2019 P Cr (PLP)

RAJA SAJJAD AHMAD KHAN, J.

Through this petition under section 561-A, Cr.P.C., the petitioners seek quashment of FIR bearing No. 227/2018 dated 18.08.2018 registered at Police Station, City Bagh in offences under sections 468, 471, 34, A.P.C. and section 10 of the Offence of Zina (Enforcement of Hadd) Act, 1985 on the complaint of Mohammad Bilawal Khan, respondent No. 5.

2. Facts narrated in the instant application are that applicants contracted marriage on 20.07.2018 at Sahlian their native village in lieu of dower Rs.3,00,000/- (three lac rupees) in accordance with Sharia and custom. It is averred that applicants are legally wedded spouse who are living a happy life but in the meanwhile on the application respondent No.3 a baseless and fake FIR No.227/2018 has been lodged at Police Station, Bagh in offences under sections 468, 471, 34, A.P.C. and section 10 of the Offence of Zina (Enforcement of Hadd) Act, 1985. It is alleged that respondent No.5 managed a fabricated and forged Nikah-nama through which he is claiming that petitioner No.2 is his wife who entered into Nikah with him on 14.06.2018 at Karachi with her free will and consent. It is further stated that respondent No.5 has instituted a suit for conjugal rights before Family Court, Bagh while petitioner No.2 also filed a suit for jactitation of marriage before the same Court. It is further stated that impugned FIR has been lodged against the law and facts which is liable to be quashed.

3. Sardar Farrukh Ahmad Khan, the learned counsel for the petitioners reiterated the facts and grounds enumerated in the petition and stressed the point that the petitioners are legally wedded husband and wife. They are living together as spouse. Nikah of the applicants was executed on 20.07.2018 in accordance with law and Sharia and according to the prevailing customs of the society. The learned counsel further submitted that Nikahnama, produced by respondent No.5 is a forged fictitious and fabricated document which has been challenged before Family Court, Bagh through a suit for jactitation of marriage. The learned counsel finally prayed for quashment of impugned FIR.

4. On the other hand, Sardar M. R. Khan and Mohammad Naseem Mughal, Advocates, appearing on behalf of respondent No.5, while controverting the arguments raised by learned counsel for the petitioners, submitted that applicant No.2 was married with Bilawal, respondent No.5, with her free will and consent at Karachi on 14.06.2018, he further submitted that before entering into Nikah applicant No.2 Mst. Saima Siddique has executed an affidavit of her free will before justice of peace which is signed by the relevant authority, therefore, subsequent Nikah with Rashid Latif is a nullity in the eye of law and Sharia. He further submitted that the question of once or the other Nikah are questions of facts, which cannot be resolved in exercise of powers under section 561-A, Cr.P.C. The learned counsel finally craved for dismissal of the application.

5. I have heard the learned counsel for the parties and have perused the record made available on the file.

6. Whether the alleged Nikah dated 14.06.2018 was executed or not? is a question of fact, which can only be resolved by concerned Family Court where two suits (one filed by petitioner No.2 for jactitation of marriage and other by respondent No.5, for restitution of conjugal rights) are pending adjudication, therefore, this court, in exercise of powers under section 561-A, Cr.P.C. cannot resolve the controversy.

7. I have considered the FIR, its consequences and statement of petitioner No.2 who is living with the petitioner No.1 after contracting Nikah dated 20.07.2018. If, for the sake of arguments, earlier Nikah dated 14.06.2018 is declared valid by the competent Court then in what capacity petitioners are living together? and if earlier Nikahnama is declared forged and fictitious, then how the petitioners will be compensated for the agony under gone by them during the investigation. Keeping in view the overall circumstances of the case, in presence of factual controversy mentioned hereinabove which is yet to be resolved by the Family Court, at this stage, FIR bearing No.227/2018 dated 18.08.2018 cannot be quashed, however, it would be in the interest of justice, to suspend the operation of impugned FIR bearing No.227/2018 dated 18.08.2018 till the final disposal of the suits sub judice before the concerned Family Court and till final decision of the said suits the petitioner No.2 shall not reside with petitioner No.1.

8. Therefore, in the light of what has been stated above, the proceedings of impugned FIR bearing 227/2018 dated 18.08.2018 lodged at Police Station, Bagh shall be kept in abeyance till the final decision of the suits of parties for jactitation of marriage and restitution of conjugal rights. If petitioner No.2 fails to get a favorable decision, the Police shall be at liberty to proceed in(sic.) custody of her father who shall furnish an undertaking before Deputy Registrar of this Court to the effect that he shall ensure to keep his daughter in his safe custody and restrain her to meet with petitioner No.1 while the petitioners shall also furnish undertakings that they will reside separately till the decision of Family Court.

9. The concerned Family Court seized with the matter is directed to dispose of the cases between the parties within 60 days from the receipt of this judgment. The application stands disposed of in the manner indicated above. SA/17/Sh.C. (AJ&K) Order accordingly.