SYED ZAHID HUSSAIN BOKHARI, J. - This Intra Court Appeal has been filed under section 3 of the Law (Reforms) Ordinance, 1973 calling in question the order dated 23.1.1996 passed by the learned Single Judge in Chamber whereby the writ petition was dismissed in limine.
2. The necessary facts giving rise to the instant appeal are; that a case FIR No. 6/96, dated 20.1.1996 under section 10/16 of the Offence of Zina (Enforcement of Hudood) Ordinance No. VII of 1979 was registered at Police Station, Nawan Shehr Kabirwala District Khanewal. The aforesaid case was registered in obedience to the order of this Court passed in Writ Petition bearing No. 399/96 at the instance of one Zulfiqar.
3. It is argued that the Police Officer was only directed "to look into the matter and if he finds a commission of cognizable offence then the case was to be registered but the Police Officer instead of going through the .Background of the case immediately register the case. The appellants have entered into a marriage and have been living as husband and were. Since the appellants are husband and were, so the question of abduction and a commission of offence of zina does not arise. The registration of case is a sheer mala fide of the police in connivance with the complainant.
The learned counsel for the appellants has further argued his case that appellant No. 1 herein had repudiated the alleged marriage with one Manzoor Hussain on attaining the majority and the suit for jactitation of marriage was also instituted in the Family Court at Multan. Further argued that during the pendency of the aforesaid suit no criminal proceeding could have been launched against the appellants. Lastly argued that the factum of the divorce given by Manzoor Hussain is also established on the record with fixe only exception that his thumb impression was allegedly obtained through fraud and deceive.
4. We have heard the learned, counsel for the appellants at a considerable length and have given bur anxious considerations to the facts and the circumstances of the case.
5. The quashment of FIR has been urged oh the ground that during the pendency of lis in the Civil Court, no criminal proceedings could be initiated. This argument is misconceived as the Police Officer under the law, has to record the statement of an informant regarding the commission of any offence under section 154 Cr.P.C, if the report discloses any commission of cognizable offence.
This is a statutory duty of the Police Officer. There can only be one ground to refuse recording of the statement of the informant,if the Police Officer has no authority in certain cases to register a case in cognizable offences which is not forthcoming in the instant case. Secondly the quashment order can only be made if apparently there is any abuse of process of the Court and that stage in this case has not yet come, because the process of the Court started when the investigation comes to an end. The Courts are to pass an order in aid of the process of law and not to thwart it and this is why it has, time and again, been held that the investigation stage of the case is outside the purview of the Court and no Court can have even the periodical control over the investigation. It is purely a domain of Investigating Officer to collect the evidence for and against and to submit the final report before the Court. This Court can only make an order directing the Investigating Officer to perform his duly as he is required under the law to perform.
6. In the instant case the proceedings are at preliminary stage and the Investigator is making all his efforts to collect the incriminating evidenced To make an order for the quashment of the FIR at this stage will tantamount to blocking the process of law.
The appellants, if so advised, may file an application under section 249-A or 265-K Cr.P.C, as the case may be before the Court when the challan on the finalization of the investigation is submitted and the Court at any stage of the case, after hearing the Public Prosecutor and the accused and recording the reasons if it considers the charge is groundless or that there is no probability of the accused being convicted of any offence, may acquit the accused. When an alternate remedy is available before the Court of competent jurisdiction then the Constitutional jurisdiction of this Court cannot be invoked in such like cases.
7. In these circumstances, no legitimate exception can be taken to the order passed by the learned Single Judge in chamber calling for interference in Intra Court Appeal. The appeal has no force and the same is, therefore, dismissed in limine.