2016 PLP 2106 (YLR)

CH. MUSHTAQ AHMAD, J.

Through this petition, Mst. Ayesha Malik petitioner has approached this Court in constitutional jurisdiction read with provisions of Section 561-A, Cr.P.C. and has prayed as under:- "Therefore, relying upon all above narrated submissions, it is most respectfully prayed that this writ petition may very kindly be accepted and the above mentioned FIR No.728/2014 dated 30.12.2014 Offence under section 365-B, P.P.C., Police Station City Jampur, District Rajanpur may very graciously be quashed." The case was got registered by Muhammad Afzal respondent No.2, father of petitioner who reported that his daughter Mst. Ayesha Malik was student of Ist year. On 16.12.2014, she left for school but did not return. They started searching her. They contacted Pervez son of Sana Ullah caste Laghari and came to know that Ayesha (present petitioner) and Mst. Bushra Bibi, who were friends inter-se were missing since 16.12.2014. Above mentioned Pervez admitted that his sister-in-law Bushra Bibi brought Ayesha with her and Muhammad Sajid, his son had taken away Ayesha to Karachi and that his daughter has been enticed away by Mst. Bushra and Muhammad Sajid. On the above information case was registered and investigation conducted. The alleged abductee Mst. Ayesha, in the above background, has sought quashment of FIR on the ground that she, being sui-juris contracted marriage with her free consent and no body abducted her. It is her version that case was got registered by her father who wanted to give her hand to an old person whom she did not like nor she wanted to get married with him according to the wishes of her father. With the petition, copy of Nikahnama (Annexure-B) is annexed showing that Nikah was performed between petitioner Mst. Ayesha and Muhammad Rahib. A certified copy of private complaint filed by her before Illaqa Magistrate Rajanpur and a certified copy of her statement dated 16.12.2014 recorded by the learned Magistrate Ist Class is also placed on the record with affidavit of petitioner affirming the contents of the petition as true and correct to the best of her knowledge and belief.

2. Respondent No.2 has appeared in person before the Court and states that the petitioner had not contracted marriage with his permission and she being under the influence of her husband, was not disclosing true facts. Hence, the present petition is liable to be rejected.

3. Heard. Perused.

4. After going through the contents of petition as well as other documents available on the record like Nikahnama and certified copy of the statement of the petitioner before the Illaqa Magistrate, it has been noticed that factum of marriage between the petitioner and Muhammad Rahib is an admitted fact in this case which even respondent No.2 is not in a position to rebut. The question arising out of the facts of this case is "whether this Court has authority under Article 199 of the Constitution read with section 561-A, Cr.P.C. to quash the FIR at this stage". It is clear from bare reading of section 561-A of Cr.P.C. that High Court has inherent powers to pass such order as may be necessary to prevent abuse of the process of any court or otherwise to secure the ends of justice. Though the phrase "ends of justice", has not been defined in the Code nor in any other statute but ends of justice would necessarily mean the justice as administered by the Courts and not in its abstract sense. Where the continuation of process of court would result in futile exercise and undue harassment, it would be in the fitness of things and in the interest of justice to quash the proceedings. Similarly, abuse of process of court signifies the perversion of very purpose of law and justice resulting in undue harassment.

5. The question of quashment of FIR came to be considered in a case titled "Ghulam Muhammad v. Muzammal Khan" (PLD 1967 SC 317) and then in another case titled "Haqnawaz v. Muhammad Afzal and others"(1968 SCMR 1256) wherein it was held that High Court was competent to quash proceedings if satisfied that false complaint has been lodged and process of court was being abused to subject accused persons to unnecessary harassment. This proposition again came for consideration before the apex Court in a case titled "Malik Salman Khalid v. Shabbir Ahmad" (1998 SCMR 873) wherein it was laid down that the inherent powers should be rarely and sparingly invoked only in the interest of justice so as to redress grievance for which considering the facts and circumstances of the case, no other procedure or remedy is available. It was further ruled that it is an extra ordinary jurisdiction which cannot over-ride provisions of the Code but cases may arise where administration of justice requires substantial justice. In such circumstances, the courts would be justified to exercise their jurisdiction to save a party from harassment and abuse of the process of the court. The above view was confirmed in a case titled "Miraj Khan v. Gull Ahmed and 3 others" (2000 SCMR 122) wherein it was held that High Court in exceptional cases can exercise jurisdiction under Section 561-A, Cr.P.C. without waiting for trial court to pass orders under Section 249-A Cr.P.C. or 265-K, Cr.P.C. if the facts of the case so warrant. By now it is well settled that main consideration to be kept in view is whether continuance of proceedings would be futile exercise, wastage of time and abuse of process of law. If on the basis of facts admitted and patent on record, no offence is made out, then it would amount to abuse of process of law to allow the prosecution to continue with the investigation or trial, as the case may be.

6. I have given thought to the facts of this case in the light of law on the subject. The petitioner herself appeared before this Court on 30.01.2015 and supported the contents of the petition and affidavit submitted by her stating that she had contracted marriage with her free consent and without any pressure and that she was not abducted by anybody. After her admission of having contracted marriage with Muhammad Rahib with free consent, there remains no case or charge to be tried, therefore, it is a fit case for quashment of FIR.

7. Consequently, this petition is allowed and impugned FIR is hereby ordered to be quashed. HBT/A-39/L Petition allowed.