O R D E R S H E E T

IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA

Crl. Misc. Application No. 83 of 2009

Date	Order with signature of the Judge

1. For orders on office objection No.1 as flag ‘A’

2. For Katcha Peshi.

28.10.2009.

Mr. Syed Abdul Rasheed Shah, advocate for the applicant.

Mr. Rafique Ahmed Abro, advocate for Respondent No.1.

Mr. Nisar Ahmed Abro, State counsel.

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Respondent No.1 lodged an FIR against the applicant and her two sons. The background of the controversy is that the cousin of the complainant of the FIR, Ghulam Shabir, was married to one Mst.Zubeda Khatoon to whom he divorced and the children from Mst.Zubeda Khatoon were retained by Ghulam Shabir who was living in the house of the complainant. There was a background of matrimonial dispute prior to divorce which resulted in the divorce. In the FIR it is alleged that on the day of incident Mst.Akhtiar Khatoon, the mother of Mst.Zubeda along with her two sons, entered the house of the complainant and forcibly kidnapped the children of Ghulam Shabir. The case under section 17/3, EHO, 364-A, 506/2, 148, 149, PPC was registered at Police Station Staurt Ganj, Shikarpur. Police after investigation cancelled the FIR in ‘B’ class. The reason which mainly prevailed for canceling the FIR was statement of Mst.Zubeda who is the mother of the alleged kidnapped children and the statement of Gul Mir, who is the real brother of the complainant and lives above the house of complainant. The statement that was recorded by Mst.Zubeda and Gul Mir are as follows:

“I namely Mst:Zubaida D/o Abdul Ghafoor Panhyar W/o Mohammad Ali Jhullan R/o Lakhi Dar Shikarpur do hereby state that about 9/10 years back my marriage was solemnized with my cousin Ghulam Shabir Panhyar out of wedlock there I one daughter namely Sanam now aged about 5 years and one son namely Mohammad Ismail now aged about 03 years. About 03 years back my son Mohammad Ismail was born through scissors and there after my husband left me in the house of my mother and all the expenses of operation were borne by my parents. In exchange my brother Zaheer Ahmed is married with my cousin Mst.Zameeran and she after one month of the marriage went to the house of her parents due to matrimonial disputes, and our disputes were increased and Mst.Zameeran approached to the Honourable Court for dissolution of her marriage and so also I have also approached the Honourable Court and both the parties were divorced. Mst.Sanam and Mohammad Ismail are residing with me. After observing Iddat Period with the consent of my parents I have contracted marriage with one Mohammad Ali Jhullan, Sanam and Ismail are residing with me in the house of my husband and I used to provide Education, food, clothes etc and used to maintain them. My Ex husband till now have not provided any maintenance to his children. My children are minors and after being Major they are free to lead their life with their own free will. My uncle Muhammad Haneef with the help of my ex husband Ghulam Shabbir have concocted the false story in order to pressurize my parents and by the orders of the honourable Court lodged false complaint upon my mother and brothers. My children Sanam and Mohammad Ismail are happy with me and I have also produced them as proof in the Honourable Court, this is my statement”.

Statement of Gul Mir

“I, namely Gul Mir s/o Wahid Bux Panhwar R/o Kunbher MOhallah Shikarpur do hereby state that rime No.133/2008 for an offence under section 364/A, 17/3 H.O, 506/2, 148, 149, PPC P.S Staurt Ganj’s complainant Mohammad Haneef is my brother. There is one house which is constructed double storey, on the upper storey I used to reside with my family while Mohammad Haneef is residing in the lower storey along with his family members, Abdul Ghafoor is my cousin, Ghulam Shabbir is the son of my cousin, the facts are that Abdul Ghafor and Abdul Ghani party have got exchange marriages but due to domestic disputes both the parties got divorces through court. Due to domestic disputes Abdul Ghafoor sold out his house and used to reside in Amin Shah Chishti since one year, Mst.Zubaida d/o Abdul Ghafoor has two children Sanam and Mohammad Ismail who are residing with their mother. The FIR lodged by Mohammad Haneef is false and baseless no such incident has taken place. Now Mst. Zubaida got married with Mohammad Ali Jhullan and they are living happy life. “

The trial Court did not accept the report of police under section 173, Cr.P.C and stated that the statements of the prosecution witnesses have made out a case against accused persons and therefore he rejected such police report.

Learned counsel for the applicant states that the entire controversy was based on the background of matrimonial dispute and on the basis of statements of two prosecution witnesses i.e. brother of the complainant and mother of the children there was no likelihood of conviction and the report under section 173, Cr.P.C ought not to have been summarily brushed aside by the trial Court.

Counsel for the complainant, on the other hand, argues that to prove that it was only matrimonial dispute and no criminal act was committed has to be decided only after evidence is recorded. He further submits that the order ought to have been challenged before Sessions Judge. He has relied upon 2002 SCMR 63 and an unreported judgment of this Court passed in Crl. Misc. Application No.48/2009 (Khadim Hussain v. The State ).

Learned State counsel submits that the police having come to conclusion that it was a matrimonial dispute which have led to the registration of false case hence the report under section 173, Cr.P.C was rightly submitted and the trial Court committed error in ignoring the same.

With regard to jurisdiction of this Court obviously jurisdiction under section 561-A, Cr.P.C is concurrent and this Court can interfere in such cases. With regard to the merits of the order passed by the trial Court, the investigating officer had come to the conclusion only after investigating the mater regarding statement of the prosecution witnesses and the other witnesses and what prevailed for treating the FIR as false was the statement of none other but the mother of the children and the brother of the complainant himself. The contents of the FIR further do not disclose the relationship of the accused persons with that of the complainant or father of the children in order to make out a plausible case. This coupled with the statements referred to above made the investigating officer to come to the conclusion that it is false case and is to be disposed of in ‘B’ class. No doubt the trial Court has power to reject the report of the investigating officer but then there has to be cogent reasons for that which are absent in the impugned order. Hence the order of the trial Court is set aside and prayer made in this application is granted. This application is allowed.

Judge