' KAZIM ALI MALIK, J.--- Khan Muhammad, respondent No,2 got registered a case F.I.R. No,372 dated 6-6-2008 under section 365-B, P.P.C. With Police Station Kotwali, Jhang with an allegation, in brief, that his daughter Mst. Farzana Bibi (respondent No,3) was married to Azhar Abbas; that on account of some'domestic dispute she deserted her husband and took shelter in Darul Aman, Jhang; that Ghazi Khan, respondent No,4 with the help of his son Nusrat Khan, respondent No,6 and others enticed away Mst. Farzana Bibi on 7-5-2008 from the Court of Rana Muhammad Azam, Area Magistrate, Jhang posing himself to be her maternal-uncle and that he approached the accused persons on 10-5-2008 to get back hands of the abductee when they confessed their guilt but refused to return her.
2. The case was investigated by Muhammad Khan and Mumtaz Hussain, Sub-Inspectors of police.
As a result of their investigation, Ghazi Khan, sarwar Khan sons of Muhammad Khan,' Amjad Khan, Nusrat Khan son of aforesaid Ghazi Khan, Lal Khan and Qamar Khan sons of Ghulam Muhammad Khan all Baloch by caste and residents of village Mehr Muhammad, District Jhang were challaned to the Court of Session, Jhang to stand trial on the charge of abduction under section 365-B, P.P.C.
The case was made over to Mr. Muhammad Saleem, learned Additional Sessions Judge, Jhang, who charge-sheeted the above named accused persons as under:--- "That on 7-5-2008 at day time, you, accused Ghazi Khan in furtherance of common intention of you all accused got Mst. Farzana Bibi daughter of complainant from Katchehri at Jhang by means of criminal intimidation for the purpose that she may be subjected to illicit intercourse. Thus, you all accused committed the offence under section 365-B/34, T.P.C. Which is within the cognizance of this Court."
' The accused persons denied the charge and claimed trial. Till date not a single witness has been examined.
3. Lal Khan and Qamar Khan, petitioners/accused persons invoked the constitutional jurisdiction and inherent powers of this Court and `prayed for quashing of the F.I.R. And the proceedings conducted thereon mainly on the ground that Mst. Farzana had not been abducted and as a matter of fact she herself took shelter in Darul Aman, Jhang obtained a decree for dissolution of marriage against her husband Azhar Abbas on 14-4-2008 from the Court of learned Judge Family Court, Jhang and on the date of alleged occurrence i.e. 7-5-2008 she secured her release from Darul Aman under an order of the Area Magistrate.
4. Before adverting to the prayer of the accused persons on its merits, it would be advantageous and appropriate to bring on record the facts of the case, which are not in dispute or disputable:-
(a) After deserting her husband, Azhar Abbas, Mst. Farzana, alleged abductee filed a suit for dissolution of marriage before the learned Judge Family Court, Jhang on 15-3-2008.
(b) On 22-3-2008 Mst. Farzana appeared before Mr. Muhammad Azam, Area Magistrate, Jhang and took shelter in Darul Aman, Jhang vide even dated order of the Area Magistrate.
(c) During her stay- in Darul Aman, Mst. Farzana prosecuted her cause before the learned Judge Family Court successfully despite the fact, that Azhar Abbas contested the suit vigorously. The learned Judge, Family Court decreed the suit in her favour on 14-4-2008. The decree for dissolution of marriage remained unchallwtiged and thus attained finality.
(d) On 7-5-2008 Mst. Farzana Bibi made an application before the Area. Magistrate seeking her release from Darul Arnan with the plea that after obtaining divoice from Azhar Abbas through Family Court on 14-4-2008, she wanted to contract second marriage of her choice. The Area Magistrate summoned Mst. Farzana from Darul Aman and recorded her statement on oath in line with his above said prayer. Thereafter, the Area Magistrate set her at liberty enabling her to contract a marriage of her choice.
(e) After observing the period of "Idat" Mst. Farzana Bibi contracted second marriage with Nusrat Khan challaned accused/pro forma respondent No,6.
5. Keeping in view the above said state of affairs, now I proceed to determine the scope of inherent powers and constitutional jurisdiction of this Court. The criminal justice system is standing on the following three pillars:---
(i) Investigation,
(ii) Prosecution, and
(iii) Trial
6. For effective and smooth functioning of the system these three pillars should be appropriately balanced within. Their respective allotted sphere. Under the provisions contained in Chapter XIV of the Criminal Procedure Code, the police investigate offences. The job of investigation consists of spot inspection; ascertainment of facts and circumstances touching the offence under investigation; collection of evidence and apprehension of the accused as and when sufficient evidence in support of the charge is made available. This is an absolute and inflexible principle of law that opinion of Investigating Officer qua guilt or innocence of the accused is alien to his official domain. In case the investigator fails to collect sufficient evidence in support of the charge/allegation, he is required to prepare negative final report under section 173 read with 169, Cr.P.C. And to lay it before the Area Magistrate. It is prerogative of the Area Magistrate to agree or disagree with the police investigation. Under section 190(1)(b), Cr.P.C. The trial Court takes cognizance of the offence and not of the offender. If the trial Magistrate finds that there is sufficient evidence against the accused, he is competent to take cognizance of the offence on submission of negative/cancellation report. Contrary to this, if the evidence in support of the charge is sufficient, the investigator submits final report under section 173 read with 170, Cr.P.C. Before the Court. After submission of challan in Court, the prosecutor is required to prosecute cause of the State by producing material falling within the definition of legal evidence. Function of the trial Court is to form an opinion after perusing the police report, all the documents and statements filed by the prosecution as to whether or not there are sufficient grounds to proceed with the trial of the challaned accused in order to determine the question of his guilt or innocence. Section 265-D, Cr.P.C. Governing the subject lays down that if there is sufficient ground to proceed with the trial, the Court shall frame a charge against the accused. On the other hand, if some material does not exist to connect the challaned accused with the alleged crime and the trial Court considers that there is no probability of the accused being convicted of any offence or the charge is groundless, the accused will be acquitted at any stage of the case under section 265-K or 249-A, Cr.P.C.
7. The case in hand does not qualify the legal test qua investigation, prosecution and trial. The investigator was duty bound to ascertain the following facts:---
(a) Whether Mst. Farzana Bibi was legally wedded wife of Azhar Abbas on the day of occurrence i.e. 7-5-2008 or on the day of lodging the F.I.R.
(b) Whether the accused persons practised fraud with Rana Muhammad Azam, Area Magistrate, Jhang and enticed away Mst. Farzana from his Court through misrepresentation.
(c) Whether the accused persons made extra-judicial confession before the complainant or it was a self-serving statement of the complainant.
' I have already observed in the preceding paragraph that marriage of Mst. Farzana Bibi and Azhar Abbas stood dissolved on 14-4-2008 through a decree for dissolution of marriage, which remained unchallenged. Had the investigator examined Azhar Abbas on 6-6-2008 or thereafter, it would have been established on record that after 14-4-2008 Azhar Abbas was.No more husband of Mst.
Farzana Bibi and the complainant deliberately and dishonestly concealed and suppressed dissolution of marriage while lodging the F.I.R.
8. The complainant alleged that the accused persons practised fraud with Rana Muhammad Azam, Area Magistrate and took away Mst. Farzana from his Court on 7-5-2008. Keeping in view this allegation, it was essential for the investigator to examine the Court record of Area Magistrate.
Had the investigator bothered to examine or seized the relevant Court record or that of Darul Aman, he would have learnt that Mst. Farzana had not been abducted or enticed away from the Court of Area Magistrate and as a matter of fact she herself secured her release from Darul Aman under an order of the Area Magistrate on the alleged day of occurrence in order to contract second marriage of her choice. Very little application of legal mind is required to conclude that the Investigating Officer joined hands with the complainant and withheld the above discussed documentary evidence with a motive to get challaned the accused persons to Court on the basis of self-assertion of the complainant.
9. The accused persons were challaned to Court, to stand trial under section 365-B, P.P.C. For having abducted Mst. Farzana for Zina. The learned Additional Sessions Judge charge-sheeted the accused persons in line with the police investigation. For facility reference section 365-B is reproduced below:--- "Kidnapping, abducting or inducing woman to compel for marriage, etc.--- Whoeyer 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."
' The offence of abduction punishable under section 365-B, P.P.C. Is defined by section 362 of the Code, which requires two essentials; (i) removal of woman by force from one place to another under compulsion or through inducement by deceitful means and (ii) the object of such removal must be to compel her to marry any person against her will or in order that she may be forced or seduced to illicit intercourse. In order to ascertain as to whether or not Mst. Farzana had been removed from the Court of Area Magistrate, Jhang to another place forcibly or deceitfully with intent that she may be compelled to marry any pert- "r seduced to illicit sexual intercourse, it was must for the investigator record her statement. This is a novel case in the history of criminal justice system in which the accused- persons stand challaned to Court on the charge of abduction without examining the alleged abductee. This is a matter of record that Mst. Farzana had neither been examined nor cited as P.W. In other words, this is a case of abduction without abductee.
10. After conducting the investigation dishoenestly and in a slipshod manner accepting the self- serving statement of the complainant as gospel truth the challan on the charge of abduction was prepared and placed before the District Public Prosecutor, Jhang, who sent it up for trial. Under section 9 of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006, the prosecutor is required to scrutinize the report under section 173, Cr.P.C. In order to decide as to whether or not it is fit for submission before the Court of competent jurisdiction. In the case in hand, the District Public Prosecutor, Jhang mechanically submitted the challan in Court without application of legal mind. Had he scrutinized the final report in the light of collected material, it would not have been difficult for him to decide that the investigating agency prepared a ridiculous charge-sheet on the charge of abduction without associating the abductee with the investigation and without collecting the record of Dar-ul-Aman and that of Area Magistrate, referred to above.
11. Under section 190(1)(b), Cr.P.C. The Court takes cognizance of the offence and not of the offender as laid down in Waqar Ilias and another v. The State PLD 1993 Quetta 49. In the case in hand the learned Additional Sessions Judge took cognizance of the challaned accused in utter disregard of the above said mandatory provision of law. Had the learned Additional Sessions Judge examined the police report, other documents and statements filed by the prosecution, it would not have been difficult for him to form an opinion that there was no sufficient ground to proceed with the trial of the challaned accused on the charge of abduction as the alleged abductee had neither been examined nor cites as prosecution witness. Furthermore, the investigator had not collected the relevant record from the Court of Area Magistrate and the office of Darul Aman. Either the learned Additional Sessions Judge did not have adequate knowledge of criminal law or he carelessly charge-sheeted the accused persons under section 365-B, P.P.C. Perhaps under the wrong impression that he was required to frame a charge in each and every case laid before him by the investigating agency.
12. For what has been stated above provides a basis to say with certainty that the investigating agency, the prosecution and the trial Court completely and miserably failed to discharge the obligations cast on them by the law.
13. On 20-5-2009 Mst. Farzana Bibi, alleged abductee appeared before this Court and stated in a surefooted manner that after obtaining divorce from Azhar Abbas and observing the period of "Idat", she contracted a valid marriage of her choice with Nusrat Khan accused/ respondent No,6 and that her father got registered a false case with baseless allegation of her abduction. She also complained that despite her above version before the Investigating Officer, the challan had been submitted in Court. In the light of undisputed facts given in paragraph No,4 of this judgment and Tasadaq-uz-Zaujain before this Court, the charge of abduction against the accused persons have fallen to the ground. In case the request for quashing of the F.I.R. And the proceedings is not allowed, it would amount .To permit the investigating agency, the prosecution and the trial Court to blind fold the administration of criminal justice.
14. In exercise of constitutional jurisdiction and inherent powers, this Court is supposed to take effective steps to safeguard legal rights of the people and the system. Need of the hour is to nip the evil in the bud to save the people from police autocracy. Unless and until revolutionary constitutional' and legal steps are taken to check arbitrary exercise of powers by the investigating agency, the investigation tainted with mala fide being a festering sore may prove fatal to the whole system. In the case in hand, the investigators deliberately, knowingly And dishonestly concealed, suppressed and reshaped the true facts. They withheld documentary evidence adverse to the case of the complainant and forced the accused persons to stand in the dock for an offence, which had not been committed by them. Arbitrary and mechanical exercise of jurisdiction and authority by the prosecution and the learned trial Court also contributed towards miseries of the accused persons and the alleged abductee. What a pity! The investigators attempted to nullify the unchallenged decree for dissolution of marriage and the orders of Area Magistrate whereby Mst.
Farzana Bibi had been lodged in Darul Aman and then set at liberty.
15. Learned Law Officer attempted to argue that the accused persons are equipped with an alternate remedy by way of an application under section 265-K, Cr.P.C. Before the learned trial Court and in the first instance they should have availed off the said remedy. The way the learned Additional Sessions Judge mortgaged his sacred judicial functions and duties to the investigating agency and the prosecution, stand in my way to direct the accused persons to lay their request for acquittal before the said Court. This Court is of the considered opinion that a serious and alarming legal error of omission and commission had occurred in the investigation, prosecution and trial against the accused persons and the alleged abductee. In order to enforce law of the land and to enable Mst. Farzana and her second husband (Nusrat Khan, respondent No,6), to lead peaceful matrimonial life of their choice, it is fully justified to exercise constitutional jurisdiction and inherent powers in their favour. Such an action by the Court would not amount to interference in the allotted sphere of investigating agency, prosecution and trial Court because the three organs of administration of justice stepped over their respective authority. Resultantly , I accept this petition and quash the proceedings conducted against the accused persons in the case in question.
16. For the reasons recorded in the preceding paragraph 1 have no doubt in my mind that Muhammad Khan, Sub-Inspector Mumtaz Hussain, Sub-Inspector and the Police Station Kotwali, Jhang played havoc with administration of justice after having joined hands with Khan Muhammad, complainant obviously for some considerations extraneous to the record. They dragged the accused persons in frivolous litigation. Some of the accused persons remained behind the bars. In the circumstances, I impose penal/compensatory cost of Rs,1,00,000 (One lac) on the complainant, the investigators and the S.H.O. Which shall be recovered from them in equal shares by the learned Sessions Judge, Jhang by adopting the procedure meant for execution of money decree. On realization of the amount, the same shall be paid in equal shares to the six accused persons and Mst. Farzana Bibi within a period of two months from receipt of this order, under intimation to the Deputy Registrar (J) of this Court.
17. A copy of this judgment shall be sent to the learned Additional Sessions Judge, through the learned Sessions Judge, Jhang advising him to update his legal knowledge and improve his performance. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.