2005 P Cr (PLP)

Through this Constitutional petition, Mst. Asia Bibi, the petitioner, seeks quashing of F.I.R. No.131 of 2004, dated 10-3-2004, registered at Police Station Saddar Chiniot, District Jhang for offences under sections 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance No.VII of 1979, at the behest of Atta Muhammad son of Allah Ditta, alleged husband of the petitioner.

2. Briefly stated the facts of the case as revealed through contents of the writ petition were that the petitioner being sui juris had contracted a lawful marriage with one Muhammad Yaqoob son of Waris Ali of her own free-will and volition on 30-12-2002; that from that very day she had been living with her husband happily and had been enjoying a peaceful life; that respondents Nos.2 and 3 along with three others abducted her on gunpoint on the night intervening 23/24-1-2004; her husband Muhammad Yaqoob first filed a habeas petition before this Court and then got registered a case vide F.I.R. No.69, dated 9-2-2004 with Police Station Saddar Nankana Sahib for offence under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance No.VII of 1979; the petitioner being in unlawful custody after abduction, managed to run away and thereafter came to know that Zulfiqar Ali respondent No.2 had fabricated and manoeuvred a Nikahnama, whereupon she filed a suit for jactitation of marriage in the Family Court at Nankana Sahib on 3-3-2004, which is still pending adjudication. According to the petitioner, respondents Nos.2 and 3 in connivance with the S.H.O. respondent No.1 got registered case F.I.R. No.131 of 2004, dated 10-3-2004 with Police Station Saddar Chiniot for offences under sections 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance No.VII of 1979 against Muhammad Yaqoob, petitioner s husband and four others; she feeling lonely, insecure, and apprehending harm at the hands of the respondents made an application before the Judicial Magistrate praying therein that she be lodged in Dar-ul-Aman, on which she was sent to Dar-ul-Aman.

3. Quashing of the impugned F.I.R. has been sought on the grounds that the petitioner has contracted a valid and lawful marriage with Muhammad Yaqoob of her own free-will and consent and that the Nikahnama on the basis of which Zulfiqar Ali respondent No.2 claimed to be her husband, is a fake document manufactured by him; that a suit for jactitation of marriage filed by the petitioner against respondent No.2 on 3-3-2002 is pending adjudication before the Judge, Family Court at Nankana Sahib.

4. I have heard the learned counsel for the parties at length and have also gone through the record. Marriage of the petitioner with Muhammad Yaqoob is stated to have been performed with free-will, volition and consent of the petitioner. In so far as the earlier alleged marriage with Zulfiqar Ali respondent No.2 is concerned, the same is under close scrutiny before the Judge, Family Court, Nankana Sahib, where proceedings are already taking place. The best forum to decide whether the Nikah with Zulfiqar Ali was genuine or fake, is the Family Court before which both the parties would be at liberty to lead evidence for and against the proposition and then after properly examining the issue, the said learned Judge shall pronounce the judgment. Zulfiqar Ali respondent No.2 can produce his evidence oral as well as documentary in order to prove his case. Following the dictum laid down by the Honourable Supreme Court of Pakistan in the case of Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95, I am persuaded to stop the proceedings of case F.I.R. No.131 of 2004, dated 10-3-2004, registered at Police Station Saddar Chiniot, District Jhang for offences under sections 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance No.VII of 1979, till the decision of the Family Court concerned or in case any appeal is filed, till disposal of the appeal because the subject-matter of the dispute in the instant criminal case is similar to the civil suit under consideration of the Judge, Family Court. However, the Judge Family Court shall decide the suit within six months on receipt of this order.

5. I have been told that Muhammad Yaqoob son of Waris Ali, the proclaimed husband of the petitioner, had been arrested in case F.I.R. No.131 of 2004, dated 10-3-2004 registered at Police Station Saddar Chiniot, District Jhang for offences under sections 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance No.VII of 1979. keeping in view the background of the case, it would be unfair to retain said Muhammad Yaqoob in custody. Resultantly, by exercising the powers under section 497, Cr.P.C., I admit Muhammad Yaqoob son of Waris Ali to bail subject to his furnishing bail bond in the sum of Rs.20,000 (Rupees twenty thousand) with one surety in the like amount to the satisfaction of the learned Sessions Judge, Jhang.

6. However, there is no justification to quash the F.I.R. at this stage. The writ petition stands disposed of in the above terms. There will be no orders as to costs. H.B.T./A-378/L Order accordingly.