FARZANA SHAHEEN Versus STATE
The petitioners, through this Constitutional petition, sought quashment of F.I.R. No. 138 of 1997 registered under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, read with section 109, P.P.C. at Police Station, Qaimpur.
2. Learned counsel for the petitioners submitted that Farzana Shaheen, petitioner No. 1, had contracted marriage with Maqbool Ahmad Shabab, petitioner No. 2, of her own consent and she being a sui juris, no offence in the instant case had been committed.
3. The brief facts of the matter are that Muhammad Yaqoob, the father of Farzana Shaheen/petitioner No. 1, got the abovementioned F. I. R. recorded on 18-7-1997 to the effect that Maqbool Ahmad Shabab (petitioner No. 2) had abducted/enticed away his daughter Farzana Shaheen, aged about 16/ 17 years, on 14-7-1997 from his house in the absence of the family members. The petitioners allegedly entered into Nikah on 13-4-1997 and petitioner No. 2 also filed a suit for restitution of conjugal rights against petitioner No. 1. on 14-7-1997. Thereafter, on 24-7-1997, petitioner No. 1 filed a suit for jactitation of marriage against one Kafayat Hussain, who claimed to be the husband of the said petitioner. The said suit is stated to be still pending adjudication.
4. There are questions of serious controversy involved regarding the existence of earlier marriage of petitioner No.l with Kafayat Hussain, etc., which cannot be decided summarily. All these matters can be decided only after proper and thorough investigation. It is not a simple matter of contracting marriage by a sui juris of her own sweet-will.
5. In the case of Fateh Ali v. Province of Balochistan through Secretary, Health and others (1997 SCMR 1687), the apex Court approved the findings of the High Court that in a case of serious factual controversy the discretionary Constitutional jurisdiction could be declined. As a Court of competent jurisdiction is seized of the matter, the interference by the High Court in the exercise of the Constitutional jurisdiction is not called for.
6. A Full Bench of the Supreme Court as early as 1967 while disposing three appeals titled:
(1) Ghulam Muhammad v. Muzammal Khan and 4 others (Criminal Appeal No. 29 of 1966).
(2) Ghulam Muhammad v. Muzammal Khan and 3 others (Criminal Appeal No. 30 of 1966) and
(3) Ghulam Muhammad v. Muzammal Khan and 5 others (Criminal Appeal No. 31 of 1966) (PLD 1967 SC 317) thoroughly examined the inherent power of the High Court contained in section 561-A read with sections 435, 438 and 439, Cr.P.C., and while setting aside the High Court's order quashing proceedings under section 561-A, Cr.P.C., observed as follows:-
"It is, therefore, generally accepted that the inherent jurisdiction should not normally be invoked where another remedy is available.
If, in fact, an offence had been committed justice required that it should be inquired into and tried. If the respondents are not guilty they have a right to be declared as honourably acquitted by a competent Court. On the other hand, if the evidence against the respondents discloses a prima facie case then justice clearly requires that the trial should proceed according to law. The mere fact that a long period has expired since the initiation of proceedings is no ground for quashing the criminal proceedings as was pointed out in the case of N.S. Khawaja v. The State.'
The High Court, as has repeatedly been pointed out in a number of decisions, should be extremely reluctant to interfere in a case where a competent Court has after examining the evidence adduced before it, come to the view that a prima facie case is disclosed and has framed the charges or summoned the accused to appear, unless it can be said that the charge on its face or the evidence, even if believed, does not disclose any offence.
.....has merely proceeded on an erroneous conception that in a case where a complaint has been filed the police has no jurisdiction to investigate into any other offence which comes to its notice in the course of investigation of the complaint, particularly, if the offence disclosed is of a non-cognizable nature."
....we can see no legal bar to the police submitting a challan in respect of offences other than those mentioned in the First Information Report, if the same should come to its notice during the course of investigation ."
7. A similar view was expressed by a Division Bench of this Court, of which I had the privilege of being a member, in case Muhammad Shabbir v. Muhammad Saleem (W.P.No 456 of 1996).
8. At this stage, I would like to mention that the ruling given by the Full Bench of this Court in the case of Hafiz Abdul Waheed v. Miss Asma Jehangir and another (PLD 1997 Lahore 301) is not applicable to the facts of the case in hand.
9. In the instant case, it is question of fact which requires inquiry/investigation and the F.I.R. cannot be quashed summarily. Even the allegation of mala fides in registration of the case cannot be properly and judiciously assessed at this stage as the investigation is yet to be made and the evidence is yet to be recorded. This finds support from the decision in the case of Sheikh Rashid Ahmad v. Lutf Ali Malik and another (1995 P. Cr. L. J 717). Reliance is also placed on the case of Ahmad Saeed v. The State and another (1996 SCMR 186).
10. The matter in dispute can only be resolved after the parties have adduced their respective evidence. The writ petition has no merits and is accordingly dismissed.
H.B.T./F-49/L Petition dismissed.