1997 PLP 1571 (MLD)

Rana Liaqat Ali and Rizwan Ahmad for Petitioners. Tassadaq Hussain Jillani for Respondents. Date of hearing: 8th November, 1993. This Constitutional petition has been filed by the petitioners for quashment of F.I.R. No.406/93 dated 2‑9‑1993 registered under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, at Police Station Shahdara, Lahore, by Muhammad Arif, Sub‑Inspector, pursuant to the receipt of a secret compliant that petitioner No. l being a spinster/unmarried was running a pregnancy of 5/6 months.

2. It has been contended on behalf of the petitioners that they are lawfully wedded to each other pursuant to the Nikah solemnized on 5‑1‑1993 that had been duly registered in accordance with law in the office of the Nikah Registrar Ward No.81, Union Committee, Ichhra, Lahore, on the same date. It was further submitted that the case in question had been registered against the petitioners out of sheer malice and with criminal intent of the complainant police officer Muhammad Arif, Sub‑Inspector without taking into consideration that petitioner No. l was living in happy matrimony with her husband/petitioner No.2 in a lawful manner, after having entered into a Nikah with him in accordance with the provisions of Muslim Family Laws Ordinance, 1961 and pursuant to the performance of Muslim Rites and Rituals of marriage; and that the said police officer had done so only to humiliate the petitioners, despite having been duly informed of the marital status of petitioner No. l in particular. In this respect, it was further argued, that the police was duly informed to that effect and the original Nikahnama produced in support thereof, but to no avail, as the concerned police officer was bent upon harassing the petitioners, and petitioner No. l in particular, by subjecting them to the humiliation of being prosecuted allegedly for a crime and a sin that was only a figment of imagination of the said police officer. It was further contended on behalf of the petitioners that to allow the police to go on harassing and humiliating the wife of petitioner No.2 (petitioner No. 1) by leaving her at the mercy of investigation, re investigation etc., end the fate of the case to be decided in the normal course, shall not only amount to the abuse of the process of law and the Court, but shall militate against the time‑honoured principle that enjoins maintaining the sanctity of Chadar and Chardewari, in addition to being in total violation of the law in general, and the Islamic law in particular to the effect that mere suspicion cannot be a basis of imposing the Hadd under the provisions of Offence of Zina (Enforcement of Hudood) Ordinance, 1979. It was further argued that the Nikeh Khawan, Muhammad Arif Chishti, the witnesses of Nikah in question, namely, Jamil Ahmed end Muhammad Ijaz, had not only confirmed their having performed the Nikah and being witnesses thereof, respectively, before the police, in person, but had also submitted their affidavits to that effect before this Court; in addition to the affidavits submitted by the respective parents of both the petitioners in support thereof; and that they were also present before the Court to confirm the contents thereof. Finally, summed it up by arguing that, consequently, the prosecution, launched by the police, was based on mala fides, without an iota of evidence in support thereof. Hence, the case deserves to be quashed.

3. The S.H.O. submitted that the investigation of the case in question, had been completed pursuant to the petitioners having associated themselves therewith; that although Nikahnama in question was duly registered but the witnesses thereof had made contradictory statements in respect of the date on which they had signed it, and that, therefore, he had come to the conclusion that prima facie the petitioners were guilty as alleged and that they may be proceeded against in accordance with law, but conceded that the complainant Muhammad Arif Sub‑Inspector had registered a complaint on the basis of ' secret information' only and that there was neither any witness to substantiate the allegation nor any other evidence to create doubts about the authenticity of the Nikahnama in question.

4. On the other hand, the learned Advocate‑General, Tassaduq Husain Jilani, straightway submitted that he was not happy with the mode and manner in which the case in question had been registered and the investigation thereof conducted. Further submitted that in all fairness and in the interest of justice he had to concede that the Nikah claimed by the petitioners with each other was duly registered and that it was for the competent forum to adjudicate upon its validity or otherwise, if challenged, and not for the police to hold that it was invalid or not authentic or forged under the circumstances highlighted in the instant case, particularly taking into consideration that both the petitioners claim the Nikah in question to be genuine, and to be husband and wife pursuant thereto, and as their claim is not only supported by a validly registered Nikahnama, but also by the witnesses thereof and the Nikah Khawan in question, by having submitted their affidavits to that effect and by having appeared before this Court, in person, individually, to confirm. In the alternative, the Advocate General submitted that the reinvestigation of the case in question, may be ordered to be conducted by the Senior Superintendent of Police, Lahore, himself.

5. However, pursuant to the facts and circumstances highlighted above to the effect that the petitioners claimed to be lawfully wedded to each other and their claim to that effect, fully supported by the Nikahnama on the record, duly registered in accordance with the provision of the law applicable and which has been fully supported by the Nikah Khawan and witnesses thereof, through their individual affidavits, the contents whereof have been duly confirmed by them by appearing before the Court, in person, and that even the Investigating polices officer has conceded the said Nikehnama to be a duly executed and registered though raising the objection to the effect that the witnesses thereto failed to correctly state the dates when it was signed by them, which objection fails to effect the validity of the said Nikahnama, and further taking into consideration that the parents of both the petitioners have also supported their being wedded to each other by their blessings through their respective affidavits and supported the same, in person, before the Court, the Court is of the considered view that there is not an iota of evidence to support the allegations levelled in the F.I.R. in question, against the petitioner No.1. Therefore, it is hereby held that allowing the prosecution of the case in question, registered vide F.I.R. No.406/93 dated 2‑9‑1993 under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at Police Station Shahdara, Lahore, shall amount to an abuse of the process of law, further observing that, as such, no offence is made out against the petitioner No.1, as alleged in the said F.I.R., recorded at the behest of the complainant/police officer, admittedly, only on the receipt of secret information, a highly objectionable practice that is strongly deprecated; and that therefore, the said case in question deserves to be quashed. In this respect, it has been further taken notice of the fact that the petitioners are living happily with each other at the house of parents of the petitioner No.2 and that they have already been blessed with a son. Consequently, the case in question, registered vide F.I.R. No.406/93 dated 2‑9‑1993 under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at Police Station Shahdara, Lahore, is hereby quashed. Disposed of accordingly. N.H.Q./S‑61/L F.I.R. quashed.