1. ' This is a petition under Article 199 of the Constitution of Islamic , Republic of Pakistan, 1973 ("Constitution") for abashment of F.I.R. No,19 of 1998 dated 5-7-1998 under section 452/34, P.P.C. And sections 10 and 11 of Zina Hudood Ordinance registered with Police Station Belo Mirpur, District Ghotki.
2. ' According to the petitioner (Mst. Rukhsana wife of Liaquat Ali) who is a Muslim, adult, she married Liaquat Ali Magsi on 2-7-1998 according to Muslim law. She has filed a copy of her Nikahnama in Form II prescribed by Rule 8 of the Muslim Family Laws Rules showing that she is 19 years old, that she was married to Liaquat Ali Magsi on 2-7-1998 and her dower (Mehar Indual-talab) was fixed at 1 Tola gold. The Nikahnama also includes the condition that in case the husband divorces the girl or takes a second wife, he shall pay compensation of Rs,1,00,000 and provide her a house for residence and Rs,1,000 per month as maintenance. It transpires that on the same day she appeared before Special Magistrate and F.C.M., Municipal Corporation, Sukkur and swore an affidavit wherein she stated, that Liaqitat Ali who possess good moral character requested and demanded her hand in marriage through his parents three times but her parents refused to do so because they wanted to marry her against her wishes to an aged person of bad character who always appeared to be in intoxicated condition. In her affidavit she further stated that in view of the above circumstances she decided to exercise her right of choice available to her under the law and marry Liaquat Ali. She further added that she had left her parents' house in three clothes and had not taken anything from them and that she had neither been kidnapped nor abducted by anyone. A copy of the sworn affidavit, dated 2-7-1998 has been attached with the petition. After the performance of Nikah, the petitioner apprehending that her parents might register a false case against her husband or his relatives wrote letters to the S.S.P. Sukkur, S.H.O. "A" Section Police Station, Sukkur and S.H.O. Police Station, Mirpur Mathelo and dispatched them by urgent mail service on 6- 7-1998 explaining the facts about her marriage and expressing her fear about lodging of a complaint by her parents against her husband and his relatives. She has filed a copy of such letter along with copies of U.M.S. Receipts. As a matter of abundant caution she also published a notice of her Nikah with Liaquat Ali Magsi in the daily local newspaper of 3rd July, 1998, a copy of which has also been attached with the petition.
3. ' She has further alleged in the Petition that on 3-7-1998, S.H.O. Police Station Belo Mirpur, District Ghotki unlawfully detained Muhammad Bachal her father-in-law and one Muhammad Hashim, the head of Burar Clan at his police station and also harassed the petitioner and her other in-laws.
4. Consequently she filed Constitutional Petition No,D-755 of 1998 against S.H.O. Belo Mirpur, District Ghotki (respondent No,1 herein and others) wherein this Court appointed a Commissioner to visit the premises of the police station and submit a report of his findings. The said Commissioner found that both the aforesaid persons, namely, Muhammad Bachal and Muhammad Hashim had been detained in the police station unlawfully and submitted his report to the Court accordingly. On 9-7- 1998 Muhammad Bachal and Muhammad Hashim were produced in Court by the S.H.O. And were ordered to be released whereupon she withdrew the said Petition. In his statement, dated 9-7-1998 respondent No,1 had stated that he had detained the aforesaid two persons in the investigation of Crime No,19 of 1998 which had been allegedly registered at Belo Mirpur Police Station at the instance of petitioner's father Noor Khan on 5-7-1998 relating to the abduction of the petitioner by her husband and his relatives.
5. ' According to this F.I.R. The complainant Noor Khan (father of the petitioner and respondent No,2 herein) reported, inter alia, that about a month back one Muhammad Bachal Magsi had come to him to ask for the hand of his daughter Mst. Rukhsana (petitioner herein) for his son Liaquat Ali which he declined whereupon Muhammad Bachal threatened the complainant of dire consequences if he did not marry his daughter Rukhsana to his son Liaquat Ali. Thereafter, on the night on 27th/28th June, 1998 at about 2-30 a.m. While he was sleeping with his family members at his house his daughter Mst. Rukhsana raised cries, whereupon he woke up and saw Liaquat Ali son of Muhammad Bachal, Barkat Ali son of Allah Wassayo, Sarwar son of Haji Mubarak and Allah Ditto son of Muhammad Murad, all armed with weapons standing in his house. He could see these persons because an electric bulb was on. Liaquat Ali and Barkat Ali caught hold of his daughter by her arm, made her sit in a Yellow Color Suzuki and went away. Thereafter, he searched for his daughter Rukhsana and when he did not succeed in his efforts he came to the police station to lodge an F.I.R. On 5-7-1998 at 8-10 in the morning.
6. ' After the release of Muhammad Bachal and Muhammad Hashim by the Court in Constitutional Petition No,D-755 of 1998 the petitioner went to respondent No,1 along with the copies of her Nikahnama and sworn affidavit to apprise him of the true facts about her Nikah, that the F.I.R. About her abduction was mala fide and that respondent No,1 should not harass and humiliate her husband and his relatives as she had married Liaquat Ali in accordance with Muslim Law which is not a violation of any other law. Respondent No,1 refused to consider her request and continued to harass and humiliate her husband and his relatives. In these circumstances the petitioner, not having any other adequate and efficacious remedy available, has filed this petition for abashment of F.I.R. Bearing Crime No,19 of 1998 on the ground that no case of abduction or Zina is made out as she being an adult Muslim female had left her father's house of her free-will and had married Liaquat Ali with her consent and without any duress from any one. She has also prayed that respondent No,1 be restrained from submitting the challan of the alleged crime or taking any other step beyond the limits of law and any other suitable relief along with the costs of the petition.
7. ' Mr. Mumtaz Ali Siddiqui, learned Counsel for S.H.O. Police Station Belo Mirpur, District Ghotki (respondent No,1) and Noor Khan (respondent No,2) father of the petitioner has opposed the petition on the following two grounds:--
(i) The petition is not maintainable because the case is still under investigation and cannot be interfered with in writ jurisdiction as the accused have neither been arrested nor have sought bail.
(ii) Petitioner is not an aggrieved person, and therefore, the petition under Article 199 of the Constitution is not maintainable.
8. ' On the other hand Mr. Saifuddin Shah, learned counsel for the Petitioner has argued and cited several authorities to show that the High Court, in exercise of its Constitutional jurisdiction, is competent to pass an appropriate order where investigation is mala fide or without jurisdiction and in an appropriate case quash the F.I.R. At the initial stage if it finds the same to be mala fide or that there is no likelihood of the accused being convicted of the alleged crime.
9. ' I have heard the learned counsel for the parties, gone through the material placed on the file, considered the matter and my conclusions are as follows:-- Under Article 199 of the Constitution, a High Court on the application of any aggrieved party, has the power to make an order directing a person performing, within the territorial jurisdiction of the Court, functions . In connection with the affairs of the Federation, or a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do or make an order giving such directions to any person or authority exercising any,ower or performing any function in relation to any territory within the jurisdiction of that Court, as may be appropriate for the enforcement of any of the Fundamental Rights conferred by the Constitution.
10. ' In Anwar Ahmed Khan v. The State 1996 SCMR 24, the Honorable Supreme Court of Pakistan observed as follows:-- "It is well-settled principle that where investigation is mala fide or without jurisdiction, the High Court in exercise of its Constitution jurisdiction under Article 199 is competent to correct such proceedings and pass necessary order to ensure justice and fairplay. The Investigating Authorities do not have the entire and total authority of running investigation according to their whims."
11. This principle was reiterated by the Supreme Court in Muhammad Latif v. Sharifan Bibi 1998 SCMR 666 at page 668. In Byram D. Avari v. The State PLD 1989 Pesh. 145 (DB) the learned High Court has clarified that functionaries sitting in the police station are connected with the affairs of the Centre or the Province come within the purview of Article 199 of the Constitution. Their actions are in, no way, sacrosanct so as to he excluded from judicial scrutiny and are, accordingly, amenable to the directions issued by the High Court under the Constitution. Further Article 35 of the Constitution enjoins that "the State shall protect the marriage, the family, the mother and the child" (emphasis added). Therefore, if an aggrieved person brings to the notice of a High Court any violation of law by any person or any act or proceeding which infringes his fundamental rights or causes him any unnecessary harassm ent, the High Court has the power to pass appropriate orders to save him from such improper actions of the person or. Authority and protect his fundamental rights guaranteed by the Constitution. The Police Officers while conducting investigation have not been excluded from the definition of person or authority used in Article 199 of the Constitution. 1998 SCMR 666, PLD 1989 Pesh.
145. Consequently, if the High Court finds that a F.I.R. Registered is false, vexatious and mala fide and any action of the police taken pursuant thereto would impinge the Fundamental Rights of a person, it would be justified in interfering with such investigation and passs orders to restrain the Police from proceedings with the matter and if deemed appropriate quash the F.I.R. And any proceedings undertaken pursuant thereto PLD 1971 SC 677 and 1989 PCr. LJ 1921. According 'to the F.I.R. Liaquat Ali and others are alleged to have committed inter alia an offence under section 452, P.P.C., which reads as under:-- "452. House-trespass after preparation of hurt, assault or wrongful restraint.--- Whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
12. ' From the plain reading of the above section, it is clear that for conviction under this section, it is necessary to prove that the dominant intent of the accused was to cause hurt to or to assault or to wrongfully restrain any person. The complaint of this offence was filed 8 days after the alleged occurrence. The delay in lodging the F.I.R. Itself casts doubt on .Its veracity. Further, according to the F.I.R. No person was hurt, assaulted, or wrongfully restrained or pin in fear of hurt or of assault or wrongful restraint. The only fact mentioned in the F.I.R. Is that Liaquat Ali came along with other persons armed with weapons, caught hold of Mst. Rukhsana (petitioner) by her arm, made her sit in a yellow color Suzuki and went away. On the other hand, the petitioner has categorically stated that she was not abducted by any one, left her father's house on her own because her father wanted to marry her against her wishes and exercising her right of choice contracted Nikah under Muslim Law with Liaquat Ali on 2-7-1998. In view of the facts alleged in the F.I.R. Which do not inspire confidence and the straightforward statement of the petitioner, no offence under section 452, P.P.C.
13. Appears to have been made out. In these circumstances any investigation by the police into the alleged offenee would be futile.
14. ' The other two sections mentioned in the F.I.R. Are sections 10 and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 which relates to punishment for the offence of Zina and abduction of a woman to marry any person against her will. Section 4 of the Zina Hudood Ordinance defines Zina as follows:-- "A man and a woman are said to commit ' Zina' if they wilfully have sexual intercourse without being validly married to each other."
15. ' Section 8 of the Zina Hudood Ordinance lays down the requirements of proof of Zina as follows:-- "Proof of Zina or Zina-bil-Jabr liable to Hudd shall be in one of the following forms namely:--
(a) the accused makes before a Court of competent jurisdiction a confession of the commission of the offence; or
(b) at least four Muslim adult male witnesses about whom the Court is satisfied having regard to the requirements of ' Tazkiyah-al-Shahood' that they are truthful persons and abstain from major sins (Kabira) give evidence as eye-witnesses of the act of penetration necessary to the offence, ..."
16. ' The relevant parts of the two sections of the Zina Hudood Ordinance mentioned in the F.I.R. Reads as follows: ' Section 10(1) Zina or Zina-bil-Jabr liable to Tazir.--- (1) Subject to the provisions of section 7, whoever commits Zina or Zina-bil-Jabr which is not liable to Hadd, or for which proof in either of the forms mentioned in section 8 is not available and the punishment of Qazf liable to Hadd has not been awarded to the complainant, or for which Hadd may not be enforced under this Ordinance, shall be liable to Tazir.
(2) Whoever commits Zina liable to Tazir shall be punished with rigorous imprisonment for a term which may extend to ten years and with whipping numbering thirty stripes, and shall also be liable to fine.
17. ' Section 11. Kidnapping, abducting or inducing woman to compel for marriage, etc.--- Whoever kidnaps or abducts any woman with intent that she may be compelled or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment (which may extend to life) and with whipping not exceeding thirty stripes, and shall also be liable to fine; and whoever by means of criminal intimidation as defined in the Pakistan Penal Code (Act XLV of 1860), or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid."
18. ' According to the provision of section 10 of Zina Hudood Ordinance a person would be liable to punishment if he or she commits Zina liable to Hudd or if no proof as required under section 8 of the said Ordinance is available the person committing Zina shall be liable to Tazir which may extend to ten years imprisonment and whipping. A person would be punished for Zina liable to Hudd if he or she makes before a Court of competent jurisdiction a confession of the commission of the offence or at least four Muslim adult male truthful witnesses give evidence as eye-witnesses of the act of penetration necessary to the offence. There is no mention or allegation of Zina in the F.I.R. Neither the petitioner has made any confession of Zina before a Court of competent jurisdiction nor four Muslim, adult truthful male witnesses have been cited who have seen the act of penetration. On the other hand petitioner has clearly stated the facts about her marriage with Liaquat Ali and has produced a copy of her Nikahnama registered under section 5 of Muslim Family Laws Ordinance, 1961 and a copy of the Public Notice published in a local newspaper announcing to the public at large the fact of her marriage. All these facts and documents clearly prove that all the essential ingredients of a Muslim marriage have been fulfilled. She is now the lawfully wedded wife of I,iaquat Ali. These facts have not been disputed or challenged by anyone. The cohabitation of Mst. Rukhsana (petitioner herein) with her husband Liaquat Ali does not amount to commission of Zina and there is no likelihood of her or husband being convicted of the offence of Zina under the Zina Hudood Ordinance. The sections relating to the offence of Zina in the F.I.R. Have apparently been incorporated to harass and punish Liquat Ali, the husband of the petitioner for having married the latter without her father's consent. No law has been cited by the contesting respondents to show that a Muslim adult female cannot marry without her father's consent. The controversy relating to the marriage of an adult Muslim female has been settled by the Federal Shariat Court in the case of Muhammad Imtiaz and another v. The State PLD 1981 FSC 308 and the Lahore High Court by its judgment in the case of Abdul Waheed v. Asma Jehangir PLD 1997 Lah.
19. ' 301 wherein it has been held that a Muslim adult female can marry without the consent of her Wali.
20. ' Section 11 of the Zina Hudood Ordinance relates to kidnapping or abducting any woman with the intent that she may be compelled to marry any person against her will or that she may be forced or seduced to illicit intercourse. In view of the contradicted statement of the petitioner that she was not abducted by Liaquat Ali or any other person, that she left her father's house of her own free-will and married Liaquat Ali with her consent and without any duress from any person, it is apparent that the allegations made in the F.I.R. Are incorrect and Liaquat Ali or any other person named in the F.I.R. Is not likely to be punished for such offence.
21. ' The second point taken by the learned counsel for respondents Nos.1 and 2 is that the petitioner is not an aggrieved person. He did not cite any law or any repointed judgment in support of his contention. Be that as it may, it is an admitted position that the petitioner is married to Liaquat Ali, one of the accused named in the F.I.R. And the Police is calling and harassing the said Liaquat Ali for the alleged offences under section 452, P.P.C. And sections 10 and 11 of Zina Hudood Ordinance which according to the undisputed statements and documents produced by the petitioner have not been committed. The fundamental right of marriage and the benefit of consortium flowing from it to the petitioner are, therefore, being infringed and the petitioner has undoubtedly become an aggrieved person, who is entitled to approach the High Court under Article 199 of the Constitution for appropriate orders against the police in respect of the F.I.R. Which is prima facie mala fide.
22. ' Learned counsel for respondents Nos.1 and 2 cited 1979 SCMR 484 in support of his contention that a writ petition under Article 199 of the Constitution is not maintainable as the present case is under investigation. The said case does not support the contention of the learned counsel. It was held in the aforesaid case that the question of alleged mala fide on the part of the local police required factual investigation which could not be undertaken by the High Court in writ jurisdiction. The facts of the present case are distinguishable from the cited case. In the instant case the F.I.R. For commission of the offence of abduction of the petitioner by Liaquat Ali and others and commission of Zina allegedly by Liaquat Ali with her lawfully wedded wife has been registered against him. The petitioner is a Muslim adult female who has entered into Nikah with Liaquat Ali on her free-will and accord which as already discussed above is valid. Neither the age of the petitioner nor the validity of the Nikah has been challenged by the respondents. No further inquiry is necessary. This case is, therefore, not relevant to the circumstances of the present case.
23. ' The second case cited by the respondents is 1993 MLD 1408. In this case the petitioner sought abashment of the F.I.R. Registered against her under section 10 of Zina (Enforcement of Hudood)
24. Ordinance, 1979. The petition was dismissed on the ground that the case was still under investigation as the petitioner had not appeared before the Investigating Officer to record her statement. In the present case the petitioner has stated on oath that she went to S.H.O., Police Station Belo Mirpur, Ghotki (respondent No,1) to explain that she had not been abducted and that she had married Liaquat Ali with her free will, produced documents in support thereof and asked him not to take any action on the F.I.R. But he refused to do so and continues to harass and humiliate her husband Liaquat Ali and his relatives. This has not been denied or disputed by the S.H.O. Further, neither the going away of the petitioner from the house of her father without any duress nor her marriage with Liaquat Ali have been denied or challenged by respondents Nos.1 and
2. No offence either of house trespass, abduction of Zina appears to have been made out. Similarly, the two other cases reported in 1996 SCMR 596 and 1998 PCr.LJ 1894 cited by respondents' counsel are not applicable to the present case.
25. ' In light of the above facts and discussion, it is appaiint that continuation of the proceedings under F.I.R. No,19 of 1998 under sections 452 and 34, P.P.C. And sections 10 and 11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 would cause unnecessary harassment and humiliation to the petitioner and her husband, would deprive them from leading a peaceful and undisturbed married life and amount to abuse of the process of law. Consequently the petition is allowed with costs of Rs,2,000 against each contesting respondents Nos.1 and 2 and F.I.R. Bearing Crime No,19 of 1998 of Police Station Belo Mirpur, District Ghotki, dated 5-7-1998 is declared to be mala fide, frivolous and vexatious and the same. Ts quashed. All proceedings pursuant to the registration of the said F.I.R. Are declared to be without lawful authority and of no legal effect and respondent No,1 is hereby restrained from taking any action pursuant to the said F.I.R.