1997 PLP 962 (MLD)

Malik Allah Yar Khan for Respondent No.3. Farooq Bedar, Addl. A.‑G. In this Constitutional petition, the petitioners seek quashment of F.I.R. No.234/95, dated 29‑5‑1995 registered at Police Station Lalian, District Jhang on the complaint of Dosa son of Burkhurdar alleging therein that he was married with Mst. Sakina on 15‑5‑1995, petitioner No.

1. Petitioner No.2 was on visiting terms with petitioner No. l and when he was away to earn his livelihood, Sikandar, petitioner No.2 succeeded in taking away his wife with the help of others and is committing Zina with her.

2. Earlier also, one Nazir, respondent No.2 lodged an F.I.R. No.260, dated 6‑11‑1993 at Police Station Pull 111 Janubi, District Sargodha against the petitioners in which the petitioners were challaned but ultimately were acquitted by the learned Additional Sessions Judge, Sargodha vide order dated 4‑5‑1995 on an application filed by them under section 265‑K, Cr.P.C.

3. I called for report and parawise comments from respondent No.1, which have since been received.

4. Since at the motion stage, the parties have appeared, therefore, want to dispose of this petition at motion stage.

5. It is contended by the learned counsel for the petitioners, that registration of second F.I.R. is not called for because once the petitioners on same allegations have been acquitted by the Court of competent jurisdiction for want of prosecution evidence, they could not be vexed twice for the same offence.

6. Learned counsel for respondent No.3 submitted that the earlier F.I.R. was lodged by Nazir, in which the petitioners were acquitted under section 265‑K, Cr.P.C. Thereafter, Nazir divorced petitioner No.1 on 8‑5‑1995 and respondent No.3 married her on 15‑5‑1995. Petitioner No.2 again abducted her and respondent No.3 lodged F.I.R. No.234/95 on 30‑6‑1995, which has nothing to do with the earlier incident; hence this petition is entirely misconceived and the bar contained in section 403, Cr.P.C. is not applicable. He submitted that the case is still under investigation. Petitioner No.2 earlier abducted petitioner No.1, but they were acquitted as the witnesses resiled and did not support the prosecution case. He also submitted that F.I.R. can only be quashed if there is mala fide apparent on the face of the record or the bare reading of the F.I.R. does not disclose, the commission of any offence. He also submitted that the petitioners could not produce any documentary evidence in the shape of Nikahnama, showing that they are legally married to each other and mere verbal assertion of the petitioners could not be sufficient to infer that they are husband and wife; hence this petition be dismissed and the police be allowed to investigate the case.

7. The learned Law Officer did not support this petition.

8. I have heard the learned counsel for the parties and have perused the report submitted by respondent No. l .

9. Admittedly the first F.I.R. was lodged on 6‑11‑1993 which has nothing to do with the present F.I.R.; hence the contention of the learned counsel for the petitioners that no one could be vexed twice for the same offence, is not applicable in the present case. Even the conduct of respondent No.3, in marrying petitioner No. l cannot be lost sight of. She was divorced by Nazir on 8‑5‑1995 and respondent No.3 married her on 15‑5‑1995. At this stage, I do not want to comment on the conduct of the parties, lest it may prejudice the case of either party. Suffice it to say that it is for the investigating officer to probe into the matter. It has been repeatedly held by the superior Courts, that this Court should not pass orders under Article 199 or section 561‑A, in matters exclusively preserved for the Police Department. Since it is the right of the police to investigate a cognizable offence; hence at this stage, I do not think any case is made out for the quashment of the F. I. R. The petition is accordingly dismissed. N.H.Q./S‑25/L Petition dismissed.