1. Granted but subject to all just exceptions.
2. By this Criminal Miscellaneous Application under section 561-A, Cr.P.C. The applicants/accused Mrs. Arifa Amjad and Amjad Ali have sought the following relief:--- "The Honourable Court may be pleased to quash criminal proceedings against the petitioners, pending in the Court of Additional Sessions Judge-IV, Larkana, in Sessions Case No, 219 of 1998 pertaining to F.I.R. No, 24 of 1998, recorded at Civil Lines Police Station, Larkana."
1. ' The brief facts leading to the present case are that on 13-5-1998 complainant Fazal Muhammad Memon lodged F.I.R. At Police Station Civil Lines, Larkana against the applicants/accused. The facts disclosed in the F.I.R. Are reproduced herein in below:--- "My complaint is, that I was an officer in Mulsim Commercial Bank at Mirpurkhas. Therefore, due to my service I used to reside at Mirpur Khas alongwith my family members. My daughter Arifa, aged about 14 years was a student of Matric. On 29-4-1997 I had got Nikah of my nephew Azizur Rehman son of Muhammad Akram, performed with my daughter Arifa. Amjad Ali son of Afzal Sammon of Naaee Paro Mirpur Khas used to coach my daughter Arifa in Athletics. I retired on 21-11-1997. As the education of my children was on, I stayed back at Mirpurkhas on 10-3-1998, I returned to my house at Lahori Mohallah and started residing there, alongwith the members of my family. On 19-3-1998 at about 2-00 p.m. I was sitting in my house, alongwith my daughter Arifa, who was wearing 2 Gold Bangles a pair of Jhoomakas, a Gold Necklace and a pair of Gold Tops. The gate of the house was wide open. At that time, accused by the name of Amjad Ali son of Afzal Khan Sammon, resident of Naahe Para, Mirpur Khas, alongwith three others, entered into my house, branding Pistols in their hands. Soon after entering into my house, they brought us under their control and asked us not to raise any cry etc. Then accused Amjad Ali Sammon forcibly dragged my daughter Arifa by her arm and got out, while these 3 unknwon culprits stood guard over me. Due to the fear of their weapons, I did not raise any cry. My daughter Arifa kept on raising cries. Then, all the three culprits followed Amjad Ali, while I also went after them, raising cries. Then I saw that the accused forcibly seated my daughter Arifa into a car and were about to go, when, upon my cries, came my nephew Abdul Jaleel son of Abdul Razzak Memon and his friend Abdul Rasheed son of Abdul Majeed Chandio, both residents of Lahori Mohalla, Larkana who saw my daughter Arifa being forcibly abducted. The car bore no Registration Number. Then, I, alongwith Abdul Majeed Chandio went to Ashraf Ali Sammon, resident of Ittifaq Colony, Badin, who is married to the sister of Amjad Ali. But, he kept us on hopes. Now, he has made a point blank refusal. I have therefore come now, to file complaint that accused Amjad Ali Sammon and 3 unknown persons have forcibly abducted my daughter Arifa, alongwith her abovementioned Gold ornaments, for the purpose of committing rape upon her. I and the above witnesses have seen the faces of the 3 unknown persons very clearly and we will be able to identify them, if shown. This is my complaint. Investigation may be conducted."
2. ' After usual investigation applicants/accused were sent up to stand trial.
3. ' I have heard Mr. Abdul Waheed Katpar learned counsel for the applicants/accused and Mr. Syed Jalil Hashmi learned Assistant Advocate-General on behalf of the State. The latter conceded to the quashment of proceedings. I have also perused the material placed on record.
4. ' The perusal of record shows that on 25-5-1998 police recovered applicant/accused Arifa alongwith co-applicant/accused Amjad Ali from Ittefaq Colony, Badin and brought them at Larkana. On 27-5-1998 alleged abductee Arifa was produced before police surgeon for'the determination of her age. The police Surgeon from Radiological, Dental Examination and external appearance opined that her age was about 17 years. Applicant/accused Arifa was also sent to Shaikh Zaid Womens Hospital. Larkana for further examination. The Lady Doctor after examination opined that she was about 18 years of age and was not a virgin. A Medical Board was also convened by the Director Health Services, Larkana Division consisting of four eminent Doctors to ascertain the age of applicant/accused Musamat Arifa. This board was constituted on the application of complainant. The Medical Board after thorough examination unanimously confirmed the opinion of previous doctors and it was opined that her age was 18 years. Applicant/accused Arifa was confined at the womens, prison whereas applicant/accused Amjad was separately detained at the police lock-up.
5. ' On 6-6-1998 applicant/accused Arifa was produced before Judicial Magistrate Larkana, who recorded her statement under section 164, Cr.P.C. The contents of her statement are produced herein below in extenso: "I had been residing with my parents at Jamandas Colony Mirpur Khas, for about 4/5 years I used to study in Matric, at the Government High School, Mirpur Khas. Muhammad Amjad was the Games Teacher in our School. I started to like him and both decided to get married. I told my parents to permit me to marry of my own choice, but they declined to approve of it and said that they will get me married with a cousin of mine, which I did not cherish. On 13th December, 1997, I and Muhammad Amjad presented ourselves before Mukhtiarkar, Mirpur Khas who permitted us to marry under a Free Will. Then I went back, home. Again, on 27th December, 1997, I went to Amjad in company of my Seheli (Girl Friend). Thereafter, I and Muhammad Amjad got our Nikah read by a Moulvi of Mirpur Khas, in presence of a few friends of Muhammad Amjad. Then, I went back to my house. I tried to persuade my parents that they may permit me to marry of my own choice, but they did not consent to that. After about 3 months I came to Badin alongwith my husband Amjad, where we started residing in the house of Amjad's sister. After about a week, my father and my mother came to me at Badin and met me and told me to accompany them to Mirpur Khas and be there for about ,a month, and that after a month, they will get me married with the same person, Amjad. But due to fear, I did not go with them. Upon this, my mother relieved me of the ornaments, I was wearing, and then, they both went back. After a few days my maternal uncle Saeed Ahmed and aunty came to us and they too repeated the same demand. But I replied in the negative and told them that I had married of my own choice.
6. Thereupon they went back, annoyed. Thereafter, my cousins visited me, and to them also, I gave the same reply. Some 15 days after, Larkana Police came to our house at Badin and therefrom they brought me and my husband to Larkana. My father Fazal Muhammad, my cousin Jalil Ahmed and his friend, Rasheed Chandio had come alongwith the police. I was kept at the Women's Police Station for about one week. Thereafter, I was produced before this Court. Therefrom at my request, I was sent to Darul Aman of Larkana. Today, I have again been produced in this Court. I have not been abducted by any one. But, I have married with the accused, of my own free will, under Shariat Muhammadi. I want to live together with my husband, in future, also.
7. CROSS-EXAMINATION TO ACCUSED MUHAMMAD AMJAD ' Neither has the accused abducted me nor has he misled me. I have performed Nikah with him of my own free will and I have been living together with him. I want to live together with him for ever, as he is my husband. We have produced our Nikahnama before the Police Subedar of Civil Lines, Larkana."
8. ' Learned Judicial Magistrate IV Larkana after recording her statement passed the following order:
9. ' The lady does not want to go to her father and mother. Keeping the security of the lady in view, she is sent to Darul Aman, at her request, till further orders.
10. (Sd.) 6-6-1998 IVTH JUDICIAL MAGISTRATE, LARKANA."
11. ' The record further shows that on 12-6-1998 the applicants/accused were sent up before learned Judicial Magistrate Larkana under a charge-sheet prepared on 10-6-1998 under sections 494 and 495 P.P.C. Read with section 10(1) Offence of Zina Hudood Ordinance, 1979. The learned Judicial Magistrate passed the following order on receipt of charge-sheet:
12. ' S.H.O. Police Station Civil Lines has submitted challan against accused Muhammad Amjad Ali and Mst. Arifa, said to be the wife of accused. Statement of Mst. Arifa was recorded by this Court in which Mst. Arifa has confirmed her Nikah, with accused Muhammad Amjad. Police has made the couple as accused without any evidence for the reasons best known to them. The offence mentioned in the Challan is exclusively triable by the Court of Sessions. Thereafter, the Challan be sent to Honourable Sessions Judge for Judicial Verdict, as deemed fit.
13. (Sd.) 12-6-1998 ' JUDICIAL MAGISTRATE."It has also transpired that after completion of investigation, the investigating officer placed the investigation record before the Deputy Superintendent of Police, with the report that, the F.I.R. Filed by the complainant was false and case against the applicants/accused be dropped. The Deputy Superintendent of Police also concurred with the Investigating Officer and recommended that case be disposed of under 'C' Summary. The S.S.P. Did not agree with the opinion of his subordinate and ordered that the applicants/accused be sent up to stand trial.
14. ' The further material on record reveals that on 13-12-1997 applicant/accused Musamat Arifa appeared before the learned Assistant Mukhtiarkar and IInd Class Magistrate Mirpurkhas, she swore an affidavit wherein she stated that she is major and wants to marry with co- applicant/accused Amjad Ali with her free will, consent and without any duress, coercion or compulsion. Her parents want to marry her with some other person against her will whom she dislikes. On 27-12-1997 she solemnized Nikah with co-applicant/accused Amjad. The Nikahnama bears registration No, 2723.
15. ' The Applicant/accused Arifa apprehending danger to herself and to her husband at the hands of her parents, appeared before the Mukhtiarkar and F.C.M. Talhar District Badin where her 164, Cr.P.C.
16. Statement was recorded wherein she stated that she is married with co-applicant/accused Amjad of her own free-will and choice without any coercion or compulsion. The order of learned Magistrate is reproduced herein below in extenso:
17. ' She is 19 years old. She is educated and knows everything, very well.
18. ' She, at her sweet will wants to only go with her husband Muhammad Amjad son of Muhammad Afzal Soomro. Hence she is ordered to be and live with her husband, Muhammad Amjad son of Muhammad Afzal Soomro, hence she is ordered to live with her husband, where she desires.
19. (Sd.) 21-3-1998 MUKHTARKAR AND FCM, TALHAR."
20. The record shows that after the registration of present case against applicants/accused, when applicant Musamat Arifa came to know that she has been dubbed/shown as wife of one Azizur Rehman, she filed a Family Suit No, 1 of 1999 for jactitation of marriage and Permanent Injunction against the above said Azizur Rehman claiming therein that she was not married with him and declared that she is/was not wife of Azizur Rehman but is legally wedded wife of co- applicant/accused Amjad Ali and he (Azizur Rehman) may be restrained from claiming her as his wife.
21. ' The upshot of the above discussion is that applicant/accused Arifa is an educated girl. She is pubert, major and sui juris. She contracted marriage with co-applicant/accused Amjad without any duress, coercion or compulsion against the wish and to the annoyance of her parents. The F.I.R.
22. Is delayed by about 1-3/4 months and no plausible explanation with regard to this inordinate delay has been given by the prosecution particularly when the distance from police station is about 2 kilometers and place of incident is situated in a thickly populated area in the heart of the town. It appears that initially Arifa was shown and treated as a prosecution witness and when she declined to support the prosecution case she was made co-accused in the case. The marriage of applicants/accused is apparently to the annoyance of the parents of applicant/accused Arifa and they have been roped in due to so-called family pride. The sections 494 and 495, P.P.C. Are non- cognizable and section 10(1) of Offence of Zina (Enforcement of Hudood), Ordinance 1979 has been misapplied. After keeping the prosecution case in juxta position to the aforesaid provisions of law it clearly transpires that no offence whatsoever has been made out and the charge against the applicants/accused is not substantiated.
23. Islam enjoins that when a male or female attains puberty/majority they are free to contract marriage according to the rites/canons of Islam and there is no prohibition on solemnization of marriage. Islam is the only religion which has eliminated/abolished the caste and creed system and advanced the cause of human dignity. Before the advent of Islam a woman or girl was treated less than an animal but Islam granted her a charter of equity. The false notions of caste and creed were completely done away with and in Islamic Society not only dignified place/position was given to a woman but her rights were protected.
24. The Courts cannot be privy to the ipse dixit of the persons who still believe in the false notions of the pre-Islamic days so also it cannot act in aid of those who are acting contrary to the Injunctions of Holy Qur'an and Sunnah. If the spouses are pubert and sui juris and their act is not in defiance of the commands ordained by Almighty Allah they cannot be victimized due to family pride.
25. Looking towards the peculiar facts and circumstances of the case I am of the considered view that continuance of proceedings against the applicants/accused in the above case amounts to abuse of the process of Court and the same are liable to be quashed. Consequently, the present application under section 561-A, Cr. P.0 . Is allowed and proceedings pending against the applicants/accused in the Court of Additional Sessions Judge IV, Larkana vide Sessions Case No, 219 of 1998 which arose out of F.I.R. 24 of 1998 of Police Civil Lines, Larkana under sections 494 and 495, P.P.C. Read with section 10(1), Offence of Zina Hudood Ordinance, 1979 are hereby quashed.
26. ' By my short order, dated 25-2-1999 the present application was allowed and above are the detailed reasons for the same.
3. Since main application has been disposed of, the M.A. 156 of 1999 become infructuous.