2005 PLP 2500 (YLR)

This is an application under section 561-A, Cr.P.C. for quashment of FIR. No.169 of 2003 lodged by Khan Muhammad (respondent No.1) against the three applicants. At the outset Mr. Allah Bachayo Soomro and learned Asstt: A.G. appearing for the respondents submitted that this application is not maintainable before this Court in view of the bar under Article 203-DD and 203-G of the Constitution of Pakistan. According to them the right forum for the applicants was to approach the Federal Shariat Court and not the High Court. Learned counsel for the applicants have not been able to rebut this position. The facts of the case are that Mst. Seema Soomro daughter of Abdul Jabbar Soomro was married sometime in 1995 with one Zulfiqar Soomro son of Nazis Ahmed Soomro. However, the marriage did not succeed and Mst. Seema filed a Suit No.42 of 2001 for dissolution of marriage before the Family Court. This suit was decreed by judgment dated 16-4-2002 and the marriage was dissolved by way of Khula. No appeal has been filed against this judgment though the suit was proceeded ex parte. The decree attained finality. The applicant No.1 claims that Seema Soomro married with him sometime in June, 2002 vide Nikahnama dated 17-6-2002 annexure B to the petition. It further appears that Seema filed a Suit No.9 of 2002 against present applicant No.1 for dissolution of marriage. However, on 20-9-2003, this suit was dismissed for non-prosecution (See Annexures C and D to the petition). The respondent No.1 filed F.I.R. No.169 of 2003 under sections 11 and 16 Offences of Zina (Enforcement of Hudood) Ordinance, 1979 on basis of Nikahnama dated 23-7-2003 alleging therein that Seema was his wife and has eloped with applicant No.1, Iftikhar Ahmed. Photostat copy of the Nikahnama produced by Mr. Allah Bachayo Soomro is taken on record and marked as annexure D/

1. Both Iftikhar and Seema Soomro who are present in Court are claiming that they are husband and wife whereas Khan Muhammad is claiming that Seema is his wife. Both are disputing their respective Nikahnamas. Without prejudice to the contentions of the parties to be raised by them in the proper forum, the dispute can only be resolved by the Family Court after entering into a full-fledged inquiry as to the genuineness of the marriage between the respective parties in the suits of Jactitation of marriage. With respect, this is not a case, which should have gone to the criminal Court, as the criminal Court is not competent to decide and declare about the legality of the respective Nikah's. However, it is up to the trial Court and the appropriate forums to look into this aspect and decide the matter in accordance with law. At present it is also noted that in the F.I.R. No.169 of 2003, the lady has not been shown as an accused but only Iftikhar and two others. It was found that petitioner Nos.1 and 2 have not appeared before the trial Court whereas the petitioner No.3 is in custody. Learned counsel for the petitioner submitted that the petitioner No.1 who is present in Court has already been granted protective bail by another Bench of this Court. This application is disposed of in terms of the above. H.B.T./I-32/K Order accordingly.