1. ' Granted for the time being subject to all just exceptions. Through this petition the petitioner seeks quashment of F.I.R. No,66 of 1997 of Police Station Naudero, District Larkana, registered under sections 11 and 16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979. He has prayed for the following reliefs--
(1) That the action of respondents Nos 1 to 3 is illegal, unlawful, without lawful authority, and against the law, not warranted under the law, the same is of no legal effect and against the public interest and is in derogation of the fundamental rights as provided and guaranteed under the Constitution of the Islamic Republic of Pakistan of 1973 to the citizens of this country.
(2) That this Honourable High Court may further be pleased to order for restraining the respondents from harassing, humiliating, disgracing, threatening, arresting and/or taking any action against or to the petitioner without lawful authorities or without due course of law.
(3) That this Honourable High Court may further be pleased to order, declare and quash the said F.I,R. No,66 of 1997 under section 11/16 of the Zina (Enforcement of Hudood) Ordinance of 1979, registered at Police Station Naudero, District Larkana (Sindh) and further.
2. ' That this Hon'ble Court may further be pleased to grant any other relief or reliefs as may be deemed fit, proper and expedient in the circumstances of this case in the interest of justice and equity.
3. ' The relevant facts to the filing of the petition are that above crime was lodged on 12-7-1997 on the report of respondent No,1 Badshah that he has three sisters, out of whom Mst. Shabana aged about 17-18 years is unmarried and she as well as his uncle Abdul Sattar and cousin Khadim Hussain reside together. On 8-7-1997 at about 2-00 p.m. His relative Zamir Hussain came to their house and after staying for half an hour went away. On the said date at about 4-00 p.m. While complainant and the other inmates were present in the house, there appeared Zamir Hussain petitioner with pistol, Shahid Ali Brohi and Hussain Ali Burdi both residents of Nasirabad with guns in their hands. It is mentioned that petitioner and the other culprits on the pointation of arms dragged Mst. Shabana from outside the house and went to narrate the incident to Nekmard Gulsher Ali, who was not present, and came back on the lodging of F.I.R., who advised him to report the matter with the police. In the F.I.R., she was said to have been abducted with the intention to commit Zina.
4. ' Mr. Mahmood A. Qureshi, argues on behalf of the petitioner that the abduct& Mst. Shabana has married with the petitioner with her own free-will according to Muhammadan Law on 9-7-1997, as such they have committed no offence and F.I.R., has been lodged malafidely on 12-7-1997 after knowing the above fact that the spouses have married. He further contends that Mst. Shabana in her affidavit sworn on 9-7-1997 before Judicial Magistrate, Dadu has stated that she was engaged with the petitioner by her parents and her brothers wanted to sell her to some other person as such she left the house and went to the petitioner at her own free-will and being a major and suijures contracted marriage with petitioner at her own accord. In support learned counsel has placed reliance on the following case-law:--
(i) Mst. Waziran and others v. Superintendent of Police, Bhakkar 1997 PCr.LJ 996
(ii) Muhammad Banaras v. S. H .0. And others 1995 PCr.LJ 94.
(iii) Mst. Razia Bibi v. S.H.O., Gunjial, District Khushab 1995 P.Cr.11 797.
(iv) S hehnaz Begum v. Hon'ble Judges of High Courts of Sindh and Balochistan PLD 1971 SC 677 and 693.
(v) Adamjee Insurance Co. Ltd. v. Assistant Director, Enquiry Wing 1989 PCr.LJ 1921.
5. ' On the other hand learned Additional Advocate-General Mr.Jai Jai Veshno vehemently controverts the contentions of the petitioner's counsel and states that this petition is not maintainable and no fundamental right of the petitioner is infringed. He argues that the incident actually took place on 8-7-1997 whereas the marriage has been contracted by the petitioner and Mst. Shabana alleged abductee on 10-7-1997, as such the fact that the above crime took place or not can only be thrashed in the investigation. The petitioner should have joined the investigation before approaching this Court in Writ Petition seeking quashment of F.I.R.
6. This crime is registered on the complaint of brother of Mst. Shabana who according to F.I.R., was forcibly abducted by the petitioner and others on the pointation of arms in presence of P.Ws. It is admitted fact that the petitioner has neither joined himself in the investigation of the case nor has produced alleged abductee Mst. Shabana for interrogation as such at this stage, it cannot be termed that F.I.R., is false and concocted. It is purely a question of fact, which cannot be thrashed in this petition. On the face of it, the incident is shown to have been taken place on 8-7-1997 whereas the Nikah has taken place three A days thereafter, on 10-7-1997. The petitioner according to the petition is resident of Quarter No,2/1, Sector 36-B, Landhi, Karachi and complainant Badshah and his sister Mst. Shabana are resident of Larkana and Nikahnama shows that it was registered with Nikah Registrar, Municipal Committee, Dadu. The veracity of documents viz., the affidavit of Mst.
7. Shabana and their Nikahnama can only be judged when the same are produced in the investigation. These being purely disputed questions of fact and can only be ascertained in the evidence which cannot be recorded in the petition. Therefore, at this stage it will be too premature to term the F.I.R., as false. In the case of Muhammad Rashid v. Station House Officer and others (1997 PCr.LJ 928) Lahore High Court quashed the F.I.R., on different facts and circumstances to that of the dcase in hand. In the cited case the petitioner after getting bail had joined investigation.
8. Lahore High Court in the case of Mst. Razia v. Station House Officer (1995 PCr.LJ 797) quashed the F.I.R., mainly on the ground that the petitioner and one Sadiq after bail joined investigation and produced the relevant documents. The facts of the referred case of Adamjee Insurance Company Ltd., v. Assistant Director Enquiry Wing 1989 PCr.LJ 1921 are quite distinct from the one in hand. In the reported case the prayer was that respondents could not have initiated investigation/enquiry without first recording of F.I.R., if the alleged offence is cognizable and in case the alleged offence is not cognizable then with the permission of Magistrate. The case of Shahnaz Begum v. Hon'ble Judges of High Courts of Sindh and Balochistan (PLD 1971 SC 677) is not applicable to the facts and circumstances of the present case as in the cited case the Hon'ble Supreme Court has held that in Constitutional petition an investigation can be challenged if it is launched malafidely or is clearly beyond the jurisdiction of the agency concerned.
9. Adverting to the prayer clause in the petition, it is necessary to mention that same are not in consonance with the contentions raised by the petitioner in the petition. In the entire petition the petitioner has never agitated for any sort of relief against the respondents Nos.1 to 3 so much so that he has mentioned nothing as to which of his fundamental right is infringed or violated by any of the respondents or any other official functionaries. The entire petition is based on the facts of the F.I.R., and the affidavit sworn by Mst. Shabana before Judicial Magistrate and not even a single ground has been taken on which action of respondents Nos. 1 to 3 is illegal, unlawful without lawful authority and against the law, as such the prayer No,1 in such circumstances is untenable and unjustified and cannot be granted. About the second prayer the petitioner has said nothing in the petition as to in what manner he is being harassed by the respondents, same, therefore, is not sustainable and cannot be granted. The quashment of F.I.R., as prayed in the prayer clause No,3 at this stage when petitioner has not joined investigation and all pleas taken by him in the petition relating to the disputed questions of fact, cannot be resolved in the Constitutional Petition as the same requires evidence which can only be done by the competent Authority. On this point reference may be made to the case of Muhammad Rashid Khan v. Ch. Saeed Akhter and others (1987 SCM R 441(C) wherein Hon'ble Supreme Court has held that High Court in exercise of Constitutional jurisdiction cannot go behind questions of fact which were for competent Authority to determine unless any substantial error was found in reaching them. Moreover, Constitutional jurisdiction under Article 199 being purely a discretionary one can only be exercised in the cases where action has either been taken malafidely against law and beyond jurisdiction or has in fact caused some injustice to the parties. In certain cases Hon'ble Supreme Court has refused to grant relief to the parties in writs where the order to be set aside was illegal but had caused no injustice to the parties. Reference is made to the case of Raunaq Ali and others v. Chief Settlement Commissioner and others (PLD 1973 SC 236). In this case it has been held by Honourable Supreme Court that an order in the nature of writ of certiorari or mandamus is a discretionary one, its object is to foster justice and right a wrong. Therefore, a person can be permitted to invoke the discretionary power of the Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party, rather it cures a manifest illegalities, then the extraordinary jurisdiction ought not to be allowed to be invoked. Full Bench of Honourable Supreme Court in the case of Federation of Pakistan v. 1-laji Saifullah (1988 SCMR 166 (c)) has held that writ jurisdiction is discretionary in nature and even if Court finds that a party has a good case it may refrain from giving him relief, if greater harm is likely to be caused thereby then the one sought to be reminded. The same view has been followed by this Court in the case of Ghulam Sarwar Awan v. Government of Sindh PLD 1988 Kar. 414(e).
10. Apparently in the present case complainant party will be seriously prejudiced if F.I.R., is declared false at this stage for the reasons, firstly, that investigation has not yet initiated, secondly that no chance is provided to complainant to bring or produce the evidence in the investigation. In any case Hon'ble Supreme Court in the case of Karachi Municipal Corporation v. Messrs Harjina Salt Chemicals (Pak.) Ltd. And others 1988 SCM R 1259(d) it has been held that questions of disputed fact should not ordinarily be adjudicated upon in C the Constitutional jurisdiction. In the result, I do not find any merit in this petition which is dismissed in limine.