' The petitioners through this petition under Article 199 of the Constitution seeks quashment of case F.I.R. No,61 of 1995, dated 4-2-1995 with Police Station Model Town, Gujranwala under section 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 being based on mala fide and without lawful jurisdiction.
2. Briefly, the facts of the case are that Mst. Rizwana respondent No,3 filed a complaint before the learned Magistrate under section 506, P.P.C. Stating that her father wanted to marry her with a man to whom she did not like and there is also danger to her life; she was never abducted by any one and had left the house of her father with her own accord and started residing with her real aunt.
She thereafter contracted marriage with petitioner No,1 on 2311-1994 vide Nikah Nama Annexure "A".
It is stated that father of girl thereafter took her to his house on the promise to send her back after few days. As she did not return back, the petitioner No,1 filed a suit for restitution of conjugal rights on 24-11-1994. The matter was compromised and on the statement of Mst. Rizwana accompanied by her father, the suit was decreed. It may be submitted here that respondent No,4, her father was also a signatory to the compromise. Again, the father took her daughter to his house and got registered F.I.R. No,61 of 1995 under section 10/11 of the Offence of Zina (Enforcement of Hudood)
Ordinance VII of 1979. Hence, this petition for abashment of the same.
3. Learned counsel for the petitioner contended that the respondent No,3 Mst. Rizwana Asghar is wedded wife of petitioner No,1; being sui juries contracted marriage with petitioner No,1 of her own free will and without any coercion on 23-11-1994; further suit for restitution of conjugal rights was decreed on 29-11-1994 in favor of petitioner No,1 with the consent of respondent No,3, his father, the complainant of aforesaid F.I.R. By a competent Judge of Family Court; in the presence of a valid decree by a competent Court of jurisdiction; the F.I.R. Is nothing but misuse of process of law and is based on mala fides. Hence liable to be quashed.
4. Learned counsel for the respondents at the very outset raised preliminary objection that the writ petition is not competent as the petitioners have not come with clean hands before this Court inasmuch as previously Writ Petition No,2588 of 1995 filed by the petitioners was dismissed on 11-10- 1995 by this Court for non-prosecution wherein the operation of the F.I.R. Was suspended; the present petition is copy of the petition earlier filed, neither the fact of previous petition has been mentioned nor any explanation for non- appearance has been mentioned; neither the certificate required on the writ petition under the Rules has been given except the note "Put up Writ Petition No,2588 of 1995". Further contended that the suit for conjugal rights and complaint under section 506, P.P.C. Were filed only to create evidence to meet the defiance version of the petitioner No, 1; respondent No,3 in her statement under section 164, Cr.P.C. Has implicated the petitioners; the decree dated 29-11-1994 has not attained finality as is still under appeal; suit for jactitation of marriage has been filed by the respondent No,3 against petitioner No,1; the delay in the F.I.R. Has been properly explained by the complainant and the F.I.R. Is not based on mala fides.
5. I have heard the arguments advanced by the learned counsel for the parties and have gone through the documents produced during the arguments by the learned counsel for the parties.
6. The case in hand has an interested background. The narration of which is necessary to arrive at just decision. Both the parties to the writ petition are admittedly residents of Gujranwala while the Nikah of respondent No,3 and the petitioner No,1 was performed at Fort Abbas on 2341-1994; private complaint under section 506, P.P.C. Was filed before the EA.C./Magistrate First Class, Fort Abbas on the same day i,e, 23-11-1994 by the respondent No,3 against her real maternal-uncle and father; the statement of complainant/respondent No,3 was recorded by the EA.C. On the same day in complaint case under section 506, P.P.C. And on 24-11-1995, the petitioner filed a suit for conjugal rights against respondent No,3 in the Court of learned Judge, Family Court, Fort Abbas, wherein alleged that respondent No,3 being his legally-wedded wife was duty bound to live with him and perform conjugal rights but as her maternal-uncle was not happy on the marriage hence respondent No,3 had refused to perform conjugal rights a day before filing of the suit i,e, 23-11-1994.
The said suit was decreed in favor of petitioner No,1 on 29-11-1994 on the statement of respondent No,3 and allegedly in the presence of her father, the complainant of the F.I.R.; the F.I.R. Was lodged on 4-2-1995, statement of respondent No,3 was recorded under section 164, Cr.P.C. On 11-2-1995 wherein she supported the version mentioned in the F.I.R., also filed a suit for jactitation of marriage before Judge, Family Court, Gujranwala on 13-3-1995; also filed an application for setting aside the decree, dated 29-11-1994 passed by the learned Judge, Family Court, Fort Abbas in suit for restitution of conjugal rights; a case F.I.R. No,143 of 1995, dated 19-51995 under section 324/337(ii)/148/149, P.P.C. And 13 of the Arms Ordinance XX of 1965 was got registered against respondent No,4 Muhammad Asghar father of respondent No,3 by the father of petitioners Nos.3 to 5 at Police Station Garjakh, District Gujranwala and the said respondent No,4 was arrested.
7. It is also worth noting that the previous Writ Petition No,2588 of 1995 filed by the petitioner, the operation of the impugned F.I.R. Was suspended by this Court vide order, dated 1-3-1995, during the pendency of said writ petition, the petitioners Nos. 1 to 3 allegedly along with another unknown person on 16-4-1995 attempted to abduct respondent No,3 Mst. Rizwana, consequently, No,251, dated 17-4-1995 under section 365/379, P.P.C. Was got registered with Police Station Sadar, Gujranwala.
8. Learned counsel's contention that respondent No,3 being sui juris entered into marriage with her own free will and in the presence of a valid decree passed by a competent Court of jurisdiction, registration of F.I.R. Is beyond jurisdiction and misuse of process of law carries weight to that extent in the light of judgments by this Court in case Mst. Bushra Bibi v. S.H.O. 1995 PCr.LJ 401 and case Mst.
Razia Bibi v. S.H:O. Gunjial, District Khoshab 1995 PCr.LJ 797.
9. True, the functionaries sitting in police stations do come within the purview of Article 199 of the Constitution and their actions are also in no case A sacrosanct so as to be excluded from judicial scrutiny, the dictum laid down in supra cases in no way is applicable to the facts of the case as the facts are quite distinguishable. In the supra cases, the petitioners had filed petitions and had appeared in person in the Court, admitted marriages being with free will and accord with their husbands, while in case in hand, respondent No,3 Mst. Rizwana Asghar has supported the version of F.I.R. In her statement under section 164, Cr.P.C.; also has filed a suit for jactitation of marriage against petitioner No,1; meaning thereby denial or in-existence of marriage without her free will and accord. The manner Nikah was performed at Fort Abbas on B 23-11-1994, complaint under section 506, P.P.C. Was filed by the respondent No,3 against her father and maternal-uncle and the suit for restitution of conjugal rights filed by the petitioner No,1, wherein the cause of action has been shown as 23-11-1994, the day of marriage, prima facie seems nothing but an effort by the petitioner No,1, to create false evidence in support of his defiance plea. It was observed in case Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95, wherein the efforts by the accused were made to create false evidence in support of the defiance plea of elopement or Nikah with consent and filing of false criminal complaint in Magistrate's Court has to get statement of so- called complainant recorded on oath under section 200, Cr.P.C. It was held that the trial Court was duty bound to re-summon and re-examine P.W. Under section 540, Cr.P.C. To discover the truth about the Nikah.
10. The contention of the learned counsel that under the law on the same cause of action, civil as well as criminal proceedings cannot be simultaneously maintained as observed by this Court in case Fatima Bibi and others v. Mullan and 2 others 1995 PCr.LJ 560 is of no help as in the said case, it was observed c by this Court that the F.I.R. Was lodged for mala fide purposes while in case in hand nothing has been brought on record to show mala fide or any malice against the complainant or against the police. In case Muhammad Saeed Azhar v. Martial Law Administrator, Punjab and others 1979 SCM R 484 it was held that:-- "The question of the alleged mala tide on the part of the local police also requires factual investigation, which could not be undertaken by the High Court in the exercise of its writ jurisdiction."
' In case Shaukat All v. State and others 1989 PCr.LJ 2430 that:-- "There can be no cavil with the proposition that on the same set of facts criminal as well as civil proceedings can be competently maintained if criminal as well as civil liabilities arise but otherwise contention of learned counsel has no merits."
11. The motive for lodging F.I.R. May be the outcome of malice on the part of the complainant at the most but on this sole ground, the F.I.R. Could not be quashed as it requires elaborate inquiry into the disputed facts which cannot be undertaken in the writ jurisdiction.
12. In view of the above facts, I find that there is no material on record to show that the case has been registered mala finely so the police be restrained from proceedings with the investigation, the allegation of mala fide mentioned .In the writ petition requires detailed inquiry particularly in the background of the case which this Court would not like to undergo in its writ jurisdiction.
13. The upshot of the above discussion is that I do not find any justification to interfere with the investigation of the case. Resultantly, this petition stands dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.