KH. MUHAMMAD NASIM, J.---The titled petition for leave to appeal has been directed against the judgment dated 04.06.2021, passed by the Azad Jammu and Kashmir High Court, whereby , Writ Petition No.1641 of 2021, filed by the petitioners, herein, has been dismissed in limine.
2. The facts of the case briefly stated are that the petitioners, herein, filed a writ petition before the Azad Jammu and Kashmir High Court on 18.05.2021, alleging therein, that proforma-respondent No.4, herein, divorced petitioner No.1, herein, in presence of the witnesses on 28.01.2020. It was further alleged that the marriage between petitioners Nos.1 and 2 was solemnized on 07.05.2021, in lieu of dower amounting to Rs.100,000/- and before the nikah ceremony petitioner No.1, herein, got recorded her statement before the Magistrate 1st class Muzaf farabad.
It was stated that after the nikah, respondent No.3, herein, filed an application before respondent No.2, herein, SHO for registration of a false and fabricated case, in consequence whereof, FIR No.198/2021, in the offences under sections 16/19, ZHA and 14, EHA, was registered against the petitioners on 08.05.2021 at Police Station.
City, Muzaf farabad. It was further stated that the petitioners have contracted a valid nikah and committed no offence, hence, the impugned FIR may be quashed. The learned High Court after necessary proceedings dismissed the writ petition in limine vide impugned judgment dated 04.06.2021, which is the subject matter of the captioned petition for leave to appeal.
3. Mr. Fayyaz Ahmed Janjua, the learned Advocate appearing for the petitioners argued the case at some length and stated that FIR No.198/2021, dated 08.05.2021, has been registered in the offences under sections 16/19, ZHA and 14 EHA, against the petitioners, herein, with mala fide intention and for causing undue harassment to them as well as for curtailment of their liberty . The learned counsel further argued that proforma-respondent No.4, herein, divorced petitioner No.1, herein, on 28.01.2020 and thereafter marriage /nikah between the petitioners, herein, was solemnized on 07.05.2021 in lieu of dower amounting to Rs.100,000/-. Prior to the aforesaid nikah, petitioner No.1, herein, got her stateme nt recorded before the Magistrate 1" Class Muzaf farabad. The learned counsel for the petitioners further alleged that petitioner No.1, herein, is a legally wedded wife of petitioner No.2, and they have committed no offence in presence of divorce deed and nikah dated 07.05.2021, hence, registration of the FIR was illegal. The learned High Court has wrongly dismissed the writ petition filed by the petitioners, herein, in limine. He added that important question of public importance is involved in this PLA, hence, the same may be converted into regular appeal.
4. Conversely , Ch. Shoukat Aziz, the learned Advocate appearing on behalf of respondent No.3 defended the impugned judgment and stated that the same is perfect and legal. The learned Advocate further submitted that the Police may be allowed to perform its statutory duty of investigation because the controversial facts listed in the FIR necessarily require investigation under law. The learned counsel referred to and relied upon the case reported as Arsalan Raja and 5 others v. The State and 3 others [2020 SCR 336], in support of his version and prayed for dismissal of the PLA.
5. I have considered the arguments of the learned counsel representing the parties and " ave perused the record. A perusal of the record reveals that the polke registered a case in the offences under sections 16/19, ZHA and 14 EHA, against the petitioners, herein, on the application of respondent No.3, herein, on 08.05.2021, which is at investigation stage. According to the spirit and scheme of law, it is the duty of the investigating agency to conclude the investigation and thereafter draw the conclusion whether in the light of evidence, a case for commission of the alleged offences is made out or not. The petitioners, herein, filed a writ petition before the High Court for quashment of the FIR registered against them. The learned High Court has rightly dismissed the writ petition in limine. If such practice is allowed, it may amount to interfere in the domain of investigating agency which is an abuse of the process of law. It may be stated that an FIR which is based on mala fide of-course can be quashed, but no such eventuality is available in the case in hand, therefore, the police cann ot be stopped from investigating the matter . The learned counsel for respondent No.3 has rightly relied upon the case reported as Arsalan. Raja and 5 others v . The State and 3 others [2020 SCR 336], wherein, this Court in para 6 has observed as under:- "6. I have heard the learned counsel for the parties and have gone through the record appended with the petition. It appears that after obtaining the ex-parte decree of dissolution of marriage, Umara Sarshar contracted second marriage with Raja Babar Ishtiaq Khan. Umara Sarshar has not owned the ex parte decree of dissolution of marriage rather she appeared before the Police and got recorded her statement under section 164, Cr.P.C. In my opinion some controversial facts regarding genuineness of the Nikah of Umara Sarshar with Raja Babar Ishtiaq Khan are involved in the case which are liable to be resolved by the appropriate forum after recording the evidence.
The resolution of such like controversial questions cannot be made in the writ petition. It has rightly been argued by the learned Advocate-General that in presence of the alternate remedy , the writ petition was not maintainable. It may be stated that an FIR which is based on mala fide of-course can be quashed but no such eventuality is available in the case in hand, therefore, the police cannot be stopped from investigating the matter . No any legal question of public importance is involved in the case, therefore, leave cannot be granted in routine."
An identical proposition came under consideration of this Court in the case reported as Shan Mohammad v.
Muhammad Younas and 4 others [2014 SCR 183], wherein, it was observed in para 1 1 as under:-
11. In the instant case, after the registration of FIR, the accused-respondents secured pre-arrest bail, which was confirmed and soon thereafter the accu sed-respondents filed an application under section 561-A, Cr.P.C. for quashment of FIR. The case was at the stage of investigation. Challan was not presented in the Court. No order was passed by the subordinate Court under the Criminal Procedure Code. The learned single Judge in the Shariat Court quashed the FIR on the ground that the FIR has been registered after a delay of 10 days and from the perusal of contents of civil suit and FIR, there appears a contradiction in the versions of the complainant. The learned Judge observed that "self-contradictory and divergent stance of the complainant shows that FIR No.144/2010 is fake and fictitious, which has been registered with mala fide intention having ulterior motives to harass and pressurize the accused-petitioners; thus, prima facie no case is made out and it is a case of glaring exercise of authority of the police and if the proceedings are allowed, it will be sheer abuse of process of law and arbitrary exercise of authority by police functionary". The Shariat Court is not empowered to quash the FIR at investigation stage while exercising powers under section 561-A, Cr.P.C. The police has yet to form an opinion after collecting the material whether the offence has been committed or not and present the report under section 173, Cr.P.C. before the Magistrate. There was no occasion for interference by the Shariat Court at investigation stage.
No any legal question of public importance is involved in this case therefore, leave cannot be granted in routine.
In view of the above, finding no force in this petition, the same is, hereby , dismissed. No order as to costs. Since, the PLA I C has been dismissed, therefore, the application for interim relief is also dismissed.