' AFTAB AHMED GORAR, J.---The petitioner has filed this petition with the following prayers:-- -(a) Quash the F.I.R. No,4 of 2012 under sections 506(2), 494, 34 P.P. C. Of Police Station Rajo Khanani, District Badin.
(b) Stay the operation of F.I.R. No,4 of 2012 under sections 506(2), 494, 34, P. P. C. Of Police Station Rajo Khanani, District Badin, till final disposal of this petition;
(c) Direct the respondents Nos.1 and 2 not to arrest any of the accused nominated in the F.I.R. No,4 of 2012 and to provide full protection to them, till the final decision of the instant petition
(d) Direct the respondents Nos. I and 2 not to harass the petitioner, his wife, father, brother, relatives and well wishers through themselves, their agents, subordinates etc;
(e) Costs;
(f) Any other relief.
2. The petitioner has contended that his wife Mst. Roshna after having been divorced by the respondent No,3 on 13-2-2011, contracted marriage with him on 24-9-2011 with her own free will and wish. However, the petitioner and his wife were harassed by the respondent No,3 and others, therefore, petitioner and his wife filed Constitutional Petition No,S-755 of 2011 before this court On 16-12-2011 the respondent No,3 (respondent No,4 in the aforesaid petition) appeared before this Court and claimed Mst. Roshana to be his wife. He further stated that during subsistence of his marriage, Mst. Roshna has "contracted second marriage. This court observed that such question of fact cannot be resolved in the petition and the respondent No,3 stated that he intend to initiate appropriate proceedings against Mst. Roshna before court having proper jurisdiction. The petition was disposed of and it was ordered that the respondent No,3 shall be at liberty to initiate legal proceedings against Mst. Roshna before appropriate court, which shall be decided by said court in accordance with law, after hearing the parties. The official respondents were also directed to provide legal protection to the petitioners,
3. After disposal of the above petition, on 1-2-2012 the respondent No,3 filed Criminal Miscellaneous Application under sections 22-A & B Cr.P.C. Before the learned Justice of Peace seeking directions to the respondent No,2 to register the F.I.R. Learned 1st Additional Sessions Judge Badin vide order dated 8-2-2012 directed the respondent No,2 to record the statement of the respondent No,3 and if a cognizable offence is made out, then register the F.I.R.
4. The respondent No,3 after obtaining order from the learned Justice of Peace registered F.I.R. No,4 of 2012 under sections 506(2), 494, 34, P.P.C. Against the petitioner, his wife Mst. Roshna and others regarding alleged incident of extending threats etc. To the complainant on the same date, on which the earlier petition was disposed of. The petitioner then filed this petition.
5. On 6-3-2012 notices were ordered to be issued to the respondents as well as Additional Advocate General Sindh for 10-4-2012 with directions to the respondent No,2 to be present on next date along with Investigating Officer of the aforesaid F.I.R. It was ordered that the F.I.R. May be investigated in accordance with law and no arrest shall be made till next date of hearing.
6. The investigating officer without conducting proper investigation, submitted challan under section 512, Cr.P.C. Showing the petitioner, his wife Mst. Roshna as well as his father Ali Bux as absconders,
7. Learned counsel for the petitioner argued that there were clear observation of this court that question of marriage of Mst. Roshna with the respondent No,3 and subsequent marriage with the petitioner during existence of earlier marriage cannot be resolved in constitutional jurisdiction, therefore, respondent No,4 was set at liberty to initiate appropriate proceedings before the appropriate court. Learned counsel submits that the respondent No,3 ought to have approached the learned Family Court to get his grievance redressed but with mala fide intention registered false F.I.R. Against the petitioner and his family membeRs, He further contended that the I.O. Also did not discharge his duties and failed to investigate the case properly and submitted challan under section 512, Cr.P.C. Against the petitioner party during pendency of this petition. Learned counsel says that it is impossible that on the date of hearing of the petition before this honourable Court, he and his relatives went to the house of the respondent No,3 and extended threats. He submits that this is a cooked up story in order to harass the petitioner and his wife. He contended that no offence at all has taken place but the respondent No,3 in utter violation of law instead of initiating proceedings under Family Court Act, lodged false F.I.R., which is apparent from the allegation of marriage during subsistence of earlier marriage and insertion of section 494, P.P.C. He prayed for quashment of the proceedings. He has relied upon the case of Mst. Hameeda v. The State (2007 M LD 1700) and Muhammad Bashir v. Muhammad Usman and others (2003 SCM R 1339).
8. Learned counsel for the respondent No,3 opposed this petition and contended that the petitioner instead of approaching the learned trial court has filed this petition, which is not maintainable in law.
9. Learned State counsel conceded the above position that word appropriate court as used in the order of this court passed in the earlier petition refers to the Family Court but the respondent No,3 got registered the F.I.R. With inter alia allegation of Nikah over the Nikah and extending threats.
10. We have heard learned counsel for the parties and have examined the record minutely. It appears from the record that the respondent No,3 had levelled allegation that during subsistence of his Nikah, Mst. Roshna has contracted marriage with the petitioner. Mst. Roshna had denied such allegations and had stated that respondent No,3 had divorced her and thereafter she has contracted marriage with the petitioner. This court, therefore, had observed that aforesaid question of fact could not be resolved in the constitutional jurisdiction, therefore, while disposing of the earlier petition, set the respondent No,3 at liberty to initiate appropriate proceedings before an appropriate court. The appropriate court in this connection is the Family Court.
11. The investigating officer having been appeared before this court was fully in knowledge about the matter but he failed to discharge his duties in connection with investigation of the case. He was duty bound to produce entire material before the Magistrate while submitting challan including Nikahnama, statement of Mst. Roshna and order of this court but he had intentionally avoided to do so. Besides this, the respondent No,3 has shown the incident to be of the same day when earlier petition was disposed of. It is not possible that the petitioner along with his father and others went to the house of the respondent No,3 and extended threats to him on the same day, on which day they were present before this court in an earlier petition. The I.O. Has also failed to record the statements of Mst. Roshna, Nikahkhuwan as well as Nikah Registrar to arrive at the right conclusion of the matter and wrongly challaned the case. In our view, it is only the Family Court, which is competent to decide the question of validity of marriage etc. And the respondent No,3 ought to have approached the learned Family Court but he, with mala fide intention cooked up the story and registered false F.I.R. Against the IA petitioner party.
12. In case of Hameeda (supra) it has been held that question of validation of a marriage or otherwise could only be determined by the Family Court and unless such a finding was recorded by the court of competent jurisdiction, petitioner or any of the co-accused could not be prosecuted. Investigation officer had failed to discharge his duties and wrongly challaned the case, therefore, proceedings were quashed.
13. In view of the above circumstances, we are of the view that this is a fit case for quashment of the proceedings as continuance of trial against the petitioner and other co-accused would be sheer abuse of process of the court. Accordingly, this petition is converted into a quashment petition under section 561-A, Cr.P.C., and is allowed. Consequently, proceedings against the petitioner and other co-accused arising out of the F.I.R. No,4 of 2012 Police Station Rajo Khanani District Badin pending before the learned trial court/Magistrate stand quashed. The arrested accused namely Abdullah, brother of the petitioner shall be released forthwith if not required in any other case. Copy of this order be sent to the learned trial court for compliance.
14. The petitioner has shown apprehension of his harassment at the hands of respondent No,3. The concerned S.S.P. Is directed to provide protection to the petitioner and his family membeRs, Copy of this order be faxed to the Senior Superintendent of Police Badin for compliance. Petition stands disposed of along with the listed application.