1. This application filed under section 561-A, Cr. P. C. Seeks to quash proceedings of a criminal case filed against the above-named three applicants for offences under sections 368, 369 and 376, P. P.
2. C. Now pending in the Court of III Additional Sessions Judge, Karachi.
3. Prosecution story briefly is that Bashir Ahmed Sajid father of alleged abductee Mst. Ghazala Zareen filed F.I.R. On 22-5-1974 at Brigade Police Station in which it is stated that on 20-5-1974 applicant Zaheer Ahmed telephoned Cotton Export Corporation, where Mst. Ghazala was employed and asked Choudhry Ali Muhammad, Director to permit Mst. Ghazala to visit her mother who was suddenly taken ill. When Mst. Ghazala reached near her house, applicant Zaheer Ahmed forcibly lifted her and put her in white Fiat Car No. KAQ-826. Her cries attracted attention of her younger brother, who was playing outside the door of the house and he informed their mother, who intimated the facts of the incident to the complainant at Lahore. Complainant came to Karachi and filed report stating therein that applicant Zaheer Ahmed who is brother of a family friend Col. Nazeer, had abducted his daughter.
4. During the investigation it transpired that applicant Zaheer Ahmed and Mst. Ghazala left together in a car for upcountry, when on the way their car collided with another car in Kazi Ahmed, District Nawabshah and consequently they had to stay the night at Petrol Pump and on the next day they reached Sukkur, from where they boarded a P. I. A. Aircraft for Lyallpur. From there they went in a bus to Sargodha where they stayed in Kalyar Hotel for some time. Applicant No. 2 Major Nasir Ahmed, who is brother of Zaheer Ahmed met them there and afterwards both Zaheer Ahmed and Mst. Ghazala were married at Sargodha and -Mst. Ghazala also signed Nikahnama. Two days later, i.e. On 24-5-1974 she swore an affidavit before A. C. M., Sargodha to the effect that she had married Zaheer Ahmed of her own free-will and consent.
5. On hearing about the investigation of the case, applicants surrendered before Sessions Court at Karachi, where the other two applicants were released on bail except applicant No. 1 Zaheer Ahmed, who was refused bail by the High Court also and was ultimately bailed out by the orders of the Supreme Court dated 2-9-1974 and 9-9-1974. It may be pertinent to point out here that applicant No. 3 namely Qureshi Muhammad Bashir is an Advocate of Sargodha who had produced the alleged abductee before the Magistrate for swearing the affidavit as mentioned above. Both applicants Nos. 2 and 3 are charged for offence under section 368, P. P. C. While applicant No. 1 Zaheer Ahmed is charged for offences under sections 366 and 376, P. P. C.
6. I have heard at length Mr. Hayat Junejo, learned counsel for applicants, Mr. Manzoor Hussain for State and Mr. Iftikhar Ahmed for complainant. Mr. Junejo has stoutly contended that the proceedings of the case, having commenced in the month of May 1974, are still pending without making any headway and no material progress has been made except the recording of evidence of only two witnesses by the trial Court. He has particularly complained that pivotal witness Mst.
7. Ghazala has not been examined or is not willing to be examined despite the direction of the late Chief Justice of Sind High Court vide his Order dated 3-7-1974 on bail application incidental to these proceedings and observations of the Supreme Court in the Order dated 9-9-1974. It is further contended by him that no offence is made out as Mst. Ghazala was a willing party and with her free consent accompanied applicant Zaheer Ahmed and married him and there is no evidence on record or in possession of prosecution to prove the contrary, as such proceedings, if allowed, would ultimately end in acquittal. This coupled with inordinate delay, which is deliberate and intentional causing constant harassm ent to the applicants, is clear-cut abuse of the process of the Court as such prayer is made for quashment of proceedings in order to secure ends of justice.
8. One of the main reasons for the reluctance of Mst. Ghazala to be examined before the trial Court and for that matter of prosecution to get on with the case, appears to be statement of Mst.
9. Ghazala recorded in the High Court in connection with the hearing of Bail application, when she was ordered by the Court to appear and was then examined by the Court. That statement was recorded on 20-6-1974. In answers to Court --questions she has stated that she is a graduate in Arts and is working as Assistant Manager in the Cotton Export Corporation. Colonel Nazeer Ahmed is their family friend and applicant Zaheer Ahmed is his younger brother. Applicant Zaheer Ahmed used to come to her Office to take her to the Office of Col. Nazeer Ahmed. She has further stated that on the day of incident she was informed by the Finance Director in her Office that her mother was seriously ill and she took leave and went home. When she alighted from the bus at bus-stop, Zaheer Ahmed came in a car with two other persons and they all caught hold of her after putting their hands on her mouth, they bodily lifted her and put her in the car. It is worthwhile to mention here that in this particular part of the story she has contradicted her father in F.I.R. Wherein it is mentioned that incident took place near her house and was seen by her younger brother. Secondly only applicant Zaheer Ahmed took her forcibly in the car, who was alone.
10. While continuing her statement before the High Court she has stated that after she was kidnapped she lost her consciousness and came to senses at night when applicant Zaheer, who was alone had threatened her with open knife if she raised cries. She expressed ignorance about the car accident for the reason that she was unconscious. She denied having appeared before the Magistrate at Sargodha for swearing an affidavit but admitted her signature on the same when confronted with it. She further explained that affidavit was brought by one Qureshi Sahib and she was compelled to sign it by applicant No. 2 Major Nazeer Ahmed- at the point of pistol. She admitted having been detained by Zaheer Ahmed for 10 days but could not complain to any body.
11. She admitted having married Zaheer Ahmed but forcibly. She was confronted with two love letters addressed to applicant Zaheer Ahmed which she admitted having written and signed but further stated that she was compelled to write so by wife of Col. Nazeer.
12. Now this whole story appears to be fantastic, devoid of truth and self-contradictory. Firstly she said that at time of alleged abduction she fell unconscious, that was, as it appears from her story due to the shutting of her mouth by three persons including applicant Zaheer. After regaining consciouness in Nowabshah she expre3sed ignorance about accident and said she was given tablets by the applicant, which made her unconscious. Accident story is revealed in the investigation of police and it is stated that because of accident both applicants Zaheer and Ghazala had to pass the night at Petrol Pump, then as admitted by her, she was taken in the aeroplane from Sukkur to Lyalipur but she did not complain to any body at any time. Then she was moved to Sargodha also. She has spoken a white lie. It is impossible to believe her story in that statement. Her love-letters addressed to applicant Zaheer speak for themselves and expose her inside story which she is trying to hide. These letters express her sentiments that she was madly in love with Zaheer, without whom she could no longer live. She had mentioned her clandestine meeting with him and longing for re-union. She had expressly offered to marry him at any cost.
13. Other circumstances of the case also tried to show that she had accompanied Zaheer Ahmed of her own accord and sweet will and married him voluntarily. It is impossible to imagine that an educated girl of 25 years of age and for that matter an enlightened girl working in office at important post would be compelled to write such highly emotional letters under pressure of some other lady. A girl of her stature and education certainly knows what she is doing.
14. Prosecution story is further falsified by the record most important witness namely Ali Muhammad Choudhry, Finance Director in the office where Mst. Ghazala is employed. He has been examined before the trial Court. He is a also a friend of the father of Mst. Ghazala and knows the applicant Zaheer and his brother Col. Nazeer. He has admitted that Zaheer used to visit Ghazala in the Office quite often. He has further stated that on the day of incident Zaheer had telephoned him and requested that Ghazala be permitted a short leave of about one hour: Zaheer did not say that mother of Ghazala was sick. He informed Ghazala about telephone call and told her that if she wanted she could go. He has further stated that he has good relations with both parties. It is further stated by him that in the evening on the day of incident brother of Ghazala informed him that she had not returned home whereupon he told him that she had gone with Zaheer. He has also testified that Zaheer often used to visit Ghazala in the Office. The evidence of this witness confirms the story that Zaheer and Ghazala were very friendly.
15. It is quite obvious that after the statement of Mst. Ghazala in the High Court, where she had admitted her signature on the nikahnama, affidavits and further writing love-letters and unsupporting statement of P. W. Ali Muhammad there is a plausible reason for prosecution to lose interest in the case before the trial Court and the only purpose for continuing proceedings is to harass the applicants. It will not be out of place to mention here that applicant Zaheer Ahmed is a British national having a British Passport and he has been detained here for this case for nearly five years and still end is not in sight.
16. It is indisputable that on the ground of delay alone, inherent jurisdiction of the High Court cannot be invoked to quash the proceedings and such interference is permitted only in limited cases where it is found that proceed--ings impugned if allowed to continue, would defeat the ends of justice. In the instant case, it is my irresistible conclusion that prosecution' case ha$ no legs to stand on and is bound to end in acquittal, if permitted to continue. Such proceedings before the trial Court are farcical, would only cause harassment to an innocent party to bring about unnecessary ands undue delay, which clearly would amount to abuse of the process of the Court.
17. Reliance is placed on. PLD 1965 -SC 287, 1978 P Cr. L J 647, 1977 P Cr. L 1565 and 1977 P Cr. L J 717.
18. For facts and reasons mentioned above, application is allowed in the result whereof proceedings pending in the lower Court in respect of this case are quashed.