2004 PLP 2195 (YLR)

3. Learned counsel for petitioner, Mst. Naushina Naeem and Muhammad Naeem, who were allowed pre‑arrest bail in Criminal Miscellaneous No.7360‑B of 2002, has argued that both Naushina Naeem and Muhammad ‑Naeem are admittedly major, Naushina being 19 years of age and Naeem being 26 years of age, both are educated and are working in a Travel Agency in Dubai 'and both of them contracted marriage with their consent on 14‑7‑2001, at Lahore and Nikahnama was duly registered with Union Council No.160, Samanabad, Nawan Kot, Lahore; that a copy of Nikahnama was produced before the Consul General of Pakistan in Dubai, who issued a certificate on 30‑9‑2001, to the effect that valid marriage had been entered into between petitioners under the Laws of Pakistan and had been registered on 14‑7‑2001, at Lahore; that Naushina Naeem gave birth to a female child on 10‑4‑2002, at Zakir Sayal Rasul Khaima in the U.A.E., who was named Maleeha Naeem and a certificate regarding the birth of Maleeha Naeem was issued by the Consul General of Pakistan in Dubai on 20‑4‑2002 to this effect, that Naushina had her National I.D. Card No.275‑83‑415697 which was issued on 31‑7‑2001, in which it is regarded that she is wife of Muhammad Naeem; that all these above mentioned facts militate against the contents of the F.I.R,, which was got registered by Qasim Riaz, on the instigation of, Zafar Ullah, father of Naushina, reason being that Naushina had contracted marriage with Muhammad Naeem without the consent of her father Zafar Ullah, who had filed an application with the U.A.E. Authorities to the effect that marriage was not valid since according to the U.A.E. .Laws, she cannot contract marriage without the consent of her Wali unless she crosses the age of 21 years; that on aforesaid application of Zafar Ullah, the U:A.E. Court separated Naushina and her husband Muhammad Naeem while of marriage not having been contracted with toe consent of Zafar Ullah but Naushina was allowed to retain the custody of unborn child, whose parentage is recorded as child of Muhammad Naeem by the order of the Court of U:A.E. Learned counsel has produced a copy of newspaper clipping regarding the annulment of marriage entered into between Naushina and her husband, in which it has been mentioned that Shariah Court of the U.A.E. had ordered annulment of the marriage of the parties since it did not have approval of father of girl and custody of Naushina was given to Zafar Ullah, and the Court while dissolving the marriage, had held that no adultery had been committed and a child which is going to be born after one month of decision, would be registered as child of Muhammad Naeem.

4. According to learned counsel, Zafar Ullah had brought Naushina forcibly to Pakistan and after torturing and keeping her in illegal confinement, she was allegedly married to one Qasim Riaz and her father insisted that she should file a suit for dissolution of marriage against Muhammad Naeem but she refused. According to learned counsel Naushina was produced before this Court in Writ Petition No. 13479 of 2002 on 25‑7‑2002, where the statement of Naushina Naeem was procured under coercion by Qasim Riaz, which was to the effect that she was lawfully wedded wife of Qasim Riaz and a criminal case be registered against Muhammad Naeem‑for claiming her as his wife and order was procured in that petition by concealing all the facts' and by holding suckling baby of Naushina as hostage but thereafter Muhammad Naeem came back from Dubai and Naushina 'succeeded in joining her husband and they filed the present petition seeking quashment of the F. I. R., which had been got registered against them by Qasim Riaz and the facts as recorded in the F.I.R. are totally false and concocted by Qasim Riaz in collusion with father of Naushina and that further improvement had been trade in the F.I.R. through supplementary statement which was recorded on the next day after registration of the F.I.R., in which four other persons were implicated as accused.

5. Learned counsel has argued that Nikah of Naushina and Muhammad Naeem took place on 14‑7‑2001, i.e. one year and three months prior to the registration on F.I.R. while the alleged marriage between Naushina and Qasim Riaz took place three months ago i.e. in May, 2002, the documentary evidence of the same has not been produced and the F.I.R. on the face is mala fide and concocted and therefore, the same merits quashment. Learned counsel has relied on an unreported judgment of my learned brother Khawaja Muhammad Sharif, J., passed in Writ Petition No.5943 of 2001, in which similar circumstances subsequent Nikah had been declared invalid and F.I.R. had been quashed.

6. Learned counsel, who is appearing in connected bail applications, has also adopted the name arguments as advanced by learned counsel of Mst. Naushina Naeem and Muhammad Naeem and has also pointed out that since the petitioners in the bail applications are nominated in the supplementary statement, therefore, it is a case of further inquiry.

7. There are two learned counsel for the complainant in two bail applications and in this writ petition, who have argued that admittedly marriage between Naushina Naeem and Muhammad Naeem was contracted without the consent of parents and after the marriage the spouses had gone to Dubai and on the application of Zafar Ullah, the marriage of the parties had been annulled on 23‑1‑2002 by the U.A.E. Court, which was upheld by the Shariat Court of the U.A.E. on 9‑3‑2002. After the marriage, had been annulled by the Court of competent jurisdiction, Naushina's hand in marriage was given to Qasim Riaz on 31‑5‑2002, and Naushina started living with Qasim Riaz and she lived with Qasim Riaz from 31‑5‑2002 to 23‑8‑2002, after which she again join Muhammad Naeem, therefore, their co habitation is illegal and they are liable to be prosecuted for Zina. Learned counsel has adverted to the provisions of section 4, Offence of Zina (Enforcement of Hudood) Ordinance, 1979, which is as under:‑‑ A man and a woman are said to commit 'Zina' if they wilfully have sexual intercourse without being validly married to each other. Therefore, the offence as mentioned in the F.I.R. is supported by sufficient evidence and all the persons, who have assisted in the commission of offence are correctly implicated as co‑accused and the matter of custody of suckling baby Maleeha may be decided independently and investigation in F.I.R. 252 of 2002 be allowed to continue particularly since the F I.R. regarding the alleged abduction of Naushina has already been registered in Dubai on the statement of Zafar Ullah and is under investigation.

8. Learned counsel, who are opposing the bail applications, relied on the case cited as Razzaq Ahmed v. State 2002 SCMR 1876 to argue that two accused who were arrested on the basis of supplementary statement, their bail was declined upto Supreme Court.

9. I have heard learned counsel for `the parties and I have also gone through the documents appended with this petition. According to these documents, the marriage was contracted between Naushina and Muhammad Naeem on 4‑7‑2001, which was duly registered and a child was born from wedlock of the parties in Dubai on 10‑4‑2002, and paternity of child has been entered as Naeem Afzal by the Hospital Authority and the name of mother of child was entered as Naushina Zafar wife of Naeem Afzal; and a certificate has also been issued by Consul General of Pakistan in Dubai to the effect that Nikahnama of the parties dated 14‑7‑2001, has been registered in Pakistan according to Pakistani Laws. ‑‑

10. Both the parties had also appeared before this Court on 25‑10‑2002 and had got their statements recorded to the effect that they have entered into valid marriage on 14‑7‑2001. Prior to this writ petition Naushina had also filed Writ Petition No.13479 of 2002, asserting that she was married to Qasim Riaz, complainant in present F.I.R. but Naeem Afzal is illegally asserting that she is his wife, although, there is no valid contract of marriage between her and Naeem Afzal, Writ Petition No. 13479 of 2002, was disposed of with the observation that there appears to be a factual controversy as to who is husband of Naushina, therefore, no direction could be given to police for registration of F.I.R. against Naeem Afzal on the basis of statement of Naushina in the Court.

11. Naushina again appeared before this Court on 25‑10.‑2002. She had state that her earlier statement had been procured by Qasim Riaz by threats and coercion since he was holding hostage her daughter Maleeha and he had threatened that he will do away with Maleeha if she did not make statement in the Court according to his instructions. Today, she has again reiterated her previous statement given on 25‑10‑2002 that she had contracted marriage with Naeem Afzal on 14‑7‑2001. Suckling baby Maleeha is with her, who is born out of marriage of Naushina and Muhammad Naeem. According to the documents available on the file, the marriage between Naushina and Naeem had been contracted according to Pakistani Laws and both the contracting parties were competent to contract marriage according to laws of Pakistan. The marriage of Naushina with Qasim Riaz could not be contracted during subsistence of earlier marriage even if the decree had been procured from the Court of foreign jurisdiction to the effect that marriage was nullified on the basis of lack of consent of father of Naushina. The birth of Maleeha has been registered in the foreign jurisdiction where the parentage of Maleeha has been entered as Naeem Afzal and the Court had annulled the marriage while observing that Mst. Naushina is about to deliver a child from marriage of Naeem Afzal. According to the Pakistani Laws and also according to the Laws of the U.A.E., Maleeha is legitimate child of marriage of Mst. Naushina and Muhammad Naeem and any subsequent coercive contract, which was purportedly entered into by Naushina and Qasim Riaz would be considered void in the given circumstances.

12. In view of above discussion, prima facie Mst. Naushina Naeem had validly contracted marriage with Naeem Afzal and the F.I.R. No.252 of 2002 is based on mala fide and incorrect statement of facts. This writ petition is accordingly accepted and the F.I.R. No.252 of 2002, is quashed.

13. The Bail Applications Nos.7675‑B of 2002 filed by Niaz Ahmad and 7667‑B of 2002, filed by Maqsooda Bibi are allowed since F.I.R. No.252 of 2002, is no longer in existence. They may be released without any bail bond, if they are not required in any other criminal case. H.B.T./N‑44/L Petition accepted.