Qayum Nawaz and others vs District Police Officer, D.I.Khan and others
This constitutional petition was filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, seeking the quashment of FIR No. 204, registered under Sections 496-A and 109 of the Pakistan Penal Code, 1860, at Police Station Yarik, D.I. Khan. The petitioners contended that the alleged abductee had married the accused of her own free will, as evidenced by her statement recorded under Section 164 of the Code of Criminal Procedure, 1898, and that the FIR was lodged with malafide intent. The core legal question was whether the High Court should exercise its constitutional jurisdiction to quash an FIR when the allegations involve a cognizable offence and the defense relies on a statement that has not yet been subjected to cross-examination. The Court dismissed the petition, holding that the FIR disclosed a cognizable offence requiring investigation and trial. It established the principle that constitutional jurisdiction for quashment is not appropriate where the defense's case relies on evidence, such as a Section 164 statement, that has not yet been tested through cross-examination in a competent court.
- Can the High Court quash an FIR under its constitutional jurisdiction when the allegations constitute a cognizable offence?
- Is a statement recorded under Section 164 of the Code of Criminal Procedure, 1898, sufficient grounds to quash an FIR before it has been subjected to cross-examination?
- Should a constitutional petition be entertained for the quashment of an FIR when the matter requires the recording of pro and contra evidence at trial?
- Article 199, Constitution of the Islamic Republic of Pakistan 1973
- Section 496-A, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 164, Code of Criminal Procedure 1898
SHAKEEL AHMAD, J.- Through this constitutional petition filed under Article 199 of the Constitutional of Islamic Republic of Pakistan, 1973, the petitioners Qayum Nawaz and 04 others seek quashment of FIR No.204 dated 13.8.2016 registered under Sections 496 A/109 PPC at Police Station Yarik, D.I.Khan.
2. Brief facts of the case are that on 15.7.2016, the complainant/respondent No.4 Amanullah lodged a written report at Police Station Yarik to the effect that in the night between 20.21/03.2016, accused Atiqullah enticed away her daughter Asma Aman for the purpose of committing Zina alongwith gold ornaments weighing 04 tolas and cash amount of Rs.96,780/- at the behest of accused Shafiullah, Master Attaullah sons of Inayatullah, Inayatullah son of Habibullah, Mst. Sakina Bibi wife of Inayatullah, Mst. Samina daughter of Inayatullah and Qayum Nawaz son of Rabnawaz.
3. It is argued by the learned counsel for the petitioners that Mst. Asma Aman had entered into marriage with accused Atiqullah of her own free will on 21.3.2016 and to this effect her statement was recorded under Section 164 Cr.PC before the learned Judicial Magistrate-II, D.I.Khan on 25.8.2016, wherein she refuted the allegations of her abduction; that the whole family has been roped with malafide intention; that on the face of it, the FIR is false and frivolous. He prayed for quashment of FIR.
4. On the other hand, the learned Addl: A.G. representing the State and the learned counsel appearing on behalf of the respondent/complainant jointly argued that on the face of it, the petitioners have committed a cognizable offence and the contentions raised by the learned counsel for the petitioners can only be adjudicated upon after recording pro and contra evidence and prayed for dismissal of the writ petition.
5. Arguments heard and record perused.
6. Perusal of the record reveals that the contents of FIR constitute commission of a cognizable offence and for reaching to a correct conclusion, proper investigation, inquiry and pro and contra evidence is required to be recorded in the Court of competent jurisdiction.
7. Coming to the contention of the learned counsel for the petitioners that the alleged abductee has entered into marriage with accused Atiqullah of her own free will and she appeared before the learned Judicial Magistrate and got recorded her statement under Section 164 Cr.PC, this was record ed in the absence of the respondent/complainant party , and this statement, is yet to touch the taste of cross-examination. Therefore, in these circumstances the entertainment of this petition is unjustified on account of having no substance in it. In this respect we are fortified by the judgment of the apex Court in case reported as "Bashir Ahmad Vs. Zafer-ul-Islam"
(PLD 2004 SC 298 ) and "Sher Afgan Khan Niazi Vs. Ali Habib and others" (2011 SCMR 1813 ).
8. For what has been discussed above, the writ petition being bereft of merit is dismissed.