ORDER SHEET
IN THE HIGH COURT OF SINDH,
CIRCUIT COURT, HYDERABAD.
Cr.Misc. Appl. No.S-325 of 2009
DATE ORDER WITH SIGNATURE OF JUDGE
24.11.2009.
Mr. Muhammad Ishaque Khoso Advocate for applicants
Mr. Shahid Ahmed Shaikh, Additional Prosecutor General Sindh for the State.
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Ahmed Ali Shaikh J: The applicants seek quashment of proceedings of Sessions Case No.112/2006 culminating from Crime No.52/2006 of Police Station Tando Bago for offence punishable u/s 11/16 Offence of Zina (Enforcement of Hudood) Ordinance, 1979 r/w section 109 PPC.
2. An application u/s 265-K Cr.P.C was moved before the trial court but the same was turned down vide order dated 05.09.2009.
3. The relevant facts of the prosecution case are that on 24.06.2006, one Ghulam Hyder Memon set the law into motion through FIR bearing crime No.52/2006 stating therein that on 23.06.2006, on the instigation of Molvi Abdul Wahid, the accused Ahmed, Uris, Saleem and Ghulam duly armed with deadly weapons entered in his house and forcibly abducted his unmarried sister namely Mst. Lali with intention to commit zina with her.
4. After usual investigation, the case was sent up before the concerned court.
5. During pendency of the case, a family suit No.07/2008 for jactitation of marriage was filed by Mst. Lali against the applicant/accused Ahmed in the court of Civil Judge/ Famkily Judge Tando Bago stating therein that on 30.06.2006, she was forcibly abducted by applicant Ahmed and his companions and in this respect a case bearing crime No.52/2006 was registered at police station Tando Bago by her brother. The said suit was decreed vide Judgment and Decree dated 04.02.2009.
6. Through Family Appeal No.01/2009, the applicant Ahmed assailed the Judgment and Decree of the Family Court. The said Family Appeal was entrusted to IInd Additional District Judge, Badin. During pendency of the appeal, Mst. Lali appeared before the appellate court and filed her affidavit wherein she has stated that on 23.06.2006 she had left the house of her parents with the appellant Ahmed and had sworn affidavit of her free will before the Magistrate at Shikarpur on 24.06.2006 desiring to marry with the applicant and subsequently on the same day i.e. 24.06.2006, she contracted marriage with the applicant Ahmed with her own free will, wish and consent and without any duress. In the aforesaid affidavit, she further stated that thereafter her father, who was influential person and business man, forcibly took her from the custody of her husband (applicant Ahmed) and confined her in his house and lodged a false case against her husband and his relatives. Thereafter she continuously remained under mental torture and she was compelled to move certain applications against her husband and ultimately she was forced to file suit for jactitation of her marriage before the Family Judge Tando Bago against the applicant Ahmed and that she likes the applicant Ahmed as she has contracted marriage with him on her own accord and free will. She further stated that while taking advantage of absence of her parents, she left their house and joined her husband Ahmed as she is his legally wedded wife. In view of such affidavit, learned appellate court set-aside the Judgment and decree passed by Civil Judge/Family Judge Tando Bago and allowed Family Appeal No.01/2009 vide Judgment dated 27.03.2009 in following terms:-
“In view of the above discussion, I have come to the conclusion that the respondent herself has stated in her affidavit and statement recorded before this court on oath that she filed suit for jactitation of marriage under pressure of her parents, otherwise, she is wedded wife of the appellant and has contracted marriage with him on her own accord. In view of these facts, Judgment and decree of the learned lower court are hereby set-aside and the appeal of the appellant is allowed as prayed with no order as to costs”.
7. On 09.05.2009, Mst. Lali abductee was examined by the trial court. In her deposition, she has stated that on 23.06.2006, she had left the house of her parents and went alongwith accused Ahmed, where on 24.06.2006 she contracted marriage with accused Ahmed with the permission of the court at Shikarpur on her own accord. Thereafter her parents had lodged false FIR against her husband and his other relatives. Her deposition further reveals that a constitutional petition was filed by her husband before High Court of Sindh Circuit bench Hyderabad but on 30.06.2006 while she alongwith her husband was coming from the court, she was forcibly taken away by her parents. She stated in clear terms that she was not forcibly abducted by accused Ahmed and others and had left the house of her parents on her own accord and contracted marriage with Ahmed.
8. It is inter alia contended by the learned counsel for the applicant that Mst. Lali is sui juris and in her deposition recorded by trial court, she has belied the prosecution version as set up in the FIR. He further contended that Mst. Lali has categorically stated that she had left the house of her parents on her own accord and contracted marriage with the applicant Ahmed without any duress and she further stated that she is legally wedded wife of the applicant Ahmed. In view of such deposition of Mst. Lali, there is no probability of the applicants being convicted of any offence.
9. Conversely, learned State Counsel half heartedly opposed the plea of the applicants and stated that let the trial court be directed to conclude the case within a reasonable time and decide the same on merits.
10. I have heard the arguments of learned counsel for the applicants as well as learned State counsel and perused the record.
11. From the perusal of deposition of Mt. Lali, it is crystal clear that the prosecution case has no legs to stand as Mst. Lali has categorically stated that neither she had been abducted by applicant Ahmed and others nor contracted marriage under duress. On the contrary, she stated that she has contracted marriage with applicant Ahmed on her own accord and she is residing with her husband Ahmed happily. The certified true copy of the Judgment in Family Appeal No.01/2009 and deposition of Mst. Lali, alleged abductee have been placed on record. From the perusal of the said Judgment, it appears that Mst. Lali had sworn her affidavit before the appellate court in which she stated in clear terms that she is legally wedded wife of the applicant Ahmed and neither she was abducted by applicant Ahmed and others nor compelled to marry with applicant Ahmed. The Judgment further reveals that her statement was also recorded by appellate court, in which she verified the said facts given in her affidavit.
12. Since very foundation of the prosecution is based on the abduction of Mst. Lali, who is sui juris but her deposition as referred above and her statement recorded in the Family Appeal No.01/2009 as well as her affidavit filed in Family Appeal negates the prosecution version and in view of her deposition, it appears that continuance of the proceedings before the trial court would amount abuse of process of law as there is no probability of the accused being convicted of any offence, therefore, I allow this application and quash the proceedings of Sessions Case No.112/2006 culminating from crime No.52/2006 of Police Station Tando Bago.
This Criminal Misc. Application stands disposed of.
For the foregoing reasons, the above application was allowed vide my short order dated 23.11.2009.
JUDGE
AKC