This is an application under section 561-A, Cr. P. C., on behalf of Noor Muhammad Gahi, his wife Mst.
Zeenat and Maula Bakhsh, praying this Court to quash the proceedings in a case under section 363/366, P. P. C., pending against them in the Court of Additional Deputy Commissioner, exercising powers as Section 30 Magistrate, Sargodha.
2. The prosecution case is that Ghulam Yaseen son of Noor Muhammad Gahi, Noor Muhammad Gahi, Mst. Zeenat and Maula Bakhsh were on visiting terms with the complainant Nazir Hussain.
Noor Muhammad and Mst. Zeenat demanded the hand of Mst. Surraya sister of Nazir Hussain in marriage for Ghulam Yaseen, but the parents of the girl did not agree to it.
On 21st March 1968, when Mst. Surraya was alone in the house, Ghulam Yaseen (absconder) Noor Muhammad, Mst. Zeenat and Maula Bakhsh came there and took her away. The parents of the girl demanded the restoration of Mst. Surraya, but the accused did not do so. On 1st of June 1968, Nazir.
Hussain, brother of abductee Mst. Surraya, lodged the report-and a case of abduction was registered against the accused. In the course of the investigation, the police arrested Noor Muhammad, his wife Mst. Zeenat and Maula Bakhsh; but the police failed to arrest Ghulam Yaseen and to recover Mst. Surraya.
It may be stated here that Ghulam Yaseen put in Cr. Misc. No. 3826 of 1970, and surrendered himself to this Court and was admitted to bail on 10th June 1970, which was confirmed on the 21st of September 1970.
3. The case of the petitioners is that Noor Muhammad and Mst. Zeenat petitioners, are the residents of Noorpur Town, Tehsil Khushab, District Sargodha, where Noor Muhammad is carrying on his professional practice as a Hakeem. On 25th January 1968, his son Ghulam Yaseen was married to Mst. Surraya daughter of Ghulam Muhammad deceased, resident of the same town and the Nikah was duly registered at Noorpur. A copy of the nikahnama has been placed on the record as Annexure "A". It is alleged that Mst. Surraya was major at that the and the age described in the nikahnarna is 20 years. It is further pleaded that according to the birth entry recorded in the Town Committee, Sahiwal, District Sargodha, Mst. Surraya was born on 13th March 1950, and that the Medical Officer Incharge X-Ray and Electrical Department, Mayo Hospital, Lahore, who examined Mst. Surraya on 15th May 1968, described her as of 19 years of age. It is further stated that Mst.
Surraya married Ghulam Yaseen of her own free-will and since her marriage is living with her husband and had got to daughters out of this wedlock. The petitioners placed on the record the statement of Mst. Surraya recorded on oath on 31st March 1970, which was duly countersigned by a Magistrate at Karachi, wherein she deposed that she married Ghulam Yaseen of her own consent.
When this petition was placed before me for hearing it was contended that Mst. Surraya is staying as the wife of Ghulam Yaseen of her, own free-will and that she was more than 18 years of age at the the of marriage and that no penal offence was made out. A request was made that she should be allowed to appear in this Court. On 4th of June 1970, she appeared in this Court and made the following statement :- "Hakim Ghulam Yaseen is my husband. I of my own free--will had entered into nikah with him. I produce a copy of the nikahnama (Annexure `A'). Noor Muhammad and Mst. Zeenat are parents of my husband. Maula Bakhsh is a witness of the nikah. Miss Yasin Tahir and Miss Shahida to baby girls are born out of this wedlock. Nazir Hussain, my brother, had instituted a false case against my husband and his relatives. I am staying happily in the house of my husband."
After recording the statement of Mst. Surraya, notice was issued to the State and the record was sent for.
4. The record shows that the prosecution examined this case and pointed out the following stage in the prosecution case :--
(a) that the case was registered to months and twenty days after the abduction. This delay is unexplained and is fatal,
(b) that according to the birth certificate the abductee was minor at the the of occurrence, but there is an X-Ray report and the Medical Certificate attached with the police file which were allegedly sent by the abductee to the Superintendent of Police and the senior officers in which she alleged that she was major and legally wedded wife of Ghulam Yaseen. According to these documents, her age is between 17-18 years.
(c) that the abductee has nut been recovered and it will be wastage of the to send this case to Court.
It seems that the defects were not complied with and the challan was put in the Court.
5. On examining the record the first question that requires determination in the case is as to what was the age of the girl at the the of the abduction. On this point on the record there is an attested copy of the birth certificate of Mst. Surraya issued by the Town Committee, Sahiwal, District Sargodha, which shows that she was born on the 13th of March 1950.- In addition, there is X-Ray report of the Medical Officer, Incharge X-Ray and Electrical Department, Mayo Hospital, Lahore, which shows that she was 19 years of age at the the of her examination. She has described herself in the nikahnama and the affidavit as 20 years of age. This evidence vas not contested or disputed by the learned counsel appearing for the State. I, therefore, hold that Mst. Surraya at the the of the alleged abduction was between 18 and 19 years of age. She is a grown-up girl and has deposed in her affidavit and in this Court that she had married to Ghulam Yaseen on 25th January 1968, under Sunni Muslim Law of her own free-will and that out of this wedlock to children, namely, Miss Yasmin Tahira aged 1-- years and Miss Sahahida Jabeen aged five months were born. She stated that this marriage was solemnized with her consent and that she living happily with her husband. She deposed that her brother Nazir Hussain, had instituted a false case against her husband and his relations. The statement of Mst. Surraya shows that she is the married wife of Ghulam Yaseen and that she had entered into marriage contract of her own free-will. The marriage of Mst. Sarraya with Ghulam Yaseen is established on the record as it is evident from the nikahnama which ha, been placed on the record. The testimony of Mst. Surraya further shows that she has settled in the house of Ghulam Yaseen and is living there, apparently with her consent.
In face of the affidavit of Mst. Surraya, the prosecution story does not appear to be true. It seems that she herself eloped with Ghulam Yaseen and on missing her, her brother got up the story to recover her and to bring her paramour and his relations to trouble. As observed earlier, the prosecution story has been completely belied by Mst. Surraya, the alleged abductee, I am clear in my mind that the evidence placed on the record shows that she was a consenting party to abduction and in the circum--stances it cannot be said that she was abducted with intent that she may be compelled to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse. In the circumstances I do not think it can be held that the petitioner had-the intention or the knowledge required as one of the ingredients to make up the offence made punishable under section 363;/366, P. P. C
6. The result is that the petition is accepted and the proceeding pending in the Court of the Additional Deputy Commissioner, Sargodha, against the petitioners are hereby quashed.