1995 P Cr (PLP)

This is a petition for quashment of F.I.R. No.126 of 1994, dated 15-9-1994 under sections 420/468 and 471, P.P.C. registered at Police Station, Mankera, District Bhakkar.

2. The facts, in brief, are that Manzoor Hussain, respondent No.3, got F.I.R. No.126 of 1994 registered against the petitioners and others for preparing a forged, Nikahnama, dated 10-2-1994 while according to F.I.R. No.119/94 Mst. Waziran, petitioner No.l, was married with the wishes of her parents with Zahoor Hussain vide Nikahnama, dated 26-10-1993.

3. It is contended on behalf of the petitioners that Mst. Waziran contracted marriage on 10-2-1994 which was registered with the Nikah Registrar and since then Mst. Waziran and Ghulam Rasool were living as husband and wife and that the case F.I.R. No.126 had been got registered on the false allegations and that Manzoor Hussain, respondent No.3, complainant, has no locus standi to lodge the complaint. Further, Ghulam Rasool, petitioner No.2, has already got registered a case under sections 420/468 and 471, P.P.C. vide F.I.R. No.119 of 1994, dated 29-6-1994 at Police Station Fatehpur Tehsil Karor Laleesan District Layyah against Zahoor Hussain accused and others for preparing a post-dated forged Nikahnama, that is, Nikahnama, dated 26-10-1993. Respondent No.3 being in knowledge of F.I.R. No.119 of 1994 got case F.I.R. No.126 of 1994, as a counter-blast under political influence at Mankera and concealed the very fact of previous F.I.R. lodged against Zahoor Hussam.

4. On 18-10-1994, S.H.O., Police Station, Mankera District Bhakkar was directed to verify the genuineness of the Nikahnamas and appear before this Court on 2-11-1994. Similarly, S.H.O. Police Station Fatehpur was also directed to appear before the Court alongwith record of F.I.R. No.119/94, dated 29-6-1994.

5. Muhammad Ashraf, A.S.I., Police Station Fatehpur is present with the record and states that after the investigation he has found Nikahnama, dated 10-2-1994 as genuine; while the Investigating Officer Police Station Mankera stated that he could not verify Nikahnamas as the petitioners did not join investigation before him. The excuse of the S.H.O. is .in violation of the directive issued by this Court, dated 18-10-1994.

6. Nikah Registrar Bashir Mehmood and witnesses of Nikahnama present in Court have confirmed genuineness of the Nikahnama, dated 10-2-1994 while Nikah Registrar Muhammad Afzal of Nikahnama, dated 26-10-1993 present in Court deposed that he ceased to be Nikah Registrar with effect from 30-6-1993; neither he had registered the Nikah nor had signed the Nikahnama and the same is a forged document; his successor Nikah Registrar Sultan Khan is also present in the Court and categorically confirmed his version. The parents of the petitioner also stated that Mst. Waziran was married to Ghulam Rasool on 10-2-1994 and Nikahnama, dated 30-6-1993 has been prepared to harass the petitioners as well as other family members. An attested copy of the statement recorded under section 164, Cr.P.C., dated 23-10-1994 of Syed Mubarik Shah son of Ghulam Ali Shah has been produced by the petitioner's counsel; where he deposed that neither he attended marriage ceremony of Zahoor Hussain brother of respondent No.3 complainant nor even signed on the Nikahnama, dated 26-10-1993; which is a forged document. The respondent No.3 when confronted had no answer. The learned counsel for respondents vehemently contended that in case Aftab Hussain v. Collector of Central Excise and Land Customs, Quetta 1987 PCr.LJ 1413 it has been held that Constitutional jurisdiction is not desired or intended to probe into complicated disputed questions of fact, when the relevant law provides other forms for the purpose and also referred to Shahnaz Begum's case PLD 1971 SC 671.

7. I have heard lengthy arguments of the learned counsel on both sides and have perused the record produced before this Court.

8. It is evident that there are two claimants of Mst. Waziran one is Ghulam Rasool, respondent No.l and other is Zahoor Hussain, brother of the complainant and cases under section 420/468/471, P.P.C. are also under investigation against each other at two different police stations in the range of two different divisions; further a suit filed by the petitioner No.l on 25-9-1994 against Zahoor Hussain is also pending before Judge, Family Court, Multan, in the jurisdiction of third division. The question whether Mst. Waziran is legally?wedded wife of Ghulam Rasool or Zahoor Hussain ought to be determined properly by the learned Judge, Family Court, Multan.

9. The petitioner No.l and respondent No.3 are close relatives and their family members are married with each other on customary marriage system of Watta Satta. Aggrieved of the marriage of petitioners against the family traditions the post-dated Nikahnama has been prepared with mala fide intention and connivance of the police of Police Station Mankera as is evident from the conduct of the Investigating Officer; only to harass the petitioner as well as their family members. There is a little doubt that F.I.R. No.126/94 lodged by respondent No.3 is a counter-blast to the F.I.R. lodged against his brother and others by petitioner No.2 at Police Station Fatehpur. I would not have interfered with the investigation of the impugned F.I.R. till the decision of l a Judge, Family Court, Multan but keeping in view the deposition of Nikah Registrar, A.S.,-I. of Police Station Fatehpur parents of petitioner No.l and the petitioners, coupled with the attitude of the Investigating Officer Police Station Mankera and as no interest shown by the alleged complainant husband of Waziran Zahoor Hussain during the proceedings throughout, I am of the view that a case of interference is made out. For this view, I am fortified by law laid down by the Supreme Court of Pakistan in the case of Adam Jee Insurance v. Assistant Director 1989 PCr.LJ 1921 wherein it has been observed that proceedings under Article 199 of the Constitution would be competent against even inquiry/investigation if it; encroaches upon any fundamental right as guaranteed by the Constitution or it violates some other law or is motivated mala fide reason. The same view has been in the case of Rustam Khan and 2 others v. State 1982 PCr.LJ 1013. Admittedly, petitioner No.l is sui juris and the Nikahnama, dated 10-2-1994 is owned by her as genuine and she had married with Ghulam Rasool with her own free-will in accordance with Islamic rites and are living since 10-2-1994 as husband and wife. According to Article 35 of the Constitution of Islamic Republic of Pakistan, 1973 it is the duty of the State to safeguard fundamental right of marriage. As F.I.R. No.119, dated 28-6-1994 was lodged against Zahoor Hussain, husband, he should have joined the investigation before the S.H.O. Police Station Fatehpur or should have lodged the F.I.R. himself as his brother respondent No.3 had no locus standi.

10. Under the circumstances and relying upon case of Noor Muhammad v. S.H.O. Qadir Pur 1981 PCr.LJ 1259 it is unfair to let the petitioners suffer embarrassment over again and again for a matter which has been concluded by e the police of Police Station Fat-.h Pur, further relying upon the case of Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95, the investigation of F.I.R. No.126/94, dated 15-9-1994 Police Station Mankera shall remain suspended till such time the controversy is finally resolved by the learned Family Judge, Multan who shall dispose of the same within four months. Copy of the judgment shall be forwarded by the learned Judge to S.H.O., Mankera Bhakkar for action or he himself shall initiate proceedings under section 195/476, Cr.P.C. accordingly. With this observation, this petition stands disposed of. A.A./W-59/L?????????????????????????????????????????????????????????????????????????????????????? Petition accepted.