2004 PLP 410 (YLR)

Petitioner Mst. Hayat Bibi through the instant Constitutional .petition has sought for quashing of the F.I.R. No.83 dated 19-5-2003 under sections 10/ 11 of the Offence of Zina (Enforcement of Hudood) Ordinance (No.VII of 1979) registered with Police Station Tirkhanwala, District Sargodha.

2. The said case has been registered on the statement of Zahoor Hussain, respondent No.3. He has alleged in the F.I.R. that on the night between 18/19-5-2003, he alongwith his family as usual went to sleep in his house. He when woke up and found that his virgin daughter Mst. Hayat Bibi aged about 18 years was not present in the house. He searched for her. On 19-5-2003 at about 7-00 a.m. he reached Adda Rabana. Ghulam Abbas and Riaz Hussain met him there. They told him that they had seen her with Sikandar Hayat, Nasrullah Khan and Imtiaz Hussain and they therefrom has boarded a Hilux, which went towards Farooka. He had been searching for them but they were not traceable. They (accused) had abducted her for Zina.

3. Report and parawise comments .to the petition were sought for from respondent No.2/S.H.O., Police Station Tirkhanwala, who has submitted the same.

4. She (petitioner) is present in Court with her' counsel. She on query by the Court has submitted that she is sui juris and her parents of their own accord had married her to accused Sikandar Hayat and in the same her consent was also there and she thereafter had lived with him as his wife. She has given birth to a son namely Nauman Sikandar on 19-11-2003, who is with her. She has also stated that due to domestic dispute her parents have turned hostile to her and her husband and her father falsely and maliciously had got registered the case against her husband and others and in the same the police had also intended to arrest her being consenting party' to Zina, while it is against the facts and due to said intention of the police she had applied for pre-arrest bail before the Sessions Court at Sargodha and she is on interim bail therefrom till 11-12-2003. She has clearly denied that she was abducted by any one or that she indulged in Zina.

5. Her learned counsel has submitted that in view of the above position her case is liable to be quashed and if the same is allowed to be proceeded with the same will be mere abuse of process of law and nothing more; and that in such circumstances, there is no chance of any body's ultimate conviction in the same. He in this regard has placed reliance upon the case of Muhammad Bashir v. Muhammad Usman and others 2003 SCMR 1339, Mst. Naseer Khatoon v. The S.H.O., Police Station City, Mianwali and another 1994 PCr.LJ 1111 Lahore and Mst. Gulnaz Bibi v. Mian Muhammad Younas, S.-I. and 2 others 2003 MLD 1608 Lahore.

6. The learned A.A.-G. has submitted) that petitioner is a star witness of the prosecution but she has not supported the allegation contained in the F.I.R. He has also submitted that during the investigation, the Nikahnama between her and Sikandar accused has been found to be correct and in accordance with law and that in view of her statement before this Court, there is no chance of conviction of the accused nominated in the F.I.R. ultimately, even if they may be put to trial.

7. Zahoor Hussain, her father has submitted that she had been abducted by the accused nominated in the, F. I. R.

8. After hearing the parties present, find that the petitioner has denied that she was abducted by the accused nominated in the F.I.R. as has been alleged by her father/complainant. She has categorically stated that she was married to Sikandar Hayat accused by her parents with their free will and her consent was also there in the same and she had not indulged in Zina with any one. She has also stated that she had given birth to a child namely Nauman Sikandar and her parents due to some domestic dispute have turned hostile to her and her husband and her father falsely and maliciously had got registered the case against him and his relatives.

9. The learned A.A.-G. has also submitted that in the investigation Nikah between her and Sikandar Hayat accused has been found to be correct and in accordance with law.

10. It has also been found from the copies of the documents annexed to the petition that she had applied for pre-arrest bail before the learned Sessions Court, Sargodha. She in the same had been granted interim relief therefrom. It was also her plea that the police had intended to array her as an accused in the case being consenting party to Zina.

11. In such circumstances, she when has refuted the allegation of her abduction as contained in the F.I.R. and pleaded the existence of valid marriage between her and Sikandar Hayat accused, .the same (F.I.R.) seems to be based upon falsity and mala fide on the part of the complainant. The same, therefore, is liable to be I quashed. In this regard reliance is placed the cases of Muhammad Bashir v. Muhammad Usman and others 2003 SCMR 1339, Mst. Naseer Khatoon v. The S.H.O., Police Station City, Mianwali and another 1994 PCr.LJ 1111 Lahore and Mst. Gulnaz Bibi v. Mian Muhammad Younas, S.-I. and 2 others 2003 MLD 1608 Lahore. .

12. The instant petition, therefore, is admitted to regular hearing and allowed and the F.I.R. mentioned above is quashed. H.B.T./H-188/L Petition allowed.