' The petitioners through this petition under section 561-A, Cr.P.C. Seek abashment of F.I.R. No,67, dated 10-6-1994 registered under section 11/16 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 with Police Station Masson, Tehsil and District Jhang being mala fide, result of malice and ab initio illegal.
2. Briefly the facts of the case are that on 23-3-1995 a case under section 11/16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was registered against the petitioners; wherein alleged offence is to have been committed on 10-6-1994.
3. Learned counsel for -the petitioners contended that the petitioners are sui juries and have entered into contract of marriage on 21-10-1994 and are living happily as husband and wife; the petitioner Gulnaz prior to the said Nikah was given in marriage when she was minor; after attaining puberty; filed a suit for dissolution of marriage with Qaiser Abbas and the learned Judge, Family Court decreed the suit in her favor on 8-9-1994; the petitioner Gulnaz also filed a complaint against Qaisar Abbas and others for offences under section 506/148/ 149/366/376, P.P.C. In the Court of Magistrate Rahim Yar Khan on 14-9-1994 and on her request she was sent to Darul Aman in view of the grave apprehension to her life; further contended that prior to the said F.I.R.; the complainant also Tiled an application before D.S.P., Rahim Yar Khan; which after proper inquiry was filed and the present F.I.R. In the presence of a valid decree passed by a competent Court is nothing but gross misuse of power and highhandedness of the respondent No,2 S.H.O. And the F.I.R. Is mala fide as a result of malice.
4. Learned counsel for the respondent assisted by the A.S.I. Contended that the petitioner No,1 Mst.
Gulnaz is legally-wedded wife of one Qaisar Abbas, with whom she was married on 26-6-1991; the Nikah duly registered is still in existence; the entire proceedings in respect of divorce and complaint filed by the petitioner Gulnaz at Rahim Yar Khan are forged, fictitious and of no legal consequence and vehemently contended that the petition under section 561-A, Cr.P.C. Is not maintainable in view of the judgment of Shahnaz Begum's case PLD 1971 SC 677.
5. I have heard the arguments of learned counsel at length and have perused the documents placed on record and confronted to the learned counsel for the complainant.
6. It would be appropriate first to deal with the objection regarding maintainability of the petition under section 561-A, Cr.P.C.
7. In the light of law laid down in Shahnaz Begum supra case that this Court has no jurisdiction to interfere in investigation of case by the police. The law laid down by their Lordships of the Supreme Court does not give free hand to the police to play havoc with the life, honor and liberty of citizens and to use it as a lever to commit atrocities on innocent citizens under the garb of investigation and if the rule laid down is allowed to apply, as canvassed, to each and every investigation, the jurisdiction of the High Court under section 561-A, Cr.P.C. And under Article 199 of the Constitution of Islamic Republic of Pakistan would become redundant and citizens would be left at the mercy of police which is not the purpose of law. In the instant case Mst. Gulnaz petitioner No, 1 filed suit for dissolution of marriage on 8-9-1994 in the Court of Judge, Family Court, Rahim Yar Khan; the suit was decreed on the same day; as the defendant Qaisar Abbas allegedly her husband was a consenting party to the said decree; the complaint filed by the petitioner No,1 was also disposed of on compromise basis as her mother on certain conditions took her back to home.
8. The learned counsel when confronted to the consent decree passed by the learned Judge, Family Court, Rahim Yar Khan vehemently contended that the document is a forged decree as no decree was passed at all; neither Qaisar Abbas was summoned by the Court nor any process was initiated by the Court as required under Civil Procedure Code; when again confronted that the said Qaisar Abbas was the consenting party to the decree; the learned counsel insisted that even then the order of the learned Judge, Family Court is illegal. I am constrained to observe that the decree was passed by competent Court on 8-9-1994; the respondents Nos. 3 and 4 through the learned counsel moved C.M. No, 594/M of 1995 for vacation of status quo by this Court pertaining to impugned order passed in the above C.M. Hence being well aware of the decree passed in favor of the petitioner No,1; neither filed an application under section 12(2), C.P.C. Before the said Court to set aside the decree being got through fraudulent means; nor filed any application against the petitioners for initiating proceedings under section 195/476, Cr.P.C. For tendering forged documents in judicial proceedings before this Court.
9. In the presence of a valid decree in the field by a competent Civil Court; the registration of F.I.R.
Against the petitioners; not even by the alleged husband Qaisar Abbas; but by stranger is nothing but misuse of power and highhandedness of the police which prima facie is based on mala fide and malice and the law laid down in Shahnaz Begum case is not applicable to the facts of the present case, as the actions of the Police Officer are in no case sacrosanct so as to be excluded from judicial scrutiny. It is well-established principle of law that a judicial order passed by a Court of competent jurisdiction cannot be undone by an order passed on executive side; the registration of F.I.R. In the presence of a valid decree is to deprive the petitioners of a valuable right created in their favor by the decree passed by a competent Court.
10. In the presence of a valid decree by a competent Court, the result is obvious that no Court on such evidence can convict the petitioners on the charge leveled against them; resultantly the petition succeeds and is allowed; consequently F.I.R. No,67, dated 10-6-1994 registered with Police Station Masson, Tehsil and District Jhang is hereby quashed with no order as to costs.
F.I.R. Quashed.