SHAHID HAMEED DAR, J.---The petitioners, Khalid Mehmood, Muhammad Anwar, Muhammad Asif and Raja Pervaiz Maqsood Sajid feel aggrieved of order dated 21.12.2009, whereby an application under section 249-A, Cr.P.C., moved by them, was dismissed by the learned trial court (judicial magistrate, Mandi Baha-udDin) during their trial in case FIR No,98/2008, dated 5.3.2008, under sections 420, 468, 471, P.P.C., registered at police station City Mandi Baha-ud-Din. They felt equally injured of order dated 29.3.2010, whereby a revision petition filed by them against the above-said order was dismissed by the learned Additional Sessions Judge, Mandi Baha-ud-Din.
2. Succinctly speaking, Safdar Iqbal (respondent No,1) got registered FIR No,98/2008 (supra) against the petitioners and five others with the allegation that his paternal nephew Farhan Zafar was betrothed to Noshaba Nazir a year before, whereafter he fixed his wedding on 3.1.2008; he took marriage-party to the house of Noshaba Nazir and brought her to his house in village Wasowal after solemnization of her Nikah with Farhan Zafar; she was abducted by Mansoor Anwar and others, including the petitioners on 28.1.2008, whereafter they fabricated a forged Nikahnuma showing her marriage with Mansoor Anwar on 9.6.2007, which was attested by the witnesses; all the accused had participated in the marriage ceremony of Farhan Zafar and Noshaba Nazir, but they did not disclose the factum of controversial marriage then; the accused have forged the Nikahnama and used it as genuine by committing fraud. After necessary investigation, report under section 173, Cr.P.C. was submitted against the petitioners and others before the learned trial court for their trial; it was still at the initial stage, when petitioners moved an application under section 249-A, Cr.P.C. and then a revision petition, which were dismissed by the learned courts below. Hence, the instant petition.
3. Pre-admission notice was issued to the respondents by this court on 29.6.2010 with the direction that proceedings before the trial court might continue but final order would not be passed in the meanwhile. Since both the parties are well represented, hence, this petition is admitted to regular hearing forthwith.
4. Learned counsel for the petitioners has submitted that Noshaba Nazir was forcibly married to Farhan Zafar in existence of her earlier Nikah with Mansoor Anwar on 9.6.2007; Noshaba Nazir instituted a suit against Farhan Zafar for jactitation of marriage, which was fully contested by the defendant and it was finally decreed in her favour vide judgment dated 16.9.2009, which is still intact; the impugned order passed by the learned trial court is patently illegal, as it did not appreciate the proposition involved, in its true spirit and dismissed the petitioner's application under section 249-A, Cr.P.C. illogically and thoughtlessly; learned revisional court also committed same sort of mistake and dismissed the petitioner's revision without any rationale; the impugned orders have resulted in grave miscarriage of justice and great inconvenience to the petitioners, therefore, these may be set aside.
5. Learned counsel appearing on behalf of respondent No,1 did not look much enthusiastic about the respondent's case and he virtually stuttered when he argued that judgment and decree of the family court, in Noshaba's suit for jactitation of marriage, obstructed little the petitioners' trial in the case got lodged by the respondent, hence, learned trial court and the revisional court committed no illegality in making the impugned verdicts.
6. Learned Deputy Prosecutor General Punjab did not feel inclined in supporting contention of the respondent's counsel and submitted that judgment and decree of the family court would have the final say in the petitioners' trial before the learned trial court and in existence of it, they could not be tried or prosecuted by the respondent; further submitted that the learned trial court and the learned revisional court dealt with the proposition cursorily and passed the impugned orders implausibly, which may not be sustained.
7. Learned counsel for the parties have been heard at length and the relevant record has been perused.
8. Isn't it a surprising factor that Safdar Iqbal (respondent No,1), who is complainant of case-FIR No,98/08 (supra), did not produce his paternal nephew Farhan Zafar, alleged husband of Noshaba Nazir, during the course of investigation of the said case, albeit the fact that he was the aggrieved person in real sense and no other person could have felt injured in equal gravity. Three incomplete reports under section 173, Cr.P.C. had been tendered by the police, before it submitted complete report under section 173, Cr.P.C. on 27.7.2008 before the learned trial court, but in none of the reports the name of Farhan Zafar could be found mentioned. Was it evasiveness or unavailability or lack of interest on the part of Farhan Zafar that he did not figure anywhere in the prosecution case, which made it a factor, full of curiosity. Noshaba Nazir is the central figure, around whom the prosecution story revolved, A as she allegedly married Mansoor Anwar co-accused on 9.6.2007 and then Farhan Zafar on 3.1.2008. She along with six others, Muhammad Anwar (petitioner), Raja Pervaiz Maqsood Sajid (petitioner), Muhammad Khalid (petitioner), Mansoor, Muhammad Asif (petitioner) and Mst. Riffat Bibi appeared before the learned trial court to face the trial. They were indicted on 26.4.2011. The prosecution produced five witnesses, Safdar Iqbal (complainant/P.W.1), Javed Iqbal (P.W.2), Muhammad Akhtar (P.W.3), Riasat Ali ASI (P.W.4) and Muhammad (P.W.5) and closed its case on 18.1.2012, whereafter the petitioners and their co-accused were examined under section 342, Cr.P.C. on 26.1.2012. In the meantime, a crucial development took place that suit for jactitation of marriage, instituted by Noshaba Nazir against Farhan Zafar was decreed in her favour on 16.9.2009 by the learned family judge, Mandi Baha-ud-Din, whereby her Nikah with Farhan Zafar was declared illegal and that with Mansoor Anwar was held proper and valid. The petitioners made it a point before the learned trial court that in view of decree of the learned family court, they could not be prosecuted further and they might be acquitted of the charge under section 249-A, Cr.P.C., to which learned trial court did not-agree vide order dated 21.12.2009 and similar was the view- point of the learned revisional court. vide judgment dated 29.3.2010.
9. The petitioners challenged both the verdicts through the titled petition, wherein pre-admission notice was issued to the respondents on 29.6.2010 with the direction that the learned trial court would continue with proceedings of the trial but not pronounce the final judgment. This petition has been admitted to regular hearing precedingly. The impugned orders appear to have been passed without having recourse to the judgment of the learned family court, passed in favour of Noshaba Nazir en 16.9.2009. Learned trial court held in the impugned order that it would determine the validity of Noshaba Nazir's Nikah with Mansoor Anwar, contracted on 9.6.2007, though the later one with Farhan Zafar on 3.1.2008 had been rescinded by the learned family court. Learned revisional court observed identically in the impugned judgment passed by it on 29.3.2010 without consulting judgment of the learned family court, which categorically revealed that "on the other hand, plaintiff produced' a document Ex.P.4 which is a Nikahnama and alleged that she had contracted a marriage with one Mansoor Anwar on 9.6.2007. Perusal of this document reveals that plaintiff and Mansoor Anwar put their signatures upon this document in English version; it was signed by the witnesses and it is a registered document plaintiff contracted Nikah with Mansoor Anwar for consideration of I,000/-. In other words, this document is a proper and valid Nikahnama. In this situation when both documents Ex. P.3 and Ex. P4 have fulfilled all the requirements of law then to evaluate legality of document time of execution is a best parameter, as Ex. P3 has been executed on 9.6.2007 whereas Ex. P4 was prepared on 3.1.2008 according to Islamic law in existence of first Nikah second Nikah would not be held at any cost, in other words Ex. P3 has no value in the eye of law." It was also observed by the learned family court that "Furthermore, defendant did not contest this case personally and it is attorney of defendant who had got registered criminal case against the plaintiff thereafter he had contested civil as well as criminal cases on behalf of defendant. Ex.
P5 shows that on 8.3.2009 (just after 2 months) defendant had contracted second marriage with one Tanzeela Anbreen and left for Belgium. Such state of affairs reveal that defendant had no interest with the plaintiff and he just want to tease her, neither he divorced the plaintiff nor he contested this suit personally. During arguments plaint's counsel admitted that from the date of institution of this suit plaintiff had become Abad in Mansoor Anwar's house and now she has a minor baby aged 1 or 2 months. In the light of discussed above, plaintiff is entitled get a decree for jactitation of marriage regarding Nikahnama dated 3.1.2008. So this issue is decided in favour 1 of the plaintiff. " This judgment and decree has remained intact, as Farhan Zafar did not appear to have challenged it before any forum.
10. Safdar Iqbal (respondent No,1) categorically admitted in his testimony, which he rendered as P.W.I that he knew about Noshaba Nazir's suit for jactitation of marriage, having been decreed in her favour by the learned family court. He admitted it as correct that Noshaba Nazir treated and endorsed her Nikah with Mansoor Anwar as correct. Safdar Iqbal (respondent No,1) did not let his nephew Farhan Zafar appear before the learned trial court as a witness and he merely acted as his attorney. A criminal lis could not be agitated or defended through a special attorney as held in Quaid Johar v. Murtaza All and another (PLD 2008 Karachi 342) and in Ghazanfar All v. M. Zahid Hussain and others (PLD 2011 Lahore 179).
11. There is no cavil to the proposition that at the trial level, the decision in the issue of Nikah, taken by the family court will have binding effect on the decision in criminal trial. It has been held Muhammad Azam v. Muhammad Iqbal and others (PLD 1984 SC 95) that.
"That at the trial level the decision in this behalf of the Family Court will have binding effect on the decision in criminal trial; That unless there is pressing unavoidable need to proceed with the criminal trial (as is in the present case to record essential evidence only regarding which there might be danger of it being lost) the Criminal Court should stay the proceedings and await the result of the contest on issue of Nikah before the Family Court, the suit is already pending or is filed during the criminal trial proceedings; That otherwise too it can ask the party/person concerned to seek a decision on that issue from the Family Court and on refusal or failure in this behalf to raise the necessary presumptions; That in the last-mentioned eventuality the criminal trial would proceed with no change except firstly, as aforementioned about certain presumptions, and secondly, that the issue concerned shall be decided as nearly as possible in accordance with the spirit underlying the procedure prescribed by the Family Court Act and the rules thereunder, in so far as they do not come conflict with the procedure for the criminal trial the provisions regarding compulsory two efforts at compromise would then not apply; That in case the proceedings of the criminal trial are stayed the accused might be released on bail so as to enable him/them to pursue the Family Court case and refuse/cancel the same in exceptional appropriate cases; That in case it is just and proper and the Sessions Judge or Additional Sessions Judge is empowered to try both the matters under both system of laws, the trial by the same Court would not be illegal provided the case under the Family Law is decided in the first instance; That when any case on the criminal side has reached the appeal stage but the issue is still pending before the Family Court, the hearing of the appeal should be stayed for a reasonable time to await the decision by that forum and in case of intentional or otherwise inordinate delay, to take appropriate measures in reconsideration of any concession including bail and the stay, whether it is not being misused."
The issue of Nikah between Noshaba Nazir and Mansoor Anwar has effectively been decided by the learned family court. Besides, both of them in their statements under section 342, Cr.P.C. have categorically admitted and accepted each other as husband and wife since 9.6.2007. Noshaba Nazir had, in fact, delivered a child during pendency of her suit for jactitation of marriage, whose age was noticed by the learned family judge, in its judgment, about one to two months as on 16.9.2009, which meant that new born was about four/five months of age on 21.12.2009, when the learned trial court passed the impugned order. If alive, the said child may be six/seven years of age by now. The genuineness and sanctity of Noshaba Nazir's marriage with Mansoor Anwar stood doubly stamped, one by the judgment and decree of the learned family court and the other, by the birth of mentioned child. Their matrimonial relationship stood more than proven, which got legitimacy with the passage of time. Their marriage inter se would have overriding effect on their trial by the learned trial court.
12. So far as trial of the petitioners is concerned, it is, though, at an advanced stage and merely a couple of steps away from its conclusion. yet, it may be no reason to restrain from exercising judicial authority under section 249-A, Cr.P.C., which empowered the presiding officer of the trial court to acquit the accused at any stage of the trial and the only requirements to be fulfilled are, firstly, that hearing is to be given to the prosecutor and counsel for the accused and secondly, reasons are to be recorded in support of conclusion that charge is groundless or that there is no probability of accused being convicted. It is absolutely clear that application under section 249-A, Cr.P.C. can be filed at any stage of the proceedings and it is not necessary that such application should be filed after evidence of all the witnesses is recorded. Guidance in this regard may be had on The State v. Asif Ali Zardari and another (1994 SCMR 798).
13. Section 561-A, Cr.P.C. confers inherent powers upon this court to make such orders as may be. necessary to give effect to any order under this Code or to prevent abuse of process of any court or otherwise to secure the ends of justice. These powers are very wide and can be exercised at any time. These powers should ordinarily be exercised when trial court exercised its judicial powers under section 249-A or 265-K, Cr.P.C., which are incidentally of the same nature and in a way akin to and co-related with quashment of proceedings as envisaged under section 561-A, Cr.P.C. Where it appears that process of a court was being abused, this court may exercise its inherent jurisdiction under section 561-A, Cr.P.C., even without any order from such court under section 249- A or 265-K, Cr.P.C., but it may happen in a rare situation. The use of the expression "at any stage of the case in sections 249-A and 265-K, Cr.P.C. did not leave the question of recording the evidence as a condition-precedent before taking action under either of the provisions, which is indicative enough of the intention that any such stage could be the very initial stage, after taking cognizance or it could be a middle stage after recording some proceedings and/or, even it could be later stage as well, as held by the Hon'ble Supreme Court of Pakistan in State through Secretary, Ministry of Interior v. Ashiq Ali Bhutto (1993 SCMR 523) and Muhammad Sharif v. The State (PLD 1999 SC 1063).
14. The impugned order of the learned trial court was passed way back in year 2009 and the impugned judgment by the revisional court in year 2010, hence, issuing a direction to the learned trial court at this belated stage, for deciding the issue in the light of the observations contained hereinabove, may not be advisable, rather it would protract the agony of the petitioners unnecessarily.
15.For the discussion supra, this petition is allowed, resulting in acceptance of the application under section 249-A, Cr.P.C. filed by the petitioners before the learned trial court on 24.10.2009. The proceedings of the petitioners' trial are, thus, quashed and they are acquitted of the charge.