' Nawabzada Saleem Dil Khan, Advocate, learned counsel for respondents Nos.1 to 3 submits, inter alia, that initially petitioner Gull Ghameer had charged Jan-e-Alam Khan, Advocate (respondent No,1), Firdus Khan, Advocate (respondent No,2) Mst. Hazratun Nisa (respondent No,3) and Aye Khan (respondent No,4) for having kidnapped his (Gull Ghameer) daughter Mst. Sabrina, aged about 10/11 years.
2. During the course of Police Investigation statement of one Munir Ahmad was recorded in the Court of E.A.C./Magistrate 1st Class, Karak. Plea of alibi was taken by one of the respondents i,e,, Jan-e-Alam Khan, Advocate of Karak Bar Association. Similarly it was alleged that Mst. Hazrat-un- Nisa (respondent No,3) was not present on the scene of occurrence. In this regard statement of quite a few persons were recorded by the concerned Magistrate. As far as Ayub Khan (respondent No,4) is concerned he was stated to be in Peshawar and got his car repaired on the day of occurrence. Accordingly the statements of the concerned mechanic and 3 other respectable persons, who were present in the mechanic's shop, were also recorded, in addition to the statement of a Major of the Army Supply Corps namely, Muhammad Ishaq, S.S.D., Kohat.
3. It appears that the theory of alibi prevailed with the Sessions Judge, Karaka who by his order dated 19-10-1993 released the respondents on bail keeping in view the circumstances detailed above.
4. Dissatisfied with the verdict of the Sessions Judge, the petitioner/complainant impugned (Crl.
Misc. No,907/93) the said order before this Court. However, the said petition for the cancellation of bail was dismissed by the then Chief Justice, His Lordship, Mr. Justice Abdul Kari Khan Kunai on 3-11- 1993 in limited.
5. Later, when examined medically, it transpired that the alleged abductee was not less than 18 years of age, and, therefore, she being a major, had the right to contract a valid marriage with Firdus Khan i,e,, accused/respondent No,2.
6. On 7-5-1995 the statement of Mst. Sabrina, the alleged abductee, was recorded under section 164, Cr.P.C. Without any apparent reason. On 25-7-1995, the Investigating Officer, once again produced her before the Magistrate 1st Class Karak and get recorded her statement under section 164, Cr.P.C. The second statement was recorded within less than 3 months.
7. The abductee again stated, on oath, before the Magistrate, that her statement which she gave before the Magistrate three months? Back was correct.
8. This fact, by itself, forced the Investigating Officer to recommend the case for cancellation under section 169, Cr.P.C. As far as respondents Nos.1 to 4 are concerned. Ironically, the Prosecuting Agency did not agree with the Investigating Officer and insisted that the abductee should be recovered in the first instance and thereafter her statement be recorded by a Magistrate once again. The file was accordingly sent back to the Investigating Officer on 20-11-1993. Resultantly, the abductee was recovered and was made to remain in the police custody for sufficiently long time.
She was also allowed to consult/meet her parents. It was thereafter that she was produced before a Magistrate and her statement was got recorded under section 164, Cr.P.C. On 25-7-1995.
Interestingly, once again, the lady insisted that her previous statements, recorded by the other Magistrates from time to time were correctly recorded and that she had never been kidnapped.
She categorically stated on oath that she had contracted a valid marriage with her free will/consent. This forced the Investigating Officer to again recommend for cancellation of the case.
9. This time the Prosecution Branch accepted the recommendation of the Investigating Officer and the accused respondents were discharged under section 169, Cr.P.C. The Magistrate also passed an order in this behalf, on 15-8-1995, which reads:--- "Fresh final report for cancellation of the case received from the prosecution. Be entered in the relevant register. Brief facts of the case are that on 28-9-1993 the complainant Gul Ghamir son of Mashal Khan resident of Aya Khel charged Jan Alam, his brother Firdus Alam, his mother Mst.
Hazratun Nisa and Ayub Khan for alleged abduction of his daughter Mst. Sabrin Bibi forcibly due to previous motive of 'Shar, Pastorate'. All except accused Firdus Alam are recommended by S.H.O. For release under section 169, Cr.P.C. And challah under section 512, Cr.P.C. Was submitted against him.
The abductee could not be recovered. However, on 25-7-1995 the alleged abductee appeared before E.A.C., Karak and gave her statement under section 164, Cr.P.C. Wherein she stated that neither she had been abducted nor she was forced by anybody to leave her house. She further stated that she performed valid Nikah with Firdus Alam and was living with him as his legally/sharia wedded wife. Her Nikahnama was also placed on file. She declared her statement to be based upon facts, willful and without any pressure of fear. As per certificate furnished by the Magistrate she was very happy and in smiling mood.
' Keeping in view the above circumstances and facts on record, the case is hereby cancelled and all the alleged accused are discharged. Their sureties also stand discharged from the liabilities of their bail bonds. Case file be consigned to Record Room Karak after its due completion.
(Sd.)
Announced: Sub-Divisional Magistrate, 15-8-1995. Karak: 15-8-1995."
10. The petitioner, Gull Ghamir, slept over the episode for about a year i,e,, from 15-8-1995 to 15-6- 1996 and thereafter, suddenly chose to file Writ Petition No,645 of 1996 (Gul Shamir v. Jan-e-Alam Khan and others). This writ petition was, however, withdrawn by the petitioner with permission to file a petition under section 561-A, Cr.P.C. An Hon'ble Division Bench of this Court consisting of His Lordship Mr. Justice Mian Shakirullah Jan and Mrs. Justice Khalida Rachid accepted the prayer of the petitioner and recorded the following order:--- "10-7-1996. Mian Muhibullah Kaka Khel, Advocate for the Petitioner.
' The petitioner's counsel wants to avail the remedy under section 561-A, Cr.P.C. And requests to withdraw the writ petition. Allowed. Dismissed as withdrawn. Civil Miscellaneous Nos.811 and 8212 of 1996 also stand dismissed automatically.
(Sd.)
Judge.
(Sd.)
Judge."
11. Instead of filing a revision petition against the order of the Magistrate dated 15-8-1995, Vide: which the Magistrate 1st Class had discharged the respondents-accused, the petitioner chose to file a private complaint in the Court of the Sessions Judge, Karak on 15-10-1995.
12. On a second thought, the said petition was withdrawn from the Sessions Court with permission to file the same before the Illaqa Magistrate. The permission was granted by the Sessions Judge Vide: his order, dated 15-10-1995. The complainant was accordingly filed in the Court of Sub- Divisional Magistrate who entrusted the same to the Illaqa Magistrate with the directions to record the evidence and then forward his recommendations to the Sub-Divisional Magistrate. The Ilia Magistrate, after doing the needful, sent his report/recommendations, along with the evidence recorded by him, to the Sub-Divisional Magistrate who by his order dated 6-6-1996 dismissed the complaint.
13. It may be mentioned here that the validity/legality of the said order of the Sub-Divisional Magistrate was never challenged before the District and Sessions Judge and, therefore, it obtained finality.
14. The record of the case, however, reveals that the lady, the alleged abductee, was, somehow or the other, taken from Karak to Kohat by her father (the petitioner) and it was there that she was produced before Senior Civil Judge, Kohat/Judicial Magistrate Mr. Anwar Sajjad, who without going through the relevant law, recorded her statement and that too in the absence of any record, which was available in the Courts at District Karak. This statement was recorded on 16-5-1996.
15. By this statement the alleged abductee charged Firdus Alam of having forced her to marry him.
In other words, she negated all her previous statements recorded under section 164, Cr.P.C. By various Magistrate, from time to time, on oath.
16. Since Mr. Anwar Sajjad, Senior Civil Judge, Kohat/Judicial Magistrate did not know what to do with the statement which he had recorded, therefore, he neither passed any order on the application of the petitioner nor directed the Investigating Officer to register a case against respondents Nos.1 to 4 i,e,, no action, as contemplated by the law (S.164(2), Cr.P.C.) was directed to be taken. A copy of the statement recorded under section 164, Cr.P.C. Was, however, given to the petitioner/complainant.
17. I fail to understand as to why this was done and with what motive/intention. It appears to me that the Senior Civil Judge/Judicial Magistrate Kohat acted just like a Notary Public and totally ignored the provisions of section 164(2), Cr.P.C.
18. On the basis of the abovementioned statement recorded by the Senior Civil Judge/Judicial Magistrate Kohat, the petitioner has now approached this Court directly with the following prayer:- -- "It is, therefore, respectfully prayed that in the light of the above submissions the impugned order of discharge of respondents Nos.1 to 4 passed by respondent No,6 may be set aside and the said respondents may be directed to be put on trial in accordance with law.
' It is also respectfully prayed that pending decision of this petition/application respondents Nos.1 to 4 may be directed to be taken into custody. Any other order deemed appropriated in the circumstances of the case may also be passed. The petitioner may be allowed to put forward any other document/argument at the time of hearing of this petition/application."
19. On 10-9-1996 this petition was heard in motion wherein His Lordship, Mr. Justice Mian Muhammad Ajmal had passed the following order:--- "Contends that at the time of abduction of Mst. Sabreen Bibi daughter of Gul Ghameer petitioner, she was aged about 11 years. The order, dated 15-8-1995 seems to have been passed without taking into consideration the statement of the girl recorded by Judicial Magistrate/Senior Civil Judge, Kohat.
Needs consideration Admit. Notice.
(Sd.)
Judge."
20. It may be stated at the very out-set that the Humble Judge was misinformed by the petitioner because the statement of the girl (the alleged abductee) was recorded by the Judicial Magistrate/Senior Civil Judge, Kohat on 16-5-1996 whereas the order impugned was passed much earlier than that i,e,, on 15-8-1995. Accordingly, there was no question of taking into consideration the statement of the girl recorded by the Senior Civil Judge/Judicial Magistrate on 16-5-1996, i,e,, 9 months after the impugned order was recorded.
21. The learned counsel for the respondents submits vehemently that this petition has no merit at all and needs to be dismissed straightaway and that the petitioner be directed to pay special costs to the respondents who are respectable persons of District Karak, including two Advocates.
22. The learned counsel for the petitioner was heard at length on 15-6-1998 and today when the learned Assistant Advocate-General representing rest of the respondents i,e,, Nos.5 and 6 was confronted with this situation he submitted that the contention of the learned counsel for respondents Nos.1 to 4 appears to be correct. He submitted that when the Magistrate had discharged the accused under section 169, Cr.P.C. On 15-8-1995 then in that case the petitioner was legally bound to challenge the legality/validity of the said order before the Sessions Judge within 30 days. Since the petitioner did not do so, therefore, he was estopped by his own conduct to challenge the same by any other mean i,e,, through this petition.
23. Even otherwise, after having gone through the record of the case carefully, I am of the considered view that the petitioner has adopted a very novel procedure to defame respondents Nos.1 to 4 including Jan-e-Alam, Advocate (respondent No,1) and Findus Alam, Advocate (respondent No,2). This petition seems to have originated from tainted quarter, with malicious intention, and has misused the process of this Court. The same is, therefore, dismissed.
24. Since this petition was instituted maliciously, therefore, the petitioner is directed to pay Rs,10,000 (Rs, ten thousand) as costs to the respondents within one month.