IN THE HIGH  COURT OF SINDH  BENCH  AT  SUKKUR

 

Criminal Misc. Application No.S-303 of 2021

 

 

Applicant:                                          Munawar Ali Solangi, through                             Mr. Muhammad Haroon Pathan, Advocate.

Respondent:                                      Mr. Gul Feroze Kalwar, Advocate.

State:                                                 Through Syed Sardar Ali Shah, D.P.G.

Date of hearing:                                 23.08.2021

Date of decision:                                23.08.2021 

 

O R D E R

 

Zulfiqar Ali Sangi, J:              Through this Cr. Misc. Application, the Applicant has assailed the order dated 20.03.2021, passed by learned Additional Sessions Judge-III/Ex-Officio Justice of Peace, Naushahro Feroze, whereby his application for registration of FIR was declined.

 

2.       Learned counsel for the applicant, at the very outset, submitted that it is absolute right of every citizen to register FIR for a cognizable offence; that SHO of the concerned police station has no power to refuse an applicant from registration of FIR under Section 154 Cr.P.C for a cognizable offence; that the accused has committed an offence punishable under Sindh Child Marriage Restraint Act, 2013 as, according to him, Mst. Anum Fatima was under the age of 18 years at the time of her marriage. In the last, he prays that application may be allowed and SHO P.S. concerned may be directed to record the statement of Applicant and to lodge FIR if a cognizable offence is made out.

3.       On the other hand, learned Counsel representing the proposed accused as well as DPG contended that earlier an FIR bearing Crime No.78 of 2020 was lodged by son of the Applicant for abduction of same girl namely Mst. Anum Fatima and during investigation, the same was disposed of under ‘C’ class; that a Constitutional Petition bearing No. D-52 of 2021 was filed by said Mst. Anum Fatima for quashment of FIR bearing No.78/2020, under Section 365-B PPC, registered at P.S. Mithani, District Naushahro Feroze. They further submitted that Mst. Anum Fatima was also produced before I/C IInd Additional Session Judge Sukkur on 29-12-2020, where her statement was recorded wherein she stated her age as 22 years.  In the last, they submitted that this application is not maintainable and is liable to be dismissed.

 

4.       The present applicant approached the justice of peace for registration of FIR with the version that Mst. Anum Fatima was minor at the time of her marriage, therefore, under Child Marriage Restraint Act, 2013, was not entitled for marriage hence she alongwith others committed an offence punishable under Section 8 of the said act, which is cognizable, non-bailable and non-compoundable. Learned Justice of Peace declined the request of the applicant and the applicant approached this court for the same relief. It is observed that an FIR bearing No.78 of 2020 was registered at P.S. Mithani, District Naushahro Feroze, on 27.12.2020 by one Muhammad Aizaz (son of present applicant and brother of the Mst. Anum Fatima) in respect of kidnapping of Mst. Anum Fatima and after considering the Nikahnama as well as statement of Mst. Anum Fatima, the police disposed of the case under ‘C’ class and summary in this regard was also placed before learned Magistrate. This Court, in C.P. No.D-52 of 2021 filed by Mst. Anum Fatima and another, has passed the following order on 26.01.2021, which is reproduced herein below:-

 

“Petitioners are present alongwith their counsel. Mr. Babar Ali Mirani, advocate files power alongwith several documents with statement, on behalf of Respondent No.7, which are taken on record. Statements filed on behalf of SSP Sukkur, SSP Naushahro Feroze, SHO P.S. New Pind Sukkur and SHO P.S. Mithiani, taken on record. I.O of the case ASI Ghulam Sarwar present in Court submits that during investigation he has recorded statement of Petitioner No.1/alleged abductee, Mst. Anum Fatima under Section 161 Cr.P.C, in which she has stated that neither she has been abducted nor she is in wrongful confinement of any one and has contracted marriage with Petitioner No.2 Hussain Ahmed with her own free will without any coercion and compulsion. I.O further stated that after usual investigation he has recommended the case under ‘C’ class and submitted such report before learned Civil Judge & J.M. Naushahro Feroze, which is fixed on 27.01.2021. Learned Magistrate is directed to pass appropriate order on the report placed by the I.O in accordance with law within one week and such compliance report be placed before this Court through Additional Registrar of this Court.

In view of above, the instant petition is disposed of, however the official Respondents are directed to provide protection to the Petitioners in accordance with law”.  

 

 

5.                The applicant/complainant party not took this plea in the above said FIR in respect of the age of Mst. Anum Fatima. Record reflects that Mst. Anum Fatima was examined by the I/C IInd Additional Session Judge on 29-12-2020, wherein she stated her age as 22 years. This version was available with the applicant at the time when the investigation of FIR 78/2020 was in field. Learned Judicial Magistrate-III Naushero feroze on report under section 173 Cr.P.C passed order dated: 29-01-2021 and discussed the statement of Mst. Anum Fatima recorded before the Additional Session Judge Sukkur, wherein she recorded her age as 22 years and the same order has not been challenged before any forum which attained finality.  

 

6.       In the above circumstance, no case for registration of FIR is made out. Resultantly, this application is dismissed.

 

 

                                                                                  Judge

 

Faisal Mumtaz/PS