IN THE HIGH COURT OF SINDH AT
KARACHI
C.P.No.D-3544 of 2012
|
DATE |
ORDER WITH SIGNATURE OF JUDGE(S) |
1.
For Katcha
Peshi
2.
For hearing
of Misc.No.39507/2012
14.05.2013.
Mr. Jawed Anwar, Advocate for the petitioner.
Mr. Ali Haider
Saleem, A.P.G.
------------------
Through the instant
constitution petition, petitioner Muhammad Akbar seeks following reliefs:
(i)
To set
aside the impugned Order U/s. 173 Cr.P.C. dated 31st day of August,
2012 passed by the leaned IVth Civil & Family Judge / Judicial Magistrate
(South) at Karachi in connection with Criminal Case vide F.I.R. No.294 of 2011
U/s. 496-A of P.P.C. at Police Station Gizri Karachi in which the learned IVth
J.M. South was pleased to pass Order to get this Case re-investigated through
impartial police officer not below the rank of Inspector without applying
judicial mind, being ultra virus and based on misreading and non reading of the
evidence.
(ii)
To suspend
the operation of the impugned Order U/s. 173 of Cr.P.C. dated 31st
day of August, 2012 passed by the learned IVth Civil & Family Judge /
Judicial Magistrate South till the final decision of the Case.
(iii) To Quash the F.I.R. No.294 of 2011 U/s. 496-A of P.P.C.
at Police Station Gizri Karachi in which the learned IVth J.M. (South) as the
F.I.R. is totally false and had already be disposed off under Class “C”.
(iv)
To direct
the Respondents No.2 to 4 and their subordinates/employees not to arrest the
Petitioner in the above Criminal Case as the F.I.R. has already been approved
as Class “C”, and further pass direction to them not to harass the Petitioner
and his other family members in any manner or whatsoever in n nature.
(v)
Any other
relief or reliefs may deem fit and proper under the circumstances of the case.
Notices were issued to the
respondents as well as Prosecutor General.
Brief facts leading
to the filing of instant petition are that petitioner Muhammad Akbar seeks
setting aside order dated 31.08.2012 passed by learned IVth Civil Judge &
Family Judge / Judicial Magistrate (South), whereby after releasing the
petitioner learned Magistrate while passing the order on the report submitted
by the police under Section 173 Cr.P.C. directed for reinvestigation.
Petitioner further seeks quashment of FIR No.294/2011, under Section 296-A PPC.
Learned counsel for
the petitioner contended that petitioner has been involved in the false case
lodged by ex-husband of the petitioner’s wife for alleging enticing her with intention
to commit illicit intercourse. It is further contended that in fact Mst.
Javeria was divorced by complainant on 06.08.2011, thereafter petitioner
Muhammad Akbar married her. Mst. Javeria stated in Court that she was divorced
by her previous husband Wasi uddin son of Riaz uddin, complainant of FIR
No.294/2011 registered at P.S. Gizri, thereafter she married to petitioner
Muhammad Akbar. Mst. Javeria has denied the alle4gation of enticing or
committing illicit act. It is further contended that suit for jactitation of
marriage had already been filed by Mst. Javeria in the family Court which is
pending adjudication. Lastly it is submitted that learned Magistrate was not
competent to direct reinvestigation of the case.
Despite issuance of
notices to the complainant, he has chosen to remain absent.
Mst. Javeria has
stated before this Court and in her statement recorded under section 164
Cr.P.C. that she was divorced by her previous husband Wasi uddin, who is the
complainant of Crime No.294/2011 under Section 496-A P.P.C. registered at P.S.
Gizri. Thereafter, she married to the petitioner Muhammad Akbar. She denied the
allegation of enticing or committing illicit intercourse.
In the above
circumstances, learned A.P.G. recorded no objection to the quashment of the
proceedings.
We have perused the
statement of Mst. Javeria, recorded by I.O., in which it is categorically
mentioned that Mst. Javeria has married to petitioner Muhammad Akbar with her
free will, however against the wishes of her parents, resultantly, her ex-husband
has lodged FIR against the petitioner and other family members. Even if the
allegations contained in the FIR and other material are admitted even then no
offence under Section 496-A P.P.C. is made out against the petitioner and
others.
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
petitioner and others in connivance with the officer incharge of the concerned
police station. On the basis of the allegations which constitute no offence at
all. 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, Constitutional Petition
stands disposed of accordingly.
Judge
Judge
Riaz/P.A*