Applicant Zakiuddin and Mst. Shehla Zaki have sought quashment of proceedings pending against them in Criminal Case No.248 of 1990, arising out of Crime No.352 of 1990, Gulberg Police Station., under section 16-10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, in the Court of IIIrd Additional Sessions Judge (Central) Karachi.
2. One Muhammad Zakir Khan Changezi, the complainant in Crime No.352 of 1990, Gulberg Police Station, under section 16-10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, lodged F.I.R. Alleging therein that applicant Zakiuddin, who was previously married to his daughter Ghazala Khan has developed illicit intimacy with his another daughter Shehla Khan, who on the protest of his former were Ghazala Khan divorced her and was living with Shehla Khan without any lawful authority. After usual investigation both the above applicants were sent up to stand trial for the said offence. An application under section 265-K, Cr.P.C. Was moved before the trial Court on behalf of applicants seeking their acquittal, but the same could not be disposed of due to protracting tactics adopted by Muhammad Zakir Khan Changezi. It is in these circumstances that the applicants have invoked the inherent jurisdiction of this Court by filing an application under section 561-A, Cr.P.C.
3. I have heard Mr. Gul Zaman Khan, learned counsel for applicants and Mr. M. Hayat Qureshi, learned counsel for State. The latter has supported the prayer made on behalf of the applicants for quashment of the proceedings.
4. In this case there are certain facts and circumstances, which are either not in dispute or the same are proved from the documents available on record. These are as follows:- (i)Applicants Zakiuddin was married with Ghazala Khan, sister of applicant Shehla Zaki and out of this wedlock he has got three issues; (ii)Applicant Zakiuddin has divorced his former were Ghazala Khan on 21-4-1990; (i.e) Applicant Zakiuddin has married with applicant Shehla Zaki, sister of Ghazala Khan on 26-7- 1990 after the expiry of the period of three months, and their Nikah is duly registered;
(iv) Applicant Shehla Zaki is a grown up lady, aged about 20 to 25 years, and she was a sui juris when she entered into marriage bond with applicant Zakiuddin; and (v)Both applicants Zakiuddin and Shehla Zaki are living together as husband and were.
5. On the face of the above-admitted/proved facts, it is contended on behalf of the applicants that the allegations contained in the charge-sheet, even if accepted on face value do not constitute an offence. Reliance is placed upon cases of Abdul Razzaq etc. v. The State, reported in 1989 P Cr. L J 1601, Allah Ditta and another v. The State reported in PLD 1989 SC 744 and Muhammad Salim etc. v.
The State reported in 1990 P Cr. L J 971 to satisfy this Court that where the factum of marriage is proved, no conviction under section 10(2) or section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, can be sustained. In the last cited judgment this aspect of the case was examined by me and it was held:-- "The power conferred on the High Court under section 561-A, Cr.P.C. Is for doing real and substantial justice. This power is to be exercised in exceptional cases, but where it appears to the Court that there is an abuse of process of Court then there should not be any hesitation in exercising such power. Instances are not lacking where allegations were even found to be so obviously false that even though if believed they would not constitute an offence. Mst. Zahida Parveen has attained the age of majority. She had entered into the marriage bond on 15-11-1986, three days prior to the lodging of F.I.R. She has all along supported the case of applicant Muhammad Salim by saying that she had married with him of her own free will. Under these circumstances the continuance of proceedings against the applicants in a case under the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979, will amount to unnecessary harassment. The result is obvious and no Court on such evidence can convict the applicants on the aforesaid charge:'
6. The continuance of proceedings in the above circumstances amounts to an abuse of process of Court, and it was obviously for this reason that Mr. M. Hayat Qureshi, learned counsel for State has also supported the prayer made on behalf of the applicants. Accordingly the application made under section 561-A, I Cr.P.C. Is allowed, and the proceedings pending against the applicants in the Court of IIIrd Additional Sessions Judge (Central) Karachi, in Criminal Case No.248 of 199() (Crime No.352 of 1990, Gulberg P.S.) under section 16-10(2) of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 are hereby quashed.