2026 P Cr. L J 188

 2026 P Cr. L J 188

[Sindh (Larkana Bench)]

Before Shamsuddin Abbasi, J

MUHAMMAD YOUNIS WAGGAN---Applicant

Versus

The STATE and others---Respondents

Criminal Misc. Application No. S-51 of 2024, decided on 19th June,

2025.

Penal Code (XLV of 1860)---

----Ss. 365-B, 457 & 34---Criminal Procedure Code (V of 1898), S. 561-

A---Inherent powers of High Court---Quashing of orders---Summary

submitted by the Investigating Officer for disposal of the Case /FIR,

under "C" Class as approved by the Magistrate---Validity---Applicant

registered the FIR against accused with the allegation that they had

abducted minor niece of the complainant by threat of weapons---As

per record, Judicial Magistrate had passed order dated 07.12.2023,

whereby Judicial Magistrate sent the alleged abductee to Darul

Aman---During investigation statement under S.164, Cr.P.C., of

alleged abductee was recorded wherein she had denied the

allegation of her alleged abduction and had taken stance that she

being sui juris had contracted marriage with M by exercising her

right of freewill---Alleged abductee further stated that the

complainant had lodged false FIR against her husband---

Investigating Officer had also recorded her statement under S.161,

Cr.P.C, wherein she had reiterated the same facts as in S.164 Cr.P.C.

statement---Applicant had approached the Judicial Magistrate to

constitute medical board to determine the age of alleged abductee

and on that application Director General Health had constituted the

Medical Board comprising of senior Professors, who unanimously

opined that the age of alleged abductee was about 18 years---Main

controversy involved in the case was whether the preference was to

be given to the documents issued by School as well as NADRA or the

Medical Board, which determined the age of alleged abductee---

Preference could be given of Medical Board who through

ossification test determined the age at alleged abductees as 18 years-

--Judicial Magistrate had rightly approved the summary under

cancelled 'C' class in terms of S.173, Cr.P.C.---Therefore, impugned

order passed by Judicial Magistrate was maintained---Consequently,

Crl. Misc. Application being devoid of merits was dismissed.

Ghulam Abbas v. The State and another 2014 PCr.LJ 858;

Muhammad Safeer v. Additional Sessions Judge (West) Islamabad and others PLD 2018 Islamabad 385 and Syed Afshan v. Syed Farukh Ali

and 3 others PLD 2013 Sindh 423 ref.

Muhammad Anwar v. Muhammad Suffyian and another 2009 SCMR

1073 rel.

Qazi Manzoor Ahmed for Applicant.

Habibullah G. Ghouri for Respondent No. 6.

Ali Anwar Kandhro, Addl. P.G along with Dr. Niaz Hussain Dahar,

Medical Superintendent, CMC Hospital Larkano and Dr. Altaf Hussain

Kakepoto, Dental Surgeon, CMC Hospital Larkano for the State.

ORDER

SHAMSUDDIN ABBASI, J.---Through instant Crl. Misc. application,

applicant Muhammad Younis has impugned the order dated

15.01.2024, passed by learned Civil Judge and Judicial Magistrate/PO

Consumer Protection Court, Larkana, on final report in FIR No

123/2023 of Police Station Waleed registered under sections 365-B, 457,

34, P.P.C, submitted by the investigating officer in terms of Section 173,

Cr.P.C for disposal of case under 'C' Class and learned Magistrate while

concurring with the police report has disposed it of under 'C' Class.

2. Relevant facts as spelt out from the FIR are that the complainant

Muhammad Younis Waggan lodged report at PS Waleed on 16.11.2023

at about 04:00 am, stating therein that he and his witnesses saw

accused Mudasir, Muzamil both sons of Sher Muhammad and two

unknown accused persons in his house. Accused Mudasir and Muzamil

dragged his niece Fatima Batool daughter of Rizwan Ali aged about

13/14 years and two unidentified persons pointed their pistols towards

them. Thereafter all the accused persons put her in the while colour

Car without number in order to commit zina/marriage and FIR to the

above effect was lodged.

3. During investigation, I.O has recorded the statement of alleged

abductece Fatima Batool under section 161, Cr.P.C wherein she has

denied the allegation of her abduction and has taken the plea that she

being sui juris has contracted marriage by exercising her right of

freewill with Mudasir On such statement, the I.O recommended

instant case under canceled 'C' class.

4. Learned counsel for the applicant contended that the alleged

abductee is minor, which is clear from School Leaving Certificate and

FRC issued by NADRA available at pages-21 and 23 (annexure 'C' and

'D') respectively, wherein the date of birth of alleged abductee is

shown as 10.07 2010, which shows that at the time of abduction, the

age of Fatima Batool was 13 years, therefore, the marriage of abductee

with co-accused Mudasir was illegal in terms of Sindh Child Marriages Restraint Act, 2013. He further contended that sufficient material has

been produced before the I.O during investigation as well as learned

concerned Magistrate yet the Magistrate has not considered the

material and disposed of the mater under 'C' class, whereas, he was

supposed to take cognizance of the case. Therefore, learned counsel

prays that the impugned order may be set aside with direction to

concerned Magistrate to take cognizance of the case under provision

of Sindh Child Marriages Restraint Act, 2013. In support of his

contentions, he has relied upon the cases of Ghulam Abbas v. The State

and another (2014 PCr.LJ 858), Muhammad Safeer v. Additional

Sessions Judge (West) Islamabad and others (PLD 2018 Islamabad 385)

and Unreported case of Mst. Mumtaz Bibi v. Qasim and others passed

on 03.01.2022 in Writ Petition No 4227 of 2021 by Islamabad High

Court Islamabad.

5. On the other hand, learned counsel for the respondent No.6

submits that no such incident of abduction as alleged by the

complainant in his FIR has taken place, that the alleged abductee being

sui juris has contracted marriage with co-accused Mudasir; that on the

application of the applicant, the medical examination was conducted by

Medical Board to determine the age of alleged abductee. The Medical

Board comprising with senior Professors including Dr. Bhagwandas,

Assistant Professor, Department of Radiology SMBBMU, CMC Larkana,

Dr Altaf Hussain Kakepoto, Dental Surgeon, CMC Hospital Larkana, Dr

Kailash Kumar, Assistant Professor, Department of Radiology SMBBMU,

CMC Larkana and Chairman Medical Superintendent, CMC Hospital

Larkana, who unanimously opined that the age of Fatima Batool (the

alleged abductee) is about 18 years. Hence the impugned order passed

by learned Magistrate is in accordance with law and no illegality has

been committed. Learned counsel also contends that now Fatima Batool

has given birth to baby girl about five months back and she is mother of

suckling baby and the complainant in order to drag respondent is

pursuing the case Lastly learned counsel for the respondent has relied

upon the case of Syed Afshan v. Syed Farukh Ali and 3 others (PLD 2013

Sindh 423).

6. Learned Addl. PG appearing for the State has supported the

impugned order on the ground that preference should be given to

ossification test conducted by the Medical Board in comparison to the

School Leaving Certificate and FRC issued by the NADRA in favour of

the Fatima Batool. Therefore, he submits that instant application

merits consideration which may be dismissed.

7. Heard learned counsel for the applicant, learned counsel for the

respondent No 6 and learned Addl. PG appearing for the State and

perused the material available on record. 8. Applicant registered the FIR against accused nominated in the FIR

with the allegation that they have abducted minor Fatima Batool

(niece of the complainant) on the show of weapons. It is matter of

record that learned Judicial Magistrate Sec-30 East Islamabad has

passed order dated 07 12:2023, whereby learned Magistrate sent

Fatima Batool to Darul Aman and her custody was shifted to Larkana.

During investigation statement under section 164, Cr.P.C of Fatima

Batool was recorded wherein she has denied the allegation of her

alleged abduction and has taken stance the she being sui juris has

contracted marriage with Mudasir by exercising her right of freewill.

She further stated that the complainant has lodged false FIR against

her husband. Investigating Officer has also recorded her statement

under section 161, Cr.P.C, wherein she has reiterated the same facts as

in 164, Cr.P.C statement. The applicant has approached to learned

Magistrate to constitute medical board to determine the age of Fatima

Batool, which application is available at page 47 (Annexure A) of the

Court file and on that application Director General Health has

constituted the Medical Board comprising of senior Professors

including Dr Bhagwandas, Assistant Professor, Department of

Radiology SMBBMU, CMC Larkana, Dr. Altaf Hussain Kakepoto, Dental

Surgeon, CMC Hospital Larkana, Dr. Kailash Kumar, Assistant

Professor. Department of Radiology SMBBMU, CMC Larkana and

Chairman Medical Superintendent, CMC Hospital Larkana, who

unanimously opined that the age of Fatima Batool (the alleged

abductee) is about 18 years. Learned counsel for the respondent No.6

has informed that Mst. Fatima Batool has given birth to baby girl and

now baby's age is five months. The main controversy involved in this

case is whether the preference is to be given to the documents issued

by School as well as NADRA or the Medical Board, who determined the

age of Fatima Batool. In my considered view preference can be given

to Medical Board who through ossification determined the age as 18

years. In this regard reliance can be had from the case of Muhammad

Anwar v. Muhammad Suffyian and another (2009 SCMR 1073). At least

this is not case of abduction as alleged in the FIR by the complainant.

The learned Magistrate has rightly approved the summary under

cancelled C class in terms of Section 173, Cr.P.C Therefore, impugned

order passed by learned Magistrate is maintained. Consequently,

instant. Crl. Misc Application being devoid of merits is dismissed. Let

copy of this order be sent to concerned Magistrate, through Sessions

Judge, Larkana, over fax.

JK/M-89/Sindh Application dismissed.