' Through this Constitutional petition, the petitioners have sought the quashment of F.I.R. No,37/95, dated 18-2-1995 registered under the provisions of Article 16 of the Offence of Zina (Enforcement of Hudood) Ordinance VII, 1979 at Police Station Luddan District Vehari on the complaint of Muhammad Kashif Khan, who claims himself to be the husband of Mst. Mussarat Khan.
2. The report lodged by Muhammad Kashif Khan respondent No,2 was to the effect that he married with Mst. Mussarat Khan in 1991, who had been living with him, when on 11-2-1995 Bashir Ahmad Khan and Mst. Shazia Bashir daughter of Bashir Ahmad Khan, the close relatives took Mst. Mussarat Khan alongwith them on the pretext that her paternal aunt is seriously ill. She accordingly accompanied them. After a short while, the complainant also went to Qadirabad, where he was informed that they had gone to Vehari at the house of Bashir Ahmad Khan. The complainant accordingly in the company of Ijaz Ahmad reached Vehari. The complainant was informed at Vehari by the P.Ws. Mentioned in the F.I.R. That they had seen Mst. Mussarat Khan in the company of Rafique Ahmad Khan, Bashir Ahmad Khan and Mst. Shazia Bashir in a car going towards Multan Road. The complainant allegedly suspected enticement and abduction of his wife at the hands of the accused persons, which they ultimately admitted and promised to return, failing which he got registered instant case after about 7 days.
3. The accused and the alleged abductee filed a joint writ petition for the quashment of F.I.R. On the following grounds:-
(i) That no occurrence in fact took place. Rafique Ahmad Khan and Mst. Mussarat Khan, petitioners entered into a contract of marriage on 15-9-1993 in the presence of witnesses;
(ii) That there is an inordinate delay in lodging of F.I.R.;
(iii) That the complainant is neither husband nor relative;
(iv) That petitioner No,3 has never entered into a Nikah with the complainant; ' That the police did take into consideration the mala fides of the complainant as they have been pleaded and petitioners have requested for the quashment of impugned F.I.R.
4. The complainant also filed C.M. 697 of 1995 for issuance of a direction to produce Mst. Mussarat Khan before the Court, being his legally-wedded wife.
5. The contentions are opposed by the State counsel as well as learned counsel for Muhammad Kashif Khan complainant, on the ground that Mst. Mussarat Khan is legally wedded wife of Muhammad Kashif Khan and impugned F.I.R. Is based on true facts and has requested for dismissal of the writ petition.
6. I have heard the arguments and gone through the file. Viewing the gravity, because it was the case of two claimants of one lady, this Court directed the production of Mst. Mussarat Khan on 28- 3-1995. Learned counsel for Mst. Mussarat Khan expressed apprehensions to the life and liberty of Mst. Mussarat Khan at the hands of the complainant, therefore, he requested through C.M. 970 of 1995 for the recalling of order, dated 28-3-1995 and recording of statement of Mst. Mussarat Khan on 24-4-1994. However, Mst. Mussarat Khan was directed to be lodged in Dar-ul-Aman in order to keep her in safe custody. On 25-4-1995 Rab Nawaz, Inspector, C.IA. Submitted the case file from which it transpired that writ petitioners forged, manipulated the Nikahnama. The Investigating Officer further observed that Nikah of Muhammad Kashif Khan has been found valid. Keeping in view the seriousness of the matter, she was directed to be lodged in Dar-ul-Aman till further orders with a direction that no one should be allowed to see her without the prior permission of this Court.
The Investigating Officer was directed to finalize the investigation with regard to the correctness of Nikah till 14-5-1995. In the meantime the parents of the abductee (Mst. Mussarat Khan) appeared on 2-5-1995 and sought permission to see Mst. Mussarat Khan which was duly granted being blood relations and not party to the writ petition.
7. It is submitted by the learned counsel for the petitioners that it is a fit case in which this Court may exercise the discretionary relief in favour of the petitioners by way of declaring the impugned F.I.R. Illegal, ultra vires and with ulterior motive. He also submitted that by way of lodging the alleged abductee, according to him, sui juris amounts to curtailment of freedom of movement and as such violative of fundamental rights as enshrined in Article 15 of Constitution of Islamic Republic of Pakistan, 1973. When objected by this Court to quote the instances and mala fides on the part of police or complainant, even the learned counsel failed to point out the mala fides and ulterior considerations on the part of police or the complainant. This Court has a jurisdiction to take judicial notice of acts of public functionaries and especially it can quash the criminal proceedings at investigating .Stage in the exercise of powers vested in it under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, specially when the proposed acts or the commencement of the inquiries or investigations or for what matter setting forth the statutory machinery in order to protect the rule of law, if those acts, omissions are absolutely coram non-judice, without jurisdiction or tainted with mala fides. The Privy Council in case reported in AIR 1945 (PC page 18 titled Emperor v. Nazir Ahmad and followed by Supreme Court of Pakistan reported in Shahnaz Begum's case PLD 1971 SC 677 held that this Court in exercise of its jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, can issue writ, if the police is acting in a manner unwarranted under the law. The D.S.P. C.IA. And Rab Nawaz, Inspector C.IA. Produced the file in the Court, read with the assistance of counsel for the parties. The Investigating Officers have given full opportunities to the accused persons to prove the Nikah inter se Rafique Ahmad Khan and Mst. Mussarat Khan. The police obtained the documents from Municipal Committee, Vehari, took into possession extracts and list of Nikahs performed and registered (copy placed on file) by Nikah Khawan namely Heitz Muhammad Rafique. According to the report of Chief Officer, Municipal Committee, Vehari (placed on file) and the list prepared from the register being maintained, name of Shaukat All son of Chuttan is found mentioned. The performance of Nikah on 1-10-1993 with one Mst. Parveen Akhtar. The Nikah as alleged by the writ petitioners bearing serial No,47 performed on 15-10-1993 is neither available on the register containing record of Nikahnamas nor Halm Muhammad Rafique entered or registered any Nikah on 15-10-1993. The above stated facts prima facie as per Investigating Officer cast heavy doubts in the performance of Nikah and so as the findings of Investigating Officer. The Investigating Officer, D.S.P. C.IA. Opined that Nikah of Muhammad Kashif Khan with Mst. Mussarat Khan is genuine and valid and declared the Nikah of Rafique Ahmad Khan bogus and fake. Report of D.S.P., C.IA. Is also available on file in this regard.
8. This being the position, the Court cannot be used in furtherance of illicit love, affairs to avoid criminal prosecution for kidnapping and abduction of a woman and cannot be party to the commission of Zina. Following the principle pronounced in 1972 SCM R 398 and PLD 1971 Lah.
128. It is also in the fitness of things and keeping in view the fact that Mst. Mussarat Khan has failed to establish herself to be sui juris capable of taking independent decision. I do not think it proper to allow her to join either of the two claimants, Muhammad Kashif Khan and Rafique Ahmad Khan. In fact she failed to visualize the situation that Rafique Ahmad Khan already married with two girls out of whom one has the child. Mst. Mussarat Khan needs parental care, love, affection, guidance and wise counsel. It seems that she was made to leave the home of her husband Muhammad Kashif Khan m the hope of enjoying their glamorous life. She appears to have been so much hypnotized by Rafique Ahmad Khan that she thinks her future to be saved in his hands, which cannot be allowed in our Islamic society. Therefore, it is case where discretionary relief cannot be granted to the petitioners for the reasons that they approached this Court with unclean hands and impugned F.I.R. Cannot be quashed. Keeping in view the dictum laid down through 1975 PLJ 155 (sic). I, therefore, deem it proper to lodge Mst. Mussarat Khan in Dar-ul-Aman for 10 months subject to decision of Family Court, instead of putting her in jail. If Investigating Officer needs association of Mst. Mussarat Khan during the investigation, he can approach this Court in this regard. Riaz Khan, Begum Razia Khan and Mst. Samina Khan, being blood relations and not party to the writ petition are allowed to see Mst. Mussarat Khan in Dar-ul-Aman twice in a month on first and 15th of each month from 10-30 a.m. To 11-30 a.m. To meet immediate needs/requirements of Mst. Mussarat Khan in Dar-ul-Aman within the above prescribed period. If Mst. Mussarat Khan desires to stay with her parents before the expiry of prescribed period, she can approach this Court in this regard, because parents' house is better Dar-ul-Aman for daughters. Muhammad Kashif Khan and Rafique Ahmad Khan are not allowed to see Mst. Mussarat Khan in Dar-ul-Aman. Learned Judge, Family Court, Vehari is directed to decide the suit of Mst. Mussarat Khan for jactitation of marriage pending in his Court within 10 months (above prescribed period) without fail. This writ petition has no merits and .The same is dismissed.
9. The observation made in this order will have no bearing on case of either party, on merits.