P L D 1980 Lahore 791 (PLP)

This writ petition has been filed by Habib son of Muhammad Nawaz with a prayer for quashment of F. I. R. No. 77 dated 27-4-1980, registered at Police Station Sahuka, District Vehari, at the instance of one Mukhtar Hussain.

2. Facts leading up to the filing of this petition are that a case was registered at the instance of Mukhtar Hussain (respondent No. 3) under section 16 of the Offence of Zina (Enforcement of Hadood) Ordinance VII of 1979, against the petitioner and four others. It was alleged in the F. I. R. that the complainant was married to one Mst. Khurshid Begum daughter of Muhammad Hussain. About two months ago, the complainant was away from his house to see his disciples as he is a pir and when he returned to- his house, he found his wife missing. On frantic search, whereabouts of the lady could not be known. However; Ghulam Qadir, Ashiq Hussain, etc., told the complainant that the lady was seen in the company of Habib and others waiting at a Bus Stop and, in fact, they saw them boarding a bus bound for Burewala. It was further alleged in the F. I. R. that Habib petitioner was on visiting terms with the complainant and taking undue advantage of his courtesy developed illicit intimacy with Mst. Khurshid Begum wife of the complainant and ultimately succeeded in enticing her away for immoral purposes.

3. Learned counsel for the petitioner has raised the following contentions : "(al Police in this case is not competent to investigate the offence as the complaint was not made by the husband of the woman, with regard to whom an offence under section 497 or section 498, P. P. C., is alleged. According to the learned counsel, complainant in this case is not the husband of Mst. Khurshid Begum. He has also referred to the provisions of sections 19 and 20 of Ordinance VII of 1979 to contend that section 156, Cr. P. C., would be attracted and its conditions must be first satisfied before any investigation is conducted by the police ; (b) Habib petitioner, being a lawful husband of Mst. Khurshid Begum and marriage having been regularly solemnized and registered under section 5 of the Muslim Family Laws Ordinance, 1961, the case, on the face of the F. I. R., is mala fide and is liable to be quashed ; (c) Mst. Khurshid Begum, on 30-4-1980, filed a suit for jactitation against the complainant which is pending adjudication before a Judge, Family Court, Sahiwal, and the present investigation against the petitioner and .others merited to be quashed on that count also. According to the learned counsel, the alleged marriage of the complainant with Mst. Khurshid Begum, on the other hand, was nowhere solemnized nor the requirements of law as laid down in the Muslim Family Laws Ordinance were complied with, therefore, the complainant himself is liable to be prosecuted ; and lastly. (d) The registration of the case is mala fide and has been made at the instance of other persons mentioned in sub-paragraphs (g) and (h) of paragraph 3 of the writ petition.

4. As regards the first point, one may refer to the provisions of subsection (4) of section 156, Cr. P. C., which reads "Notwithstanding anything contained in subsection (1), (2) or (3), no police officer shall investigate an offence under section 497 or section 498 of the Pakistan Penal Code, except upon a complaint made by the husband of the woman, or, in his absence, by some person who had the care of such woman on his behalf at the time when such offence was committed." . It is evident from the above provision that when an offence is tinder section 497 or section 498, P. P. C., then no police officer can investigate it unless a complaint is made by the husband of the woman, or, in his absence, by some person who had the care of such woman on his behalf at the time when such offence was committed. But the learned counsel for the petitioner has overlooked the provisions of clause (a) of subsection (3) of section 19 of Ordinance VII of 1979 which provides that sections 366, 372. 373, 375 and 376 of Chapter XVI and sections 493, 497 and 498 of Chapter XX of the Pakistan Penal Code shall stand repealed. It will be seen that sections 497 and 498 of the Pakistan Penal Code have been now repealed. Therefore, the conditions laid down in section 156(4) in Chapter XIV of the Cr. P. C., will not be required to be fulfilled before an investigation is undertaken by a Police Officer.

5. It will be beneficial here to see that what provisions of law have been made in Ordinance VII of 1979 in place of section 497 and section 498, P. P. C. and whether the wording of the new provisions is similar or different from the old sections. The new Ordinance has enacted sections 15 and 16 instead of section 497 and 498, P.P.C which read as follow. Pakistan Penal Code?????????????????????????????????????????????? Ordinance VII of 1979 "

497. Adultery.-Whoever has????????????????????????????

15. Cohabitation caused by a man sexual intercourse with a person???????????????????????? deceitfully inducing a belief who is and whom he knows or???????????????????????????? of lawful marriage.-Every has reason to believe to be the??????????????????????????? man who by deceit causes wife of another - man, without??????????????????????????? any woman who is not law- the consent or connivance of that??????????????????????? fully married to him to believe man, such sexual intercourse????????????????????????????? that she is lawfully married to not amounting to the offence of????????????????????????? him and to cohabit with him rape, he is guilty of the offence??????????????????????????? in that belief, shall be pun- of adultery, and shall be punished??????????????????????? ished with rigorous imprison- with imprisonment of either??????????????????????????????? ment for a term which may description for a term which may??????????????????????? extend to twenty-five years extend to five years, or with fine???????????????????????? and with whipping??????? not or with both. In such case the???????????????????????????? exceeding thirty stripes, and wife shall not be punishable as???????????????????????????? shall also be liable to fine. an abettor.

498. Enticing or taking away or??????????????????????????

16. Enticing or taking away or detaining with criminal intent a??????????????????????????? detaining with criminal intent married woman.-Whoever takes???????????????????????? a woman.-Whoever takes or or entices away any woman who????????????????????????? entices away any woman is and whom he knows or has???????????????????????????? with intent that she may have reason to believe to be the??????????????????????????????????? illicit intercourse with any wife of any other man, from?????????????????????????????? person or conceals or detains that man, or from any person????????????????????????????? with that intent any woman, having the care of her on behalf????????????????????????? shall be punished with that man, with intent that??????????????????????????????????? imprisonment of either des- she may have illicit intercourse?????????????????????????? cription for a term which may with any person, or conceals or?????????????????????????? extend to seven . years and detains with that intent any???????????????????????????????? with whipping not exceeding such woman, shall be punished?????????????????????????? thirty stripes, and shall also with imprisonment of either??????????????????????????????? be liable to fine. description for a term which may extend . to two years, or with fine or with both." A comparison of the above provisions of the two legislations will show that the provisions of new sections 15 and 16 of the Ordinance instead of sections 497 and

498. P. P. C., are quite different. Under sections 49 and 498, one of the conditions to constitute au offence was that adultery with a married woman or enticing away a married woman should not have been with the consent or connivance of the husband of that married :`' woman; otherwise, in such a case, no offence was to be constituted and no punishment, therefore; was possible. The philosophy underlying the principle that investigation can only be taken on the complaint of a husband seems to be clear because the husband was to be aggrieved only in case he had not given any consent or was not conniving to the alleged offences. I may point out that under the same Code, section 199 provides : "

199. Prosecution for adultery or enticing a married woman.-No Court shall take cognizance of an offence under section 497 or section 498, of the Pakistan Penal Code, except (a) Upon a report in writing made by a police officer on the complaint of the husband of the woman, or, in his absence, by some person who had care of such woman on his behalf at the time when such offence was committed ; or (b) Upon a complaint made by the husband of the woman or, in his absence, made with the leave of the Court by some person who had care of such woman on his behalf at the time when such offence was committed: Provided that, where such husband is under the age of eighteen years, or is a lunatic, or is from sickness or infirmity unable to make a complaint, some other person may, with the leave of the Court, make a complaint on his behalf: Provided further that where such husband is serving in any of the armed forces of Pakistan, under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, and where for any reason no complaint has been made by a person having care of the woman as aforesaid, some other person authorised by the husband in accordance with the provisions of subsection (1) of section 199-B may, with the leave of the Court, make a complaint on his behalf." Sections 199-A and 199-B need not be quoted as they only amplify the alternate situations covered by section

199. However, from the above provisions of section 159, it is further clear that even Court was not competent to take cognizance of offences under. sections 497 and 498, P. P. C., unless and until upon a complaint made in writing by a police officer who investigated the case on the complaint of the husband of the woman, or, when the case was to betaken to the Court through a complaint, then the cognizance was to be taken on the complaint made by the husband of the woman. In this behalf, learned counsel for the petitioner ha further overlooked the provisions of subsection (3) of section 20 o Ordinance VII of 1979 which provides that the provisions of section. 198, 199, 199-A or 199-B of the Cr. P. C. shall not apply to the cognizance o an offence punishable under section 15 or section 16 of the Ordinance. Thus, the application of section 198, 199, 199-A or 199-B ibid has bee excluded when cognizance is taken of an offence under section 15 or section 1 of the Ordinance and it is not the requirement of law now that the complain should be made by the husband the woman or that the Court c nno take cognizance except upon a complaint in writing by a police office who investigated the case on the complaint of the husband. On the othe hand, the Court can now take cognizance on the complaint of any J,person. The principle behind the repeal of sections 198, 199, 199-A and 199-B has become very obvious because the ingredients to constitute offences under sections 15 and 16 of the Ordinance are quite different from those necessary to constitute offences under the repealed sections 497 and 498, P. P. C. The wording of section 15 of the Ordinance does not envisage any consent or connivance of the husband of the woman in commission of an offence under that section. Similarly, section 16 does not only provide a situation for enticing away or detaining with criminal intent a married woman, it is quite enough to include enticing away or detaining with criminal intent any woman whether married or not and, therefore, it is not the requirement of law that the complaint should only be made by the husband in the above two cases. Under sections 15 and 16 of the Ordinance, the Court can, in view of the above discussion, take cognizance whether the complaint was made by the husband or any other person:

6. Now the only question remains whether subsection (4) of section 156, Cr. P. C., is applicable- to the cases under sections 15 and 16 of the Ordinance. The answer is obviously in the negative. Subsection (4) ,of section 156 ibid provided for a special situation relating to offences under sections 497 and 498, P. P. C. Both these sections have been repealed and new provisions of law have been made by way of sections 15 and 16 of Ordinance VII of 1979 and not only that, sections 198, 199, 199-A and 199-B of the Cr. P. C., relating to cognizance of offences under the repealed sections, have also been repealed by the same Ordinance. The words used in section 20 of the Ordinance that the provisions of the Code of Criminal Procedure shall apply, mutatis mutandis, in respect of the cases under the Ordinance, would be interpreted subject to the repeal made by the Ordinance in the provisions of the Criminal Procedure Code. By subsection (4) of section 156, Cr. P. C., police officers were not empowered to investigate offences under sections 497 and 498, P. P. C., except upon a complaint made by the husband of the woman. Since both these sections have been repealed, therefore, the provisions contained in subsection (4) of section 156 regulating the procedure for taking cognizance thereof, have become redundant and cannot be now attracted to the provisions of sections 15 and 16 of the Ordinance, because the provisions of these two sections are quite different from the provisions of sections 497 and 498, P. P. C. Although subsection (4) of section 156, Cr. P. C., should have been specifically repealed but applying and considering the other provisions ~,????????????????????????????????????????????????????????????????????? mentioned above, the provision has become redundant and shall be considered ??????????????????????????????????????????????????????????????????????? to be repealed by implication.

7. Be that as it may, even if section 156(4), Cr. P. C., is applicable to the present case, the F. I. R. has been lodged by Mukhtar Hussain who claims himself to be the husband of the woman Mst. Khurshid Begum who is alleged to have been enticed, away by the accused persons mentioned in the F. I. R. Learned counsel for the petitioner has vehemently argued that Mukhtar Hussain respondent is not the husband of Mst. Khurshid Begum and, on the other hand, has relied upon a nikahnama by which f?????????????????????????????????????????????????????????????????????? Mst. Khurshid Begum has married to Habib petitioner on 12-4-1980. A certified copy of the nikahnama is Annex B' to the grit petition. However, prima facie, from the contents of the F. I. R., Mukhtar Hussain claims himself to be the husband of Mst. Khurshid Begum. Mumtaz Hussain, A. S. I., who is present with the record, has placed on record an affidavit sworn by Maulvi Allah Bakhsh, Nikah Khawan stating that the nikah of Mst. Khurshid Begum was performed by him with Mukhtar Hussain son of Muhammad Arif in presence of the witnesses whose names are duly mentioned in the affidavit. A note at the foot of the affidavit states that as on 8-7-1979, the date of nikah, the register of nikah was already over and new register was not available, therefore, the nikah could not be entered in the prescribed register. Learned counsel for the petitioner has stressed that since the nikah was not registered according to the provisions of the Muslim Family Laws Ordinance. therefore, a presumption should be raised that there was no nikah, hence Mukhtar Hussain cannot claim to be the husband of Mst. Khurshid Begum. Without prejudice to the case of either party, I may straightway observe C that under Islamic Law, nikah can be performed orally and such a nikah is not 1v Ll ) in a idated merely because it is not registered according to the provisions of the Muslim Family Laws Ordinance, 1961. However, that rdinance provides a punishment if one contravenes the provisions regardin he registration of nikah, In this view of the matter, the investigation b the police t e instant case cannot be declared to be without lawful, authority.

8. With regard to the question of mala fides, suffice it to observe that it would require recording of evidence which is not possible in writ jurisdiction of this Court.

9. The result of the above discussion is that this petition fails and is dismissed but there shall be no order as to costs. s. G. D.???????????????????????????????????????????????????????????? Petition dismissed.