RAJA SAJJAD AHMAD KHAN, J.---Through this petition under section 561-A, Cr.P.C., the petitioners seek quashment of FIR bearing No,33/2017 dated 4.11.2017 registered at Police Station, Mang in offences under sections 10 and 19 of the Offence of Zina (Enforcement of Hadd) Act, 1985 on the complaint of Yasir Hussain, respondent No,4.
2. Facts narrated in the instant application are that complainant contracted marriage, 12 years ago, having two children. He went abroad in 2014 for earning his livelihood. During his absence his wife and accused Majid Hussain developed illicit relations. His real brother Asad Hussain informed him about this matter through telephone that his wife and accused Majid Hussain have illicit relations and accused Majid Hussain every day and night called his wife and committed adultery.
On this information, the complainant returned back to home and came to know that both have developed illicit relations. They were in-contact with each other through phones No,0321-5264035, 0336-5370338 which was in use of Mst. Sadia alias Farzana and Mobile phone No,0348- 1347002 and 0334-5911250 in use of Majid Hussain accused. The complainant asked his wife that she has developed illicit relations with Majid Hussain, but she refused, however, the complaint has proof.
The complainant provided maintenance allowance which was at about 10/11 Lac rupees but she has no money. Moreover when members of Jirga asked his wife who told that she had been divorced two years ago while the complainant did not divorce her nor he did anything which occurred Talaq, Majid Hussain accused committed the offences with the abetment and connivance of Aseer Hussain son of Said Hussain, Mohammad Nawaz Asi son of Mohammad Umer.
3. It is averred in the petition that no offence under the aforesaid section has been committed by the petitioners, nor any crime whatsoever has taken place. It is further averred that petitioner No,1 has filed a suit for jactitation of marriage and recovery of dower against the respondent No,4 before Additional District and Sessions Judge empowered as Judge Family Court, Sudhnoti and registration of FIR No,13/17 as well as continuation of investigation in such circumstances can safely be termed as mala fide and without lawful authority. It is further contended that proceedings before respondent No,3 are amount to abuse of process of law as it has been initiated with mala fide intention. It is further stated that respondent No,5 has instituted a suit for conjugal rights before Family Court, Sudhnoti/Pallandri while petitioner No,2 also filed a suit for jactitation of marriage before the same Court. It is further stated that impugned FIR has been lodged against the law and facts which is liable to be quashed.
4. Sardar Iftikhar Ahmad, the learned counsel for the petitioners reiterated the facts and grounds enumerated in the petition and stressed the point that the petitioner No,1 has filed two' suits for jactitation of marriage and recovery of dower against the non-petitioner No,4 before Additional District and Sessions Judge empowered as Judge Family Court, Sudhnoti before lodging of FIR and she was divorced before registration of said FIR. He further argued that under the relevant law non- petitioner No,3 registered FIR No,33/2017 in offences under sections 10/19, ZHA without lawful authority, Investigation and whole proceeding before non-petitioner No,3 amounts to abuse of process of law as it has been initiated with mala fide intention and to grape illegal gratification from the petitioner. Petitioner is innocent and has not committed any offence, any law of land. The learned counsel finally prayed for quashment of impugned FIR.
5. On the other hand, Sadam Hussain Advocate, appearing on behalf of respondent No,4, while controverting the arguments raised-by learned counsel for the petitioner, submitted that applicant is legally wedded wife of respondent No,4 and he did not divorce her. The challan against the accused petitioner and co-accused has been submitted before the trial court. He further submitted that Complainant filed suit for restitution of the conjugal rights before Family court Sudhnoti/Pallandri while petitioner also filed a suit for jactitation of marriage against the complainant before the aforesaid Court, thus these are the questions of facts, which cannot be resolved in exercise of powers under section 561-A, Cr.P.C. The learned counsel finally craved for dismissal of the application.
6. I have heard the learned counsel for the parties and have perused the record made available on the file.
7. It is relevant to note here that this Court under section 561-A, Cr.P.C. is not supposed to determine the truthfulness or innocence of the accused petitioners and allegation leveled in the FIR. It is the function of Investigating Officer and thereafter the trial Court to resolve the question of facts after recording evidence. This Court generally does not interfere with the investigation and trial proceedings. It is relevant to note here that the FIR could be quashed under inherent powers of this Court only if the Court thinks that the case has been registered with unlawful authority and from contents of the FIR no case is made out. Particularly, when the proceedings are pending before any Court and it appears that there is abuse of process of the Courts only then it can make order for quashment of proceedings. Quashment of FIR is ordered only in exceptional cases.
8. In the present case, it is alleged in the application that FIR No,33/2017 has been registered against the petitioner on the ground that. petitioner No,1 developed illicit relations with petitioner No,3. After completion of investigation in the instant case challan has been submitted before the trial Court. To make an order for the quashment of the FIR, at this stage will tantamount to blockage the process of law and it would be premature to make any opinion in this regard that petitioners committed the offence of Zina or not is a question of fact which can be resolved by the concerned trial Court, as the matter is yet to be pending for its disposal before it. Moreover, an alternate remedy in shape of under section 249-A, Cr.P.C. is available to the petitioners before the trial Court.
The petitioners can put their plea before the trial Court as the case may be but this Court cannot sit as Investigating Officer or the trial Court. Reliance can be placed on PLD 2013 Pesh. 117, 2015 SCR 837 and 2002 M LD 1250.
In view of the above observation, finding no force in this application, it is hereby dismissed.