2005 P Cr (PLP)

Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner seeks quashment of case F.I.R. No.224 of 2004 dated 9-9-2004 registered under section 338-C, P.P.C. at Police Station Qureshi Wala District Lodhran on the statement of Fida Hussain.

2. The brief facts narrated in the F.I.R. are that the complainant was married with the petitioner Mst. Amna Bibi about five years ago and out of their wed-lock no child was born. However, according to the complainant two months earlier while going to the house of her parents to attend the marriage ceremony of her brother Muhammad Ishaque she was conceiving pregnancy of about eight months and when the complainant went there to take her back, it was informed by his close relatives namely Abdul Khaliq and Pir Bakhsh that she was taken to some unknown mid-wife and with her consent Hazoor Bakhsh, Muhammad Bakhsh and Zaib Elahi are involved in Isqat-i-Janin.

3. Learned counsel for the petitioner contends that the registration of the present case is with mala fide intention and ulterior motive as on 30-6-2004 the petitioner filed a suit for dissolution of marriage in the Court of learned Judge, Family Court, Lodhran against the complainant and on receipt of the notice he started causing undue harassment to the petitioner through S.H.O. Police Station Qureshiwala whereupon the petitioner also moved an application to the learned Sessions Judge/Justice of Peace on 24-8-2004 and vide order, dated 30-8-2004 the S.H.O. was restrained to cause any harassment to the petitioner. According to the learned counsel the falsity of, the contents of the F.I.R. and the nature of allegation is clear from the facts that in F.I.R. which has been got lodged on 9-9-2004 the complainant stated that the petitioner had left his house two months earlier i.e. near about 9-7-2004 whereas she had already filed a suit for dissolution of marriage against him on 30-6-2004 claiming therein that she was turned out of the house by the complainant four months earlier and no issue was born out of their wedded life which continued for about 6/7 years. It is claimed that case has been got registered for pressurizing the petitioner to withdraw her suit for dissolution of marriage and it is a case of no evidence, therefore, the F.I.R. may be quashed.

4. Learned counsel for the respondent No.4 on the other hand opposes this petition on the ground that according to laboratory report dated 15-1-2004, the pregnancy test of the petitioner was positive and close relatives of the petitioner had told about the guilt of the petitioner and other accused regarding Isqat-i-Janin. According to him from the contents of the F.I.R. commission of cognizable offence is clearly made out and the F.I.R. cannot be quashed.

5. I have heard the learned counsel for the parties and also perused the record. Admittedly the petitioner filed a suit for dissolution of marriage against the complainant on 30-6-2004. An application was also moved by the petitioner on 24-8-2004 before the learned Sessions Judge/Justice of Peace for restraining the police officials from causing any undue harassment to the petitioner and other family members at the behest of Fida Hussain respondent which was disposed of on 30-8-2004. In the said application the petitioner specifically alleged that she was being harassed by the complainant to withdraw from the prosecution of suit for dissolution of marriage. According to the order-sheet attached with this petition the complainant did not put in appearance in the said suit and lastly direction was issued for his service through citation in the newspaper.

6. The nature of the allegation levelled in the F.I.R. seeming to be unhuman, this Court felt it necessary to take cognizance in this case at the initial stage in its Constitutional jurisdiction as at the advance stage of pregnancy for about eight months the parents of the girl were not expected to take risk of Isqat-i-Janin, which may result into the death of their daughter as well, when she was validly married with the complainant. Mere production of some Lab. Report about the pregnancy test is not a conclusive proof of the commission of the crime. No prescription from any doctor has been brought on the record. Regarding her treatment after pregnancy or use of any medicines. Normally in this era ultrasound report is also procured as a modern technique in case of pregnancy. According to the complainant's own version, the pregnancy was conceived after more than five years of their marriage and normally in such cases some special care was required to maintain the same. If the first report of the Lab. regarding the pregnancy was preserved by him, the reports regarding subsequent tests should also be in his possession for production before the police to substantiate his allegation. Mere oral statements of the witnesses irrespective of their relation with the complainant or the accused party, when the suit for dissolution of marriage was already filed by the petitioner against the complainant, is not sufficient to prima facie make out the offence of Isgat-i-Janin. No date of occurrence has been mentioned in the F.I.R. It is also strange that it was in the knowledge of the witnesses that the parents of the petitioner had taken her to some Daya (mid-wife) for Isqat-i-Janin but not inform him immediately in spite of close relationship with him and only told him when the act had already done and he came to take back his wife (petitioner).

7. From the documentary evidence available on this file, I have also found that the allegation levelled in the F.I.R. is groundless. In the plaint of suit for dissolution of marriage filed on 30-6-2004 she specifically alleged that she Was turned out of the house by the complainant about four months earlier and no issue was born out of their wed-lock whereas in the F.I.R. the complainant alleged that two months earlier, she had left his house which would come near about 9-7-2004 and A at that time the version of the complainant that she was conceiving pregnancy of eight months is proved to be false. I find force in the arguments of the learned counsel for the petitioner that this case has been got lodged with mala fide intention and ulterior motive to restrain the petitioner from the prosecution of her suit for dissolution of marriage already filed against him. In such circumstances further proceedings with the F.I.R. will be abuse of process of law which cannot be allowed to continue. For the foregoing reasons, this writ petition is accepted and the impugned F.I.R. is quashed. N.H.Q./A-357/L F.I.R. quashed.