2009 P Cr. L J 751. [Lahore] Before Kazim Ali Malik, J. NAZIMA SHAHZADI and another----petitioners. Versus

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1 2009 P Cr. L J 751 [Lahore] Before Kazim Ali Malik, J NAZIMA SHAHZADI and another----petitioners Versus S.H.O. POLICE STATION PINDI GHEE DISTRICT ATTOCK and 4 others----respondents Writ Petition No.357 of 2008, heard on 9th February, (a) Islamic Law Marriage---Validity, determination of---forum---police station or Criminal Court are not the competent forums for resolution of the matrimonial dispute relating to marriage of the parties. (b) Penal Code (XLV of 1860) S Theft---Accused, daughter of complainant, allegedly removed gold ornaments and cash from the house in joint occupation of its inmates including herself---accused could not be held responsible and liable for the charge of theft in circumstances. (c) Penal Code (XLV of 1860) Ss. 365-B & Constitution of Pakistan (1973), Art Constitutional petition---quashing of proceedings---female accused petitioner had actually eloped with her co-petitioner and she had not been taken away by him in the manner as alleged by her father in the F.I.R.---Investigating Officer had challenged both the accused on the charge of abduction---validity---where there was no taking away of a woman, no offence of her abduction was made out or committed---prosecution case set up in the final report under S.173, Cr.P.C. was that female accused had, of her own free-will, gone away with her coaccused to marry him, and therefore no question of their trial on the charge of abduction under S.365-B, P.P.C. could arise---will and consent of the alleged abductee had, in fact, determined the fate of the charge of abduction, but the investigator and District Public Prosecutor had attached importance to the Will of her father in utter disregard of the provisions of S , P.P.C. as well as of Ss.375 & 376, P.P.C. on the charge of rape---no offence whatsoever was made out against the accused persons--accused had faced the agony of investigation for the offence not committed by them---no doubt subject of investigation fell within the exclusive domain of police, yet High Court, in exercise of its constitutional jurisdiction and inherent powers, was required to keep the public functionaries within their allotted sphere---police could not be allowed to prosecute the accused for the offences not committed by them-- -Investigation conducted by the investigating agency and the proceedings so far conducted by the Court on submission of challenge were illegal, further continuation whereof would amount to abuse of process of the Court---Said proceedings were consequently quashed being illegal, without jurisdiction and nullity in the eyes of law.

2 (d) Constitution of Pakistan (1973) Art Criminal Procedure Code (V of 1898), Ss.561-A & Constitutional and inherent jurisdiction of High Court---Scope---Investigation in cognizable offences---no doubt, the subject of investigation of criminal cases comes within the exclusive domain of police, yet High Court, in exercise of its constitutional jurisdiction and inherent powers, is required to keep the public functionaries within their allotted sphere---police cannot and should not be allowed to prosecute the accused for the offences which they did not commit. Raja Muhammad Tariq Khan for Petitioner. Syed Husnain Kazmi, A.A.-G. with Ch. Zulfiqar S.P. (Investigation), Muhammad Shafiq S.H.O. and Rab Nawaz Sub-Inspector/Investigator for Respondents Nos.1 to 3. Malik Waheed Anjum for Respondent No.4. Date of hearing: 9th February, JUDGMENT KAZIM ALI MALIK, J.--- Khan Malik, complainant/respondent No.4 got registered case F.I.R. No.72, dated with Police Station Pindi Ghaip, District Attock with an allegation that on the night between 11/ his 20/21 years old daughter Mst. Nazima Shehzadi, who was married to Irfan Khan on without her ceremonial departure (Rukhsati) went in fields to respond the call of nature and did not return home; that he went behind his missing daughter and met with Mehr Khan and Muhammad Sufail, P.Ws. who disclosed that she had been taken away by Muhammad Khan, petitioner and others in a car; that he returned home and found gold ornaments and Rs.25,000 missing; that he approached the accused persons to get back the hands of his abducted daughter, but unsuccessfully and that the accused persons abducted Mst. Nazima Shehzadi for Zina. 2. Rab Nawaz, Sub-Inspector of police drew up crime report on the statement of Khan Malik, complainant to the above effect with an observation that prima facie offences punishable under sections 365-B and 376, P.P.C. were made out against the accused persons. Mst: Nazima Shehzadi, alleged abductee/the victim of rape joined investigation and made a statement before Rab Nawaz, investigator on to the effect that she had not been abducted by the accused persons as alleged in the F.I.R. and that as a matter of fact she contracted a valid marriage of her choice with Muhammad Khan, accused/petitioner. In support of the plea, she produced Nikah Nama dated and dismissed the claim of her complainant-father that she had been married to Irfan Khan. 3. Muhammad Khan, the alleged abductor also owned and adopted the above said plea of marriage. Tasaduq-uz-Zaujain coupled with Nikah Nama dated did not find favour with Rab Nawaz, investigator who decided to challan all the accused persons including Muhammad Khan, petitioner to Court on the charge of abduction and rape. He laid the file before Muhammad Shafiq, S.H.O., Police Station Pindi Ghaip for preparation of final report under section 173, Cr.P.C. The S.H.O. examined the file and endorsed the above said opinion formed by Rab Nawaz, investigator. Resultantly, the S.H.O. prepared the challan against the accused persons under sections 365-B and 376, P.P.C., which was forwarded by Ch. Muhammad Zulfiqar, D.S.P./S. D. P.O. Pindi Ghaip to the District Public

3 Prosecutor, Attock for examination and scrutiny. It so happened that the District Public Prosecutor also approved and endorsed the investigation conducted by Rab Nawaz, Sub-Inspector and sent up the accused persons to Court to stand trial on the charge of abduction and rape punishable under sections 365-B and 376, P.P.C. It is noteworthy that Mst. Nazima Shehzadi, who had allegedly been abducted and raped was neither cited as P.W. nor as an accused. After submission of challan in Court, the District Public Prosecutor, Attock wrote a Letter No.396-DPP/AK, dated to the S.S.P. (Investigation) Attock that the investigator failed to cite Mst. Nazima Shehzadi as an accused in the final report and in the circumstances supplementary final report citing her as an accused should be prepared and submitted within three days. The S.S.P. (Investigation), Attock directed the S.H.O. Police Station Pindi Ghaip to do the needful in obedience to the direction of the District Public Prosecutor, Attock. The S.H.O. prepared supplementary challan in the case and got it submitted in the Court of Session through District Public Prosecutor, wherein Mst. Nazima Shehzadi had also been cited as an accused of abduction and rape. Through this constitutional petition, Mst. Nazima Shehzadi and Muhammad Khan petitioners prayed for quashing of the proceedings in the case on facts and law. 4. I have heard learned counsel for both the parties and perused the record very carefully. Rab Nawaz, Investigator, Muhammad Shafiq, S.H.O. and Ch. Muhammad Zulfiqar, the then D.S.P./S. D. P.O. also explained their position in writing qua the investigation conducted by them. 5. The following important legal questions have arisen for determination by this Court. (a) Whether Mst. Nazima Shehzadi, alleged abductee can be prosecuted under section 365-B, P.P.C. for having abducted herself'? (b) Whether Muhammad Khan, petitioner and his co-accused can be prosecuted under section 365-B, P.P.C. for having abducted Mst. Nazima Shehzadi, who dismissed the allegation regarding her abduction and was challaned to Court to stand trial on the charge of her own abduction? (c) Whether Mst. Nazima Shehzadi, accused can be prosecuted under section 376, P.P.C. even if the prosecution story is believed in toto? (d) Whether Mst. Nazima Shehzadi and Muhammad Khan, petitioners are liable to stand trial on the charge of fornication under section 496-B, P.P.C. in the light of the result of investigation that they both had been committing sexual intercourse with each other despite not validly married? (e) Whether Mst. Nazima Shehzadi and Muhammad Khan, petitioners committed the offence punishable under sections 494 and 497, P.P.C. as agitated by Muhammad Shafiq, S.H.O. in his written reply? (f) Mst. Nazima Shahzadi and Muhammad Khan, petitioners joined investigation and claimed to have contracted a valid marriage with each other vide Nikah Nama dated She also dismissed the claim/allegation by her father that she had already been given in the Nikah with one Irfan Khan. This is a matter of record that she filed a suit for jactitation of marriage against said Irfan Khan before the Judge, Family Court. In the circumstances, whether police station or the criminal Court are the competent forums for determination of the above said matrimonial dispute.

4 (g) Whether Mst. Nazima Shehzadi can be prosecuted under section 380, P.P.C. for having taken away gold ornaments and cash from the house which was also in her possession along with other family members'? 6. Now I propose to answer each legal question separately. I find it convenient to take up the first two questions simultaneously. The investigating agency challaned the alleged abductee and the abductor (petitioners herein) to stand trial under section 365-B, P.P.C., which reads as under:--- "365-B: Kidnapping, abducting or inducing woman to compel for marriage, etc.--- Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment for life and shall also be liable to fine; and whoever by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid." A bare perusal of the above said provision of law read with section 362 of the Pakistan Penal Code, 1860 would show that abduction means removal of any person from one place to another by force or inducement or by any deceitful means. In the case in hand Mst. Nazima Shehzadi, petitioner who had allegedly been taken away by Muhammad Khan, petitioner and others appeared before the investigator and stated expressly that she was neither taken away by force/inducement or by deceitful means and that she contracted valid marriage of her own choice with Muhammad Khan, petitioner. To a question as to how the alleged abductee could be prosecuted for her own abduction, the learned Law Officer and learned counsel for the complainant were left with no other option but to admit in clear terms that it was not permissible under the law for the investigating agency to chalenge her to Court on the charge of her own abduction. Here, I must say that there was no legal justification for the learned trial Court to take cognizance of the offence of abduction against the abductee. The most shocking aspect of the matter is that the S.H.O., the D.S.P. and the District Public Prosecutor mechanically and blindly forwarded the challenge wherein the alleged abductee had been blamed for her own abduction. The District Public Prosecutor was required in terms of section 9(4) of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 to examine and scrutinize the case file in order to ascertain as to whether or not the case was fit to lay before the Court for trial. Initially, the District Public Prosecutor forwarded the challenge to Court wherein the alleged abductee had neither been cited as P.W. nor an accused. Later on he got challenged her to Court to stand trial on the charge of her own abduction and rape. This is a text book example of incompetency on the part of the investigator, the S.H.O., the D.S.P. and the District Public Prosecutor. 7. After coming to the conclusion that the alleged abductee is not liable to face trial for her own abduction, the next question which I take up is as to whether Muhammad Khan, petitioner and his coaccused are liable to face trial on the charge of her abduction, particularly when she dismissed the complainant's version before the investigator and was subsequently arrayed as an accused. This is a novel case in which the male accused persons had been challenged to Court on the charge of abduction despite the fact that there was/is no abductee to support the charge. Mst. Nazima's statement that she had not been abducted as alleged, demolished the charge of abduction. It is not understandable as to how the alleged abductee and abductors were sent up to Court on the charge of abduction. For the

5 above reasons, it is not difficult to hold that all the accused persons including the alleged abductee are not liable to stand trial under section 365-B, P.P.C. 8. The S.H.O. in his written reply pleaded that the petitioners committed cognizable offences punishable under sections 494 and 497, P.P.C. Section 494, P.P.C. deals with marrying again during life time of husband or wife whereas section 497, P.P.C. relates to adultery. Here I would say that the S.H.O. does not have adequate knowledge of criminal law. Section 494, P.P.C. was made non-cognizable offence on by the Protection of Women (Criminal Laws Amendment) Act VI of 2006 whereas section 497, P.P.C. stood repealed by clause (a) subsection (2) of section 19 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and resultantly the said penal provision of law is no more on the Statute Book since then. Hence, they are not liable to face trial under sections 494 and 497, P.P.C., particularly when they were not challenged for the offence. 9. The prosecution case set up in the F.I.R. was that Mst. Nazima Shehzadi, petitioner had been abducted by Muhammad Khan, petitioner for Zina. The complainant and the investigator reshaped the allegation set up in the F.I.R. when she repudiated the said allegation of her abduction for Zina by making a statement before the investigator that she contracted a valid marriage of her choice with Muhammad Khan, petitioner. Initially, she was not cited as P.W. or an accused but later on she was also arrayed as an accused in the supplementary challenge on the charge of her own abduction and rape on the direction of District Public Prosecutor. The learned Law Officer and learned counsel for the complainant frankly conceded that the petitioners were/are not liable for the offence of rape. A bare perusal of sections 375 and 376, P.P.C. would show that to constitute an offence of rape it is must that the sexual intercourse with a woman is against her will; without her consent; with her consent, when the consent has been obtained by putting her in fear of death or of hurt; with her consent when the man knows that he is not married to her and that the consent is given because she believes that the man is another person to whom she is or believes herself to be married and with or without her consent when she is under 16 years of age. The charge of rape leveled against the petitioners herein does not qualify the above said legal test. Admittedly Mst. Nazima Shehzadi, petitioner had not been subjected to sexual intercourse by her co-petitioner Muhammad Khan against her will or without her consent or under any of the above noted circumstances. Furthermore, only the male accused committing rape with a woman as defined by section 375, P.P.C. is liable to stand trial on the said charge punishable under section 376 of the Code. It is not understandable as to how the investigator, the S.H.O., the D.S.P. and the District Public Prosecutor challenged Mst. Nazima Shehzadi, petitioner to Court on the charge of rape, which had allegedly been committed with her. This is a ridiculous state of affairs, which must be deprecated. 10. Now adverting to the charge of fornication punishable under section 496-B, P.P.C. for two reasons it can be said safely that the petitioners are not required to stand in dock for the said charge. Firstly, the offence of fornication which deals with a situation in which a man and a woman not married to each other are said to commit sexual intercourse with each other, is not cognizable. Secondly, as per section 203-C of the Cr.P.C. as amended by the Protection of Woman (Criminal Laws Amendment) Act, 2006 no Court shall take cognizance of an offence under section 496-B of the Pakistan Penal Code, except on a complaint lodged in the Court of competent jurisdiction. 11. The complainant made an allegation that her daughter Mst. Nazima Shehzadi, petitioner had been abducted by Muhammad Khan, petitioner for Zina. For the sake of arguments if it is admitted for a moment that the petitioners committed the offence of Zina even then the investigating agency was not competent to challenge them to the Court on the said charge because of the bar contained in section

6 203-A of the Cr.P.C. to the effect that no Court shall take cognizance of an offence under section 5 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 except on a complaint lodged in the Court of competent jurisdiction. For facility of reference and in order to bring on record that it was beyond the jurisdiction of the police to prosecute the petitioners on the charge of Zina or fornication, the procedure for trial on the charge of Zina and fornication provided by sections 203-A and 203-C, Cr.P.C. is reproduced below:--- Section 203-A reads as under:--- "Complaint in case of Zina.---(1) No Court shall take cognizance of an offence under section 5 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979), except on a complaint lodged in a Court of competent jurisdiction. (2) The Presiding Officer of a Court taking cognizance of an offence on a complaint shall at once examine, on oath, the complainant and at least four Muslim, adult eye-witnesses, about whom the Court is satisfied having regard to the requirement of Tazkiyah-al-Shahood, that they are truthful persons and abstain from major sins (Kabair) of the act of penetration necessary to the offence. Section 203-C is as under:--- Complaint in case of fornication.--- (1) No Court shall take cognizance of an offence under section 496-B of the Pakistan Penal Code, except on a complaint lodged in a Court of competent jurisdiction. (2) The Presiding Officer of a Court, taking cognizance of an offence shall at once examine on oath the complainant and at least two eye-witnesses to the act of fornication. (3) The substance of the examination of the complainant and the witnesses shall be reduced to writing and shall be signed by the complainant, and the witnesses, as the case may be, and also by the Presiding Officer of the Court. (4) If in the opinion of the Presiding Officer of a Court, there is sufficient ground for proceeding, the Court shall issue summons for the personal attendance of the accused: Provided that the Presiding Officer of a Court shall not require the accused to furnish any security except a personal bond, without sureties, to ensure attendance before the Court in further proceedings. (5) The Presiding Officer of a Court before whom a complaint is made or to whom it has been transferred may dismiss the complaint, if, after considering the statements on oath of the complainant and the witnesses there is, in his judgment, no sufficient ground for proceeding and in such case he shall record his reasons for so doing. (6) Notwithstanding the foregoing provisions or anything contained in any other law for the time being in force no complaint under this section shall be entertained against any person who is accused of Zina under section 5 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (Ordinance No. VII of 1979) and against whom a complaint under section 203-A of this

7 Code is pending or has been dismissed or who has been acquitted or against any person who is a complainant or a victim in a case of rape, under any circumstances whatsoever. 12. The complainant alleged in the F.I.R that her 20/21 years old daughter Mst. Nazima Shehzadi had been given in Nikah with one Irfan Khan without her ceremonial Rukhsati. I have already observed in the preceding paragraphs that Mst. Nazima Shehzadi, petitioner joined investigation and dismissed the above said claim of her father with the plea that she did not contract marriage with afore-mentioned Irfan Khan and as a matter of fact she contracted a valid marriage with Muhammad Khan petitioner with her free consent and will. Muhammad Khan, petitioner also adopted the plea of valid marriage put forward by Mst. Nazima Shehzadi. They both produced Nikah Nama in support of their version. To their hard-luck, the investigator did not attach any importance to Tasaduq-e-Zaujain supported by Nikah Nama and challenged them to Court. This state of affairs forced Mst. Nazima Shehzadi to file a suit for jactitation of marriage against aforesaid Irfan Khan before the learned Judge Family Court. Here, I would conveniently say without fear of contradiction that police station or the Criminal Court are not the competent forums for resolution of the above said matrimonial dispute. 13. Allegedly, Mst. Nazima Shehzadi, petitioner had taken away ornaments and cash from the house in which she also lived with her complainant father. For the sake of arguments if it is believed that she took away the ornaments and cash as alleged by the complainant even then the offence punishable under section 380 or 379, P.P.C. is not made out. Before her alleged abduction from the house from where the ornaments had been taken away, was also in her joint possession as she lived there along with her family members including the complainant. Section 378, P.P.C. defines that it is essential to make out a case for theft to show that movable property of a person had been taken away from his possession without his consent dishonestly. In the case in hand Mst. Nazima Shehzadi, petitioner allegedly removed gold ornaments and cash from the house in joint occupation of its inmates including herself. In this view of the matter she cannot be held responsible and liable for the charge of theft. Furthermore, the allegation with regard to theft was a mere self-assertion of the complainant, which he could not substantiate with evidence during the course of investigation. The investigator also did not challenge the petitioners to Court on the charge of theft. In the circumstances, the vague and bald allegation of theft by the father against his own daughter is not worthy of credence, nor the same provides a legal basis to prosecute her on the charge of theft. 14. It is painful to note at the cost of repetition that after coming to the conclusion that Mst. Nazima Shehzadi, petitioner eloped with Muhammad Khan, petitioner and she had not been taken away by him in the alleged manner, the investigator chose to challan both of them on the charge of abduction. Needless to add that where there is no taking away of a woman, no offence of her abduction is made out or committed. It is the prosecution case set up in the final report under section 173, Cr.P.C. that Mst. Nazima Shehzadi, petitioner had of her own free will gone away with Muhammad Khan, petitioner to marry him and, therefore, there was no question of their trial on the charge of abduction under section 365-B, P.P.C. In fact will and consent of the alleged abductee determine the fate of the charge of abduction but in the case in hand the investigator and the District Public Prosecutor attached importance to the will of her father in utter disregard of the provisions of section 365-B, P.P.C. The District Public Prosecutor got challaned Mst. Nazima Shahzadi petitioner to Court on the charge of abduction and rape despite the fact that it had been established on record that she had gone out of her father's house and contracted Nikah with Muhammad Khan willingly and without anybody having exerted any compulsion on her. The

8 investigator and the District Public Prosecutor took a ridiculous decision to prosecute Mst. Nazima Shahzadi on the charge of her own abduction and on the charge of rape allegedly committed with her. The investigator and the District Public Prosecutor did not bother to go through the provisions of sections 375 and 376, P.P.C. A combined examination of these two provisions of law would show that only a man committing rape with a woman under the circumstances mentioned in section 375, P.P.C. is liable to face trial under section 376 of the Code. It is also manifest from these provisions of law that if -a man has sexual intercourse with a woman with her consent, it is not rape under the law and at the most the offence of fornication is committed which is not a cognizable offence. 15. For what has been stated above, I am of the considered view that no offence whatsoever was/is made out against the petitioners and their co-accused persons. The petitioners faced the agony of investigation for the offence which had not been committed by them. No doubt the subject of investigation of criminal cases comes within the exclusive domain of police, yet this Court in exercise of constitutional jurisdiction and inherent powers is required to keep the public functionaries within their allotted sphere. The police cannot be and should not be allowed to prosecute the accused for the offences which they did not commit. The investigation conducted by the investigating agency and the proceedings so far conducted by the Court on submission of challenge being illegal and without lawful authority are liable to be struck down. The learned trial Court entertained the challenge without application of judicial mind and took cognizance of an offence which had not been committed by the challenged accused. Further proceedings before the trial Court in the circumstances would amount to abuse of process of the Court. I, therefore, accept this constitutional petition and quash the proceedings in the case being illegal, without jurisdiction and nullity in the eyes of law. 16. The Investigating Officer and the S.H.O. played havoc with the administration of criminal justice. They did not remain within their allotted sphere. They unnecessarily dragged the accused persons in frivolous litigation. The respondent-complainant got registered a case with them with an allegation that his daughter had been abducted by the accused persons. After recording statement of the alleged abductee that she had not been abducted, the investigator should have recommended cancellation of the case without proceeding further. It is constitutionally guaranteed right of all citizens to be treated in acc9rdance with law of the land. In the case in hand the investigator and the District Public Prosecutor prosecuted the petitioners over and above the law by adopting a self-styled procedure based on perverted sense of authority. In the circumstances, I impose penal/compensatory cost of Rs.1,00,000 on Rab Nawaz, Sub-Inspector/investigator and Muhammad Shafiq, S.H.O. which on its realization by the learned Sessions Judge, Attock by adopting legal means meant for execution of money decree, shall be paid to the petitioners in equal shares. 17. Ch. Muhammad Zulfiqar, the then D.S.P. Pindi Ghaip forwarded the challenge to the District Public Prosecutor, Attock mechanically. Had he examined the case file, the challenge would not have been forwarded by him. The District Public Prosecutor, Attock was required to scrutinize the case in terms of section 9(4) of Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 so that it could be ascertained as to whether or not some offence had been made out against the challenged accused. He also failed to discharge the duty cast on him by the law. I am pained to say that there was no occasion for the District Public Prosecutor to send up Mst. Nazima Shehzadi, petitioner to Court to stand trial on the charge of her own abduction besides the charge of rape allegedly committed with her. I, therefore, disapprove and deprecate their official conduct. N.H Q./N-17/L Petition allowed.