2006 PLP 1980 (YLR)

M. A. SHAHID SIDDIQUI, J.

Syed Rafaqat Ali Shah and Mst. Nusrat Parveen petitioners through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, have sought quashing of F.I.R. No.34, dated 9-5-2005 registered at Police Station, Malka Hans, District Pakpattan Sharif under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

2. On 21-4-2005, Muhammad Iqbal respondent No.2 moved an application to the learned Sessions Judge/Justice of Peace, Pakpattan Sharif under section 22-A, Cr.P.C. for the Issuance of a direction to the S.H.O. respondent No.1 to initiate action under section 154, Cr.P.C. on the complaint of Muhammad Iqbal respondent No.2.

3. As per complaint Mst. Nusrat Parveen, petitioner No.2 was preparing for B.A. Examination of Allama Iqbal Open University, Islamabad. She used to attend Al-Hamd Foundation School, Chak No.32/SP, District Pakpattan Sharif from 10-00 a.m to 12'O Clock for tutorial guidance. This Institution was privately run by petitioner No.1 and his parents. One year prior to the institution of the complaint the parents of petitioner No.1 had asked for the hand of the complainant's said daughter. The proposal was turned down because the Nikah of Mst. Nusrat Parveen had been solemnized with one Azhar Iqbal on 15-3-2004. The complainant alleged that on 30-3-2005 his daughter went to her school but did not return. Subsequently it transpired that Mst. Nusrat Parveen had been seen boarding a bus at Bus Stop Chak No.32/SP along with petitioner No.1 and his parents. The complainant alleged that his said daughter had been abducted by the accused for the purpose of Zina.

4. Mst. Nusrat Parveen, petitioner No.2 also made a complaint seeking registration of case against Azhar Iqbal and? eight others including her father Muhammad Iqbal for offences under sections 420, 467, 468 and 471, P.P.C. In this complaint she maintained that she had contracted marriage with Syed Rafaqat Ali, petitioner No.1 of her own will and volition. She denied her Nikah with Azhar Iqbal and described the Nikahnama dated 15-3-2004 as a forged document. She disclosed that she had challenged the validity of the said Nikah by means of a suit for jactitation of marriage in a Family Court at Depalpur.

5. The learned Sessions Judge/ex?officio Justice of Peace after taking into consideration the contentions of both the parties and going through the record directed the local police to proceed under section 154, Cr.P.C. and investigate the matter strictly in accordance with law vide an order dated 3-5-2005. Pursuant to which Malka Hans Police registered a case. Hence, this petition.

6. After hearing the learned counsel for the parties and going through the record, I have noticed that the main factual controversy regarding the validity of the Nikah of Mst. Nusrat Parveen with Azhar Iqbal is pending adjudication before the Family Court. The fate of criminal case hinges on the decision of the suit for jactitation of marriage which Mst. Nusrat Parveen had filed prior to the registration of the case. This Court in the exercise of Constitutional jurisdiction cannot resolve factual controversies, therefore, this Court does not consider it proper to quash the F.I.R.

7. The concession of pre-arrest bail allowed to the petitioners by this Court on 13-5-2005 is, however, confirmed subject to furnishing bail bonds by the petitioners in the sum of Rupees Thirty Thousand each with one surety each in the like amount to the satisfaction of the learned Sessions Judge, Pakpattan Sharif on or before the 15th of September, 2005. The petitioners shall join the investigation in order to enable the police to complete the investigation and submit the challan. The commencement of the trial shall be subject to the decision of the suit for jactitation of marriage filed by Mst. Nusrat Parveen. This petition is disposed of with the above directions. H.B.T./R-20/L???????????????????????????????????????????????????????????????????????? Order accordingly.