MUHAMMAD ASIF JAN, J,- Mst. Mukhtar Bibi petitioner brought a suit for jactitation of marriage on 21.8.1995, against Manzoor Hussain on the ground that the said Manzoor Hussain had divorced her by executing a divorce deed (Talaqnama) on 30.3.1995 (Annex-A). The Mst. Mukhtar Bibi's case is that after having obtained divorce from the said Manzoor Hussain, she contracted marriage on 15.7.1995. With Haq Nawaz petitioner No.2, with whom she is now living as his legally wedded were.
The execution of the divorce deed (Talaqnama) is not denied by Manzoor Hussain and the position taken by Manzoor Hussain in his written statement dated 11.12.1995 Annex-F) is to the effect that the said divorce deed was executed and his rhumb-impressions obtained by virtue of fraud and deceit. Be that as it may. This entire controversy is still sub-judice and will only be determined after I tie recording of evidence bv the trial Court.
2. A Constituiional petition was brought before this Court by way of Writ Petition No. 170/Reg/96 by one Zulfiqar, a paternal uncle of Manzoor Hussain and a maternal uncle of Mst. Mukhtar Bibi (petitioner No. 1) praying inter-alia that the S.H.O, of Police Station Nawan Shahr. Tehsil Kabirwala.
District Khanewal. Be directed to register a case and proceed in accordance with law.
3. The said Constitutional petition was disposed of by me vide my order dated 11.1.1996 which reads as follow:- "The Station House Officer of Police Station Nawan Shahr. Tehsil Kabirwala. District Khanewal, is hereby directed to examine the complaint of Zulfiqar petitioner and to see if it reveals the commission of a cognizable offence and in case it does he is directed to perform his statutory' duty under section 154 Cr.P.C, by registering a case and proceeding strictly in accordance with law.
With these observations this petition is disposed of."
4. In pursuance of the above-mentioned order, a case has been registered vide F.I.R. No. 6/96 on 20.1.1996, at Police Station Nawan Shehr,Tahsil Kabirwala. District Khanewal, under Section I6 read with Section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance. 1979.
5. The petitioners seek quashment of the above-mentioned F.I.R. Hence, this petition.
6. Quashment of F.I.R. No. 6/96. Dated 20H.1996. Registered under Section I6 read with Section 10 of Offence of Zina (Enforcement of Hudood) Ordinance. 1979. At Police Station Nawan Shahr. Tehsil Kabirwala. District Khanewal (Annex-G) is sought inter-alia on the ground that the dispute between the parties is sub-judice in a Civil Court and that the law is that when there is a civil dispute between the parties, proceedings pending in a Criminal Court are normally stayed to await the decision of the Civil Court. In this context learned counsel for the petitioners places reliance upon the following-cases :-
(i) Muhammad Azam v. Muhammad Iqbal (P.L.D. 1984 S.C. 95 ).
(ii) Muhammad Azam v. Muhammad Iqbal (K.L.R. 1984 Shariat Cases 33
(iii) Bashir Ahmad v. Mirza Muhammad Yaqub 'X.L.R. 1991 Cr.L J 224)
Learned counsel for the petitioners has stated at the bai that the case is still under investigation.
7. The term abuse of the process of Court signifies a perversion of the purpose of law where the machinery of justice is negated. The process of Court begins when the investigation comes to an end. It is for this reason that it has been settled that the investigation stage is outside the purview of the Court. This view was first enunciated in the case of Emperor v. Khawaja Nazir Ahmad, reported hi A.I.R. 1945 PC 18.
The same view was expressed by the Supreme Court of Pakistan in a leading judgment delivered by Mr. Justice A.R. Cornelius, the then Chief Justice of Pakistan in the case of M.S. Khawaja v. State, reported in P.T.D. 1965 S.C. 287. The Supreme Court of Pakistan in the case of Ghulam v. Muzammal Khan, reported in P.L.D. 1967 S.C. 317) went a few steps further and held that the powers of the High Court do not extend to interfering with the procedure provided under the law and the proper procedure should be adopted. The issue was almost clinched by the Supreme Court of Pakistan in the case of Shahnaz Begum v. 71 Hon'ble Judges of the High Court of Sindh and Baluchistan, reported in (P.L.D. 197 S.C. 677) wherein Mr. Justice Hamoodur Rehman's, the then Chief Justice of Pakistan in his leading judgment held that there is no power to quash an investigation and it is actually the duty of the police to investigate whenever a matter is reported disclosing the commission of a cognizable offence and that if the police fails in its statutory duty, this Court can order the police to perform its statutory duty but it is not the purpose of the Constitutional jurisdiction of this Court to restrain the public functionaries from performing their statutory duty.
8. Being cognizant of this legal controversy, the law-makers have brought, the controversy to an end by promulgating Section 249-A. Cr.P.C, which gives power to a Magistrate to acquit an accused person at any stage. A similar power has been given under Section 265-K Cr.P.C, to Courts of Session.
9. The sine qua non for assuming jurisdiction under Article .199 of the Constitution of the Islamic Republic of Pakistan. 1973. Is that subject to the Constitution, the High Court may if it is satisfied that no other adequate remedy is provided by law assume jurisdiction and issue writs in the nature of mandamus, certiorari, quo-warranto and habeas corpus. An alternate: adequate remedy is now available under Section 249-A and Section 26s-K Cr.PC.
10. All the arguments which have been raised on behalf- of the petitioners may be validly taken if and when the stage arrives i.e. When the matter is submitted in Court.
With these observations, this petition is dismissed in limine.