2004 PLP 1193 (YLR)

FAZLUR REHMAN KHAN, J.

Through the present writ petition, the petitioner Dr. Aurangzeb seeks the cancellation of F.I.R. No.928 dated 13-11 2001 of Police Station, Gul Bahar under sections 365-A/354/342, P.P.C. read with section 11/16 Offence of Zina (Enforcement of Hudood) Ordinance, 1979 lodged against him by Obaid Hussain respondent No.2.

2. On 13-11-2001, at 1750 hours, respondent No.2 lodged a report in Police Station, Gul Bahar that last year, her mother Mst. Pukhraj Begum had brought his small niece to Nisar Children Clinic situated near Old Tehsil, Bazar Kalan for treatment. The petitioner started her treatment there advising her daily check-up and injections. His mother Mst. Pukhraj Begum had already become acquainted to the petitioner through another patient on account of which the petitioner advised his mother to stay with him in his house in village Sheikhan in order to avoid daily attendance of the Hospital, to which, his mother agreed but taking undue advantage of the situation, the petitioner confined his mother in a room since 22-9-2000 and since then she is in the illegal confinement of the petitioner. Accordingly, the foregoing F.I.R. was registered against the petitioner at the instance of respondent No.2 in Police Station, Gul Bahar.

3. Through the present petition, the petitioner seeks the cancellation of the F.I.R. on the grounds that Mst. Pukhraj Begum is actually the mother-in-law of the petitioner who had betrothed her daughter Miss Heena to the petitioner and the marriage ceremony has not yet been solemnized; that the respondent No.2, his father and the alleged abductee were reluctant to the final ceremony of the marriage and in order to delay the marriage, they concocted the present false story; that the mother of respondent No.2 has not been confined for a single day; that there is a delay of more than one year in lodging o.` the F.I.R. and there are sufficient materials with the petitioner showing that the alleged abductee during the alleged period of abduction had appeared so many times in the public. The impugned F.I.R. is, therefore, baseless and entirely based on mala fide.

4. We have heard Mr. Manzoor Khan Khalil, Advocate for the petitioner, Mr. Tariq Javed, learned D.A.-G. assisted by Syed Zafar Abbas Zaidi, Advocate for respondent No.2 and have also perused the record We have also personally heard the petitioner as well as the alleged abductee.

5. The learned D.A.-G. pointed out that keeping in view the allegations in the impugned F.I.R. and the counter allegations in the writ petition, it is a case of two versions and now as the investigation is complete, it would be better that after recording the evidence, the trial Court should decide the case on merit. In support of his arguments, the learned D.A.-G. placed reliance on (1) PLD 1997 Supreme Court 275 (2) PLD 1985 Supreme Court 62; (3) 1993 SCMR 187 and (4) 1997 SCMR 304.

6. On the other hand, the learned counsel for the petitioner contended that where, in a case it comes to the notice of the Court that F.I.R. is misconceived and had no footing to stand upon or the same absolutely contains frivolous and wrong allegation and is the result of sheer malice, this Court had got the jurisdiction under Article 199 of the Constitution, to strike down such an F.I.R. In support of his arguments, the learned counsel for the petitioner placed reliance on (1) 1982 PCr.LJ 726; (2) 1995 MLD 615; (3) 1999 PCr.LJ 1025; (4) 2000 SD 122; (5) 2000 SCMR 122 and (6) PLD 2002 Karachi 464.

7. After going through the record and the foregoing authorities cited at the bar, we are of the considered view that the arguments of the learned counsel for the petitioner carry weight.

8. According to the impugned F.I.R. Mst. Pukhraj Begum, mother of respondent No.2 Was abducted by the petitioner on 22-9-2000 while the present F.I.R. was lodged on 13-11-2001 or in other word the F.I.R. was lodged after one year-one month and 21/22 days of the occurrence. Materials on the record show that on 16-10-2000, the alleged abductee personally appeared before the S.S.P., Peshawar for making a complaint against her son (respondent No.2) and her husband regarding threat at their hands to her life. On 17-10-2000, she appeared in Police Station, Badhber making a complaint against her son and husband which was entered in the Daily Diary No.24. On 9-11-2000, she appeared before the Army Monitoring Cell, Peshawar making a written report against her husband. On 18-11-2000, she filed a written complaint in Women Police Station, Peshawar. On 23-11-2000, she made a Press Conference with regard to the story of kicking her out by her husband and the story of divorce by her husband which was reported alongwith her Photo in a number of local Dailies. On 25-11-2000 she attended a private Clinic of Prof: 2;akia Minhas, a Gynecologist. Besides filing her suit for dissolution of her marriage on 13-10-2000 she was arrested on 19-2-2001 in case F.I.R. No.59 dated 8-2-2001 under sections 420/347/182/211, P.P.C. and was produced in the Court of JM/CJ, Peshawar wherein her statement under section 164 Cr.P.C. was recorded stating that nobody has abducted her at all.

9. The foregoing materials on record clearly show that the petitioner had not abducted the mother of respondent No.2 at all. According to the oral version of the petitioner, after the betrothal of her daughter to the petitioner, her mother-in- law with the active connivance of her husband hatched a conspiracy and both of them asked him to advance to them some money in order to purchase a house for him whereafter the marriage, he alongwith his wife would reside in the city, in pursuance of which, he paid a sum of Rs.4,00,000 (rupees Four Lacs) in cash and 55 tolas gold and in order to grab the same, the respondent No.2 has lodged the present F.I.R. The story narrated by the petitioner not only stands to reason but is also supported by materials on record. The impugned F.I.R. is, therefore, entirely based on mala fides and in view of the authorities cities by the learned counsel for the petitioner, is liable to cancellation.

10. Accordingly on the acceptance of this writ petition, the impugned F.I.R. is cancelled. N.H.Q./12/P Petition accepted.