SAYYED MAZAHAR ALI AKBAR NAQVI , Through this Constitutional petition filed-in terms of Art. 199 of the Constitution of Islamic Republic of Pakistan, 1973 following prayer has been made:-- "In view of the above submissions, it is most respectfully prayed that by accepting this petition the impugned order dated 08.01.2018 passed by learned Judicial Magistrate, Jhang may kindly be set aside as illegal, unlawful, arbitrary , whimsical, an abuse of process of law, without lawful authority , contrary to the facts and of no legal effects to meet the ends of justice, Moreover , the respondents No 4 to 7 may kindly be ordered/directed to submit the challan/report of the case/FIR No. 86/17, dated 2702.2017 under section 496-A, PPC at Police Station City, Jhang - before the trial Court, Jhang for further proceedings as per law and the accused may graciously be arrested immediately .
Furthermore, a strict action/separate criminal proceedings may graciously be taken/started against the police officials i.e. the respondents No. 6 to 7 for destroying/concealing the facts and evidence of the case and misguided and cheated the learned Judicial Magistrate, Jhang and negated clear cut direction of the. august Supreme Court in PLD 2013 SC 203 with the collaboration of accused for sake of justice, equity and fair play .
Add interim relief may kindly also be granted.
Any other relief which this Hon'ble Court deems fit and appropriate in the circumstances of the case may kindly be granted"
2. At the very outset while opening his arguments, learned counsel for the petitioner submits that Nikah of daughter of the petitioner namely Abrush was solemnized with Kafayat Ullah (respondent No. 8) on 27th March, 2011 but prior to Rukhsati of daughter of the petitioner , due to strained relations of the families, divorce was pronounced.
Learned counsel submits that subsequent to that, aforesaid Kafayat Ullah along-with respondents No 9 to 11 after abducting the daughter of the petitioner committed rape with her and as such the petitioner got lodged case FIR No. 86/17 dated 27.02.2017, offence under Section 496-A, PPC against respondents No 8 to 11 It is argued that the doctor who medically examined the abductee proposed for DNA test. Learned counsel submits that as a result of zina committed by the accused persons, the abductee became pregnant and subsequently also gave birth to a child. Adds that the police being in league with the accused persons did not investigate the case properly and prepared cancellation report. Learned counsel submits that the petitioner also filed an application for carrying out DNA test, but the learned Maga Magistrate while dismissing the said application agreed with the cancellation report without taking jute consideration the material available on the record in its true perspective. In such backdrop, it is submitted that the impugned order is not sustainable in the eyes of law .
3. On the other hand, after going through the impugned order , learned Additional Advocate General has not supported the same, however learned counsel representing the. accused/respondents No. 8 to 11 has opposed the petition in hand with vehemence.
4. Arguments advanced pro and contra have been heard and record available on file perused..
5. There is no -second cavil to this proposition that as per prosecution version, Nikah of daughter of the petitioner namely Abrush was solemnized with Kafayat Ullah (respondent No. 8) on 27th March, 2011 but prior to Rukhsati of daughter of petitioner due to strained relations of the families, divorce was pronounced, however subsequent to that, aforesaid Kafayat Ullah alongwith respondents No. 9 to 11 after abducting the daughter of the petitioner committed rape with her and as such the petitioner got lodged case FIR No. 86/17, dated 27.02.2017, offence under Section 496-A PPC against respondents No. 8 to 11. The alleged . ictim namely Mst.
Abrush has raised specific allegation of commission of forcible zina with her by respondents No 8 to 11. It is prosecution case that as a result of zina, the victim of this case became pregnant and also gave birth to a child.
The version of the petitioner besides oral also finds support from medical account. In this backdrop, the petitioner moved an application before the learned Illaqa Magistrate for carrying out. DNA test while on the other hand, the local police prepared cancellation report of the aforesaid case. The learned Ilaqa Magistrate vide consolidated impugned order dated 08.01.2018 while dismissing the application of the petitioner agreed with the cancellation report. This Court is conscious of the fact that the demand of the prosecution to carry out DNA test is only in order to determine the legitimacy of the baby, which allegedly has born out as a result of forcible zina by the accused persons. If the requisite DNA test is conducted, the same would not damage the rights of either of the party, rather the same would be helpful to the investigating agency as well as the learned trial Court to arrive at a justifiable decision. Even otherwise, the learned Illaqa Magistrate has passed an exhaustive order, which undeniably is cot requirement of the law while dealing with the matter in an executive capacity. When confronted, learned Additional Advocate General has also not supported the impugned order. Apart from this, it is worth mentioning here that in pursuance of order dated 07.03.2019, RPO, Faisalabad, has entered appearance before the Court and also conceded that the case in hand has not been investigated by the Investigating Officer in accordance with law/material available on the record.
6. For the foregoing reasons, this Court is of the considered view that the impugned order dated 08.01.2018 passed by the learned Illaqa Magistrate is not sustainable in the eyes of law. As a consequence whereof the same stands set aside .
7. Before parting with this order , a direction is issued to the RPO, Faisalabad, to get the case in hand investigated by a senior police officer not below the rank of a gazetted officer and furnish comprehensive report in this regard on the next date of hearing. Adjourned. To come up for further proceedings on 25.03.2019.