The petitioner above-named has filed the above petition under sec--tion 561-A, Cr. P. C. For quashment of the proceedings pending against her, in the Court of Vth Additional District and Sessions Judge, Karachi; under section 302/34, P. P. C. On the following facts and grounds
2. The case of the prosecution may be stated in a short campass. On 20th July, 1980 at about 9-30 p.m., one Neeja Muhammad son of Muhammad Ali lodged a report at Jauharabad Police Station, Karachi bearing No. 190/80 wherein he stated as follows :- ---I live at above-mentioned address with my family and deal in paper business. My daughter Shahnaz aged 17 years unmarried lived with me. Yesterday on 19th July 1.980 when I left for office my wife was in the house. About quarter to eleven in day a by named Raja with a girl Naila came in a car and said that Naila's sister is going to America who calls her. They took Shahnaz with them, for I/2 hour. After that Shahnaz did not return home. When I returned from office to home at 5-30 p.m. My wife Gulshan told me about this incident. I searched Shahnaz in my relatives houses, but could not find her. I am doubtful that Raja and Naila have kidnapped my daughter for rape. My allegation against Raja and Naila is that they have kidnapped my daughter. Now I report for action.---
3. That after usual investigation an interim challan was submitted, vide Charge Sheet No. 9(80 on 6th August, 1980, whereafter a final challan was submitted on 16th August, 1980.
4. That the prosecution cited 29 witnesses in the calendar of wit--nesses and the prosecution has so far examined about 10 witnesses namely (1) Neeja Muhammad son of Huhammad Ali (complainant), (2) Mst. Gulshan Nazar wife of Nazar Ali (both father and mother of deceased Shahnaz), (3) Nadir Shah son of Nazar Ali (brother of deceased Shahnaz), (4) Sher Ali son of S. Roshan Ali Shah, (5) Swaleh Tabassum son of Muhammad Abdul Salam, (6) Abdul Rashid son of Akbar Ali, (7) Akbar Ali son of Mir Ali Bux, (8) Ali Dino son of Shujawal, (9) Ali Baba son of Athar Baig Mirza, (10) Alauddin son of Hakim Ali.
5. The learned Advocate for the petitioner in support of the above petition submitted as under :- (a)That all the material witnesses in the case in question have been examined and the certified copies of their statements are attached with the above petition, which clearly show, that none of the prosecution witnesses have involved the petitioner in respect of the crime in question.
(b) That as far as the applicability of section 34, P. P. C. Is concerned, the learned Advocate for the petitioner submitted; that there was no evidence on record so as to show, that the present petitioner shared common intention with the co-accused and consequently on the basis of the prosecution evidence it s impossible to convict, the present petitioner for the offence in question, 6n the basis of applicability of section 34, P. P. C.
(c) That the learned Advocate for the petitioner further submitted, that this is a case of total lack of evidence as far as the present petitioner is concerned and the remaining witnesses who were yet to be examined by prosecution are only formal witnesses and as such their evidence would not improve the prosecution case against the present petitioner in any manner.
6. In support of the above contentions the learned Advocate for the petitioner relied upon cases reported in 1977 P Cr. L J 565, 1971 P Cr. L J 1228 and 1979 P Cr. L J 279. And unreported decision of this Court in Criminal Miscellaneous Application No. 127/82 and submit--ted that this is a fit case for quashment of proceedings in question against the present petitioner.
7. The learned Advocate appearing for the State submitted, that he was supporting the above petition of the petitioner for quashment, as all the material evidence against the petitioner has already come on record and there is nothing in the said evidence which could result in the conviction of the petitioner in respect of the offence with which she is charged and consequently the continuance of the proceedings against the present petitioner would amount to abuse of the process of the learned trial Court.
8. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the statements of the prosecution witnesses so far recorded as well as through the cases relied upon by the learned Advocate for the petitioner. I have also taken into consideration the submissions made by the learned Advocate for the State, that the remaining prosecution witnesses are formal witnesses and as such their statements would not improve the case of the prosecution against the present petitioner.
9. Keeping in view the above facts and having carefully gone through the statements of the prosecution witnesses so far recorded and the admitted fact that remaining prosecution witnesses are formal and their evidence will in no way advance the prosecution case against the present petitioner, to even prima facie establish that petitioner shared the common intention of the co- accused to murder the deceased Shahnaz, it would be abuse of the process of the learned trial Court to continue the proceedings against the present petitioner, as proceedings cannot in my opinion result in conviction of the present petitioner as prosecution has led no evidence to establish that petitioner shared the :common intention with co-accused for murder of the deceased. It seeing to me, that petitioner was used as instrument by co-accused to call the deceased from her house, which she did, as petitioner was fully aware of the fact that deceased was on friendly terms with the co-accused and consequently she helped both the friends to meet.
There is nothing in the statements of P. Ws. Specially the mother of the deceased to suggest, that deceased was unhappy to go on the pretext put forward by the petitioner, with co-accused. There is also nothing brought on record to suggest, that petitioner was jealous of the friendship of the deceased with co-accused and as such she was interested in arranging the meeting between deceased and co-accused, in furtherance of their common intention to murder the deceased in order to remove the deceased from her path, which in my opinion was not at all necessary, as deceased and co-accused were neither married nor even engaged, to warrant such action.
10. Therefore, in my opinion this is a fit case for quashment of the proceedings in question as far as present petitioner is concerned, as continuance of the said proceedings against the present petitioner would result in harassm ent of the petitioner and the said proceedings cannot end in con--viction of the petitioner, on the basis of entire prosecution evidence which has been led by prosecution and/or is to be led hereinafter through 11 P. Ws., who are formal witnesses like mashirs, Dr. I. O. Etc.
11. Consequently, I allow the above petition and quash the proceed--ings pending against the present petitioner in the Court of learned Vth Additional District and Sessions Judge, Karachi under section 302/34, P.P.C. And discharge the bail bonds executed by the petitioner.