2017 PLP 67 (YLRN)

MAHMOOD AHMAD BHATTI, J.

Umar Hayat, the petitioner filed this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 read with Section 561-A, Cr.P.C., seeking to quash FIR No.299 dated 14.9.2014 registered under section 365-B, P.P.C. at Police Station Saddar, Multan.

2. The petitioner is accused of the above-mentioned FIR. He allegedly abducted Mst. Arooj Fatima daughter of the complainant.

3. The learned counsel for the petitioner contends that Mst. Arooj Fatima contracted marriage with the petitioner with her free consent and of her own accord. According to him, Nikah was solemnized on 10.9.2014 at Khanewal. She filed a petition before the learned Ex-Officio Justice of Peace, Khanewal in which she confirmed her marriage with the petitioner and sought a direction to SHO Police Station City Khanewal not to harass her and not to interfere with her matrimonial life. He has also invited attention of the Court to a private complaint allegedly filed by Mst. Arooj Fatima before the learned Judicial Magistrate Margala, Islamabad. Allegedly she got her statement recorded before the learned Judicial Magistrate on 22.9.2013. It has been vehemently argued by him that the continuation of the proceedings in the wake of the registration of FIR No.299 dated 14.9.2014 are sheer abuse of process of law and are to be quashed by pressing into service the powers of this Court under section 561-A, Cr.P.C. read with those of judicial review under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.

4. On the other hand, the learned Assistant Advocate General, Punjab has strenuously and vociferously opposed this petition. It has been maintained by him that all the documents on which the petitioner is relying are fake, forged and fabricated ones. She never appeared before the learned Ex-Officio Justice of Peace, Khanewal nor did she get her statement recorded by the learned Judicial Magistrate, Margala, Islamabad. It has also been stressed by him that going by her birth certificate, Mst. Arooj Fatima, the abductee was born on 1.5.1999. Any consent given by a minor is of no consequence in the eyes of law. The abductee was recovered on 25.9.2013 by the police and her statement was recorded in which she implicated the petitioner as the principal accused.

5. The learned counsel for respondent No.2/complainant has adopted the arguments of the learned Assistant Advocate General, Punjab. It has been added by her that the petitioner abducted a minor and ravished her and that his an act calls for severe and condign punishment.

6. Arguments heard. Record perused.

7. It is well-established law that FIRs are not to be quashed in routine. The powers under section 561-A, Cr.P.C. are to be used sparingly and only in exceptional cases. In this respect, suffice it to make reference to the observations made by a Division Bench of this Court in the case reported as "Ch. Pervez Elahi v. The Federation of Pakistan through Secretary, Ministry of Interior, Islamabad and 3 others"(1995 MLD 615):-- " .powers under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, read with section 561-A, Cr.P.C. can be invoked to quash the proceedings in exceptional cases where trial of an accused would amount to unnecessary harassment but the Court ought not to resort to said provision of law if on the basis of any allegation made by the prosecution, a prima facie case is made out against the accused. The procedure laid down by Criminal Procedure Code, the authority vested in the Court under Article 199 of the Constitution and under such like other provisions of law, are meant to prevent harassment of an accused but within the premises to secure the ends of justice and not to defeat it. It is not the function of the High Court in such like proceedings to adjudge the innocence or guilt by minute scrutiny of evidence recorded by the investigating agency against the accused or by adjudging the credibility of the statements of the prosecution witnesses. The Court cannot sit as an investigator but the matter can be looked into to find out as to whether a prima facie case exists against the accused on the facts disclosed in the FIR and from the deposition of the prosecution witness. The difference between the determination is to know whether the proceeding is really intended to secure the ends of justice or factually an abuse of the process."

8. In another judgment reported as "Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others"(2011 SCMR 1813), the apex Court has held as under:- "The general practice of learned High Court which is well entrenched seems to be that no proceedings should be quashed ordinarily in view of the powers as conferred upon it under section 561-A, Cr.P.C. unless the trial court exercises its power under section 249A, Cr.P.C. or section 265-K, Cr.P.C. However, in exceptional cases, the power as conferred upon High Court under section 561-A, Cr.P.C. could have been exercised. If any reference is required, the case titled State v. Asif Ali Zardari (1994 SCMR 798), Muhammad Khalid Mukhtar v. State (PLD 1997 SC 275) can be referred. The provisions as enumerated in sections 561-A, 154 and 156, Cr.P.C. were discussed in case titled Emperor v. Nazir Ahmad AIR (32) 1945 P.C. 18 as under:-- 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 there is a statutory right on the part of the police under sections 154 and 156, to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would 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 under section 561-A. The function 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 the case of a cognizable offence, the Court's functions begin when a charge is preferred before it and not until then and therefore, the High Court can interfere under section 561-A only when a charge has been preferred and not before. As the police have under sections 154 and 156, a statutory right to investigate a cognizable offence without requiring the sanction of the Court to quash the police investigation on the ground that it would be an abuse of the powers of the Court would be to act on treacherous grounds: (16) 3 AIR 1916 P.C. 64 In Shahnaz Begum v. The Hon'ble Judges of the High Courts of Sindh and Baluchistan (PLD 1971 SC 677) it was made abundantly clear that "the High Court has no power under section 561-A of the Cr.P.C. to interfere with police investigations into criminal offences. In the case of Ghulam Muhammad v. Muzammal Khan PLD 1967 SC 317 the Supreme Court had occasion to point out that the power given by section 561-A, Cr.P.C, "can certainly not be so utilized as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute." If an investigation is launched mala fide or is clearly beyond the jurisdiction of the investigating agencies concerned then it may be possible for the action of the investigating agencies to be corrected by a proper proceeding either under Article 98 of the Constitution of 1962 or under the provisions of section 491 of the Criminal Procedure Code, if the applicant is in the latter case in detention, but not by invoking the inherent power under section 561-A of the Criminal Procedure Code. Shashadar Acharjya v. Sir Charles Tegart AIR 1932 Cal. 229; Muhammad Hussain v. Inspector-General of Police PLD 1967 Lah. 1123; Shamsuddin v. Captain Gauhar Ayyub PLD 1965 SC 496; Crown v. Muhammad Sadiq Niaz PLD 1949 Lah. 562; Emperor v. Kh. Nazir Ahmad AIR 1945 PC 18; State of West Bengal v. S.N. Basak AIR 1963 SC 447; Sher Khan and others v. The State 1968 SCMR 62; Ghulam Muhammad v. Muzammal Khan PLD 1967 SC 317 and M.S. Khawaja v. The State PLD 1965 SC 287 ref."

9. So long as Mst. Arooj Fatima stands by her statement that she was abducted by the petitioner and others and was subjected to illicit intercourse, no amount of arguments advanced on behalf of the petitioner would be of any avail. As for the assertion of the petitioner that Mst. Arooj Fatima contracted marriage with him with her free consent and of her own accord, the soundness of his claim would be tested when Mst. Arooj Fatima enters the witness box and she is confronted with this document during the course of her cross-examination. I am exercising restraint as to the statement allegedly recorded by the learned Judicial Magistrate, Margala, Islamabad. But I cannot help observing that the same does not appear to have been recorded by the learned Magistrate concerned. This seems to be a handiwork work of a Reader to the Court or someone else working in the Court of the learned Judicial Magistrate Margala, Islamabad. The validity of Nikah nama dated 10.9.2014 is yet to be proved. This cannot be determined in these proceedings, and there is no warrants to either throttle or obstruct the investigation or the trial for that matter.

10. For what has been stated above, I am not persuaded to quash FIR No.299 dated 14.9.2014 registered under section 365-B, P.P.C. at Police Station Saddar, Multan. This petition being without any merits is hereby dismissed. HBT/U-2/L Petition dismissed.