' The petitioner and three others are facing trial in case F.I.R. No,86/94, dated 12-7-1994 Police Station Tranda Muhammad Panah under sections 16 and 10(2), Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 in the Court of learned Additional Sessions Judge, Liaquatpur.
2. Muhammad Ilyas, respondent-complainant, also filed a private complaint against the petitioner and others who are facing trial in both these cases.
3. The prosecution story as, given in the F.I.R. And the private complaint is that the complainant married Mst. Faiz Begum petitioner who was a divorcee and brought her to his house. This was complainant's second marriage. It is alleged that the complainant used to visit his first wife and during his absence petitioner's brother-in-law Jan Muhammad used to visit her house and demanded the hand of her daughter from the first husband. i,e, Mst. Sughra for Abdur Rehman co- accused but the complainant refused. One day, the complainant was not present at home, Jan Muhammad alongwith his co-accused came to his house and enticed away Mst. Faiz Begum petitioner, Mst. Sughra, his daughter and committed theft of house-hold articles amounting to rupees one lac. It was alleged that the accused had brought a tractor-trolly and took away those articles.
4. During investigation, the police found the allegation of theft to be false and reported that in fact Mst. Faiz Bibi had just taken away the articles which were her personal property. The report under section 173, Cr.P.C. Was submitted under section 16 and 10(2) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) alone.
5. The learned counsel for the petitioner has sought quashment on the following grounds:--
(i) That the registration of the case and the filing of private complaint pursuant to which the petitioner and her co-accused have been summoned is product of mala fides. The petitioner had filed a suit for dissolution of marriage on 6-7-1994. The respondent-complainant felt enraged and lodged the F.I.R. On 17-7-1994. Abdur Rehman co-accused is in fact a witness in the suit for dissolution of marriage and that is why he has been involved in the criminal case;
(ii) That there is a delay of five days in lodging the F.I.R. Which has not been explained;
(iii) That Abdur Rehman is petitioner's son-in-law and it is repellent to common sense that she would have illicit relations with him. He has been involved only because respondent-complainant thought that he, has helped her in filing the suit for dissolution of marriage;
(iv) That there is absolutely no evidence connecting the petitioner with the offence in question; and
(v) That no date of occurrence has been mentioned in the case.
6. The learned counsel for the respondent-complainant on the other hand has opposed the prayer for quashment and submits as under:--
(i) That there is no delay in lodging the F.I.R. As it is mentioned in the F.I.R. Itself that the occurrence took place only the previous evening;
(ii) That there are statements of Najibur Rehman and Nazar Hussain given under section 161, Cr.P.C.
Connecting the petitioner with offence under section 10(2), Offence of Zina (Enforcemeni of Hudood) Ordinance VII of 1979;
(iii) That since the petitioner herself refused to be medically examined, the presumption would go against her that the said examination would have implicated her in the offence of Zina.
(iv) That the, proceedings cannot be quashed under section 561-A, Cr.P.C. Without first resorting to the remedy available under section 265-K, Cr.P.C. The learned counsel relied on the following judgments in support of the plea raised; Mohsin Ali and another v. The State 1972 SCMR 229, Khushi Muhammad and 4 others v. The State 1979 SCMR 94, and Haji Karim Bakhsh and another v. The State NLR 1982 Criminal 27.
7. The learned State counsel on the other hand (after checking the record, the private complaint filed by the respondent-complainant and copies of the plaint and written statements in the family suits) is of the view that the registration of the case against the petitioner is a product of mala fides and, therefore, he would not oppose the prayer for quashment.
8. I have heard the learned counsel for the parties and have also gone through the record which included report under section 173, Cr.P.C. In the afore-referred criminal case, and the statements of prosecution witnesses recorded under prosecution witnesses recorded under section 161, Cr.P.C.
Which have been produced by the respondent-complainant.
9. There is no doubt that quashment under section 561-A, Cr.P.C. Is an exceptional remedy which can only be resorted to under special circumstances. The petitioner has to show that the evidence which the prosecution wants to adduce in trial, even if believed to be true, no case is made out. I have gone through the statements of prosecution witnesses which are to the effect that the petitioner is residing in the same house in which Abdur Rehman co-accused is residing who happen's to be now her son-in-law. They admittedly did not witness the alleged offence.
' I am afraid, there is to livelihood of petitioner's conviction on such an evidence as merely because co-accused Abdur Rehman is living alongwith his wife in the same house in which the petitioner is living would net prove that the petitioner is guilty of an offence of Zina under section 10(2)
Enforcement of Hudood Ordinance.
There is background of litigation. The suit for dissolution of marriage filed by the petitioner is still pending in which respondent-complainant has filed a written statement. So far as the allegations of theft are concerned, a private complaint has already been filed by the respondent-complainant which is pending decision before a learned Magistrate, Liaqatpur.
10. This Court while acting under inherent jurisdiction concerned under section 561-A, Cr.P.C. Has ample powers to give effect to any order under the Code of Criminal Procedure or to prevent abuse of process of any Court or otherwise to secure the ends of justice. An abuse of the process of Court would be apparent on record if the proceedings indicate a perversion of the purpose of law resulting in trial or harassing of a person against whom the charge, on the face of it, is groundless.
' In a judgment reported in Muhammad Saeed and 6 others v. The State and another PLD 1984 SC 29, the Honourable Supreme Court quashed proceedings in a private complaint filed under sections 6, 11 and 16 Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and held as follows:-- "Criminal Procedure Code (V of 1898)---Ss. 561-A, 181(4), 202 & 164---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.6, 11 & 16---Married woman after leaving her husband's home living with her father---Father of such woman lodging F.I.R. To the effect that S has abducted her-- -Woman in her statement under S.164, Cr.P.C. Completely exonerating accused S and stated that no one abducted her nor had any one done anything by force with her and she left house of her father on fear that her father may not send her to her husband against her will, who is vagabond, drunkard and used to beat her---Police having found accused to be innocent Magistrate cancelled case against S---Woman after statement under S.164, Cr.P.C. Refused to go to her father alleging that he did not wish to keep her in his house---Woman on the next day lodging private complaint under Ss.6, 11 and 16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 in Court of Sessions Judge implicating 7 persons including S's father, mother and brother, with allegation that S has raped her after abduction---Contention that complaint filed by lady was not likely to succeed and petitioners (accused) were bound to be acquitted and should not therefore, be permitted to be subjected to humiliation and harassment which was only purpose for which relatives of lady have made her institute private complaint against petitioners, held, has force, lady being a grown up married woman cannot be induced to accompany accused in manner alleged by her but was just an attempt on her part to dishonour petitioners (accused) because of bad blood existing between parties---Supreme Court converting petition into appeal quashed proceedings in private complaint against petitioners in circumstances.."
' Similarly in a judgment reported in The State v. Asif Ali Zardari 1994 SCMR 798, the Honourable Supreme Court upheld the order of quashment of proceedings passed by this Court.
' This Court also quashed proceedings in a case reported Mst. Shababna Chaudhry v. Station House Officer, Police Station Akbari Gate, Lahore and 4 others PLD 1993 Lah. 416 and observed:- "Code of Criminal Procedure (V of 1898)---S. 561-A---High Court is not denuded of its powers to quash the proceedings on being satisfied from the available material that the prosecution has been launched for improper motive merely to harass the accused, or that continuance of the same would be an abuse of the process of the Court, or for other reasons which impel the Court to conclude that to allow the prosecution to continue would not be in the ends of justice."
' In Abid Mehmood v. The State 1995 PCr.LJ 105, this Court quashed proceedings in a Hudood case and observed:-- "Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---S. 16---Criminal Procedure Code (V of 1898), S.561-A--Quashing of proceedings---No allegations of Zina or any other role having been played by the accused was attributed to him in the challan except his residing in the house where the lady accomplice was living with his brother as his wife---Proceedings which were not likely to end in conviction of accused, therefore, could not be allowed to continue and the same were quashed accordingly."
11. For what has been discussed above, the proceedings arising out of F.I.R. No,86/94, dated 12-7- 1994 under sections 10(2) and 16 Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Police Station Trana Muhammad Panah, District Rahimyar Khan, pending in the Court of the learned Additional Sessions Judge, Liaqatpur, are hereby quashed.