1999 PLP 3092 (MLD)

Altaf Ibrahim Qureshi and Muhammad Zikria Sheikh for Respondents. Date of hearing: 27th October, 1997. Petitioners who are husband and wife seeks quashment of F. I. R No. 110/97 registered against them under sections 420/469/471/466, P. P. C. read with section 10(2) of Offence of Zina (Enforecment of Hudood) Ordinance, 1979 at Police Station Sadar Chichawatni District Sahiwal. Respondent No. 2 got the afore said case registered alleging that Hafiz Abdul Ghafoor, his brother was married with. Mst. Shahida Nadeem on 29-6-1996 and she signed the Nikahnama alongwith the witnesses. As Hafiz Abdul Ghafoor was residing, in Saudi Arabia, Abdul Rehman father of petitioner No. 1 promised for her Rukhsati at his arrival in Pakistan. After few days father of petitioner No. 1 started escaping from this marriage on the pretext that on telephone Nikah is not in accordance with Sharia and asked the complainant for having a Fatwa in this behalf. According to his demand complainant got Fatwa from two Muftis who declared said Nikah to be legal and in spite of this father of Petitioner No. 1 solemnized her Nikah with petitioner No. 2 in Chak No, 11/IIL on 2--1-1996. Accordingly abovementioned F. I. R. was registered against the accused

2. Learned counsel contends that a suit for jactitation of marriage has been filed by petitioner No. 1 against Abdul Ghafoor in the Court of learned Judge Family Court Chichawatni while a suit for declaration with permanent injunction has also been instituted by Abdul Ghafoor against her and the litigation in the said Court is going on between the parties. Investigation of the case has been completed. 'Petitioner No. 1 present in Court states that she has married with petitioner No. 2 and her Nikah with him is correct. She was never married with brother of complainant. She has totally denied the assertion made in the F. I. R. against her father and her co accused (Petitioner No. 2).

3. Learned State counsel states that investigation of the case is complete and challan is likely to be submitted in the near future, therefore, it is no; appropriate stage to quash the F. I. R. Investigating. Officer states that Nikah of petitioner No. 1 with Petitioner No. 2 is prior in time. Petitioner No. 1 made a statement before him that she is wife of petitioner No. 2 and her father has signed the Nikahnama as witness to the marriage.

4. I have heard the learned counsel for the parties and gone through the record petitioner No. 1 is sui juris aged about 18/20 years. She has stated that her Nikah was performed with petitioner No. 2 by her father. She was neither abducted nor has been subjected to Zina by anybody as alleged in the F. I. R. She is star witness of the prosecution. Her statement cannot be easily ignored. She has to owned her Nikah with petitioner No.

2. Petitioner No. 2 also states that Petitioner No. 1 is his wife and they entered into marriage bond voluntarily with the consent of their parents. The question whether she is wife of petitioner No. 2 or Haji Abdul Ghafoor shall be finally determined by the learned Judge Family Court after recording the evidence but at present in view of the fact that she is sui juris and states that she is wife of petitioner No. 2, assertion made in the F. I. R. stands negated. Perusal of the record shows that petitioners were married on 2-4-1996 vide Nikahnama placed on the record which is accepted by both of them to be correct. Plea of the complainant that petitioner No. 1 was given in marriage to Abdul Ghafoor on 29-6-1996 prima facie appears to be false. There is nothing on the record that petitioner No. 2. divorced petitioner No. 1 and thereafter, she contracted marriage with brother of complainant. Nikahnama Annexure manifests that Nikah of a petitioners was solemnized by Ghulam Qadir Nikahkhawan in presence of father of petitioner No. 1 on 2-4-1996 and was duly registered in the concerned Union Council. The Nikahnama relied upon by other side is dated 29-6-1996, copy is placed on record as Annexure C. There is clearly over writing thereon and moreover it is p not accepted by petitioner No.

1. There is nothing on the record to connect the accused with the commission of the offence alleged in the F. I. R. if impugned proceedings are allowed to continue, great miscarriage of justice will take place. For the above reasons, I declared the registration of the impugned F. I. R. as illegal, without lawful authority and quash the same. The petition accordingly succeeds and is allowed. N.H.Q./S-320/L F. I. R. quashed.