' This petition under section 561-A, Cr.P.C. Has been filed for quashment of the proceedings in a case under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) registered against the petitioner at the instance of one Bashir Ahmad vide F.I.R. 176 on 28-8-1987 at Police Station Mailsi, pending in the Court of learned Additional Sessions Judge, Vehari.
2. The brief facts giving rise to this petition are that Mst. Kausar Perveen contracted marriage with Arif Mehmood brother of the petitioner on 8-3-1987. She in a private complaint filed against Muhammad Mashooq Bhatti before the Magistrate 1st Class at Mandi Bahauddin made the following statement.
3. That she being an orphan girl was given protection by Muhammad Azher and later she took shelter in the house of Muhammad Mashooq Bhatti who after sometime compelled her foi marriage but she refused and thereafter faced severe beating and torture at his hands. However, during her studies in Vocational School, she developed friendship with Mst. Rahila and later took shelter in her house. According to her she left the house of Mashooq Bhatti herself and none has abducted her. She further stated that she contracted marriage with Arif Mehmood brother of Rahila of her own free will without any compulsion. She refused to go with Mashooq Ali Bhatti who was not related to her with any degree.
4. The lady was accordingly ordered to go with Arif Mehmood, her husband. Later on the failure of Mst. Kausar Perveen to perform her matrimonial obligation, Arif Mehmood filed a suit for restitution of conjugal rights at Mandi Bahauddin which was decreed ex parte on 2-2-1989. However, subsequently Arif Mehmood divorced Mst. Kausar Perveen on 25th September, 1989 through a written divorce deed.
5. Earlier Mashooq Ali Bhatti got a case registered under section 11 of the Offences of Zina (Enforcement of Hudood) Ordinance (VII of 1979) with Police Station Mandi Bahauddin through F.I.R.
No,216 on 12-3-1987 to the following effect:-- "That Mst. Kausar Perveen alias Manpara daughter of Khuda Bakhsh, his niece in relation was putting with him and was student in Vocational Institute at Mandi Bahauddin, where she developed friendly relations with Mst. Rahila Murad daughter of Malik Murad Ali and sister of Arif Mehmood who later enticed her away and performed her Nikah with Arif Mehmood."
' Mst. Kauser Perveen in her statement under section 164, Cr.P.C. Before a Magistrate deposed as follows:-- "I being an orphan girl was given protection by Muhammad Azhar and later on took shelter in the house of Muhammad Mashooq Bhatti who after some time compelled me for marriage but I refused and thereafter faced severe beating and torture at his hands. However, during my studies in Vocation School, I developed friendship with Rahila and later took shelter in her house. I left the house of Mashooq myself and none has abducted me. I contracted marriage with Arif Mehmood brother of Rahila of my own free will without any compulsion. I refused to go with Mashooq Bhatti who was not related to me with any degree."
6. The case registered under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) at the instance of Mashooq All Bhatti, having been found falls was cancelled.
Another case under section 16 of the ibid Ordinance was registered with Police Station City, Mailsi vide F.I.R. No,176/1987, dated 28-7-1987 at the instance of one Bashir Ahmad to the following effect:- "That he was married with Mst. Kausar Perveen daughter of Khuda Bakhsh, Nikah was performed on 4-11-1987 and marriage was consumed accordingly. About two months earlier, Mst. Kausar Perveen left for the house of her parents and on the next day he came to know that Arif Mehmood and petitioner took away Mst. Kausar Perveen with them on a false pretext and thereby committed an offence of abduction of his wife."
' The challan in this case was remained pending and now after about seven years, it has been entrusted to the learned Additional Sessions Judge, Vehari for trial.
7. The perusal of the record shows that Arif Mehmood being not traceable, he has been proceeded against under section 512, Cr.P.C.
8. Mst. Kausar Perveen in her subsequent statement under section 164, Cr.P.C. Made by her on 3-8- 1983 before Assistant Commissioner, Mailsi stated that she remained in the house of Arif Mehmood for about five months and her Nikah was performed with Arif Mehmood forcibly during existence of her marriage with Bashir Ahmad. She alleged that Arif Mehmood has been committing Zina with her whereas Abid Mehmood the petitioner used to play the role of their guard. She acknowledged her marriage with Bashir Ahmad.
9. From the perusal of the record, it reveals that Mst. Kausar Perveen made divergent statements at different stages. She in her statement before the Assistant Commissioner, Mandi Bahauddin acknowledged her marriage with Arif Mehmood without disclosing the factum of her earlier marriage with Bashir Ahmad. She in her this statement categorically stated that she was virgin and Mashooq Bhatti wanted to contract marriage with her but on, her refusal, she was tortured to be compelled to get shelter in the house of Malik Murad. She also stated that she was already engaged with Arif Mehmood and contracted marriage with him of her own free will. This marriage tie, according to the record, remained intact till September, 1989 when she was divorced by Arif Mahmood through a written divorce deed. The case under section 11 of Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) registered at the instance of Mashooq All Bhatti having been found false was cancelled. The present case was registered at the instance of Bashir Ahmad claiming his marriage with Mst. Kauser Perveen since 11th of January, 1987. According to the contents of the F.I.R. Mashooq All Bhatti conveyed information to the complainant of the case about the custody of Mst. Kausar Perveen with Arif Mehmood and the petitioner.
10. The petitioner alongwith his brother Arif Mehmood was challaned to face the trial under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979).
11. The examination of the facts in the background as disclosed shows that Mst. Kausar Perveen was a willing party to the marriage with Arif Mehmood. She in her statement before Assistant Commissioner, Mandi Bahauddin without disclosing the factum of her earlier marriage with Bashir Ahmad claiming herself a virgin lady contracted marriage with Arif Mehmood and thereby through concealment of her earlier marriage committed a serious offence. According to her statement, she was neither abducted nor subjected to intercourse against her will. She however, in her subsequent statement under section 164, Cr.P.C. Before Assistant Commissioner, Mailsi supporting the claim of Bashir Ahmad levelled the allegation of Zina against Arif Mehmood.
12. The sole question for determination in the case is as to whether Mst. Kauser Perveen at the time of contracting marriage with Arif Mehmood, was already in marriage tie, with Bashir Ahmad and her Nikah with Arif Mehmood was a nullity. She having admitted the presence of Nikah with Arif Mehmood without disclosing the factum of her marriage with Bashir Ahmad has rendered herself to the criminal prosecution as principal accused. There is nothing on record to suggest that Arif Mehmood knowingly Mst. Kauser Perveen to be wife of Bashir Ahmad, contracted marriage with her.
13. The sole question whether Arif Mehmood by contracting marriage with Mst. Kauser Perveen during the existence of her earlier marriage rendered himself liable for prosecution or Mst. Kauser Perveen having kept Arif Mehmood in dark shall be the deciding factor to fix his liability. The admission of Mst. Kauser Perveen of her performing Nikah with Arif Mehmood without obtaining divorce from Bashir Ahmad awarding her status of an accomplice and lost the status of a witness for the purpose of prosecuting his marriage partner. She being equally guilty of the alleged offence committed by Arif Mehmood is to be prosecuted with him.
14. The case of the present petitioner having distinguishable features to that of his co-accused is to be dealt with separately. He being real brother of Arif was named as accused by Mst. Kauser Perveen in her statement under section 164, Cr.P.C. Before Assistant Commissioner, Mailsi with the attribution of playing only the role of guard without levelling the allegation of Zina. The allegation of forcible taking away Mst. Kauser Perveen by the petitioner in view of divergent statement made by Mst. Kauser Perveen falls to ground.
15. The learned counsel for the petitioner contends that undoubtedly in the given facts, it is a case of marriage with consent with no element of forcible abduction. He urged that the petitioner having no hand in the transaction is being prosecuted maliciously. There being no evidence against the petitioner, the trial shall be a futile exercise and there being no possibility of conviction of the petitioner, the proceedings be quashed.
16. The learned AA.-G. Submitted that in view of the special feature of the case and the role assigned to the petitioner by Mst. Kauser Perveen as an accomplice in her statement under section 164, Cr.P.C. The conviction of the petitioner is not possible. He has frankly conceded the proposition that evidence of Mst. Kauser Perveen a consenting party to the commission of offence shall not be admissible against the petitioner. He, however, raised objection to the filing of this petition under section 561-A, Cr.P.C. Before this Court without availing the alternate remedy of moving application under section 265-K, Cr.P.C. Before the learned trial Court.
17. The first question to be taken up is whether the petitioner without moving an application under section 265-K, Cr.P.C. Cannot approach this Court under section 561-A, Cr.P.C. For the quashment of the proceedings. Admittedly, the petitioner did not move any application under section 265-K, Cr.P.C. In the trial Court. It is stated that at present only process has been issued against him and the evidence has yet to be recorded but this would not itself enough to debar the petitioner to file the present petition before this Court. Undoubtedly, according to the general rule, at the first instance, the trial Court is moved for the purpose of relief sought in the present petition but keeping in view the peculiar circumstances of the present case, it was within the exception. I, therefore, do not think necessary to direct the petitioner to approach the learned Additional Sessions Judge, Vehari under section 265-K, Cr.P.C. At the first instance in view of there being good grounds not only for entertaining the petition but also to grant the relief.
18. Having regard to the facts of the case and allegations contained in the F.I.R. Into consideration I am of the view that the petitioner cannot be burdened with the criminal liability as a party to the transaction to be prosecuted with the possibility of conviction. The complaint in the present case, was lodged by one Bashir Ahmad on the basis of information conveyed to him by Mashooq Ali Bhatti who was a complainant in the earlier case against the brother of the petitioner. The sole evidence of Mst. Kauser Perveen an accomplice and a party to the commission of offence, even if is believed as gaspal truth, shall not be an evidence to be made basis for the conviction of the petitioner. The challan submitted containing no allegation of Zina or any other A role having been played by the petitioner except residing in the house where Mst. Kauser Perveen was living with Arif his brother as his wife, hence the trial A if allowed to go is not likely to end up in conviction, therefore, the criminal proceedings in such circumstances cannot be allowed to continue. It is not the intention of the law that accused should necessarily be subjected to trial irrespective of the fact that case is made out or not. The interference by this Court in exercise of its extraordinary jurisdiction under section 561-A, Cr.P.C. Cannot be refused merely because of availability of alternate remedy as the whole purpose is to secure the ends of justice, therefore, a person if facing groundless charge in criminal proceedings cannot be refused relief under section 561-A, Cr.P.C. On technical grounds.
19. For the foregoing reasons this petition is accepted and in consequence thereof the proceedings in the case F.I.R. No,176, dated 22-7-1987 pending against the petitioner before the learned Additional Sessions Judge, Vehari are hereby quashed.