Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner seeks quashment of case F.I.R. No.380 of 2002 registered on 17-9-2002 under section 16/10 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) at Police Station Sara- e-Sidhu, District Khanewal on the statement of Ghulam Fareed/respondent No.2.
2. The brief facts narrated in the F.I.R. By the complainant are that he is a Headmaster in Government High School and was married with the petitioner about thirty years ago and 11 children were born out of this wedlock. Muhammad Aslam developed illicit relations with his were and when the complainant came to know, he restrained Muhammad Aslam from coming to his house. Zaib- un-Nisa petitioner was also restrained. About eight months ago, Kist. Zaib-un-Nisa petitioner for the purpose of Zina had eloped with said Muhammad Aslam and they were used to be searched by the complainant. Ahmad Ali and Ghulam Muhammad also told the complainant that Mst. Zaib- un-Nisa was seen at Ada Kot Islam in the company of Muhammad Aslam while boarding a Wagon, bound for Kabirwala.
3. Learned counsel for the petitioner contends that the registration of this F.I.R. Is with mala fide intention and ulterior motive as the petitioner who is about fifty years of age and mother of 11 children had earlier filed a suit for dissolution of marriage against the complainant on 22-9-2001 but compromise was arrived at between the petitioner and the complainant which is Annexure ' F' of this petition wherein the complainant himself admitted that the allegation levelled against the petitioner regarding theft of amount was false and promised not to level allegation of abduction or Zina against the petitioner and that he would be careful in future and maintain the petitioner. It is further contended that the complainant is not a truthful person as is in the habit of levelling false allegations against the petitioner, according to his own statement in the agreement, which was duty signed by the complainant. Also contends that there is no evidence of Zina against the petitioner and his co-accused Muhammad Aslam and the other allegation that the petitioner had eloped with him is totally false, whereas the petitioner is an independent woman, who is earning her livelihood while working as LHV and claims that nobody had abducted her but is leading independent life due to strained relations with her husband. Prays for quashment of the F.I.R. As pendency of the same and continuation of the investigation is abuse of process of law in the given circumstances.
4. On the other hand learned counsel for the complainant/respondent No.2 does not dispute the agreement (Annexure 'F') previously arrived at between the parties but contends that Investigating Officer has collected evidence in the shape of statement of two witnesses who have seen the petitioner and co-accused Muhammad Aslam while living in a house taken on rent by them and the matter requires thorough probe. Also contends that the contents of the agreement arrived at between the complainant and the petitioner cannot be made basis for the quashment of F.I.R. It is further contended that a letter was also written by the petitioner to said Muhammad Aslam and the subsequent events cannot be ignored at the time of decision of the petition for the quashment of the F.I.R. It is further contended that living of the petitioner with Muhammad Aslam in a separate house is sufficient proof for commission of Zina against them.
5. I have heard the learned counsel for the parties and also gone through the evidence collected by the Investigating Officer so far and also the documents attached with this petition. It is an admitted position that the petitioner filed a suit for dissolution of marriage on 22-9-2001 which, according to respondent No.2, is still pending in the Court of competent jurisdiction. The statement of the petitioner was recorded as P.W.1 while the complainant appeared as DWA on 12-6-2002 and admitted the execution of Iqrarnama between him and the petitioner. In the said Iqrarnama he has not leveled any allegation against the petitioner of her elopement for the purpose of Zina or living with said Muhammad Aslam and leading immoral life. Rather he has stated that they remained as husband and were for a long period with love and affection and wished to rejoin the petitioner as his were. His statement was also supported by his son Shajjar Abbas who admitted that the petitioner was not living as were of the complainant for the last 3/4 years. In such circumstances the leveling of allegation in the F.I.R. Prima facie seems to be with mala fide intention and ulterior motive as no such allegation has been leveled by the complainant while appearing as D.W.1 rather he showed his willingness to accept the petitioner as his were. No such allegation has also been leveled by Shajjar Abbas son of the complainant who appeared as D.W.2. In the F.I.R. It is stated that the occurrence of abduction took place about 8/9 months before the registration of the case, which means occurrence of abduction should have taken place in January, 2002 but in his statement recorded as D.W.1 on 12-6-2002 before the Family Court, he has not levelled the allegation as alleged in the F.I.R. The possibility of registration of false case, in order to pressurise the petitioner for withdrawal of the case filed against the complainant for dissolution of marriage which came up at final stage after the recording of evidence of the defence cannot be ruled out.
The time selected for the registration of the criminal case by the said complainant also seems to be mala fide. For the time being no evidence is available on the record to connect the petitioner with the commission of Zina as there is no direct evidence to support this allegation. There is also no evidence regarding the abduction of the petitioner as according .To the allegation levelled she herself eloped with Muhammad Aslam. The petitioner is a matured and working woman as is claimed. The allegations levelled against the petitioner in the F.I.R. And during the investigation are falsified by the documents which are statement of the complainant himself (Annexure E') and Iqrarnama (Annexure 'F'), fully discussed above and mala fides on the part of the complainant are apparent on the face of record. Hence exceptional circumstances of this case warrant interference by this Court while exercising powers under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 as the pendency of the F.I.R. And continuation of investigation in the abovesaid case will be abuse of process of law which seems to have been got registered to achieve the evil design of withdrawing the suit for dissolution of marriage filed by the petitioner by putting pressure on her.
6. This petition is accepted and the impugned F.I.R. No.350 of 2002 is quashed. The jail authorities are directed to immediately release the petitioner in this case from jail, if not required in any other case.