2008 PLP 559 (YLR)

M.A. SHAHID SIDDIQUI, J.

Miraj Bibi alias Mehr Raja has challenged the legality of the orders dated 23-9-2003 and 30-5-2005 passed by the learned Sessions Judge, Khushab and the learned Magistrate, 1st Class, Khushab, respectively. She has also prayed for quashing F.I.R. No.146, dated 3-10-2003 registered at Police Station Mitha Tiwana, District Khushab.

2. The facts leading to this petition are that the petitioner, who was married to Muhammad Siddique respondent No.4, filed a suit for dissolution of her marriage on the basis of Khula on 8-3-2003 in the Court of Judge Family Court, Khushab. During the pendency of the suit, Muhammad Siddique respondent made a complaint to the learned Sessions Judge/Chairman Human Rights, Khushab seeking a direction to the S.H.O., Police Station Mitha Tiwana to register a case against the petitioner and her parents for causing Isqat-i-Haml punishable under section 338-A, P.P.C. The learned Sessions Judge, Khushab on the basis of an entry in the Register of a Lady Health Worker showing her pregnancy and expected date of delivery ordered for the registration of a case. Accordingly F.I.R. No.146 of 2003 was registered investigation of the case, the petitioner was got medically examined by the police. As per Medico-Legal Report dated 14-10-2003 no sign of pregnancy was found. On an application moved by the complainant the petitioner was examined by the Medical Board, which did not take any exception to the finding of the Woman Medical Officer. In this way; in the absence of any evidence of abortion, the S.H.O. submitted a report for the cancellation of the case but the learned IIlaqa Magistrate did not concur with it and directed the S.H.O. to submit complete challan. Hence, this petition.

3. Learned counsel for the petitioner contended that the respondent has instituted a complaint out of sheer malice in order to dissuade the petitioner from prosecuting her case for dissolution of marriage. He submitted that the entire prosecution case was based on entries in the Register of Lady Health Worker which simply showed that the petitioner had been vaccinated for TT on 2-11-2002 and 2-12-2002 which was evidence of pregnancy, as such, it could be gathered that the petitioner had become pregnant. Learned counsel for the petitioner argued that even if it is assumed for the sake of argument that the petitioner had become pregnant even though there is absolutely no evidence of causing Isqat-i-Haml and in the absence of such evidence the proceedings against the petitioner would amount to abuse of process of Court.

4. Learned counsel for the complainant/respondent No.4, has vehemently opposed this petition. He submitted that the evidence of pregnancy of the petitioner coupled with the allegation levelled by Muhammad Siddique respondent provides sufficient material to proceed against the petitioner and that it shall be for the trial Court to decide about the culpability of the accused after recording evidence of both the sides.

5. I have considered the arguments and have perused the record. The complainant has certainly produced evidence to show that the petitioner had become pregnant but there is absolutely no evidence whatsoever to show that Isqat-i-Haml of the petitioner had been caused by her or any other person. Mere conception by a woman cannot be treated as evidence of Isqat-i-Haml, as such, there is no possibility of the petitioner and other accused being convicted of any offence against whom the proceedings appear to have been initiated out of sheer venom. I, therefore accept this petition and quash the proceedings in the afore-mentioned F.I.R. H.B.T./M-569/L Petition accepted.