' Through this criminal miscellaneous application, the applicants have sought quashment of the proceedings initiated against them pursuant to the F.I.R. No,110 of 2003 registered under section 17(3), E.H.O. And sections 11/16, Zina Ordinance, 1979, lodged with P.S. Moro District Naushero Feroze by Mir Muhammad Solangi, Advocate, who happens to be the brother of Dr. Amnat Solangi, wife of applicant No,1,
2. Brief facts of the case, as they appear from the pleadings of the parties, are that applicant No,1 is a practising doctor and his wife Amnat Solangi is a Gyneacologist. Both of them were working in Taluka Hospital, Moro and on 30-11-2002 the applicant No,1 married to Dr. Amnat Solangi at Karachi in accordance with Muslim law and a photocopy of Nikahnama in this regard has also been produced and exhibited by Dr. Amnat Solangi during her examination in Court today.
3. It appears that due to the marriage of the applicant No,1, Mir Muhammad Solangi, brother of Dr. Amnat 'Solangi, who is practicing Advocate, President of Moro Bar Association and Chairman, Public Safety Committee, District Naushero Feroze, was unhappy and out of vengeance, on 18-9- 2003 lodged a F.I.R. No,110 of 2003 under section 17(3), E.H.O. Read with sections 11/16 of Hudood Ordinance, 1979, with Police Station Moro, alleging therein that on 12-9-2003 the applicants raided the house of the complainant and had abducted his sister Dr. Amnat Solangi and also committed dacoity and one of the brothers of the applicant No,1 who is a serving Major in Pakistan Army, was also implicated as one of the accused in the said F.I.R.
4. After registration of the F.I.R., police started investigation but the applicant No,1 and his wife had left Moro much before the registration of the case in anticipation that the complainant might play foul. It has been pleaded that police initially under the influence of Mr. Mir Muhammad Solangi had registered a false case against the applicants but subsequently the Investigating Officer submitted a report after thorough investigation on 27-9-2003 recommending disposal of the case in B Class, which report was approved by the concerned TPO (Investigation) on 29-9-2003 recommending for withdrawal of the case against the applicants.
5. After the approval and sanction of the Superintendent of Police (Investigation) that the case against the applicants be disposed of in Class, a challan was submitted before the concerned Judicial Magistrate in respect of the said F.I.R., which was filed unauthorizedly and neither the Investigating Officer nor the TPO (Investigation) has signed it. The record further reveals that in defiance of the orders of the Superintendent of Police/TPO (Investigation), the challan was submitted unauthorizedly by police officials in Court apparently under the influence of the Deputy District Attorney who wanted to favor the complainant. It is most unfortunate that the Deputy District Attorney has acted in the manner not recognized by the law. The prosecution through competent Police Officer can submit the challan and District Attorney in this respect has no role to play. However, in this case, this fact has been completely overlooked.
' On submission of the unauthorized challan, the Magistrate has accepted it and ordered its transmission to the Sessions Judge, against which the present . Proceedings have been filed seeking quashment of the proceedings pending before the trial Court against the applicants pursuant to the F.I.R. No,110 of 2003 lodged by the complainant.
6. The learned counsel for the applicants, Mr. Iqbal Haider, submitted that in this case once the competent Police Officer has approved and recommended for withdrawal of the case against the applicants the challan signed and submitted by an incompetent Police Officer should not have been accepted by the Magistrate and even the Deputy District Attorney, in law, cannot travel beyond his authority by placing such challan on Court record. He further pointed out that subsequent to the approval for withdrawal of the case against the applicants, a F.I.R. Has been registered by the police against the complainant, for lodging false F.I.R. Against the applicants. It is an admitted fact that the complainant had approached the Court and was granted bail. Mr. Abdul Latif Channa, learned counsel for the complainant, however, states that said proceedings have also been disposed of in B Class. This fact, however, is insignificant for the purposes of deciding the present case.
7. Mr. Iqbal Haider, learned counsel for the applicants, has further submitted that in view of fact that the Nikah of the applicant No,1 was performed with Dr. Amnat Solangi and there is no dispute between the parties, therefore, proceedings against the applicants under sections 11/16 of Zina Ordinance, 1979, are untenable in law. He further submits that since police after thorough investigation has approved and recommended for withdrawal of the case in B Class against the applicants, it would be in the interest of justice that the proceedings pending before the trial Court pursuant to F.I.R. No,110 of 2003 registered against the applicants be quashed as trial of the applicants in the given circumstances would amount to abuse of the process of law.
8. On the other hand, Mr. Abdul Latif Channa, learned counsel appearing for the complainant, has argued that the very Nikahnama, on the basis of which the applicant No,1 claims to have married to Dr. Amnat Solangi, is an invalid document. According to Mr. Abdul Latif Channa the Nikahnama does not mention previous marriage of the applicant No,1 and the other particulars of the parties as are required to be given in the Nikahnama and even residential address mentioned therein are fictitious, he, therefore, submitted that the marriage based on such an invalid Nikahnama has no legal sanctify in law. He further submits that Courts will be slow in allowing quashment at such an early stage, when the evidence has yet to be recorded. Mr. Channa also submitted that the F.I.R.
Does not only contain allegation of Zina but also of dacoity under section 17(3), EHO, therefore, the quashment cannot be ordered. In this respect he has cited a number of case-law, which includes the cases reported in 1998 SCMR 370, 1998 SCM R 1016 and PLD 1984 SC 91. Mr. Fazalur Rehman Awan, learned State Counsel, has supported the applicants.
9. I have heard the arguments of the learned counsel and have perused the record. Dr. Amnat Solangi, who was present in Court, was examined by me and she deposed in Court that she is legally wedded wife of the applicant No, 1 and has performed Nikah with the applicant No,1, in accordance with law, out of her own free-will. She during examination- has produced a photocopy of Nikahnama, which was exhibited as Exhibit A and no objection was raised by any of the learned counsel during its production. Dr. Amnat Solangi also identified her signatures and signatures of the applicant No,1 on the Nikahnama exhibited in Court and admitted its contents.. Mr. Abdul Latif Channa, learned counsel for the complainant, was afforded the opportunity to cross-examine Dr. Amnat Solangi but he has refused to cross-examine her. The evidence of the Dr. Amnat Solangi and the Nikahnama, which she produced in Court and was exhibited without any objection, have gone unrequited.
10. The objection of Mr. Abdul Latif Channa, learned counsel for the complainant, as to the validity of the Nikahnama cannot be gone into in these proceedings for the simple reason that the parties to the Nikahnama do not dispute its contents. Nikahnama can only be objected to by the parties signatory to it. The law does not permit a stranger to challenge the validity of a Nikahnama when its contents are admitted' by the Applicant No,1 and his wife. Even otherwise, legality or validity of the Nikahnama can only be challenged before a Civil Court of competent jurisdiction and not in criminal proceedings. Marriage of applicant No,1 with Dr. Amnat Solangi cannot be declared invalid on the ground that the Nikahnama does not disclose the correct addresses of the parties and or the column in the Nikahnama requiring disclosure of marital status of applicant No,.1 was blank.
Invalidity of the marriage of the applicant No,1 with Dr. Amnat Solangi on such grounds is foreign to law.
11. The investigation. Reports submitted by the relevant agency are self-speaking. The Nikah between the applicant No,1 and Dr. Amnat Solangi, has 'been performed on 30-11-2002 whereas the F.I.R. No,110 of 2003 was registered at the instance of the complainant on 18-9-2003, in respect of the alleged incident which' took place on 12-9-2003. It appears that after the regiStration of the F.I.R.
The police during investigation have found that the story given in the F.I.R. Was concocted, as a result of which the Investigating Agency has recommended for withdrawal of the case against the applicants. This report of the police for withdrawal of case against the applicants which was well within the knowledge of the complainant has admittedly not challenged by and or complained against before any forum till date either by the complainant or any other person on his behalf. Even no material has been placed by the complainant before me' in order to establish that he at any point of time shown dissatisfaction on such reports. Moreover, the challan unauthorized submitted before the Magistrate under the signature of unauthorized police officials. Apparently under the influence of the Deputy District Attorney has no legal value and its acceptance by the Magistrate will not cure the inherent 'defect.
12. The argument of Mr. Abdul Latif Channa that even if it is conceded that the applicant No,1 has not committed the offence of Zina, then took the applicants are charged under section 17(3), EHO, 1979, and the quashment cannot be ordered. With profound respect to the learned counsel, the statement of Dr. Amnat Solangi in. Court and her Nikahnarna belies the story of prosecution as narrated in the F.I.R. Dr. Amnat Solangi is the material witness -in the case who has not supported the prosecution version. Admittedly, the investigation reports submitted by .The agency after thorough investigation cannot be overlooked in the given circumstances of the case. The statement of Dr. Amnat Solangi, Nikahnama coupled with report of the Investigating Authority, substantiate that the prosecution story narrated in' the F.I.R. Was concocted one and could not be believed.
13. The prosecution story given in the F.I.R. Is either to be believed or disbelieved. It cannot be accepted partly, as suggested by the learned counsel for the complainant. Once it has been proved that the, applicant No,1 was lawfully married to Dr. Amnat Solangi who is sui juris, there remains hardly any material to allow prosecution to continue the proceedings against 'the applicants more so in the face of the -report the TP0' (Investigation) that the case has been falsely registered. This Court in exercise of, its inherent jurisdiction under section 561-A, Cr.P.C. Has ample power to quash proceedings if it comes to the conclusion that even it the entire evidence is brought on record there is no likelihood that the applicant would be convicted, irrespective of the fact that the applicants have not approached the trial Court either under. Section 249-A or 265-K, Cr.P.C.
14. On the aforesaid reasoning, I am of the firm view that even if entire evidence is brought on record, the applicants would not 'be convicted for the offences with which they are alleged to have been charged. In such a situation continuance of criminal trial of the applicants would 'be abuse of process of the Court. I, therefore, allow this criminal miscellaneous application and quash the proceeding pending before the trial Court in pursuant to_the F.I.R'. No,110 of 2003 lodged by the complainant. Bail bonds of the applicants stand cancelled and their sureties are discharged.