Mrs. Ambreen Naseem Khawaja VS FOP etc

Form No.HCJD/C-121

ORDER SHEET

!S LAMABAD HIGH COURT

ISLAMABAD

W.P No.3373-Q ot 2014

Mrs. Ambreen Naseem Khawaia

Versus

Federation of Pakistan, etc.

S.No. of order Date of Order with signature of Judge, and that of parties or counsel, / Proceeding order/ where necessary oroceedinq

23.09.2014 Mr. Tariq Mehmood Jehangiri, Advocate for petitioner.

Syed Husnain lbrahim Kazmi,leared DAG.

M/s Haseeb Muhammad Ghaudhry and Yousaf M.

Qureshi, learned Standing Counsels.

Kaiser, S.l.

Dr. Babar Awan, ASG for Respondent No.S & 6.

By way of filing instant Constitutional Petition under Article 199 of the Constitution of lslamic Republic of Pakistan, Petitioner, Mrs. Ambreen Naseem Khawaja, seeks quashment of FIR No.62 dated 05.09.2013 offence u/s 363 PPC, registered at P.S Women, lslamabad, on the grounds that Petitioner and Respondent Nos.S & 6 are close relatives and cousins, the Petitioner came to Pakistan from USA in the month of June 2013 and stayed in the house of Respondent Nos.s & 6 and with their free will and consent, accord and permission took the minor namely zyam Khawaja real nephew of petitioner to USA, the Respondent Nos.S & 6 dropped the Petitioner and the minor at the Airport' That when the son met with his father in USA, he refused to come back and opted to study in USA; therefore, brother of Petitioner Mr' Farrukh obtained an injunctive order regarding the removal of the minor from USA Court on 26.09.2013 and this fact was very much in the knowledge of the Respondent No'S and his daughter/Respondent No.6. That Respondent No.6 filed a petition

in the USA Court for vacation of stay and vide order dated

WPNo.3373-Q ot2014 2

23.08.2013, injunctive order was vacated by the USA Court and visitation rights were provided to the mother. But Respondent No'S moved application for registration of FIR on 29.08.2013 by concealment of facts regarding pendency of litigation in USA Court' That the custody of the minor was handed over to the mother/Respondent No.6 vide order dated 10.09.2013 by the USA Court and the minor has been brought to Pakistan and presently living with his mother/Respondent No.6. That petition for dissolution of marriage filed by the brother of the Petitioner is pending in USA court, whereas suit for dissolution of marriage filed by Respondent No.6 is pending before the Judge Family court, lslamabad. That the parties are close relatives and just to settle the score upon a family dispute, the impugned FIR has been registered. That any act Petitioner is a respectable lady and cannot think to commit of criminal nature and through this cryptic device she has been badly insulted and defamed in the family and her in laws' That

even, it is a fit case for initiating the proceedings

U/S 182 PPC

a false report by against the Respondent No.S who willfully lodged misrepresentation and concealment of facts'

theotherhand,Iearnedcounselforcomplainant,Dr. Babar Awan, contended that the lowa District court for Scott jurisdiction pursuant to county, assert temporary and emergency

lowa code section 5988.204 with the purpose of ordering the

return of the child to his mother and his state of habitual residence'

make a final custody which is Pakistan. And decline jurisdiction to That the FIR against decision because it is an inconvenient forum.

petitionerhasbeenregisteredunderPakistaniLawandinstant as the same has petition for quashment of FIR is not entertainable beenfiledthroughattorneyi.eMs.SiddiqaNaseemKhawaja.The propercourse/remedyforpetitioneristofirstappearbeforethe

J

W.P No.3373-Q ot 2014

and join the competent court of law for grant of bail in her favour and proceedings of the case. That the case is under investigation Cr'P'C till completion of the same the provision of section 561-A, donotattractandFlRcannotbequashed'LearnedDAGand counsel for standing counsel supported the contentions of learned complainantandprayedfordismissalofinstantPetition.

3.Arguments heard. Record perused'

First aspect which this court has to examine is that, whether

thequashmentofFlRcanbesoughtthroughspecialpowerof attorney without joining investigation and applying for bail from

competent court of criminal jurisdiction?

lthasbeenheldbytheHon'bleSupremeCourtofPakistan incasetitledPRoVlNcEoFEASTPAK|STANANDANoTHER VS.HIRALALAGARWALA,reportedasPLDlgT0S.c399thata ,,Aggrieved person" and could son comes within the definition of

moveforquashmentofproceedings.Inanothercasereportedas alias CHIEF and 18 1998 PCr, L J 1486 titled Muhammad Ashafaq others Vs. The State (The case of Altaf Hussain, leader of MQM)

that Appeal is a the Hon,ble Sindh High Court, Karachi observed fundamental right and is a continuation of proceedings, when a

personcanbetriedinabsentia,thereisnoreasonastowhyhis appealcouldnotbeheardassuch.Moreover,ithasbeenobserved bytheHon'blePeshawarHighCourt'Peshawarinacaselaw reportedasPLDlgg0Peshawarlg2,titledAFTABAHMADKHAN thAt

SHERPAO VS. THE GOVERNOR, N.W.F.P AND OTHERS'

underArticlelggoftheConstitutionoflslamicRepublicof Pakistan, the High Court is not bound by any precedent in entails its own objective exercising such discretion as each case conditionsandthereliefisgrantedorrefusedonthebasisofsuch

W.P No.3373-Q ol 2014

conditions. Therefore, by placing reliance on above quoted

judgments and keeping in view the peculiar facts and the circumstances of the instant case, this court is of the view that petitioner Ms' attorney Ms. Siddiqa Naseem Khawaja real mother of for Ambreen Naseem Khawaja is competent to file proceedings quashment of FIR registered against her daughter in her absence' f;sofarasthequestionofcompetenceoftheHighCourtfor quashment of FIR is concerned, it is observed that under section powers. The above 561-A, Cr'PC, High Court vested with inherent can exercise section provides three situations where the High court its inherent powers/jurisdiction, the same are as under:- a) to give effect to any order under the Code' b) to prevent abuse oftheprocess of any Couft, and c) Or otherwise to secure the ends of iustice' lthasbeenheldbythesuperiorcourtsoftheC.ountry through various pronouncements that, High Court, in exercise cf

above conferred powers would be justified to quash any

proceedings,ifitfindsthatcontinuationoftheSamewouldamount proceedings to abuse the process of law or quashing of these justice. The High court under its wourd otherwise serve the ends of circumstances of the inherent powers keeping in view the facts and is being used as an case, if comes to the conclusion that process instrumentbyacomplainanttoharassanypersonneedlessly,can quashtheproceedingstomeettheendsofjusticeandtoprevent the abuse of process of law because if such proceedings are

allowed to continue, the same would bring injustice and will cause

miscarriageofjusticeinsteadofadvancingthecauseofjustice.

W.P No 3373-Q of 2014

6, Judgments on the issue provide following situations wherein discretion of exercising the authority of quashment of FIR has been approved;

(t)Registration of FIR by Police/Authorities having no iurisdiction to register the same'

(ii)From the admitted contents of FlR, no offence is constituted;

(iii)From contents of FIR matter purely is of civil nature' Even in the judgments through which exercise of such discretion has been dis-approved "door of extraordinary circumstance" has been kept open. Guidance in this regard has been borrowed from 1996 SCMR 186, 2006 scMR 276&

PLJ 2011

sc 1932.

7.ln present case it is brought on the record that the custody of the r,,,:'3r was handed over to the mother/Respondent No.6 vide order dated 10.09.2013 by the USA Court and the minor has been

broughttoPakistanandpresentlylivingwithlris filed mother/Respondent No.6. Petition for dissolution of marriage whereas by the brother of the Petitioner is pending in USA Court, No.6 is pending ' suit for dissolution of marriage filed by Respondent before the Judge Family court, lslamabad. Moreover, the parties

upon a' are close relatives and it seems that just to settle the score against a family dispute, the impugned FIR has been registered settle the civil lady member of the family. Unfortunately, trend to is on high, disputes by exercising pressure of criminal proceedings custodian of which is nothing but exploitation. The High court being to provide the fundamental rights of the citizens is under obligation constitutional shield against any invasion made on the guaranteed exploitation' rights and protect the subject from discrimination, malafide and' colourable exercise of authority, bolted actions, stinking Proceedings.

W P No 3373-Q of2014 6

Thus for the foregoing reasons by placing reliance on case laws reported as PLD 1991 SC 575, titled Zahid lqbal Vs.The State, 1972 SCMR 194, titled Muhammad Aslam and other Vs. The State, 2OO7 MLD 355, titled Faisal Jameel Vs' The State, instant petition is allowed. lmpugned FIR is declared to be illegal, unlawful, unprecedented, Sham, result of colourable exercise of authority, an abuse of process of law, tainted with malafide, ulterior motives, a device of exploitation without jurisdiction and outcome of arbitrary exercise of authority, and same is herebY quashed.

(s

JUDGE

Announced in open Court on tb- t)- 2of1

Approved for RePorting.

"Waoar Ahmed" Alr4 s/4WA,l