2019 PLP 1575 (YLR)

M. TABASSUM AFTAB ALVI, C.J.

The captioned application has been filed for quashment of the impugned FIR No.365/2017, dated 10th October, 2017, registered against applicants at Police Station City, Muzaffarabad, upon the application of Muhammad Ilyas Khan, complainant-respondent No.2, in offences under sections 10, 16 and 19, ZHA. It is averred in the application that a frivolous and concocted FIR has been registered against applicants. It is further claimed that applicant No.1, is an adult lady and she with her free-will contracted 'Nikah' with Muhammad Farooq, applicant No.2, therefore, craved that by accepting the instant application, the aforesaid FIR may be quashed.

2. The application was resisted by filing parawise comments on behalf of respondents Nos. l and 3, however, complainant-respondent No.2, failed to file objections.

3. Mr. Anees-ul-Arfeen Abbasi, the learned Counsel for applicants, submitted with vehemence that applicant No.1, being a sui-juris lady contracted 'Nikah' with applicant No.2, as per her free consent, on 24th September, 2017; however, complainant, who is brother of applicant No.1, got registered a frivolous case against applicants; therefore, by accepting the instant application the impugned FIR No.365/2017, dated 10th October, 2017, may be quashed to secure the ends of justice.

4. Conversely, Mr. Shakeel Akber Abbasi, the learned Counsel for complainant-respondent No.2, contended that on 24th September, 2017, applicant No.1, remained with complainant in Muzaffarabad till 7:30 p.m., therefore, on the same day solemnization of 'Nikah' at Rawalpindi was impossible; hence, offences mentioned in FIR are attracted. He submitted that in circumstances of the case, the FIR ought not to be quashed; hence, craved for dismissal of application.

5. I have heard the learned Advocates for applicants as well as contesting private respondent and gone through the record with utmost care.

6. The matter in hand pertains to quashment of FIR No.365/2017, dated 10th October, 2017, registered against applicants at Police Station City, Muzaffarabad, upon the application of Muhammad Ilyas Khan, complainant, in offences under sections 10, 16 and 19, ZHA.

7. It is pertinent to observe here that ordinarily this Court does not interfere in the investigation of a criminal case; however, if the Court comes to a conclusion that accused is innocent and his/her conviction is impossible, then this Court is duty bound to quash the criminal proceedings. The aforesaid view stands fortified from a case reported as Allah Ditta and 3 others v. The State and 3 others [1995 PCr.LJ (Lahore) 1668], wherein, it was opined as under:- "The contention of the learned Counsel indeed carries weight as ordinarily the High Court does not interfere in the investigation of a criminal case to obstruct or divert the ordinarily course of criminal procedure if it comes to the view that a prima-facie case is disclosed but where the Court comes to a clear conclusion without any manner of doubt that the accused persons are innocent and for that in any view of the matter their con-viction is quite impossible it is duty bound to quash the criminal proceedings in accordance with law."

8. Applicant No. 1, Mst. Shabana Kausar, personally appeared before this Court on 16th October, 2017, and deposed at Bar that she being sui-juris contracted marriage as per her free-will, to Muhammad Farooq, applicant No.2, and nobody abducted her. Moreover, she affirmed ingredients of 'Nikahnama' dated 24th September, 2017, and categorically admitted her 'Nikah' as valid. Therefore, in such like situation when applicant No.1, has admitted her 'Nikah', hence, it has become crystal clear that allegation of her abduction is baseless. The statement of a woman, in such like cases, is of vital importance to decide the controversy between the parties. Moreover, according to the injunctions of Islam, the consent of adult sane couple is sufficient for 'Nikah'. The applicants Nos.1 and 2 being sui-juris have lawfully married to each other and in these circumstances the alleged offences in FIR are not made out and continuance of proceedings under the circumstances against the spouses, who have a suckling child too, and others may amount to unnecessary harassment. My aforesaid view finds support from an unreported judgment of the Hon'ble Supreme Court of Azad Jammu and Kashmir titled Syed Azad Hussain Shah v. Syeda Saba Asghar and others (Civil P.L.A. No.86 of 2012) decided on 19.6.2012. The Apex Court in the identical given case has not granted leave to appeal against an order of the High Court dated 23.4.2012, through which FIR No.124 was quashed. In this regard, the relevant portion of the judgment supra is reproduced as under:- "Moreover, the statement of Mst. Saba Asghar, respondent No.1, which is a most relevant evidence in this Court, have categorically stated that she entered into Nikah with the deceased on her own will and no one has abducted her. In the presence of the said statement, no further evidence is required in this Court. The marriage is a civil contract and every Muslim of sound mind, who has attained puberty, can enter into contract of marriage and it is void only when it is solemnized without his/her consent. According to principle of Muhammadan Law the presumption of valid marriage can be ascertained from the fact of acknowledgement by a man or woman as husband and wife.

9. It is well established principle of law that each and every case has its own peculiar facts and circumstances, hence, it should be judged in light of its peculiar facts. As discussed above, applicant No.1, has categorically admitted her 'Nikah' with applicant No.2; therefore, their Nikah dated 24th September, 2017, is declared valid and proceedings initiated against applicants through the impugned FIR are accordingly liable to be quashed.

10. The nub of above discussion is that I accept the instant quashment application and FIR No.365/2017 dated 10th October, 2017, registered at Police Station City, Muzaffarabad, against applicants, on the complaint of Muhammad Ilyas Khan, complainant, in offences under sections 10, 16 and 19, ZHA, stands quashed. JK/3/Sh.C.(AJ&K) Application accepted.