JUDGMENT'
' Through this petition petitioners have sought quashment of the case registered vide F.I.R. No. 312 dated .8-8-2003 under section 16-7-1979 Hudood Ordinance, Police Station, Saddar Kehror Pacca, petitioners admittedly are first cousins and they claim to be husband and wife in terms of Nikahnama dated 10-7-2003.
2. The prosecution story as given in the afore-referred F.I.R. Registered on the statement of Muhammad Nawaz who is father of petitioner No.1 briefly stated is that he had married his daughter (petitioner No.1 with his nephew Allah Wassaya but the latter divorced her whereafter on 19-6-2003 he married her with Muhammad Bilal. She started living with him. Oh 7-7-2003 it is alleged that Zafar Iqbal (nephew of petitioner No.2) Manzoor Mai (sister of petitioner No.2) Ahmad Yar and Manzoor Ahmad (brothers of petitioner No.1 enticed petitioner No.1 away in sequel to illicit liaison between the petitioners.
3. Learned counsel for the petitioners in support of this petition has made following submissions:--
(i) that petitioner Not is sti juris, she is divorcee, she is aged 22 years, that she married petitioner No.2 of her own free will in terms of Nikahnama which stand's registered in Union Council No.78 of Zafarabad Tehsil Kehror Pacca and no offence whatsoever has been committed;
(ii) that from the wedlock petitioner No.1 is carrying a pregnancy of six months and any attempt to annul the marriage would have grave consequences not only for the family but also for the child who is yet to be born;
(iii) that in terms of para.3 of the petition petitioner had prayed before this Court that her thumb impressions be got compared with the one on the Nikahnama, evidencing Nikah with Muhammad Bilal on which complainant is relying. This request was allowed by a learned Judge of this Court and a direction was issued for carrying out the requisite comparison. The admitted thumb impressions were sent to the Finger Print Expert twice and the report vindicates her stand that the counter Nikah is a forged document;
(iv) that the police is not conducting the investigation fairly on account of local political pressure which is evident from the fact that she was never made to join the investigation and even her statement has not been recorded. In support of his submissions 4e relied on Mst. Rukhsana v. S.H.O.
Etc. 1999 PCr.L.I 638 and Mst. Shahida Nadeem and others v. S.H.O. And others 1999 M LD 3092.
4.< Learned counsel for the complainant opposes the petition and contends as under:--
(i) That the father of petitioner No.1, has got the- case registered quashment of which is sought and it is not believable that a ,father would put up a false case against her daughter;
(ii) that the prOseeution 'case is not only based on the Nik.Ahnama which is duly registered but is prior in time, has been vergied by the Investigating Agency, through the statements recorded under section 161, Cr.P.C. Of Bilal who is husband of petitioner No.1, in terms of Nikahnama in question, Nikah Khawan and other persons;
(iii) that Muhammad Bilal has filed a suit for restitution of conjugal rights on 24-12-2003 and a competent Civil Court seized of the matter is the only forum which could validly decide about the genuineness or otherwise of the conflicting Nikahs;
(iv) that defacing of the thumb impressions of petitioner No.1 on the Nikahnama evidencing Nikah with Bilal is a proof that the accused party is trying to tamper with the evidence and it does not deserve any indulgence of this Court.
5. Learned A.A.-G. While opposing the petition submitted that the petitioners have not joined the investigation, that it is a settled proposition of law, that in case of a dispute regarding Nikah only Family Court has the jurisdiction to decide; that Bilal's Nikah with petitioner No.1, stands verified by the Investigating Officer and the only course open to petitioner No.1, is to file a suit for jactitation of marriage which she has not done. He however, in all fairness admitted on Court query that there is nothing in police file to indicate that the Investigating Officer made any effort to record the statements of petitioners that she appeared before the Magistrate to give her thumb impressions twice on 15-9-2003 and 16-10-2003.
6. Heard.
7. Admittedly petitioner No.1, Mst. Rahim Khatoon acknowledges her Nikah with petitioner No.2, and disowns her Nikah with Muhammad Bilal on which reliance is being placed by the prosecution.
Arguments were hea-rd on 27-1-2004 and petitioner No.1, had made a grievance that her statement had not been recorded by the Investigating Officer to which the Investigating Officer replied that the petitioner did not join the investigation. The record however, indicates that petitioner appeared twice before the Magistrate to give her thumb impressions for onward transmission to the Finger Print Expert for their comparison with her alleged thumb impressions on Nikahnama with Muhammad Bilal. She appeared before this Court for about 5/6 times. In the afore-referred circumstances it is repellent to common sense that having pursued her case before the Magistrate and before this Court so diligently she would not appear before the Investigating Officer. In these circumstances the Investigating Officer was directed on 28-1-2004 to record her statement which he did and he was also directed to verify as to whether her Nikah with petitioner No.2 is registered in the Union Council concerned. Today, the Investigating Officer (Liaquat Ali) has appeared to confirm that her Nikah with petitioner No.2, duly stands registered in Union Council Zafarabad and that in her statement before him she has acknowledged the Nikah and has disowned the prosecution story, I may add that two parats copies of Nikahnama dated 19-6-2003 .
Evidencing petitioner No.l's Nikah with Bilal were sent to the Finger Print Expert along with thumb impressions of petitioner No.l. The report dated 3-12-2003 indicates that the thumb impression No.1, on one of the afore-referred parats/copy of Nikahnama dated 14-6-2003 were found to be different from her impression on the sample paper sent to the Finger Print Expert whereas regarding the thumb impressions on the other copy it was reported that the thumb impressions in question had been tampered with by putting another thumb impression over it and therefore, no opinion could be given.
Since these documents were in possession of the prosecution the petitioners cannot be saddled with any liability of the afore-referred alleged tampering. In Islamic Law when a woman and a man acknowledge their Nikah a presumption of truth is attached to it. Section 268-C of Mahomedan Law by D.F. MuIla is to the following effect:-- "Presumption of marriage-Marriage will be presumed, in the absence of direct proof, from:---
(a) prolonged and continual cohabitation as husband and wife, or
(b) the fact of the acknowledgement by the man of the paternity of the child born to the woman provided all the conditions of a valid acknowledgement mentioned in section 344 below are fulfilled or
(c) the fact of the acknowledgment by the man of the woman as his wife.
The presumption does not apply if the conduct of parties was inconsistent with the relation of husband and wife nor does it apply if the woman was admittedly a prostitute before she was brought to the man's house. The mere fact, however, that B the woman did not live behind the Parda, as the admitted wives of the man did, is not sufficient to rebut the presumption." Confronted with the afore-referred position and at the asking of the Court whether he would like to forgive the petitioner and accept the Nikah the complainant put his hands on petitioner No. l's head.
8. For what has been discussed above this Court is of the view that the prosecution is product of mala fides and an abuse of process of law. Resultantly C F.I.R. No.312 dated 8-8-2003 under sections 16/7 of 1979 Zina Hudood Ordinance, P.S. Saddar Kehror Pacca is quashed.