' This order will be read along with order dated 8-11-1995 passed on C.M. No,4002 of 1995.
2. The petitioners have filed this petition for quashment of the F.I.R. No,49 dated 9-5-1995 registered under section 363/148/149, P.P.C., with Police Station Nowshera, District Khushab.
3. According to F.I.R. Umar Draz petitioner No,2 armed with pistol along with others forcibly kidnapped Mst. Asmat Mehmood.
4. Admittedly the complainant is step-mother of Mst.Asmat Mehmood petitioner No, I . The father and mother of the girl had died. At the time of alleged occurrence she was admittedly residing with her grandfather and real maternal uncle. Her custody, therefore, cannot be termed to be illegal and as such there is no question of attraction of provisions of section 363, P.P.C. To cut short the controversy section 363 may be reproduced:-- "363. Punishment for kidnapping.--Whoever kidnaps any person from Pakistan or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
' The words used are "lawful guardianship". In the instant case the alleged abductee was in the custody of grandfather and real maternal uncle. In the absence of real father and mother the custody of the grandfather and maternal uncle cannot be said to be illegal. Furthermore Mst.
Asmat Mehmood has contracted marriage with her own accord and free will with petitioner No,2 who is her real uncle's son. The Nikah is evidenced by Nikahnama which is a registered document.
The Nikah was performed on 10-5-1995 which is prior to registration of the F.I.R.
5. For all that has been discussed above, I am convinced that continuation of further proceedings on the basis of the impugned F.I.R. Would abuse of process of law as there is no likelihood of conviction of the accused. Resultantly the petition is accepted and F.I.R. No,49 dated 9-5-1995 registered under section 363/148/149, P.P.C. With Police Station Nowshera District Khushab is hereby quashed.