the charge under Section 256-K, Cr.P.C. The applicant is on bail before the trial Court, his bail bonds stand discharged.

 

                                                JUDGE

 

 

Akber. 

     

Approved for reporting.