1. ORDER ZIA PERWAIZ, J.--- Notice issued to the complainant, who has failed to appear.
2. During inspection of the Women Jail Larkana by this Bench, the petitioner handed over an application to us, which application was converted into Constitution petition and was registered as C.P. No. D-263/2005. The office was directed to fix the said petition in Court on 7.10.2005. While issuing notices to Addl. A.G., the petitioner was also ordered to be produced in Court.
3. On 7.10.2005 the petitioner was produced in Court and was examined by us on oath. In her examination, she has stated that her statement before the Trial Court under Section 342, Cr.P.C.
4. Was incorrectly recorded as the questions posed by the Presiding Officer were not explained to her nor she give any reply to the said questions. She further had stated that she was falsely implicated in the proceedings commenced pursuant to F.I.R. No. 14/2002 of Police Station Airport Jacobabad, which are pending before the ll-Additional Sessions Judge, Jacobabad, as her father wanted money and hand of a girl from her husband."
5. On 7.10.2005 after recording statement of, the petitioner in Court, we called the R & P in Crime No. 14/2002 from the Court of llnd, Additional Sessions Judge, Jacobabad. We also directed the Superintendent, District Jail Jacobabad to produce co-accused Shahzado Rind in Court, with whom the petitioner claims to have married. Statement of Shahzado, husband of petitioner, besides her further statements, were recorded in Court today.
6. We have perused the R & P and have gone through the record. We have noticed that op 2.5.2002 the applicant was examined by the Judicial Magistrate, Jacobabad (Mr. Ghulam Shah), in which she has stated that she was divorced by her former husband Abdul Majeed (Majjan) four years back whereafter she was staying with her parents. After lapse of four years of divorce, the petitioner married to Shahzado Rind. The Judicial Magistrate also recorded the statements of Azizullah and Shah Murad, who were the witnesses to Nikah; Haji Taj Muhammad, who has preformed the Nikah; Wali of the petitioner Muhammad Siddique; Ghous Bux, Muhammad Ali and Muhammad Ramzan, neighboured of the petitioner's husband Shahzado Rind and Owais Ahmed, who notarized/attested the Nikahnama and the affidavit of free-will, which the petitioner had sworn before the Judicial Magistrate. Nikahnama was also produced before the Magistrate.
7. We have also perused the statement recorded under Section 342, Cr.P.C. By the Trial Court on 24.9.2005. The first question, which was posed to the applicant, by the Trial Court was also incorrectly framed. The Trial Court has not cared to examine the material available on record, which include Nikahnama, affidavit of free-will of the petitioner, statement of the petitioner and the other witnesses, namely, Azizullah, Shah Murad, Moulvi Haji Taj Muhammad, Wali Muhammad Siddique, Ghous Bux, Muhammad Ali, Muhammad Ramzan and Owais Ahmed in order to frame appropriate question under Section 342, CrP. C. The Trial Court instead preferred to formulate questions based on the evidence of the complainant Rasool Bux father of the petitioner, P.Ws Zafar Ali brother of the petitioner, Mst. Mariam Khatoon mother of the petitioner. Ghous Bux alias Mohsin alias Abdul Majeed (Mujjan), Woman Medical Officer Farheen Mughal, H.C. Mehrab Ali, ASI Dur Muhammad Chana, and ASI Ashique. Hussain Bhatti. Even this evidence/material has not been used to frame- appropriate questions under Section 342, Cr.P.C. All the witnesses examined by the Judicial Magistrate under Section 164, Cr.P.C. Were cited as accused in F.I.R. No. 14/2002 by the complainant Rasool Bux and were declared absconders by the Trial Court.
8. Learned Stated Counsel has submitted that it is a fit case for quashment inasmuch as the Criminal Court in exercise of its jurisdiction cannot go into the authenticity of the documents. In this regard, we have noticed that the Nikahnama of the petitioner dated 10.4.2002 produced before the Judicial Magistrate has not been challenged either by the complainant or by her former husband before any Court till date. Moreover whether the marriage of petitioner with her previous husband subsists or not cannot be determined by the Trial Court in exercise of its Criminal Jurisdiction. The petitioner has specifically pleaded that she was divorced by her former husband Abdul Majeed (Majjan) alias Ghous Bux four to five years before her marriage with Shahzado Rind. She has produced Nikahnama besides the witnesses to the Nikah. She has also produced the Moulana, who performed Nikah besides the 'Wali' who gave the hand of the petitioner to Shahzado Rind.
9. Neighbourers were also produced, who had seen the petitioner and Shahzado as wife and husband. In the face of this material the ingredients 'of the offences alleged in the F.I.R. No. 14/2002 are not attracted. The question of validation of a marriage or otherwise could only be determined by the Family Court and unless such a finding is recorded by the Court of competent jurisdiction, the petitioner Or any of the co-accused cannot be prosecuted. The Criminal Court in law, are not competent to record a finding into the authenticity of the Nikahnama nor could it usurp the jurisdiction of the Family Court y exercising powers under the provisions of Hudood Ordinance 1979.
10. We have further noticed that in this case the Investigating Office^ has failed to discharge his duties and has wrongly challaned the petitioner and other co-accused. It was the duty of the Investigating Officer to produce the entire -material before the Trial Court while submitting the challan inclusive of the Nikahnama, statements of the petitioner and other witnesses recorded by the Judicial Magistrate, which he had intentionally avoided to place before the Trial Court. The Trial Court has failed to apply its mind before accepting the challan as to whether charge can at all be framed against the petitioner and other co-accused on such material.
11. Under these circumstances we find that this is a fit case which needs to be quashed as continuance of Trial against the petitioner and other co-accused would be abuse of process of the Court. We accordingly convert this petition into a petition under Section 561-A, Cr.P.C.
12. We have also noticed that the Trial Court has. Failed to discharge its duties. The questions framed under Section 342, Cr.P.C. By the Trial Court had no nexus with the material available on record. We also believe the version of the petitioner that the Trial Court has failed to explain questions to the petitioner under Section 342, Cr.P.C. And replies were not correctly recorded. We except that the Presiding Officer would be careful in future and would not commit such mistake which has far reaching effect on the accused.
13. For the aforesaid reasons this. Constitutional. Petition has been converted into quashment petition under Section 561-A, Cr.P.C. And for the aforesaid reasons the proceedings commenced against the petitioner and other co accused pursuant to the Petitioner and her husband, namely, Shahzado apprehend that the complainant party may kill them. The concerned D.P.O of both the districts, are directed to provide them the protection by providing them protection On their release from jail to their house or to any other place where the petitioner and her husband want to go and shall take appropriate measures to secure their lives in such manner that no harm is caused to them in future as well. Copy of this order be communicated to both the D.P.O over fax for compliance.