' Through this petition, the petitioners seek quashing of F.I.R. No.887, dated 8-12-2003 registered at Police Station Tandalianwala, District Faisalabad, under sections 10, 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979, recorded on the application of Muhammad Yahya son of Maulvi Waqa Ullah.
2. According to the story of the F.I.R. As disclosed by the complainant, namely, Muhammad Yahya respondent No.3 herein, his Nikah had been solemnized With Um-a-Tameem alias Samina Bibi daughter of Hafeez Ullah (petitioner No. l) but Rukhsati had not yet taken place; that Muhammad Haris son of Ahmad Saeed (petitioner No.2) was on visiting terms with his in-laws; that Muhammad Haris developed illicit liaison with his wife Um-a-Tamim and abducted her on 8-6-2003 for the purpose of committing Zina; that Muhammad Ismaeel and Maulvi Waqa Ullah saw Muhammad Haris taking away the wife of the complainant and informed him; that he had been demanding the return of Um-aTatnim; that the accused initially promised to do the needful but finally refused as a result of which the instant case was registered.
3. This petition was admitted to regular hearing on 29-12-2003 as it had been contended that the F.I.R. Was an outcome of sheer mala fides which were ascertainable from the record itself.
4. The basic argument of the learned counsel for the petitioners was that petitioner No.1 had been divorced by her husband, namely, Muhammad Yahya (respondent No.3) through a written divorce-deed dated 5-2-2000 which became effective after a lapse of ninety days i.e. 5-5-2000.
However notice of Talaq had not been sent to the Chairman of the Union Council in terms of section 7 of the Muslim Family Laws Ordinance, 1961. It was thereafter that she contracted a valid and legitimate marriage with Muhammad Haris petitioner No.2 on 25-5-2003 i.e. Three years after the divorce had become effective. The said marriage with Muhammad Haris is duly registered and Nikahnama exists on the file. In this background it was argued that registration of case was absolutely not warranted and the same had been done with a view to blackmailing, harassing, intimidating and browbeating the petitioners. In support of his arguments he has relied on Allah Dad v. Mukhtar and another 1992 SCMR 1273, Muhammad Hanif and others v. Mukarram Khan and others PLD 1996 Lahore 58 and Fida Hussain v. Mst. Najma and another PLD 2000 Quetta 46. In the case of Allah Dad v. Mukhtar and another, the Honourable Supreme Court of Pakistan observed that if a woman after obtaining the divorce from the husband (pronounced or written by husband) and after the necessary period of Iddat contracted a marriage with third person such marriage could not be held as invalid marriage just because a notice of Talaq under section 7 of the Muslim Family Laws Ordinance, 1961 had not been given by the husband. In the case of Muhammad Hanif and others v. Mukarram Khan and others, it was held by a learned Division Bench of this Court that a notice to the Chairman Local Council in terms of section 7 of the Muslim Family Laws Ordinance, 196t was not mandatory under the injunctions of Islam and failure to send a notice to the Chairman does not make a divorce ineffective and marriage of said a divorced woman with a third person after the expiry of necessary period of Iddat is not invalid. Likewise in the case of Fida Hussain v. Mst.
Najma and another, a learned Division Bench of the Balochistan High Court held that in spite of noncompliance of mandatory requirement of section 7 of the Muslim Family Laws Ordinance, 1961 even the oral Talaq was effective and binding on the parties.
5. The learned Additional Advocate-General has thoroughly examined the record and on instructions submits that signatures of Muhammad Yahya respondent No.2 on the alleged divorce deed have been found to be genuine although the investigating Officer is of the opinion that these signatures appeared to have been obtained on a blank paper which were filled in later on. The learned Additional Advocate-General further submits that the Investigating Officer after holding inquiry has not come to the conclusion that petitioner No.1 is an accused in the case.
6. Since the signatures of Muhammad Yahya on the alleged divorce deed have not been denied, therefore, it would not be proper to hold a probe in these proceedings as to how these signatures were obtained. The crux of the matter is that the signatures are there and petitioner No.1 claims that on the strength of the divorce deed she had contracted a valid and legitimate marriage which is perfectly legal. The fact that the notice of Talaq was not sent to the Chairman Union Council will not render the Talaq ineffective. In this backdrop, the continuation of proceedings in F.I.R. No.887 of 2003 shall not serve any useful purpose and will clearly ampunt to an abuse of the process of law.
Muhammad Yahya respondent .No.3 if aggrieved may agitate the 'matter before the appropriate forum Which is the Judge Family Court in the instant case.
7. Resultantly this petition is allowed and F.I.R. No.887 dated 8-12-2003 registered under sections 10, 16 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, at Police Station Tandlianwala, District Faisalabad, stands quashed.