AFZAL MAI ALIAS AJO MAI Versus S.H.O., POLICE STATION SADDAR, SHUJABAD

ORDER

Mst. Afzal Mai and Khurshid Ahmed alias Sadu, petitioners, have filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for the quashment of case F.I.R. No.288/93 registered under section 10/16 of the Offence of Zina (Enforcement of Hudood) Ordinance No.VII of 1979 at Police Station, Saddar Shujabad on 2-12-1993 at the instance of one Abdul Khaliq, brother-in-law, of petitioner No.l.

2. The case of the petitioners in brief is; that petitioner No.1 was earlier married to one Abdul Qadir from whose wedlock she has six children. Abdul Qadir was murdered about 4-1/2 years before. The petitioner No.l being a widowed lady and having no means to support her children entered into a second marriage with petitioner No.2 on 14-5-1993. This act of the petitioners, it is alleged, caused annoyance to Abdul Khaliq, complainant, who got the false case, as mentioned above, registered against the petitioners at Police Station, Shujabad which is under investigation before the local police.

.3. On the other hand the case of the prosecution as according to the F.I.R. is; that after the death of Abdul Qadir, the husband of petitioner No.l, she developed illicit liaisons with Khurshid Ahmed alias Sadu, who started visiting the house of petitioner No.l. Both the petitioners used to have illicit intercourse with each other as a result of which, petitioner No.l conceived a child. When 4/5 months passed to the pregnancy, it is alleged, that the petitioner got the same miscarried and after its abortion she developed some ailment and .remained in the Nishter Hospital, Multan for two days.

4. The learned Assistant Advocate-General on instructions stated that the Nikah which is alleged to have been executed between the parties was solemnized by one Abdul Majeed, Nikah Registrar, who has also been nominated in the case as one of the accused, who has admitted during his statement recorded under section 164, Cr.P.C. before the Magistrate that he had pre-dated the Nikahnama. The case is under investigation and different documents are under scrutiny and examination. He also argued that when it has highlighted to .the people that petitioner No.l was carrying an illicit pregnancy of petitioner No.2, they fabricated a fake Nikah and also manoeuvred to miscarry the child.

5. It was contended by the learned counsel for the petitioners that the registration of the case against the petitioners is based on mala fide so the same is liable to be quashed. It was further argued that petitioner No.1 being widowed lady and having no source of income to feed her children she contracted a second marriage with petitioner No.2 with her free consent so they have not committed any offence.

6. I have given my earnest considerations to the arguments advanced by both sides and I have also gone through the material placed on the file.

7. The learned counsel for the petitioners has not been able to point out any element of mala fide either on behalf of the police or on behalf of the Magistrate, who examined Abdul Majeed Nikah Registrar where he stated that actually he had pre-dated the Nikahnama. On the basis of that statement A Abdul Majeed has been nominated as one of the accused and he is under arrest. The case is under investigation which in my view cannot be interfered ` with at this stage when different documents executed by the petitioners are l being examined and are scrutinized.

8. Although, the inherent powers of the High Court are very wide and undefinable and it can make all such orders which may do real and substantial justice but the fact remains that the investigations at the stage where the present case is, cannot be quashed because the police is under obligation to see during the investigation whether any offence has been committed or not. The proceedings can certainly be quashed at the initial stage but when no case is made out. In this case there is a statement of Nikah Khawan which was recorded by the Ilaqa Magistrate, who has allegedly implicated the petitioners in the case.

9. For the foregoing reasons I do not find any good ground to quash the F.I.R. No.288/93 registered under section 10/16 of the Offence of Zina C (Enforcement of Hudood) Ordinance No.VII of 1979 at Police Station Saddar Shujabad on 2-12-1993, so this petition fails and is dismissed.

N.H.Q./A-552/L Petition dismissed.