' Through the instant Constitutional petition the petitioner Mst. Shamim Akhtar daughter of Muhammad Bashir seeks quashing of F.I.R. No.109 of 2004 registered at Police Station, Barki District Lahore on 7-4-2004 for offence under section 16 of the Offence of Zina (Enforcement of Hudood)
Ordinance (VII of 1979).
2. During the investigation of the said criminal case section 10 of the Ordinance ibid as well as section 380, P.P.C. Were added to the F.I.R. The said F.I.R. Has been lodged by Muhammad Jamil alias Babu (respondent No.5) herein in respect of the alleged enticing away of his sister the petitioner herein by one Muhammad Ali Tahir.
3. The petitioner has been produced in this Court from Darul Amaan, Lahore where she is being presently lodged at her own request as according to her she entertained some fears about her safety and security and expected some foulplay from his brother i.e. The complainant. Since she had already been involved in this case after addition of section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 she could be arrested any moment but while admitting the petition to regular hearing this Court vide order, dated 6-4-2004 had directed that she would not be arrested. Respondent No.5 is also present in the Court along with his learned counsel Mr. Iftikhar Ahmad Malik. The parties as well as their learned counsel have been heard by this Court at quite some length.
4. The petitioner has stated her age to be about 23/24 years and she has informed the Court that she had been married to respondent No.4 Muhammad Hanif about 8-1/2 years ago. But since the relations between the spouses became strained she had been ousted by respondent No.4 from his house about two years back. She stated that she was forced to obtain divorce from the learned Family Court at Lahore and a decree was passed in her 'favour on 12-1-2004. She alleged that her brother respondent No.5 who is the complainant of F.I.R. Wanted the petitioner to marry respondent No.4 again which she refused and since other members of the family were totally dependent on respondent No.5, therefore, they also sided with him and meted out ill-treatment to the petitioner.
In this situation according to her she felt absolutely insecure at her parental home and left the said home on 2-4-2004 at her own and sought refuge in an Educational Institution known as Madrassa Taleem ul Qur'an at Khudian District Kasur. She alleges that her brother pressurized the management of the said Madrassa as a result of which they expressed their unwillingness to retain the petitioner there. This resulted in her discharge from Madrassa Taleem ul Qur'an on 13-4-2004.
Eventually she ended up in Darul Aman, Lahore after procuring an order from the Judicial Magistrate at Lahore where she is presently residing. She has maintained that she is pubert, adult, major and hence sui juris and has got a five-year old boy out of her union with respondent No.4.
She has gone on to maintain that she had never been abducted or enticed away by anybody as asserted in the F.I.R. She has further stated that she left her parental home on account of the reasons, which have already been detailed hereinabove.
5. The learned counsel for the petitioner has also brought to the notice of the Court that the petitioner had also filed a petition under sections 22-A and 22-B, Cr.P.C. In the Court of the learned Sessions Judge, Lahore, wherein she had complained against the harassment being caused to her by S.H.Os. Police Station, Barki and Nishtar Colony, Lahore at the behest of her brother Muhammad Javaid. The said application had been decided on 15-4-2004 on the statement of Sub-Inspector from the Police Station, Barki whereby he had assured that no harassment would be caused to the petitioner.
6. The learned counsel for the petitioner maintained that the petitioner is a matured woman and her brother did not have any authority to get a case registered against her. He added that the impugned F.I.R. Was an outcome of nothing but malice on the part of respondent No.5 and the same needs to be quashed by this Court. As against this the learned counsel for respondent No.5 Mr. Iftikhar Ahmad Malik vehemently opposed the quashing of F.I.R. He submitted that this Court is always reluctant to order the quashing of F.I.R. At initial stage. He relied on The State v. Asif Ali and another PLD 2001 SC 536, Muhammad Khalid Mukhtar v. The State through Deputy Director, F.I.A.
(C.B.A.) Lahore PLD 1997 SC 275, Ali Akbar v. The State and 2 others 1999 PCr.LJ 258, Mian Yasin Wattoo and others v. Government of Punjab and others 1997 PCr.LJ 836, Mst. Mukhtar Bibi v. S.H.O., Police Station, Nawan Shehr Tehsil Kabirwala and others 1996 M LD 1309 and Mst. Manzooran v.
S.H.O., Police Station, Layyah and 2 others 1991 PCr.LJ 665.
7. The learned Additional Advocate-General appearing for the State submitted that the investigation was in progress and there being inculpatory material available against the petitioner the present writ petition may not be maintainable and the prayer for quashing of F.I.R. Is not to be entertained by this Court at such an early stage.
8. I have heard the learned counsel for the parties as well as the parties themselves. It has been noticed that as far as the offence under section 16 of the Offence of Zina (Enforcement of Hudood)
Ordinance VII of 1979 is concerned, the petitioner happens to be the star prosecution witness being the alleged enticee herself and she has categorically and emphatically denied and controverted the allegation regarding her enticement. Insofar as the offence under section 10 of the Ordinance ibid is concerned suffice it to observe that the petitioner has categorically denied any connection with Muhammad Ali Tahir, as alleged in the F.I.R. And she has asserted with full authority that she was sui juris and her brother had got no right whatsoever to regulate or control her movements or to force any decision on her regarding her future. In this context it may be observed that initially the F.I.R. Was recorded under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, however, on realizing that the petitioner was not supporting the complainant or his version as contained in the F.I.R. Section 10 of the said Ordinance read with section 380, P.P.C. Had been added on the basis of a supplementary statement purported to have been made by the complainant on 8-4-2004. The allegation of Zina was also levelled against the petitioner and statements of two witnesses had been recorded under section 161, Cr.P.C. To the effect that the petitioner had been seen committing Zina with Ali Ahmad Tahir about 15 days prior to lodging of the F.I.R. In a mustard field. It has also been noticed that initially the F.I.R. Did not contain any allegation of Zina and it is patently clear that such a heinous allegation was levelled later on by the complainant with a view to teaching her a quick lesson for her failure to act according to his dictates.
9. When questioned by this Court about the locus standi of the complainant to get a case registered against the petitioner who was neither a minor nor under the guardianship of her brother, the learned counsel for the complainant did not have any satisfactory explanation.
10. In view of the peculiar facts and circumstances of the case I have no doubt in my mind that the F.I.R. Is outcome of nothing but frustration and malice on the part of respondent No.5 who has tried to transform and convert a social and familial issue into a criminal case, so as to bring the weight of criminal law to bear upon the petitioner. The allegation regarding theft of articles/jewellery from the house for which section 380, P.P.C. Had been added did not find mention in the initial F.I.R. The said allegation had also been made in the supplementary statement of the complainant. Allowing such an F.I.R. To hold the field will amount to blatant abuse of the process of law which cannot be allowed to be perpetuated. The rulings cited by respondent No.5 in support of his case proceed on entirely different premises and do not advance his case at all.
For what has been discussed above, this writ petition is allowed, registration of the impugned F.I.R.
No.109 of 2004 under section 16/10 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 read with section 380, P.P.C. Registered at Police Station, Barki, District Lahore is declared to be without lawful authority and of no legal effect, therefore, the same is hereby quashed. There will be no orders as to costs.
F.I.R. Quashed.