ATTA-UR-REHMAN vs NAZAR HUSSAIN and 3 others

' M. BILAL KHAN, J.--- Atta-ur-Rehman, son of Ehsan Elahi, the petitioner, has filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for quashing of F.I.R. No,186 dated 9-7-2004, registered with Police Station Bhera, for offences under sections 338, P.P.C. Read with section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance No,VII of 1979 and the subsequent proceedings emanating therefrom.

2. The allegation in the F.I.R. Registered at the instance of Muhammad Saleem, S.-I., Police Station Bhera, District Sargodha was that on 9-7-2004 when he was present at Mohallah Fazil Imam in connection with security duty he found out from many persons that Mst. Farzana daughter of Muhammad Rafique, Atta-ur-Rehman Iqbal son, of Ehsan and Khalid Mehmood son of Muhammad Iqbal, all Arain by caste, residents of Bhera had mutual acquaintance; Khalid Mehmood, etc. Kept on committing Zina with Farzana causing her to conceive; on 6-7-2004 Khalid, etc. Brought Mst.

Farzana to Mrs. Bilquees, a Lady Health Visitor of Agha Khan Health Centre, Circle Road, Bhera; got abortion done on her and a female foetus was thrown near a graveyard. Resultantly the instant F.I.R. Had been recorded.

3. Pursuant to registration of case, a report under section 173, Cr.P.C. Was formulated and submitted before the learned Magistrate where the same is still pending. In the report under section 173, Cr.P.C. Apart from the petitioner, three others namely Khalid Mehmood son of Muhammad Iqbal, Mst. Farzana wife of Khalid Mehmood and Mrs. Bilquees LHV, wife of Shahzad Iqbal, have been arrayed as accused. During the course of investigation section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance No,VII of 1979 had been deleted and the challan had been submitted only under section 338, P.P.C. This petition was admitted to regular hearing on 10-6- 2005.

4. I have heard the learned counsel for the parties and have perused the record.

5. Section 338, P.P.C. Reads as under:-- uIsqat-i-Haml ({{URDU TEXT}}).--- Whoever causes a woman with child whose organs have not been formed, to miscarry, if such miscarriage is not caused in good faith for the purpose of saving the life of the woman or providing necessary treatment to her, is said to cause Isqat-i-Haml."

6. A plain reading of the said section shows that in order to bring home charge under section 338, P.P.C. Miscarriage qua a child whose organs have not been formed has to be proved. In the instant case it is the prosecution's own story that no child/foetus had ever been recovered. It is also not denied that Mst. Farzana Kausar, co-accused of the present petitioner, who is alleged to have got miscarriage conducted upon her, was never medically examined. During the course of hearing of this petition I had directed DPO Sargodha to conduct an inquiry himself. He submitted his inquiry report on 10-1-2007, wherein he had drawn his following conclusions:--

(a) After touching upon and discussing all the relevant important aspects I am of the opinion that the registration of the F.I.R. About the incident of that abortion was as a result of the public pressure and NGOs of the City Bhera. It appears as the witnesses belonged to that group of people who already have some grudge against the petitioner Atta-ur-Rehman Iqbal so they also nominated him. However, they stuck to their statements during investigation and even in the present enquiry that they saw him taking shopper of the aborted foetus along with the accused Khalid Mehmood.

(b) As far as, the investigation conducted by the Investigating Officer/S.-I. Muhammad Saleem it is defective and incomplete, as he has not taken into custody the record of Agha Khan Health Centre or of Union Council No,9 to augment the authenticity of the Nikahnama. While, by deleting the offence under section 10, Hudood Zina Ordinance, the second offence under section 338, P.P.C. Shall logically stands dropped. If he had any doubts about "illegal abortion" he should have taken into account the record of the clinic or the statements of its Management who have now stated that apparently it was a case of mala fide medical practice by LHV/Mrs. Balqees Shahzad as it has no back-up record in the Agha Khan Health Centre.

(c) In these circumstances, the case should have been cancelled instead of getting it challaned.

So, the primary responsibility for defective investigation lies with the Investigating Officer/S.-I.

Muhammad Saleem and to the extent of poor supervision against the then S.H.O./S.-I. Mattah Muhammad. Although he did not record the confirmatory diary yet he cannot be totally absolved from it.

7. It would thus, be seen that according to the DPO himself; after deletion of offence under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance No,VII of 1979, the logical step would have been the droppage of section 338, P.P.C. As well. Neither any record of the clinic had been taken into possession nor statement of any of the staff members of the hospital was recorded.

8. In view of these critical deficiencies and shortcomings in the prosecution case one wonders as to how a charge can be sustained under section 338, P.P.C. By persisting with the trial, Mst. Farzana Kausar would be subjected to a torturous procedure, which would compromise her dignity and self-respect. All the essential ingredients necessary to prove or sustain a charge under section 338, P.P.C. Are missing. In this backdrop continuation of the trial before the trial Court would be nothing but a textbook example of abuse of the process of the Court.

9. Resultantly, this petition is allowed and F.I.R. No,186 dated 9-7-2004, registered with Police Station Bhera, District Sargodha for offences under section 338, P.P.C. Read with section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance No,VII of 1979 and the resultant proceedings before the learned trial Court are hereby quashed. There will be no order as to costs.