2005 PLP 814 (YLR)

Aftab Ahmad Bajwa for the Complainant. Mian Abdul Qayyum Anjum for the State with Ali Muhammad A.S.‑I. This order will dispose of Crl. Misc. No.4006‑B/2004 seeking post‑arrest bail of Asim Ali and Mst. Humera Yasmin in case F.I.R. No.94, dated 21‑4‑2004 registered under sections 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and W.P. No. 7812 of 2004 seeking quashment of the said F. I. R.

2. F.I. R. sought to be quashed was registered upon the statement of Haji Sadiq Hussain (father of Mst. Humera Yasmin). In brief the case of the prosecution as narrated therein is that Mst. Humera Yasmin was given into the Nikah of one Muhammad Irfan son of Haji Muhammad on 26‑2‑2004 but the Rukhsati had not taken place and that on 18‑4‑2004 at about 7‑00 p.m. Mst. Tahira daughter of M.A. Naz along with Umar Yousaf son of Muhammad Yousaf and one unknown person had abducted her for the purpose of fornication.

3. Through the instant Constitutional Petition prayer has been made for the quashment of the said F.I. R. on the grounds that Mst. Humera Yasmin was never given in the Nikah of Muhammad Irfan as alleged in the F. I. R. and that she being sui juris contracted marriage with Asim Ali petitioner No. 1 with her own free‑will and consent and has not committed any offence falling within the ambit of sections 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979. On the other hand, learned counsel for the complainant as well as the State submit that Mst. Humera Yasmin was given in the Nikah of Muhammad Irfan on 26‑2‑2004, in support of the same counsel has also produced copy of Nikahnama showing her Nikah with Irfan and duly signed by Mst. Humera Yasmin. It was argued that during the subsistence of her first Nikah with Irfan she cannot contract second marriage with Asim Ali petitioner and that in the circumstances the petitioners are leading an immoral life and they are guilty of offence under sections 10/11 of the ibid Ordinance.

4. Heard. File perused.

5. The fact the Mst. Humera Yasmin petitioner No.2 is a sui juris and can contract marriage with her own free‑will is not denied. Statedly, she has contracted marriage with Asim Ali petitioner on 3‑3‑2004 with her own free‑will and consent. As far her Nikah with Muhammad Irfan as stated in the F.I.R. which was performed on 26‑2‑2004 is concerned, under the orders of this Court signatures of Mst. Humera Yasmin have been obtained by the Reader on a separate paper which has been placed on record as Mark `A'. Prima facie the said signatures are different from the signatures of Mst. Humera Yasmin shown on the Nikahnama relied upon by the prosecution. Mst. Humera Yasmin has also denied her Nikah with said Muhammad Irfan as alleged in the F.I.R. In the light of the said circumstances, registration of case F.I.R. No. 94, dated 21‑4‑2004 under sections 10/11 of the Offence of Zina (Enforcement of Hudood). Ordinance VII of 1979 is nothing but an abuse of process of law. Accordingly, this petition is allowed, and the said F.I.R. stands quashed. However it is observed that complainant would be at liberty to get register a fresh case after obtaining appropriate orders from the competent Court about the genuineness of the document i.e. Nikahnama find mentioned in the F.I.R. It is further, made clear that in case any suit is filed by the complainant about the genuineness of the Nikahnama the same shall be decided on merits without being prejudiced by any suit is filed by the complainant about the genuineness of Nikahnama the same shall be decided on merits without being prejudiced by any observation made by this Court. As the above said F.I. R. has been quashed, Crl. Misc. 4006/2004 seeking pre‑arrest bail to the petitioners, has become infructuous and the same stands disposed of. H.B.T./A‑321/L F. I. R. quashed.