1985 P Cr (PLP)

Mst. Bashiran Bibi, petitioner, has filed this petition under Article 9 of the Provisional Constitution Order, 1981 to get a declaration to the effect that F.I.R. No.13, dated 8‑2‑1984 has been lodged illegally and with mala fide intention by her father Bashir Ahmad, at Police Station, Zafarwal, under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979.

2. Facts briefly stated in the writ petition are that the petitioner, Mst. Bashiran Bibi, was engaged to one Sultan Mahmood son of Muhammad Anwar. The parents of the petitioner, however, wanted to give her hand in marriage to somebody else. The petitioner, not having agreed to the proposed marriage by her parents, joined the company of Sultan Mahmood of her own choice. Offended, the petitioner's father has lodged a report against Sultan Mahmood that he has abducted his daughter (petitioner).

3. It has been contended that the police is unnecessarily harassing the petitioner and is coercing her to make a statement according to the wishes of her father. As she is not agreeable, she is being bothered by the S.H.O. respondent No.1. In view of these facts it is claimed that the proceedings initiated by F.I.R. No.13, dated 8‑2‑1984 be quashed and further a direction be issued to the S.H.O. respondent No.1, not to interfere with the petitioner's freedom to live where‑ever she likes.

4. I have heard the learned counsel for the petitioner and seen the record, I would not like to exercise powers vested in this Court under Article 9 of the Provisional Constitution Order, 1981 to stifie/ suffocate the proceedings initiated at the instance of the father of the girl under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, at this stage when whole matter is under investigation by the police as for doing so, I will have to go into the merits of the prosecution evidence by pre‑empting the rights of the investigating agency to gather the necessary material constituting the offence alleged to have been committed. Even otherwise, this Court despite jurisdiction may not like to interfere at the investigation stage in its constitutional jurisdiction as the matter involves inquiry into disputed questions of fact and law which may not be appropriately resolveable in writ jurisdiction. Reliance is placed upon Emperor v. Khawaja Nazir Ahmad A I R 1945 P C

18. An extract from the said case is quoted below for reference:‑ "Just as it is essential that every one accused of a crime should have free‑access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is statutory right on the part of the, police investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial' authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to, interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function always, of course, subject to the right of the Court to intervene in an appropriate case when moved under section 491, Cr.P.C. to give directions in the nature of. Habeas Corpus. In such a case as the present, however, the Court's functions begin when a charge is preferred before it and not until then. It has been sometimes been thought that section 561‑A has given increased powers to the Court which it did not possess before that section was enacted. But this is not so. The section gives no new powers, it only provides that those which the Court already inherently possess shall be preserved and is inserted, as their Lordships think, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code, and that no inherent power has survived the passing of the Act. No doubt, if no cognizable offence is disclosed, and still more if no offence of any kind is disclosed, the police would have no authority to undertake an investigation and for this reason Newfan, J. may well have decided rightly in A I R 1938 Mad.

129. But that is not this case." The reliance is also placed upon Malik Ghulam Ahmad v. Haji Muhammad Yousaf and others P L D 1976 S C 271.

5. The petitioner and her alleged husband have appropriate adequate remedy available under the Code of Criminal Procedure if and when the matter is brought before the learned trial Court. The petitioner has voiced certain apprehensions regarding the conduct of the S.H.O. respondent No. 1, who is investigating the case on the basis of the above stated F.I.R. The apprehensions are that the S.H.O. is unnecessarily harassing the petitioner in the above stated case for the purposes of coercing her to make a statement in favour of prosecution., The apprehensions are ill‑founded. However, it is expected from every police officer while making investigation that he will not transgress the limits imposed upon him by law and will treat the persons associated with the investigation with respect and decency which otherwise is also required of a public servant. With these observations the writ petition stands disposed of. S. A. Petition disposed of.