This is a petition under section 561-A, Cr.P.C. For the quashment of proceedings against the petitioner in case F.I.R. No.208/91 registered at Police Station Rukunpur on 22-7-1991 on the complaint of Gul Muhammad, father-in--law of the petitioner under sections 16, 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979). Complete challan has been sent to the Court of Additional Sessions Judge, Rahimyar Khan where the criminal proceedings are pending adjudication.
2. The facts as unfolded in the F. I. R. Are that complainant father-in-law of the petitioner, lives in Kotla Hayat for the purpose of labour. About two years before the occurrence, his elder son married Mst. Zarina Mai petitioner, Habib Ullah the elder son lived in Chak No.90/N.P. In order to do labour.
Elahi Bakhsh had visiting terms with Habib Ullah and used to come to the house of the complainant, and said Elahi Bakhsh developed illicit liaison with Mst. Zarina Mai petitioner. Out of suspicion, the complainant had forbidden Elahi Bakhsh to visit his house and on 21-7-1991, at 9/10 a.m., when the complainant alongwith his family had gone to the graveyard, and on their return, they found Mst. Zarina Mai, missing and during search, he was apprised by Jind Wadda and Muhammad Ramzan that they had seen Mst..Zarina Mai going in the company of the accused Elahi Bakhsh alias Elahi Machhi, Maqsood Khokhar and Nazoo Machhi, at Adda Mochiwala. The P.Ws.
Were further told by the alleged accused that mother' of Zarina Mai petitioner is seriously ill therefore, they are taking her to the house of her mother.
3. I have heard the learned counsel for the petitioner, the State and have also seen the record.
The petitioner got her statement recorded on 10-9-1991 under section 164, Cr.P.C. In which, she stated that she was forcibly abducted on pistol point by three persons including the accused mentioned in the F.I.R. And she was subjected to rape by all of them for 10/12 days and on getting a chance, she ran away from them and thereafter, she appeared before the Court and got her statement recorded.
Incomplete challan was submitted in Court on 10-10-1991, in which the petitioner was cited as a witness and on 16-7-1992, complete challan was submitted in which the petitioner, who is the victim of the occurrence, has neither been cited as witness nor as an accused and later on, on 22- 10-1992, supplementary challan was submitted in Court, in which, the petitioner has been cited as an accused.
4. It is argued on behalf of the petitioner that the petitioner has been transposed from witness to an accused with the ulterior motive, to help the accused and to destroy the prosecution case. She was forcibly abducted and raped and she is the main prosecution witness. There is no evidence on record to suggest that she was a willing party and her statement under section 164, Cr.P.C. Is a material evidence which has come forward in support of the F.I.R and it shows that she was forcibly abducted and raped and in these circumstances, it is prayed that proceedings in the above said case to the extent of the petitioner be quashed and petitioner be enabled to appear as a prosecution witness against the accused.
5. The learned counsel for the State concedes that there is no evidence on the record to suggest that the, petitioner was a willing party to the occurrence.
6. D. S. P . Mr. Khadfm Hussain Niazi who submitted that final report declaring the petitioner as an accused, was called by the Court on 5-12-1994, to show the evidence which led him to conclude that it was a case of c1opement and that the petitioner was a consenting party. The D.S.P. Merely submitted that as a result of his investigation, it was a case of elopement and the petitioner was a consenting party and therefore, he concluded that she should be cited as an accused. The learned State Counsel submits that he was not able to show any evidence on the basis of which, he came to the conclusion that the petitioner was a consenting party and he was not able to give the names of the witnesses to prove this fact and no such witnesses have been cited in the calendar of the witnesses. The petitioner has been cited as an accused arbitrarily, merely at the whim of the D.S.P. And there is no evidence against her on the record. It seems that she has been cited as an accused only to give benefit to the real accused to destroy the prosecution case and to stop her from deposing as a prosecution witness against the accused.
The statement of the complainant Gul Muhammad has been recorded by the trial Court on oath as P.W.1 and he has also fully supported the F.I.R. 8 version and has not described the petitioner as a consenting party.
This petition is, therefore, accepted and the criminal proceedings pending against her in case F.I.R.
No.208/91 of Police Station Rukunpur, District Rahim yar Khan are quashed to her extent and the State is directed to cite the petition as a prosecution witness and she shall be allowed as such to appear before the trial Court.