' The petitioner has moved an application under section 19 of the Courts and Laws Code Act, 1949, for issuance of direction to the respondent to register a case and undertake investigation in the light of the application, Annqxure 'A', of the petition.
2. The petitioner moved an application before the respondent on 22nd October, 1984, containing the allegation of 'Zina' committed by Muhammad Mushtaq and others, with Mst. Samani Begum, the alleged wife of the petitioner. The respondent declined to take action on the report in the light of decision of this Court recorded on 11th October, 1984. Applications to S.P. Kotli and D.I.-G. Police were also not considered on the pretext of presence of the order of this Court whereby Mst. Samani Begum was allowed to go with Muhammad Mushtaq.
3. The chequered history of the case is that said Muhammad Mushtaq moved the A.D.M. Kotli, for summoning Mst. Samani Begum, under section 100, Cr.P.C. On appearance in the Court, Mst.
Samani Begum made a statement favourable to Muhammad Mushtaq, as such she was allowed to go with him. The opposite party moved the District Magistrate under section 552, Cr.P.C. For restoration of the custody of Mst. Samani Begum. The order of the District Magistrate was challenged in this Court. Meanwhile, an application under section 491. Cr.P.C. Was moved. My learned brother. Qazi Abdul Ghafoor, in consideration of the allegations raised before him by the parties, ordered the police to produce Mst. Samani Begum. After considerable adjournments, Mst.
Samani Begum appeared in the Court on 10th October, 1984 at Rawalakot circuit when on the request of the petitioner, she was sent to the house of one Capt. Muhammad Zarrin, Advocate, in Rawalakot, to eliminate the chances of influence and coercion of Muhammad Mushtaq on Mst.
Samani Begum, if any. She was produced before the learned Judge on the 11th October when her statement was recorded. In the light of her statement. She was allowed to go with Muhammad Musthaq.
4. The allegation that the Police failed to take action on the report of the petitioner, on account of the order of this Court, somewhat finds support from the record as the respondent, obviously, in presence of the order of this Court, felt reluctant to take cognizance of the matter.
5. Section 19 of the Courts and Laws Code Act, 1949 empowered this Court to direct the transfer of any criminal case or appeal from any Court to any other Court of equal or superior jurisdiction and also to direct the preliminary investigation or trial of any criminal case by any officer or Court, otherwise competent to investigate and try it, though such case belonged, in the ordinary course, to the jurisdiction of some other officer or Court. This Court, therefore, is clothed with jurisdiction to direct the S.H.O. Khuiratta to undertake the investigation in the case. An equivalent provision is postulated under section 22 of the Letters Patent of the High Court of West Pakistan. In an identical situation, in a famous case of Mst. Shahnaz Begum PLD 1971 SC 677, it was observed by late Mr. Justice Hamoodur Rehman, C.J. (as he then was) that second part of the powers contained under section 22, gives jurisdiction to the High Court to direct the preliminary investigation of a criminal case by an officer competent to make such investigation if such investigation has not yet been started or taken in hand. In Muhammad Anwar v. S.H.O., PLD 1972 Lah. 493, another leading case on the point, the Full Bench considered the proposition and Mr. Justice Sardar Muhammad Iqbal, C.J.
(as he then was) applying the principle enunciated in Mst. Shahnaz Begum's case, observed that the High Court was conferred with jurisdiction to issue direction to police to initiate investigation of a cognizable offence.
6. In the instant case, the order passed by this Court on 11th October, was recorded in the light of the provisions of section 491, Cr.P.C. The disputed question of marriage of Mst. Samani Begum with Muhammad Mushtaq was neither probed into nor given any final shape. Mst. Samani Begum being a sui juris, was allowed to reside at a place or with a person of her choice. As she desired to accompany Muhammad Mushtaq, her wish was granted by the Court. By doing that, it was wrong to suggest that this Court finally settled the bona fide of the marriage of the parties. The order of this Court, therefore, was neither a certificate of acknowledgment of marriage nor its repudiation.
This order by itself cannot stand in the way of taking cognizance of the alleged offence of 'Zina' if found established by tangible evidence.
7. It is, therefore, ordered that in case the report of the alleged offence is made, S.H.O. Khuiratta shall take cognizance of the offence and proceed under law. The petition is disposed of accordingly.