KHALIL-UR-REHMAN RAMDAY, J.- 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 U/Ss. 10 and 11 of Ordinance VII of 1979 inter alia on the ground that Qaisar petitioner and Mst. Tabbasm were the legally wedded spouses of each other and thus no offences u/Ss. 10 and 11 of Ordinance VII of 1979 was made out and further that the F.I.R, in question was rooted 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 above-mentioned 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 NIKAH NAMA dated 26-12-1996 which NIKAH NAMA was appended as ANNEXURE 't' with an earlier writ petition bearing No. 8748/97 filed by Mst. Tabbasampibi above-mentioned. According to this NIKAH NAMA, the NIKAH had ten performed by one Qari Abdul Wakil of SCHOOL MOHALLAH of Mandi Baha-ud-Din. Mst. Tabbasam Bibi who is the alleged bride in this NIKAH NAMA was resident of INAYAT MOHALLAH while the bride-groom, namely, Qaisar petitioner was a resident of MOHALLAH ISLAMABAD of MancU Baha-ud-Din. A perusal of this NIKAH NAMA 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 bride groom 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 bride-groom. It is not unknown 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 witness of this alleged marriage. At the end of this NIKAH NAMA, 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 found that in the original register the position was the same as noticed above in the PARAT of the NIKAH NAMA appended with the above-mentioned 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 apologise and a prayer for mercy. I have put my signatures on this NIKAH NAMA and have scored out COLUMNS NO. 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 NIKAH NAMA a| shall send the original to the Deputy Commissioner of Mandi Baha-ud-lj who shall consider the advisability of taking proceedings against Qari Abq Wakil, NIKAH REGISTRAR including the possibility of removing him &t the office in accordance with law, if the facts and circumstances coming to! Knowledge warrant any such action.
5. The petitioner submitted an application bearing C.M. Fj 1524/97 for summoning of witnesses and for recording of evidence wj respect to the existence of a marriage between Qaisar petitioner and M Tabbasam above-mentioned.
6. This Court has always been reluctant, in the exercise of its ex ordinary Constitutional jurisdiction, to get involved in a fact-finding exerc which would involve recording of evidence or examining witness a permitting their cross-examination. Needless to mention here that since 1 case is under investigation, it would be open to the accused persons to put[ their plea of marriage before the I.O.
Who is competent to examine 1 question and then to reach some conclusion. Embarking upon such exercise would mean pre-empting the powers lawfully vesting in 1 Investigating Officers and in the trial Courts adopting of which role has ne been approved by the Supreme Court. Reliance is placed on Emperor Khawqja Nazir Ahmad (A.I.R. 1945 P.C. 18), Malik Shoukat Ali, Dogar etc Ghulam Qasim Khan Khakwani, etc. (P.L.D. 1994 SC 281), Ghul Muhammad v. Muzamal Khan (P.L.D. 1967 S.C. 317), Shahnaz Begum Hon'ble Judges of the High Court of Sind and Baluchistan and anot (P.L.D. 1971 S.C.
677), Wali Muhammad alias Walia v. Haq Nawaz < others (1971 SCM R 717) and Malik Ghulam Ahmad v. Hqji Muhamn Yousafand others (P.L.B. 1976 SC 271).
7. A petition under Article 199 of the Constitution of Pakistan, 1| is competent only if it is established that no adequate remedy is availablj an aggrieved* person. With respect to an accused person seeking quasi of an F.I.R., it could not be said that he was without an adequate reme the first place, he has remedy before the I.O. And if some-body be satisfied either with the conduct of the I.O. Or with the manner in whichl investigation being conducted, then the remedy lies before the higher P
8. Relief under Article 199 of the Constitution of Pakistan, 1973 is a scretionary relief. A petitioner seeking the same must, therefore, show that had come to the Court with clean hands or that he had not indulged,in y conduct which had sullied his hands or had done anything which was ainst the established social or moral norms of the society and it is only then at he would qualify to the grant of a discretionary relief in equity. I have Id in Hafiz Abdul Waheed v. Muhammad Arshad (K.L.R.
1997 Shariat ises 121) that persons involved in the kind of marriage which is presently issue befr-e me were not entitled to any relief in equity.
9. Since no extra ordinary circumstance exist which could persuade 3 to hold an inquiry into the factum of existence of the alleged marriage by wording evidence; since the petitioner has adequate alternate remedies ailable to him under the law and since the petitioner was not entitled to e grant of any relief in equity, therefore, this petition is dismissed.
10. In view of what has been moticed above, C.M. No. 1524/97 is also dismissed.
11. Before I part with this order, I would like to mention that the irned counsel for the petitioner has placed reliance on the following Igments: Mst. Mumaraz, etc. v. The State (1978 P.Cr.LJ 902); Mst. Sughran Mai v. Te State (P.L.D. 1980 Lahore 386) and Mst. Nasreen Akhtar v. Incharge lice Station, Regiment and another (N.L.R. 1988 UC'308).
12. A copy of this judgment shall be sent to the Deputy immissioner of Mandi Baha-ud-Din for action in terms of para No. 4 above.