ORDER SHEET
IN
THE HIGH COURT OF SINDH, KARACHI
C.P.
No.D-4172 of 2012
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Date Order with signature(s) of Judge(s)
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For
Katcha Peshi
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16.05.2013
Mr.
Abdul Wahab Baloch, Advocate
along with Petitioners
Ms.
Rahat Ahsan, D.P.G. along
with ASI Syed Mehdi Masood of P.S. Mubina Town, Karachi
Mr.
Mehmood A. Baloch, Advocate
for Respondent No.5.
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Through the instant petition, petitioners
Mst. Samar Hassan and Junaid Ahmad have prayed for
the following reliefs:
(a)
To quash the F.I.R. bearing No475/2012
under section 496-A/109/34 PPC, P.S. Mobina Town
registered against the petitioners because the petitioners have surrendered
themselves before this Court and categorically stated that she is entered in
marriage with the Petitioner No.2 as sui juris.
(b)
To direct the Investigating Officer of
this case not to arrest the petitioners and other family members of the
Petitioner No.2 till disposal of this petition.
(c)
To direct the Station House Officer of
Police Station Mobina Town, not to harass the family
members of the petitioners because the Police of Mobina
Town Police Station raiding the house of the parents of the Petitioner No.2
even at the odd hours of night.
(d)
Any other relief which this Honourable
Court deem fit and proper in the circumstances of the case.
Notices were issued to the respondents
as well as Prosecutor General Sindh.
Brief facts leading to the filing of
instant petition are that petitioner Mst. Samar Hassan is a graduate, she has
married to petitioner No.2 against the wishes of parents. She has further
stated that her parents wanted to give her hand to Respondent No.5 but she was
not prepared. She has stated that her father used to give her drugs and she was
admitted in hospital. She has also sworn affidavit in which she has stated that
he is unmarried and wanted to marry petitioner No.2. Copy of Nikahnama and freewill have been placed on record.
Learned advocate for petitioners
argued that petitioner No.1 was not abducted and offence under section 496-A PPC
is not made out, proceedings would be abuse of the process of law.
Investigation Officer has recorded
statement of petitioner No.1, she has reiterated the
same facts and stated that she has married to Petitioner No.2 with her own
choice, however, against the wishes of the parents.
Learned Advocate for Respondent No.5
argued that petitioner Mst. Samar
Hassan without seeking divorce from the previous husband has contracted
marriage with Junaid Ahmad.
Ms. Rahat Ahsan, learned D.P.G. in view of the statement of
petitioner No.1, recorded by investigation officer, recorded no objection for quashment of the proceedings.
We have carefully
perused the statement of Mst. Samar Hassan recorded by I.O., in which Mst. Samar Hassan has stated that she has married to
petitioner No.2 with her free will, however against the wishes of her parents.
She is a graduate and knows pros and cons. As regards to the contention of
learned advocate for Respondent No.5 that petitioner is already married to
respondent No.5, the genuineness or otherwise of the Nikahnama,
which has been placed on record can only be adjudicated by the Family Court. Even
if the allegations contained in the FIR are admitted even then no offence under
Section 496-A P.P.C. is made out against the petitioners.
For the sake of convenience Section
496-A P.P.C. is reproduced as under:
“496A.--Enticing or
taking away or detaining with criminal intent a woman. – Whoever takes
or entices away any woman with intent that she may have illicit intercourse
with any person, or conceals or detains with that intent any woman, shall be
punished with imprisonment of either description for a term which may extend to
seven years, and shall also be liable to fine.”
The malafide of the complainant is palpably floating on the
record, whereby he has entangled petitioners in connivance with the officer incharge of the concerned police station. Petitioner No.1
is educated lady, she has denied her abduction. On the basis of the allegations
no offence is made out. In this background of the events, non-interference of
the High Court would tantamount to allow illegality and highhandedness to
perpetuate. Rather the High Court would be failing to discharge its obligations
as mandated under the law to step in and to prevent the abuse of the process of
the Court and to pass an appropriate order to secure the ends of justice.
Reliance can be placed upon the case of HAKIM ALI AND ANOTHER VS. PROVINCE
OF SINDH THROUGH SECRETARY AND 10 OTHERS (PLD 2009 KARACHI 297). This is a
fit case for quashment of the proceedings, therefore,
for the above stated reasons, Petition is allowed, the
impugned FIR and proceedings pending on the basis thereof are hereby quashed.
Consequently,
instant constitutional petition stands disposed of accordingly.
JUDGE
JUDGE
Gulsher/PA