ORDER SHEET
IN
THE HIGH COURT OF SINDH, KARACHI
C.P.
No.D-3760 of 2013
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DATE ORDER
WITH SIGNATURE(S) OF JUDGE(S)
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Present: Ghulam Sarwar Korai,
J.
Naimatullah Phulpoto, J.
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For Katcha Peshi
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Date of Hearing: 08.10.2013
Mr.
Shamshad Ali Qureshi, Advocate
along with Petitioners.
Mr.
Sher Muhammad Shaikh,
Additional Advocate General Sindh along with IO/ASI Muhammad Ramzan Mallah of P.S. Ranipur.
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NAIMATULLAH PHULPOTO, J.-- Through the
instant petition Mst.
Fatima and Atta Hussain seek quashment
of F.I.R. bearing Crime No.92/2013 under sections 365-B, 365, 382 PPC. of P.S. Ranipur, District Khairpur.
Brief facts as disclosed in the
petition are that petitioner No.1 has married to petitioner No.2 after
embracing Islam on 24.06.2013. Copy of affidavit of freewill, certificate/sanad, showing
conversion to Islam by petitioner No.1 and Nikahnama
of the petitioner No.1 with petitioner No.2 at Sobho Dero, District Khairpur, out of
love, have been placed on record. It is stated that after such love marriage,
her parents made her life miserable, maltreated her and cut her ear. She was
hospitalized. It is stated that father of petitioner No.1 approached to
defendant No.4 S.H.O. P.S. Ranipur, who lodged
aforesaid F.I.R. under the above referred sections against petitioner No.2 and
his brothers. Thereafter, S.H.O. P.S. Ranipur made
the life of the petitioners miserable. Finding no other way, both the
petitioners shifted from village situated at District Khairpur
to Karachi and filed the instant petitioner for quashment
of the F.I.R. and prayed for the following reliefs:
(A)
To direct the official respondent as
well as private respondents, do not harass the petitioners and their family
members, even any legal or illegal proceedings through F.I.R. No.92/2013, which
is liable to be quashed, as marriage of the petitioners have been taken place
and declare the petitioners are legal and lawful husband and wife as per Mohammadan Law.
(B)
Further this Honourable
Court may be pleased to take bond from private respondents for the lives of
petitioners, which is against the humanitarian life and liberty, as according
to fundamental rights guaranteed in constitution every person can live his life
according to his/her own will and constitution also providing safety of life to
public.
(C)
To direct the private respondents No.5
to 7 and official respondents for any illegal and unlawful harassment or any
other person(s) claiming on their behalf from causing harassment and extending
intimidation to the petitioner and his family members and provide due
constitutional and legal protection to their lives, liberty and properties and
their families.
(D)
Any other relief(s), which this Honourable Court may deem fit and proper under the
circumstances of the case.
(E)
Award cost of the petition.
Notices were issued to the respondents
as well as Advocate General and Prosecutor General Sindh.
Investigation officer ASI Muhammad Ramzan Mallah of police station Ranipur recorded 161 Cr.PC statement
of Mst. Fatima (previous name Shanti)/Petitioner No.1,
has stated that prior to her conversion to the Islam she was married to one Baghchand but she was separated from Baghchand
six months back. After embracing Islam, she has married to one Atta Hussain Jamro/petitioner No.2 and
she passes happy life with him. She has further stated that false F.I.R. has
been lodged by complainant. She has clearly stated that she has not been
kidnapped by petitioner No.2. Investigation officer in his report has submitted
that after recording 161 Cr.PC statement of Mst. Fatima, a case under section 365-B PPC is not made
out, he would recommend the F.I.R. for disposal in the light of statement of Mst. Fatima/petitioner No.1.
Mr. Sher
Muhammad Shaikh, Additional Advocate General Sindh,
opposed the quashment for F.I.R. on the ground that
no case for quashment of the F.I.R. is made out.
We have
carefully heard the learned counsel for the parties, perused the contents of
the F.I.R., statement of Mst. Fatima recorded under
section 161 Cr.PC by I.O. as well as opinion of the
I.O.
Petitioner Mst. Fatima is sui juris, after conversion to the Islam she has stated in
the Court that she married to petitioner No.2/Atta Hussain
Jamro and her parents lodged aforesaid F.I.R. against
her husband and his brothers. She has categorically stated that she has not
been abducted. She was compelled to leave the village, situated at District Khairpur and shifted to Karachi. She has further stated
that she passes happy life with her husband. I.O. in his opinion has stated
that he would recommend the disposal of the case in the light of statement of Mst. Fatima. Therefore, on the basis of material available
on the record we have no hesitation to hold that if the contents of F.I.R. are
admitted to be true even then alleged offence is not made out. Marriage of
Petitioner No.1 with Petitioner No.2 Atta Hussain is
her right. In these circumstances, proceedings would be nothing but abuse of
process of law. Case would not end to conviction. Reliance is placed upon the judgment
of Honourable Supreme Court in the case of Rizwana Bibi versus The
State and another (2012 SCMR 94), in which it has been observed that, “Notwithstanding petitioner’s
statement before this Court and her marriage with a person of her choice as
also the Constitutional command referred to above, we were surprised that the
learned State counsel still opposed the prayer for the quashment
of the case and insisted that petitioner should appear before the trial Court.”
Therefore,
proceedings emanating out of Crime No.92/2013 under sections 365-B, 365, 382
PPC of P.S. Ranipur, District Khairpur,
are hereby quashed
Above are the reasons for our short
order passed on 08.10.2013.
JUDGE
JUDGE
Gulsher/PA