' Qaisar Mehmood petitioner seeks quashment of an F.I.R. Bearing No,84/97 of P.S., City Mandi Baha- ud-Din registered for the alleged commission of offences punishable under sections 10 and 11 of Ordinance VII of 1979 inter alia on the ground that Qaisar petitioner and Mst.Tabbasam were the legally-wedded spouses of each other and thus no offences under sections 10 and 11 of Ordinance VII of 1979 was made out and further that the F.I.R. In question was routed in malice inasmuch as the entire family of Qaisar petitioner i,e, his father Yaqoob; his father's sister, namely Mst. Saleema; his father's mother, namely, Mst.Dani and another wife of his father's father, namely, Mst.Gudi and others had been maliciously implicated in the occurrence in question.
2. It may be mentioned here that Mst. Saleema accused who is a Phuphi of Qaisar petitioner is the third wife of Shafi complainant and Mst.Tabbasam abovementioned is the daughter of one Muhammad Iqbal who is a son of Shafi complainant from another wife.
3. In support of the petitioner's alleged marriage with Mst.Tabbasam, reliance had been placed on a Nikahnama dated 26-12-1996 which Nikahnama was appended as Annexure 'A' with an earlier writ petition bearing No,8748/97 filed by Mst.Tabbasam Bibi abovementioned. According to this Nikahnama, the Nikah had been performed by one Qari Abdul Wakil of School Mohallah of Mandi Baha-ud-Din. Mst.Tabbasam Bibi who is the alleged bride in this Nikahnama was resident of Inayat Mohallah while the bridegroom, namely, Qaisar petitioner was a resident of Mohallah Islamabad of Mandi Baha-ud-Din. A perusal of this Nikahnama further reveals that Column No,7 thereof is meant for the Wakil, if any, appointed by the bride. This column lies blank but surprisingly enough in Column No,8 which is meant for the description of witnesses of the appointment of Wakil, stands filled and Muhammad Yousaf and Khalil are mentioned as the witnesses for the appointment of a Wakil by the bride, though as mentioned above, no Wakil had been appointed by the bride as is apparent from Column No,7. Likewise, Column No,9 which is meant for the Wakil, if any, appointed by the bridegroom lies vacant but two persons, namely, Farrukh and Shahid have been mentioned in Column No,10, as the persons who had witnessed the appointment of a Wakil by the bridegroom.
It is not un-known that no Muslim marriage is valid without at least two persons witnessing the same but Column No,11 which is meant for the witnesses of the marriage lies blank meaning thereby that there were no witnesses of this alleged marriage. At the end of this Nikahnama, the witnesses of a marriage are expected to put their signatures or thumb-impressions in token of their having witnessed the marriage but the space again lies blank and no one had put his signatures or thumb-impression in token of having witnessed this marriage. Having noticed this kind of a Nikah and this type of a Nikahnama, I summoned Qari Abdul Wakil, the Nikah Registrar in the present case who also happened to be the one who had allegedly performed the Nikah, alongwith the original register. He entered appearance with the said register and I found that in the original register the position was the same as noticed above in the Parat of the Nikahnama appended with the abovementioned petition and relied upon in this case. When questioned about the manner in which he discharged his obligations as a Nikah Registrar which was a sacred and a rather serious business, the said Qari Abdul Wakil had nothing to offer except apologies and a prayer for mercy. I have put my signatures on this Nikahnama and have scored out Columns Nos.7, 9 and 11 as also the spaces meant for the signatures of the witnesses of marriage and have initialled these columns.
4. The office shall retain photostat copy of this Nikahnama and shall send the original to the Deputy Commissioner of Mandi Baha-ud-Din who shall consider the advisability of taking proceedings against Qari Abdul Wakil, Nikah Registrar, including the possibility of removing him from the office in accordance with law, if the facts and circumstances coming to his knowledge warrant any such action.
5. The petitioner submitted an application bearing C.M. No,1524/97 for summoning of witnesses and for recording of evidence with respect to the existence of a marriage between Qaisar petitioner and Mst.Tabbasam above-mentioned.
6. This Court has always been reluctant, in the exercise of its extraordinary Constitutional jurisdiction, to get involved in a fact-finding exercise which would involve recording of evidence or examining witnesses and permitting their cross-examination. Needless to mention here that since the case is under investigation, it would be open to the accused persons to put up their plea of marriage before the I.O. Who is competent to examine the question and then to reach some conclusion. Embarking upon such an exercise would mean pre-empting the powers lawfully vesting in the investigating officers and in the trial Courts adopting of which role has never been approved by the Supreme Court. Reliance is placed on Emperor v. Khawaja Nazir Ahmad AIR 1945 PC 18, Malik Shaukat Ali Dogar etc. v. Ghulam Qasim Khan Khakwani etc. PLD 1994 SC 281, Ghulam Muhammad v. Muzamal Khan PLD 1967 SC 317, Shahnaz Begum v. Hon'ble Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677, Wali Muhammad alias Walia v. Haq Nawaz and others 1971 SCMR 717 and Malik Ghulam Ahmad v. Haji Muhammad Yousaf and others PLD 1976 SC 271.
7. A petition under Article 199 of the Constitution of Pakistan, 1973 is competent only if it is established that no adequate remedy is available to an aggrieved person. With respect to an accused person seeking quashment of an F.I.R. It could not be said that he was without and adequate remedy. In the first place, he has remedy before the I.O. And if somebody be not satisfied either with the conduct of the I.O. Or with the manner in which the investigation being conducted, then the remedy lies before the higher police officers who also have the powers of an officer-in- charge of the police station by virtue of section 551 of the Cr.P.C. An aggrieved person then has a remedy before a Magistrate under section 63 of the Cr.P.C. To seek his discharge from the case as also a remedy under rule 24.7 of the Police Rules, 1934 whereby the competent Magistrate has authority to cancel the F.I.R., if he is satisfied with the facts and circumstances of the case warranting such an action. The accused person can thereafter take resort to a remedy before the learned Magistrate who gets seized of the matter under section 190 of the Cr.P.C. Which Magistrate has the power to refuse to take cognizance and to consequently discharge the accused person and finally such an accused person has remedies before the learned trial Court initially pleading for non-framing of the charge; then pleading for his acquittal under section 249-A of the Cr.P.C.
And finally seeking the relief of acquittal as a result of the trial. In the presence of all these remedies, it would be difficult to hold that no adequate remedy was available to the petitioner in the present case which would render this petition as in-competent and liable to be dismissed on this score.
8. Relief under Article 199 of the Constituion of Pakistan, 1973 is a discretionary relief. A petitioner seeking the same must, therefore, show that he had come to the Court with clean hands or that he had not indulged in any conduct which had sullied his hands or had done anything which was against the established social or moral norms of the society and it is only then that he would qualify to the grant of a discretionary relief in equity. I have held in Hafiz Abdul Waheed v.
Muhammad Arshad PLD 1997 Lah. 301 that persons involved in the kind of marriage which is presently in issue before me were not entitled to any relief in equity.
9. Since no extraordinary circumstances exist which could persuade me to hold an inquiry into the factum of existence of the alleged marriage by recording evidence; since the petitioner has adequate alternate remedies available to him under the law and since the petitioner was not entitled to the grant of any relief in equity, therefore, this petition is dismissed.
10. In view of what has been noticed above, C.M. No,1524/97 is also dismissed.
11. Before I part with this order, I would like to mention that the learned counsel for the petitioner had placed reliance on the following judgments:-- "Sultan Mumaraz etc. v. The State 1978 PCr.LJ 902; Mst. Sughran Mai v. The State PLD 1980 Lahore 386 and Mst. Nasreen Akhtar v. Incharge Police Station, Regiment and another NLR 1988 UC 308."
12. A copy of this judgment shall be sent to the Deputy Commissioner of Mandi Baha-ud-Din for action in terms of para. No,4 above.