This is a petition under section 135 read with 439, Cr. P. C. With a prayer that the impugned order passed by the learned Vth Additional District Judge on 5-4-1980 may be perused and its legality and propriety may be examined. It is further prayed that the impugned order may be set aside and the respondents 2 to 9 may be tried according to law.
2. The facts leading to the petition are that on 2-8-1977 Mst. Sharaf-un-Nisa lodged an F. I. R. At 10- 30 a.m. At the Police Station Gul Bahar to the effect that she and her husband Abdul Majid and the children reside in the house No. 1-K/11 behind Jamia Masjid, Nazimabad No. 1. The hand of her daughter Aisha Majid aged 21 years who is a student of B. Sc. Part I in Jinnah College, Karachi was given to one Abdul Rauf son of Abdul Wahab. Abdul Wahab is the brother of the husband of the complainant. Since Abdul Rauf was not educated and as such not suitable for Mst. Aisha Majid, the engagement was cancelled. Abdul Rauf was the cousin of the girl Aisha Majid and after the engage--ment was broken she was disallowed to visit the house of Abdul Rauf. On 28-7-1977 college re-opened and Mst Aisha Majid set out from the house for college at 8-00 a.m. But she did not return until the night whereupon the complainant searched in the house of Abdul Rauf and other relatives but could not find her. On 1-8-1977 her sons Muqeem and Mansoor told her that Mst.
Aisha was in the house of Abdul Wahab whereupon she sent her sons Majid and Mansoor to the house of Abdul Wahab advising them to bring Mst. Aisha to the house. They returned and informed the complainant that Aisha had disclosed a story to them that on 28-7-1977 when she was going to her college, she was forcible picked-up from Enquiry Office Bus Stop by Abdul Rauf in a Suzuki Pick up and taken to the lands of his brother at Nawabshah where Nikah was performed without her consent and then returned back to Karachi. On receiving this information she went to the house of Abdul Wahab for seeing her daughter but she was not allowed. She filed accordingly a report to the Police on 2-8-1977. On this report Mst Aisha was recovered from the house of Abdul Wahab who is her uncle and later on 3.8-1977 she was produced before a Magistrate. Her statement was recorded on 4-8-1977. On the basis of her statement and the investi--gation made by the Police, the case was challaned in the court for offences under sections 366, 376, 342 and 368, P. P. C. Etc.
3. During the trial an application under section 494, Cr. P. C. For withdrawal of the prosecution was made and simultaneously an application was made under section 265-K, Cr. P. C. The learned Additional Sessions Judge passed the impugned order and discharged the respondent under section 265-D read with section 494-A, Cr. P. C.
4. The arguments for the petitioner were advanced by Mr. Muhammad Ali Shaikh and the arguments for the State were made by Mr. A. R. Qureshi who supports the judgment of the lower Court and also by Mr. Abdul Wahab, respondent No. 3 who is an Advocate himself.
5. The circumstances of the case are that the respondent Abdul Wahab is the uncle of Mst. Aisha and the father of Abdul Rauf. Unfor--tunately father of the girl Aisha died. This is mainly a family feud and the relationship between the respondents and the petitioner are so close that the Government itself gave permission for withdrawal of the prosecu--tion and an application was made by the learned A. P. P. Under section 494, Cr. P. C. For withdrawal of the prosecution case. It was considered to be a policy where misunderstanding or a dispute of a family nature arises between the two parents and their children that the Government gave permission for withdrawal.
The matter when it was argued in this Mr. Abdul Wahab who is also an Advocate has referred to me to his application made to the relevant authorities detailing with the facts that the mother of the girl Aisha was second wife of his brother Abdul Majid and it was alleged that it was a love marriage if at all the Nikah was performed but the mother had come from those quarters which were considered to be having a bad reputation. Hence the entire case is fer--mented by the mother of the girl.
6. So far the merits of the case are concerned the learned trial Court has made it clear in its judgment which is impugned in this Court that the entire case depends on the statement under section 164, Cr. P. C. Which was recorded after taking the girl from the house of Abdul Wahab and his son Abdul Rauf. There was an engagement earlier and in pursuance of that engagement the girl wanted that she be married with Abdul Raof the son of Abdul Wahab her uncle. Since the marriage ceremony was performed in a peaceful amicable way which is also sup--ported by the witnesses of Nikah and by certain photographs which show that two spouses linked by a wedlock were happy at this marriage, and after all the marriage was between two cousins hence three could not 19831 possibly be a case of abduction. . Mst. Sarafunisa the brother of the girl did not agree to this proposition because there was something in her mind with regard to property of deceased Abdul Majid which was in control of the mother. The statement under section 164, Cr. P. C.
Was made in coercion when the girl came in the custody of the mother and as such this statement is discarded by the trial Court. The observation of the lower Court in this context is very relevant and I quote from the said judgment :- ---4. On behalf of the accused-person the foremost contention is that assuming the entire evidence collected on behalf of the prosecu--tion or record otherwise, is brought on record as it is, even then the prosecution would have to depend on nothing but the solitary evidence of prosecutrix namely Aisha Majid. Relying on the principles laid down in the authorities reported as PLD 1960 SC 325 and PLD 1967 SC 326 and it was argued that unless the solitary version of prosecutrix who is of full age, is corroborated by some independent evidence a charge can hardly be sustained on the basis of this evidence. This argument is an appealing one particularly when the law has been settled by the Supreme Court on this point. This evidence of the prosecu--trix Mst.
Aisha even if brought on record would be based on her statement under section 161, Cr. P. C.
Recorded on 2-8-1977 by t he first Investigating Officer and statement under section 164, Cr. P. C.
Recorded by the learned Magistrate on 4-8-1977. On the other hand the accused have produced an affidavit dated 27-7-1977, apparently sworn by the prosecutrix the contents whereof are however denied by the prosecutrix in her statement under section 164, Cr. P. C. But the photograph and signature of prosecutrix appearing on it are both admitted by the prosecutrix in her statement under section 164, Cr. P. C. This affidavit was sworn before the Notary Public and countersigned by a Magistrate I Class and during the enquiry made by Sind Government it was reported by Mr. Ahmad Khokhar A. C. M. Court No. 3 that the said free-will affidavit has been fully certified to be true by the Magistrate and the Oath Commissioner and that the deponent had duly appeared and sworn the affidavit. Although the prosecutrix has admitted her signature and photo-- graph while denied the contents of this affidavit, the evidence of Magistrate and Oath Commissioner would go against her denial.---
7. Thus, it is clear that the entire case of the prosecution was based on the statement of prosecutrix then aged about 21 years. From the record it appears that she had admitted that she went to college on 27-7-1977 and on that day she had met the accused Abdul Rauf at the Enquiry Bus Stop and although previously she had given to him her photograph, she signed a blank stamp also. It is strange that on side, as stated in F. I. R. By her mother, some dangerous attitude was noticed in the conduct of the accused Abdul Rauf while, on the other hand the girl has admitted her meeting with her cousin outside the house and reposing so much confidence in him that she had given her photograph and also signed on the blank stamp paper.
8. However, the other circumstances as detailed in the impugned order show that the girl had gone voluntarily. She had changed in 164, Cr. P. C. Statement due to pressure of her mother. Even otherwise it was a family matter and that withdrawal of the prosecution as ordered by the Government was in fitness of the case. The charge even otherwise could not have been proved on the basis of 164, Cr. P. C. Statement with--out corroboration. The strong presumption is that she had married as she was already engaged with Abdul Rauf. Both these spouses are cousins inter se.
In PLD 1977 SC 451 it is observed that- application for with drawal can be made on many possible grounds which may include the inex--pediency of prosecution on grounds of public policy or in the interest of public peace, or the undesirability of permitting the prosecution to continue where there is insufficient or meagre evidence to justify a con--viction." In this case it is a family dispute and it is converted into criminal case. The doubtful version of the prosecution in view of settled law is never taken to be sufficient for leading to the conviction without corroboration and this is the case where corroboration is lacking.
8. I am referred to in a case State v. Puttan alias Sibte Hassan and 23 others (1980 P Cr. L J 1034).
The principle enunciated in this ruling that an application not based on any ground of public policy or public peace or interest but merely on general grounds is held to be not in consonance with the spirit of section 494, Cr. P. C. The instant case is on the grounds of public policy and public peace and family interest of the parties as such the ruling does not apply. Another authority cited is P. L. D.
1978 Karachi B 371 which is also not applicable inasmuch as no sufficient grounds were given by the Court allowing consent for withdrawal. The Courts have to pass judicial order stating the facts and grounds for allowing such withdrawal.
9. P. L. D. 1980 Karachi 217 is also referred by the learned counsel for the petitioner. The facts in the aforesaid case are with regard to section 161 clause (II). P. P. C. The case relates to one shipping bill due to inadvertent mistake. In this case public peace or public interest is not involved as such it was held that such exercise calculated to amount to pre-eating trial hence it was not permissible.
The case rider discussion before me is entirely a different one and it is a family dispute pure and simple.
10. Recording of the evidence after having assessed the entire material on which the prosecution based its case, would be futile exercise The learned trial Court correctly discharged the respondents under section 265--Cr. P. C. In view of the above discussion the Criminal Revision is hereby dismissed.