' TASSADUQ HUSSAIN JILLANI, J.---This petition filed by Mst. Rizwani Bibi (alleged abductee in the criminal proceedings, quashment of which is sought) wife of Sajid Ali is directed against the judgment dated 13-5-2011 passed by the High Court of Sindh, Circuit Bench Hyderabad vide which its dismissed Criminal Miscellaneous Nos.S-38 and S-39 of 2011 filed by Tanveer Ali and Wajid All respectively seeking quashment of the Sessions Case No. 337 of 2008 i.e. a private complaint under sections 365-B, 496, 449, 450, 148, 149, P.P.C. Read with section 17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, and Sessions Case No. 116 of 2008 arising out of case registered vide F.I.R. No.129 dated 22-5-2008 under section 496-A read with 34, P.P.C. At Police Station 'A' Section Nawabshah. The ground which found with the learned High Court mainly was that since Rizwana, the alleged abductee had neither appeared before the Court of Session nor before the High Court, no case for quashment was made out instead it directed the trial Court to exert all efforts to get the abductee produced in court, record her statement and decide the matter expeditiously.
2. Petitioner who has appeared in person pursuant to an order of this Court, submitted that she is a Graduate; that she got her marriage with the earlier husband namely Abdul Hafeez dissolved through judgment and decree dated 7-11-2008 (ex parte) and married Sajid Ali; that no one has abducted her; that the prosecution launched by petitioner's father is a product of mala fide and a hurt ego and that she be allowed to lead her normal marital life as there is a baby girl aged 11 months from the said wedlock. She lastly submitted that there is danger to her life from her parents as she has been declared a 'Kari' (adventurous) and that she be provided police protection.
3. Learned counsel for the State Mr. Saleem Akthar submitted that this petition is not maintainable as petitioner never sought quashment of the proceedings pending before the Court of Session either before the trial Court by moving an application under section 265-K, Cr.P.C. Or before the High Court; that the petitions for quashment of the proceedings were filed before the High Court by two co-accused namely Tanveer Ali and Wajid Ali; that petitioner is neither an accused nor wanted in the afore-referred criminal proceedings; that she is merely a witness and that petitioner had contracted second marriage during the subsistence of earlier marriage and therefore, her conduct falls within the mischief of a penal offence i.e. 494, P.P.C. And she does not deserve any indulgence from this Court.
4. The complainant in the afore-referred F.I.R. And the private complaint, who is father of the petitioner, submitted that being a father he has all the affection for his daughter but she has to remain within the bounds of the law and she could not marry another person during the subsistence of her early marriage.
5. Mrs. Afshan Ghazanfar, learned Advocate Supreme Court, who was called to assist this Court as an amicus curiae has filed a concise statement and has also made her submissions before this Court. She supported the quashment petitions by submitting that the case appears to be product of mala fides inasmuch as it seems initially petitioner was forcibly married with first cousin; that she filed a suit for dissolution of marriage and obtained an ex parte judgment and decree dated 7- 11-2008. The said judgment having never been challenged up till now has attained finality; that thereafter she married Sajid Ali; that since she has disowned the prosecution story given in the F.I.R.
Under challenge and the private complaint, there is no probability of her conviction in the impugned proceedings and the continuance of the same in the afore-referred circumstances would be an abuse of the process of the Court.
6. Mr. Abdul Hafeez, the former husband of Mst. Rizwana Bibi petitioner, was specifically confronted as to why he did not challenge the ex parte judgment and decree dated 7-11-2008, he replied that initially it was not in his notice and when he came to know about it, he did not challenge because he is a Government Servant and filing of the application to set aside the judgment and decree or appeal against the said judgment and decree required obtaining of leave from duty which was problematic and therefore, he did not challenge the said judgment and decree.
7. We have heard petitioner, the complainant of the F.I.R. (and the private complaint), learned counsel for the State, learned amicus curiae and Abdul Hafeez former husband of the petitioner and have given anxious consideration to the issues raised.
8. In the proceedings pending before the Court of Session arising out of the F.I.R. And the private complaint lodged by Ghulam Mustafa it was alleged that the accused mentioned therein had abducted complainant's daughter (petitioner) and that they were guilty of offences under sections 496-A and 365-B, P.P.C. A reference to these provisions would be in order. These provisions read as follows:- "365-B. Kidnapping, abducting or inducing woman to compel for marriage etc. Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any ppson against her will, or in order that she may be forced, or seduced to illicit intercourse, or knowing, it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment for life, and shall also be liable to fine; and whoever by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid"
"496. Marriage ceremony fraudulently gone through without lawful marriage. Whoever dishonestly or with a fraudulent intention, goes through the ceremony of being married knowing that he is not thereby lawfully married, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
9. The mischief clauses in the afore-referred provisions are "who ever kidnaps or abducts any woman with intent that she may be compelled to marry" (section 365-B, P.P.C.) and whoever "goes through marriage ceremony of being married knowing that he is not thereby lawfully married"
(496, P.P.C.). The alleged abductee has categorically stated before us that she was never abducted; that she contracted marriage with Sajid Ali after dissolution of her marriage with Abdul Hafeez through court decree; that there is a baby girl aged 11 months; that she is a sui juris; that she is a graduate and that her father/ complainant is basically aggrieved of this marriage and has initiated criminal proceedings as a counterblast. The statement made by the complainant before this Court has in-fact vindicated petitioner's afore-referred plea that the prosecution is mala fide and that none had abducted her. Her candid statement before this Court qua the dissolution of her earlier marriage and her subsequent marriage with Sajid Ali out of which wedlock there is a baby girl, clearly show that the mischief clauses of the afore-referred provisions are not attracted. The judgment and decree in the suit for dissolution of marriage though ex parte is dated 7-11-2008 and despite a lapse of more than two years has admittedly not been challenged though Abdul Hafeez knew about it. It seems he is no longer interested to pursue her. His conduct reflects acquiescence.
10. It is by now a settled principle of law that a sui juris woman can contract marriage of her own free will. The learned Additional Prosecutor-General, Sindh, who appeared before the High Court when the impugned judgment was passed had fairly suggested a simple solution that "the abductee may be produced before the Court and her statement be recorded and if she doesn't support the version of prosecution the entire case would fall". The learned State counsel who appeared before this Court was specifically confronted with the afore-referred state of the Additional Prosecutor General Sindh before the High Court and Article 35 of the Constitution of Islamic Republic of Pakistan which mandates as follows:-- "35. The State shall protect the marriage, the family, the mother and the child.<./i>"
11. 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 B opposed the prayer for the quashment of the cases and insisted that petitioner should appear before the trial Court. In ground '2' of this petition, petitioner specifically referred to the life threat that she was facing, as her parents have declared her 'Kari' and she is likely to be done to death. She made a specific grievance that the learned High Court while dismissing her petition did not consider this factum of threat which she had brought to the notice of even the learned Additional Sessions Judge, Ghotki. The manner she was treated by the concerned police is reflected in her petition under section 265-K, Cr.P.C. Before the Court of Session wherein she averred as follows:-- "That the complainant had fraudulently and forcibly tried to bring the accused Sajid Ali and Mst.
Rizwana from Punjab to Sindh but due to the protest made/cries raised by Mst. Rizwana at the Provincial border, during the checking of the vehicle, the parties are said to have been produced before the honourable Sessions Judge, Ghotki, to the Mirpur Mathelo police, where Misc.
Application was made by the alleged abductee Mst. Rizwana, whose statement was recorded by the learned 1st Additional Sessions Judge, Ghotki, wherein she had claimed that she had contracted marriage with accused Sajid Ali Arain on 10-11-2008 and had also produced the documents and asserted that she could not live without her husband and had clearly denied the allegations incident of abduction, whereupon the order dated 4-1-2010 was passed, by the learned 1st. Additional Sessions Judge, Ghotki, directing the SHO Police Station Mirpur Mathelo to hand over Mst. Rizwana, the alleged abductee to her husband accused Sajid Ali and to provide protection to them for safe journey and release them to go at their own choice, hence this application."
12. Police protection was directed to be provided by a Bench of this Court headed by the Hon'ble Chief Justice because "the petitioner states that her tribesmen were against the marriage contracted by her, therefore, they have declared her Kari and are likely to kill her as well as her husband, as such, they are not in a position to attend the matter before the trial Court". The apprehension expressed by her is not without substance. There are several cases where women have been done to death only because they either wanted to marry a person of their own choice or had married someone of their own volition. In Muhammad Siddique v. State (PLD 2002 Lahore 444), a judgment rendered by a Bench comprising two of us (Tassaduq Hussain Jillani and Asif Saeed Khan Khosa, JJ.), the Court was dealing with a triple murder case in which the father of the girl had killed his daughter Salma Bibi, her husband and the 10 months old baby born out of the wedlock just because the said daughter had married against the parents' wishes. While deprecating the bias and the resultant violence against women and the much left to be desired role of State functionaries in this regard, the Court observed as follows:-- "23. The tragedy of the triple murder is yet another tale of an old Saga; the characters are different yet plot is the same, the victims were accused of the same "crime" and even the method in madness remained the same i.e. The prosecutor, the Judge and the executioners all in one.
Perhaps if the police had fairly investigated the case and the subordinate Courts had gone by the book by extending requisite protection, Salma and Saleem deceased would not have run away to Islamabad. This is a typical example of misuse and misapplication of Hudood Laws in the country.
This abdication of authority by the State institutions made the couple run for its life and provided an opportunity to the appellant to call them over by way of deception. In utter disregard to the basic right of an adult woman to marry, to the institution of family, and motivated by self- conceived notion of 'family honour", the appellant had started a tirade against them by-having a criminal case registered. Baby girl was born out of the wedlock. The daughter left her home and hearth anti even the city of her birth and started living in Islamabad in the fond dream of creating a "new home" and "new world" but the appellant's venom, it seems, never subsided. To satisfy those baser calls of venom, he thought a plan and a rather treacherous one of inviting them to his house. When they came, he brought out his gun and killed each one of them with repeated shots."
13. The State functionaries are duty bound to obey the law of the land and also to realize that Pakistan is a Member of United Nations and is signatory to the "Convention on the Elimination' of all Forms of Discrimination Against Women" which in its Article 16 enjoins all the member states as under:-- "1. States Parties shall take all appropriate measures to eliminate, discrimination against women in all matters relating to marriage and family relations and in particular shall ensure on a basis of equality of men and women:--
(a) the same right to enter into marriage;
(b) the same right freely to choose a spouse and to enter into marriage only with their free and full consent;
(c) the same rights and responsibilities during marriage and at its dissolution.
14. At a Conference attended by representatives of all the Islamic countries including Pakistan a Resolution was adopted which is known as Cairo Declaration on Human Rights in Islam dated 5th August 1990 (Encyclopedia of Human Rights by Edward Lawson, 2nd Edition at page 176) stipulates as under:- "Article 5.---(a) The family is the foundation of society, and marriage is the basis of its formation.
Men and women have the right to marriage, and no restrictions stemming from race, colour or nationality shall prevent them from enjoying this right.
(b) Society and the State shall remove all obstacles to marriage and shall facilitate marital procedure. They shall ensure family protection and welfare. Article 6.--(a) Woman is equal to man in human dignity, and has rights to enjoy as well as duties to perform; she has her own civil entity and financial independence, and the right to retain her name and lineage.
(b) The husband is responsible for the support and welfare of the family. "
15. For what has been discussed above and for reasons given therein, Criminal M.A. No. 410 of 2011 is allowed, the delay for filing Criminal Petition No. 329 of 2011 is condoned and the same is converted into appeal and allowed. Consequently, the proceedings pending before the Court of Session in Sessions Case Nos. 337 of 2008 and 116 of 2008 are quashed. The police protection provided to the petitioner in terms of this Court's order dated 19-7-2011 shall continue. She shall be taken to her place of residence safely and thereafter the Inspector-General of Islamabad Police shall get in touch with the D.P.O. Of the concerned district where petitioner resides to ensure that she is provided with police protection as long as the protection threat to life from parents subsists.