2001 P Cr (PLP)

Muhammad Bashir Khan has assailed the order passed by Civil Judge/Judicial Magistrate District Courts, Lahore, dated 23‑4‑2000 whereby he came to the conclusion that a criminal case registered by the petitioner through F.I.R. No.87 with Police Station Hanjarwal on 9‑3‑2000 under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) read with section 380, P.P.C. against Muhammad Arif and Khair‑ul‑Nisa wife of the petitioner, arraigned as respondents Nos. 1 and 2 was false and fabricated and accordingly discharged them.

2. Muhammad Bashir Khan alleged in the First Information Report which he authored that he was married to Khair‑ul‑Nisa thirty years back and from his loins five children were born. His wife alongwith children were residents of a house situated in Thokar Niaz Beg, Multan Road, Lahore, having taken it on rent; the owner of the house was Muhammad Sakhi. In his neighbourhood one Afghan refugee by the name of Muhammad Arif arraigned as respondent No. 1 used to live who was Chowkidar of the owner of the house where he resided with his family. On 10‑12‑1999 when he went to his house at 11 p.m. he found the outer door of the house locked from inside which he knocked and after some time saw Muhammad Arif scaling the boundary wall of the house and his wife came out from the room from where Arif left. He kept quiet as it was the matter of family honour, however, he called his parents but before they arrived, on 27‑12‑1999 his wife left the house at night taking alongwith her 25,000 rupees in cash and licensed pistol belonging to him. It was stated that he was sure that his wife was enticed by Afghan refugee namely Muhammad Arif as he had illicit relations with her.

3. Application for anticipatory bail of respondents Nos.1 and 2 was rejected by the Additional Sessions Judge, Lahore, on 22‑4‑2000 and both of them were taken in custody by the police. Order of the Additional Sessions Judge, Lahore declining the bail before arrest shows that brother and father of Muhammad Arif supported the version of the petitioner narrated by him in the first information report.

4. On 23‑4‑2000 the Investigating Officer made an application to respondent No.1 i.e. the concerned Magistrate seeking physical remand of the accused as he had to recover the amount and pistol. Respondent No.4, however, embarked upon an inquiry totally alien to his domain by recording the statement of Khair‑ul‑Nisa wherein she stated that she was not abducted by any one and after being tortured and turned out from the house by her husband she tiled a suit for dissolution of marriage on the ground of cruelty against her husband/petitioner which was pending adjudication and in her absence a false and fabricated. case was registered. Being impressed with her statement, learned Judicial Magistrate on Duty concluded that no case under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) or under section 380, P. P. C. was made out and the allegations were false based on mala fides to pressurized Khair‑ul‑Nisa to withdraw the litigation before the Family Court and accordingly he discharged respondents Nos. 1 and 2.

5. Learned counsel for the petitioner relied on the case of Soofi Abdul Qadir v. The State and others reported in 200.0 PCr.LJ 520, to state that the Magistrate was not competent to pass impugned order as the case was triable by the Court of Session and the order of discharge passed was without jurisdiction and the same had to be quashed. Learned counsel for respondents Nos. 1 and 2 replied that the case was false and the statement of Khair‑ul- Nisa; that she was not abducted by any person knocked out the bottom of the prosecution case, therefore, the Magistrate had no alternative but to release the respondents. Learned Additional Advocate‑General supported the arguments of the learned counsel for the petitioner by stating that the order impugned was clearly beyond the competence of Judicial Magistrate (on Duty), Lahore.

6. I have adverted to the arguments of the respective counsel and have also gone through the record.

7. In F.I.R. clear cut allegations were levelled against the respondents of abduction. It is also stated that Khair‑ul‑Nisa while going took away a sizeable amount in cash and a licensed pistol. The police soon after the arrest of the respondents, when their application for anticipatory bail was rejected, produced the respondents before the Court for seeking physical remand to investigate the matter further. Magistrate while acting as a Court competent to try the accused recorded the statement of Khair‑ul‑Nisa and thereafter concluded that the case was false and accordingly released the respondents.

8. Khair‑ul‑Nisa was an accused person named in the F.I.R. having eloped with Muhammad Arif. She was at the time when the occurrence took place, legally‑wedded wife of the petitioner. It is only on 10‑4‑2000 that a suit for dissolution of marriage was filed by Khair‑ul‑Nisa before the Judge Family Court which was decreed on 12‑2‑2001, however, on 9‑3‑2000 when, the occurrence took place the marriage still subsisted. Statement of the accused before the Magistrate that she was trot abducted by any one was premature to be acted upon. She was an accused and had to adopt the stance beneficial to her but without allowing the prosecution to investigate the truth or falsity of the statement made by Khair‑ul‑Nisa, the Magistrate jumped to the conclusion that the case was false merely because Khair‑ul‑Nisa stated to be so. It is not a case where the police were‑given a fair chance to investigate the truth or falsity of the allegation. The order passed by the Magistrate stifled the prosecution as they were deprived of an opportunity to investigate the case. Order of the Magistrate is palpably illegal and cannot be sustained in the eyes of law. Resultantly the writ petition is accepted, impugned order is set aside. The police shall now continue with its investigation and shall make every effort to reach the truth by acting ‑in impartial and honest manner. N.H.Q./M‑504/L Petition accepted.