' Mst. Safia Bibi, Falk Sher and Sarfraz have filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, for the quashment of F.I.R. No,557, dated 6-11-1994, registered against them for offences under sections 10 and 16 of Zina (Enforcement of Hudood) Ordnance, 1979.
2. The F.I.R. In dispute was registered at the instance of Bashir Ahmed son of Khan Muhammad who is husband of petitioner No,1 Mst. Safia Bibi. According to the allegations made in the F.I.R. The complainant and petitioner No,1 were married and they had a son Ghulam Oadir from the wedlock. Previously they lived in Chak No,434, Tehsil Jaranwala, District Faisalabad but at that place Mst. Safia Bibi developed illicit relations with Falak Sher and Sarfraz (petitioners Nos.2 and 3). On account of this complainant migrated from that village about a year back and settled in Kot Sipra, Tehsil Chiniot, District Jhang. Petitioners Nos.2 and 3 allegedly came to the new place of complainant's abode and abducted his wife (petitioner No,1) for the purpose of committing Zina with her. It is also alleged that some cash and ornaments were also taken away at the time of abduction.
3. It is submitted by the learned counsel that petitioner No,1 after developing differences with her husband filed a suit for dissolution of marriage in District Sheikhupura, which suit was decreed ex parte on 1741-1994 and that she 'also filed a complaint against her husband on 19-9-1994. It is argued that the F.I.R. Has been lodged by the husband of petitioner No,1 with ulterior motive of causing harassment to her, with a view to force her to live with him. Some case-law has been cited to contend that where the prosecution is launched for improper motives, the police investigation can be quashed in writ jurisdiction.
4. I have carefully examined the material placed on record by the learned counsel but I am not persuaded to exercise the discretionary jurisdiction in favour of the petitioners. Previously, petitioner No,1 alongwith her husband had been living in Chak No,434 of District Faisalabad, from where they shifted to a village in Tehsil Chiniot of District Jhang. It is from the latter place that the alleged abduction took place. The suit for dissolution of marriage was filed in the Family Court at Nankana Sahib of District Sheikhupura. In the body of the plaint it is averred that after being turned out of the house by her husband, she came to her parents' house but they refused to keep her with them and asked her to go and live with her husband: Therefore, she started living with a distant cousin in a village of District Sheikhupura. The ex parte decree obtained from the Family Court of Nankana Sahib of District Sheikhupura, has not impressed me. Husband in that suit is shown to be living in Faisalabad while actually he was living in Tehsil Chiniot, District Jhang. Possibility cannot be ruled out that the suit was filed at Nankana Sahib to obtain ex parte decree by giving wrong address of the husband. Similarly, her statement made in the complaint against her husband at Nankana Sahib also does not advance the case for quashment of the F.I.R. According to petitioner No,1 herself, her parents refused to keep her with them and advised her to go and live with her husband. It appears to be a case of elopement and the allegations made in the F.I.R. May not be wrong. Moreover, petitioners Nos.2 and 3 are not shown to be related to Mst. Safia Bibi, nevertheless they have been joined by her as co-petitioners in the present petition. This by itself shows some liaison amongst the alleged abductors and the abductee.
5. In view of the submissions made above, it cannot be said that it is one of those cases in which prosecution has been launched purely for ulterior purposes without there being any grain of truth in the allegations made in the F.I.R. It is to be remembered that in the case of trials, a doubtful case entitles the accused persons for acquittal. But in the case of quashment it is essential that innocence of accused persons and their malicious prosecution should be apparent on the face of the record. The material placed before the Court should admit innocence of the accused and nothing else. Unfortunately, this is not the case in which such a conclusion can necessarily be made. The case of quashment of the F.I.R. Is not made out, in the circumstances of the case.
6. The proper course for the petitioners is that they should join the investigation. The ex parte decree or other material showing their innocence should be placed before the Investigating Officer. In the event of the challan being put in Court, petitioners will have yet another remedy of approaching the trial Court by making appropriate application for their acquittal. But so far as the present Constitutional petition is concerned, it is without merits and is dismissed in limine. It is, however, clarified that nothing said herein shall prejudice the case of the petitioners either before the Investigating Agency or the trial Court.