' Respondent No,5, a paternal uncle of petitioner No,1 lodged information with the police whereupon a case under section 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was registered against the petitioners and others vide F.I.R. No,105 of 1999, dated 15-3-1999, at Police Station, Machhi Wala, District Vehari. The said F.I.R. Narrates that Noor Muhammad, the elder brother of the complainant resides with her who has five sons and a daughter (petitioner No,1) who is aged 18/19 years and is unmarried; that petitioner No,2 lives nearby and has developed illicit relations with petitioner No,1 and the former's mother Mst. Sattb Bibi used to take petitioner No,1 to her house. On 8-3-1999 he found petitioner No,1 missing and was told by' his wife that Mst. Satto Bibi had taken petitioner No,1 to her house. He started looking for petitioner No,1 when Bashir son of Balya and Faiz son of Basara told him that they have seen the petitioners alongwith some other persons going on a Tonga towards Macchiwala. The complainant apprehended that petitioner No,1 had been abducted for the purposes of Zina. He further stated that the accused persons had been promising him the return of petitioner No,1 but have refused on the date he filed the report.
2. The matter was inquired into by Muhammad Akhtar, A.S.-I., Police Station Sadar, Vehari, who found the case to be false vide report, dated 6-5-1999. The matter was reinvestigated by Muhammad Afzal, Police Station Saddar, who concluded that the accused persons alongwith the Nikah Khawan are guilty of the offence of committing/abetting the offence of Zina vide report, dated 7-6-1999. The matter was once again investigated by Maqbool Ahmad, S.H.O., Police Station Machhiwala, who agreed with the conclusion of Muhammad Afzal, Investigating Officer vide report, dated 22-6-1999. The present writ came up before the Court on 2-8-1999. It was averred in the petition that the petitioners are lawfully wedded couple; that in the initial investigation they were found to be innocent; that an allegation was added that petitioner No,1 was earlier married to one Hussain son of Basara and that she has contracted a second marriage unlawfully. Notice was issued to respondent No,3 to produce the record. Today respondent No,3 is present with the record and Mr. Khalid Ashraf Khan, Advocate, has put in appearance for respondent No,3.
3. The main contention of the learned counsel for the petitioner is that in the original F.I.R. The complainant who claims to be the paternal uncle of petitioner No,1 had mentioned that she is aged 18/19 years and is unmarred. Learned counsel insists that the later allegation is a concoction and the reinvestigation of the matter is mala fide. Learned counsel for respondent No,3, on the other hand, urges that a number of witnesses from the area as also the Nikah Khawan who had performed' the Nikah of petitioner No,1 with Hussain son of Basara had appeared before the Investigating Officer and supported the said version of the complainant party and have been believed in the subsequent investigations.
4. It is true that at a glance the argument of the learned counsel for the petitioners is attractive but on a closer scrutiny of the case files produced by the said Police Officer, I find that right away malice cannot be attributed to the process of investigation carried out by the two Investigating Officers referred to above. I find in the police file- an unmarked paper bearing date 14-5-1999 containing an explanation by the complainant of the case as to his mentioning petitioner No,1 as unmarried. I may note here that the exact word used in the F.I.R. Is Kanwari. Now this vernacular word is used to describe a virgin as also an unmarried woman. In the report, dated 14-5-1999 the explanation is that since Rukhsati had not taken place after the Nikah with Hussain son of Basara, he was treating her as "Kanwari" and that is why he used the said word in the report. This explanation although coming on record after about two months of the filing of the report may appear to be rather late but nevertheless it is on the record. The time factor, the effect, the intent and the import of said explanation will be more appropriately appreciated and determined by the Court conducting the trial in the case. Another factor I have observed in the file is that during the subsequent investigation the petitioners were not joined or they did not join. Learned counsel for the petitioners had brought to my notice the case of Anwar Ahmad Khan v. The State and another 1996 SCM R 24 and the noted judgment in the case of Shahnaz Begum v. The Honorable Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677 defining the parameters within which a Court can act during the course of investigation into an offence by the Investigating Agency. In the light of the said case-law, I am afraid the relief prayed for in the writ petition as to declaration of subsequent investigation and the said F.I.R. As illegal and ultra vires and without lawful authority and quashment of the same cannot be granted. However, I feel that for some reason, subsequently, two investigations were conducted in the absence of the petitioners and other accused persons while the first investigation was conducted in accordance with the directions contained in the order, dated 7-4-1999, of this Court in Writ Petition No,2881 of 1999.
According to law laid down in the aforereferred judgments, this Court can take corrective measures and that would not constitute interference with the investigation of the case.
Accordingly, I direct the subsequent Investigating Officers to give a chance to the petitioners and other accused persons to present their side of the story before them and they should record their conclusions after evaluating the version of the petitioners' party and any material which they produce in support of the same. With these observations the writ petition is disposed of. 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.