' Through this Constitutional petition, the petitioner seeks quashment of F.I.R. No,150 registered on 14-4-2001 under section 10 of Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 read with sections 42, 468, 471, 298-C, 198, 193, 477, 419 and 109, P.P.C. At Police Station North Cantt.
Lahore.
2. Brief facts of the case as narrated in the F.I.R. Are that daughter of complainant Mirza Muhammad Sarwar Baig was married to Major Nasir Mehmood petitioner. Due to the strained relations divorce was given to Mst. Shazia. It is stated in the F.I.R. That the divorce deed was not received by the complainant party as wrong address of the Union Council was given. It is also mentioned that on 30-12-1999 Major Nasir Mehmood made a misstatement and the divorce deed was not got cancelled in the army record. The complainant has stated that one doctor Tabbassum Alvi accused in this case is a Qadiani by faith and she has contracted marriage with Major Nasir Mehmood. She being non-Muslim and being Qadiani could not contract marriage with Major Nasir Mehmood and the Nikahnama dated 30-4-1999 is Batil. Hence they are committing Zina with each other and the petitioner also did not wait of 90 days for the effecting of divorce deed. Letter was also sent to Malik Tariq Hayat G.O.C. Which was sent to the D.I.-G., Lahore Range, Lahore. It is also mentioned that both wanted to go to America after contracting marriage to divert the attention and it is mentioned in the letters that Nasir Mehmood has given divorce to Mst. Shazia. It has been stated that the 2nd marriage has been contracted by showing that he is not a married person and has concealed the factum of earlier wife and three sons and no permission was granted for the 2nd marriage. It is also mentioned that the Sanad/certificate obtained by Dr. Tabbassum Alvi showing that she is not a Qadiani are false and fabricated one. Hence they are guilty of the commission of the Zina and other offences mentioned in the F.1.R.
2. Learned counsel for the petitioners contends that the F.I.R. Has been lodged with mala fide intention and with ulterior motive for the redressal of a personal grievance by the complainant who is ex-father-in-law of the petitioner. It is contended that both of the petitioners have contracted marriage with their free-will and consent and Dr. Tabbassum Alvi has embraced Islam and there is sufficient evidence on the record to show that she has embraced Islam. Hence the registration of the case and the continuation of the investigation is abuse of process of law. It is also contended that a private complaint has been filed on the same issue by the complainant against the petitioners and IC others and inquiry under section 202, Cr.P.C. Has been conducted by the learned Judicial Magistrate Muhamn)ad Salim of Model Town, Lahore and the learned Sessions Judge has summoned the petitioners and other accused persons in the private complaint vide order, dated 19-5-2001 and 31-5-2001. The orders of the learned Sessions Judge are attached herewith alongwith this petition as Annexures "K" and "L". It is contended that the mala fide of respondent No,10 is crystal clear that he has written numerous letters and filed private complaint against the petitioners to the higher authorities of the Pakistan Army as the petitioner No,1 was serving there.
Petitioner No,1 claimed that he has contracted marriage after the pronouncement of the divorce to.
The daughter of the respondent No,10 and is not guilty of any offence. It is also contended that when the respondent No,10 has opted the filing of private complaint and the Court has taken the cognizance, the respondent No,10 could not get the case registered. The petitioners are being penalized twice. They are also facing the private complaint and too being pressurized on the same subject and terrorism by the police authorities under the garb of investigation. It is further contended that the impugned F.I.R. Is based on, concocted and false story. When a non-Muslim claims that he or she has embraced Islam and he has contracted marriage then the matter; ends for the purpose of being, non-Muslim to his or her extent. The F.I.R, is totally false, not based on any evidence and is result of personal grievances which cannot be redressed. The petitioners have exercised their right and cannot be punished. The pendency of the FIR. Is abuse of process of law.
3. Learned counsel for the. Complainant on the other hand has opposed quashment of the F.I.R. On the ground that earlier application for the quashment of F.I.R. Was filed which was dismissed by this Court relying on 1994 SCM R 2142 and this Court cannot assume the role of the Investigating Officer as the matter is still under investigation hence the 2nd writ petition does not lie on the same subject. It is further contended that Dr. Tabbussum Alvi has not embraced Islam and the documents produced by her are not sufficient to show that she is a Muslim and has contracted marriage with the Muslim, hence they are committing Zina with each other. It is further contended by the learned counsel Mr. Rashid Murtaza Qureshi of the complainant that this Court declined to interfere in the police investigation. The learned counsel has further contended that it is now well- settled that this Court cannot, interfere in the investigation of the F.I.R. And cannot quash the F.I.R.
He further contended that even according to the subsequent cases decided by this Court, this Court cannot interfere in, the investigation and cannot quash the F.I.R. It is further contended that for the quashment of the said F.1.R. The dismissal of the earlier writ petition is a bar for the entertainment of the 2nd writ petition on the same subject by this Court.
4. I have heard the learned counsel for the parties and have perused the F.I.R. And the documents attached with this writ petition. In the earlier writ petition which was disposed of by this Court only a direction was issued to the Investigating Officer on 2-8-2001 to record the version of the petitioners and evidence produced before him and finalize the investigation within the shortest possible time.
Now this writ petition has been filed as the Investigating Officer has done nothing in spite of the direction of this Court in Writ Petition No,14508 of 2001 on 2-8-2001 and this Court shall decide the issue raised in this writ petition which was not decided in the earlier writ petition because, the investigation was still pending. The peculiar circumstances of this case and the lack of interest by the Investigating Officer for the finalizing of the investigation in the impugned F.I.R. Require that a detailed judgment should be passed in this case that whether the grounds taken by the complainant are sufficient to hold that the police can continue the investigation in spite of the fact that Dr. Tabbassum Alvi petitioner No,2 who was Qadiani but has embraced Islam according to her and has contracted marriage with her free-will and consent with petitioner No,1 who is a Muslim and can be allowed to remain as accused in a case registered for the commission of Zina on the availability of the documentary evidence in proof thereof or that continuation of investigation is abuse of process of law. The Investigating Officer was afforded an opportunity to finalize the investigation in the shortest possible time but I have noticed that the police had failed to perform its duty and has not finalized the investigation and has not conducted the investigation properly even after the receipt of the order by this Court. When a non-Muslim claimed that he has embraced Islam, it is incumbent upon the Muslims and other persons to accept his version and the person claimed to be a Muslim cannot be allowed to be called as a non-Muslim. The contention of the complainant that petitioner No,2 is a non-Muslim is against the principles of Islam. I have no doubt in my mind that respondent No,2 who is ex-father-in-law of petitioner No,1 has filed application against petitioners Nos.1 and 2 with mala fide intention and with ulterior motive as he has divorced his daughter Mst. Shazia and has contracted marriage with petitioner No,2. Not only the assertion of the petitioner No,2 is on the record that she has contracted a marriage but she has also produced the documentary evidence to support her contention. I am of the view that the oral assertion of a person, who is a non-Muslim, is sufficient to hold, if he makes a statement that he has become a Muslim, to treat him as Muslim. The person who insists that he is a non-Muslim has no right to say him a non-Muslim, hence if the petitioner No,2 is a Muslim then her contracting the marriage with petitioner No,1 is not an offence committed by them and is not even a sin. They are leading their matrimonial life according to the Islamic rites. The prosecution of these two petitioners under the criminal offence in such-like circumstances by the registration of the F.I.R. Is abuse of process of law and the police is misusing its authorities by continuing the investigation in such circumstances and this Court being custodian of the rights of the people as to take action can exercise the powers vested under it to quash the F.I.R. If has been recorded with mala fide intention and with ulterior motive. It is also wroth mentioning that the complainant himself has filed a private complaint in which the Court has taken the cognizance and has summoned the petitioners Nos.1 and 2. On the same allegations the registration of the subsequent F.I.R. Cannot be allowed to continue when the complainant has opted to file a private complaint and the Court has taken the cognizance. The registration of the F.I.R. On the face of it is with mala fide intention and cannot be allowed to continue even if subsequently the petitioners are challaned and the Court has to take the cognizance. The Court has already taken the cognizance and the prosecution of the petitioners cannot be allowed twice one by facing police investigation and the other by the private complaint for the same offence at the one time. It seems that police officials are misusing their authorities by continuing the investigation in the said case and are playing in the hands of respondent No,10. The public functionaries are bound to follow the law and they are bound to treat every citizen in accordance with law as has been mentioned in Article 4 of the Constitution of Islamic Republic of Pakistan. Since the police officials are not treating the petitioners in accordance with law and are playing in the hands of the complainant respondent No,10, hence this Court has no option but to quash the F.I.R. By accepting the writ petition in hand.
' This writ petition is accepted.