1986 P Cr (PLP)

‑‑‑Art. 9‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10‑‑Quashing of proceedings‑‑Abuse of process of Court‑‑Four witnesses allegedly saw commission of Zina‑‑Witnesses could not manage to apprehend accused‑‑Alleged victim of zina a married woman used to sexual intercourse‑‑Result of vaginal swabs still awaited even after about two months‑‑Sworn statements of two witnesses as well as their statements recorded under S. 164, Cr.P.C. placed on record, showing that, they never saw occurrence‑‑Four cases of drunkenness registered against third witness‑‑Story given in F.I.R. on the face of it was improbable and prima facie provisions of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 were being abused in case‑‑Challan having been sent up in Court for trial‑‑Proceedings pending against accused before trial Court were, therefore, quashed. M.D. Tahir for Petitioners. Akhtar Shabbir. A.A.‑G for the State. S. Samar Hussain for Respondent No.

3. Date of hearing: 29th January, 1986. This writ petition has been filed by the petitioners under Article 9 of the Provisional Constitution Order, 1981, for quashment of F.I.R. No. 139/110, dated 2‑9‑1984, registered at Police Station Raiwind as against the petitioners with mala fide intention. The background is that Muhammad Sadiq complainant lodged the aforesaid F.I.R. to the effect that at 5‑00 p.m. on 2‑9‑1984, while he came out of his house to offer prayers, he heard the voice of a woman in the Baithak of one Muhammad Elahi. The door of the Baithak was closed. He looked through the peep hole of the window and saw that one man was lying with a girl on the cot and the other man was standing naked by the side of the cot. On seeing this, Muhammad Sadiq complainant also brought there Muhammad Amin, Khushi Muhammad and Muhammad Ismail to witness the commission of Zina. They also came there and started looking through the peep hole. The one man lying with the girl was committing Zina with her. Thereafter, Muhammad Sadiq complainant knocked at the door and a few minutes thereafter the door was opened by the two present petitioners as well as the girl whose name he subsequently found out to be Mst. Razia Bibi. The story further goes on that thereupon both the petitioners managed to escape but Muhammad Sadiq complainant alongwith the three other witnesses caught hold of Mst. Razia Bibi and he produced her before the police. He further stated in the F.I.R. that he saw Abid petitioner committing Zine with Mst. Razia Bibi with his own eyes and then Arshad petitioner committed Zina with Mst. Razia Bibi which was also witnessed, besides him, by Muhammad Amin, Khushi Muhammad and Muhammad Ismail. Thus, it appears from the plain reading of the F.I.R. that‑four of these alleged eye‑witnesses happened to see through a peep hole two naked men committing Zina with Mst. Razia Bibi one after the other and the act must have taken some time and while the act was being performed, they continuously watched it through the peep hole. When the act was over they knocked at the door and the door was opened after some time. It is strange that the four eye‑witnesses could not manage to apprehend the two petitioners on the spot but only the poor woman, namely, Mst. Razia Bibi was caught by them Learned counsel for the petitioners states that the case against them is false because there was rivalry in the village between the complainant side and the accused side. The police record was examined by me. They medical report indicated that Mat. Razia Bibi was a married woman and was stated to be used to sexual intercourse. However, the vaginal swabs were sent for chemical examination but there is no report on the record. The case was registered on 2‑9‑1984 but until 20‑10‑1984 i.e. about two months thereafter the chemical result of the vaginal swabs was still being awaited. Learned counsel has placed on record sworn statements of Muhammad Amir and Muhammad Ismail as well as their statements recorded by the Magistrate under section 164, Cr.P.C. to the effect that then had never witnessed such an occurrence, and he has placed on record Annexure 'H' showing that there are four cases registered against Khushi Muhammad of drunkenness and other such offences and that he was a person having criminal record. On these grounds learned counsel vehemently argued that it is a case which was false and if the trial was allowed to proceed, it would be an abuse of the process of the Court and that even the moving of an application under section 265‑K, Cr.P.C. in the peculiar circumstances of this case would amount to an abuse of process of the Court when the facts are before this Court and I had made all these observations in my previous order, dated 20‑10‑1984 whereby allowed bail to Mst. Razia Bibi in Cr. M. No. 2693/B‑84. 1 had observed in that order that the story given in the F.I.R. on the face of it appeared improbable and that the trial Court was yet to satisfy itself that four eye‑witnesses mentioned, in the instant case, were to pass, through the test called Tazkiyah‑a‑Shahood and as to whether they were Muslims of upright character and that only then their testimony could be accepted in a case of this nature. I had even suggested the trial Court also to examine the aspect of the case as to whether in the peculiar circumstances of the case, those four alleged eye‑witnesses may be considered as abettors or alders far the commission of Zina in this case if the crime was established as against the petitioners including Mat. Razia Bibi. I had further observed in my order that in my view prima facie the provisions of Islamic Law were being abused in this case. Learned counsel in the light of these observations submits that D instead of a fruitless exercise before the trial Court these proceedings may be quashed at this stage by me. I have heard learned A.A.‑G. and learned counsel for the complainant. They point out that it is no more an F.I.R. which is to be quashed in this case because the challan has already been sent up to the trial Court and, therefore, if at all anything is to be quashed, it should be the proceedings. I take note of this point. Since this is the position, the proceedings pending against the petitioners under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, pending before the trial Court are hereby quashed. This petition is accepted but there shall be no order as to costs. S.A. Petition accepted.