IN THE HIGH COURT OF SINDH (CIRCUIT COURT)
AT HYDERABAD
C.P. No. D- 2168 of 2012
Mst. Shazia Qamar
and another ----------------- Petitioner
VERSUS
Government of Sindh
& Others ------------------ Respondents
Date of hearing: 13.05.2014
Petitioner: Through Mr. Ishrat Ali Lohar, Advocate
Respondent No.8: Through Ch. Muhammad Aalam Bhangor, Advocate
Respondent No.1 Through Mr. Allah Bachayo Soomro, Additional Advocate General Sindh
J U D G M E N T
MUHAMMAD JUNAID GHAFFAR, J. - Through instant petition, the petitioner has prayed to set-aside the order dated 15.11.2012 passed by the learned Family Judge / Judicial Magistrate, Jamshoro, whereby the petitioner was directed to appear before the Judicial Magistrate at Attock, Punjab. In Crime No. 68 of 2010 registered under Section 469-A, 494, 420, 468 and 471 PPC.
2. Briefly, the facts as narrated in the memo of petition are that the petitioner was being married against her will and consent, therefore, the petitioner No.1 left her parents house and came to Hyderabad on 2.9.2010 where-after she contracted marriage with petitioner No.2 namely Pir Bux son of Muhammad Jangal. Thereafter, the respondent No.8 lodged FIR bearing No. 68 of 2010 at police station Injra District Attock Punjab wherein it was alleged that the petitioner No.1 had been enticed and is now detained by one Muhammad Ismail and his sister Ghulam Fatima. After registration of the FIR the respondent No.8 came to know that the petitioner NO.1 who is residing in Lakhra Taluka Manjhand district Jamshoro and subsequently filed an application before the Honourable Supreme Court of Pakistan where-after directions were issued to the Provincial Police Officer, Karachi to ensure the recovery of the petitioner No.1. The petitioner No.1 was subsequently recovered with the assistance of local police and was produced before the learned Sessions Judge, Jamshoro at Kotri who recorded her statement. The petitioner No.1 in the said statement before the learned Sessions Judge, confirmed that she is living with petitioner No.2 as his wife and has not been married with any person before. Since after registration of the FIR at Attock proceedings under Section 87 and 88 were initiated against the petitioner No.1 and she was produced before the court by the police after receiving warrants from the trial court at Attock. The learned Sessions Judge after recording the statement of petitioner No.1 directed the police authorities to produce the petitioner No.1 before the concerned Magistrate for deciding the request of transit remand as made by the police authorities. Thereafter, the learned Family Judge and Judicial Magistrate, Jamshoro at Kotri vide order dated 5.11.2012 after granting bail to the petitioner No.1 directed the petitioner No.1 to appear before the concerned court at district Attock, Punjab on 13.11.2012 without fail. The petitioners being aggrieved by the said order of the Judicial Magistrate have filed the instant petition.
3. Learned counsel for petitioners contended that the Judicial Magistrate had no authority under the law to direct the petitioner No.2 to appear before the trial court at district Attock. Learned counsel further contended that since the statement of petitioner No.1 had been recorded before the District and Sessions Judge in which the petitioner No.1 had categorically stated that she has been living happily married with petitioner NO.1 as such no further proceedings can be taken up in the said matter.
4. Learned counsel for respondent No.8 contended that the impugned order passed in the matter was correct in law and since the case is still pending before the trial court at district Attock, therefore, the petitioner was required to appear before the said court. Learned counsel further contended that this court or the Judicial Magistrate at Jamshoro, Kotri had no jurisdiction in the matter hence the instant petition was liable to be dismissed.
5. Learned A.A.G. has supported the arguments advanced on behalf of respondent No.8 and contended that it would be appropriate for the petitioner No.1 to appear before the trial court and seek further remedy under the law.
6. We have heard both the learned counsel and the learned A.A.G. and have perused the record.
7. In so far as the facts stated above are concerned they are not in dispute that a case has been registered vide Crime No. 68 of 2010 against the petitioner No.1 and in such crime the court already initiated proceedings under Section 87 and 88 Cr.P.C. whereby the petitioner No.1 has been declared as absconder in addition to issuance of warrants against the petitioner No.1, the Honourable Supreme Court of Pakistan on the application of respondent No.6 passed order in Human Rights Case No. 59260-P/2010 whereby the PPO Sindh Karachi was directed to ensure the recovery / production of the abductee / petitioner No.1 for recording her statement before the learned Sessions Judge Jamshoro at Kotri. The learned Sessions Judge after recording statement of the petitioner No.1 referred the matter to the concerned Judicial Magistrate as the police officials who had recovered the petitioner No.1 had requested for a transit remand of the petitioner No.1 so that she can be produced before the trial court at district Attock in satisfaction of the warrants issued against the petitioner No.1 and so also of the proceedings initiated under Section 87 and 88 Cr.P.C. The matter was then referred to the Judicial Magistrate and the learned Judicial Magistrate after examining the matter in detail and after following the provisions of Section 85 and 86 Cr.P.C. came to the conclusion that the offences as allegedly committed by the petitioner NO.1 were bailable and for the reason that the petitioner No.1 stated that she is ready to furnish solvent surety in lieu of grant of bail had granted bail to the petitioner NO.1. However, since in terms of Section 85 and 86 of the Criminal Procedure Code the Judicial Magistrate was required to forward the bail to the court which had issued warrants directed the petitioner to appear before the trial court at district Attock, Punjab. We may observe that this court or the learned Judicial Magistrate have no territorial jurisdiction in the instant matter as the crime has been registered outside the territorial jurisdiction of the province of Sindh, therefore, the procedure as prescribed under Section 85 and 86 Cr.P.C. is to be followed and the same has already been followed by the learned Judicial Magistrate. After going through the impugned order we are of the view that the same is correct and does not suffer from any infirmity as well as no exception can be taken to the said order. The Judicial Magistrate has granted bail in respect of the offences alleged in the FIR and has further directed the petitioner No.1 to appear before the trial court. It to our minds is the only appropriate and legal course available to the petitioner No.1 in the instant matter, therefore, the instant petition is liable to be dismissed as no case for interference or seeking any indulgence from this court has been made out. In so far as the statement recorded before the learned Sessions Judge by the petitioner No.1 is concerned we may observe that the petitioner No.1 can always rely upon such statement before the trial court who is the exclusive authority and jurisdiction to decide the matter on merits.
8. In view of such position, we had dismissed the instant petition by a short order on 13.5.2014 and the above are the reasons in support of such dismissal.
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Dated: __.05.2014 JUDGE
JUDGE