' With the consent of the learned counsel for the parties, this petition is admitted for regular hearing and is decided as `Pakka' case.
2. Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner seeks quashment of F.I.R. No.222 dated 2-11-2004, at Police Station, Thingi District Vehari, registered under section 16 Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 on the application of Muhammad Azeem.
3. The brief facts of the case mentioned in the first information report by complainant Muhammad Azeem are that Mst. Azra Bibi petitioner was earlier married. Muhammad Akram used to visit his house and developed illicit liaison with her. He demanded the hand of Mst. Azra Bibi petitioner which was refused and due to this reason he along with other accused persons had abducted the sister of the complainant by putting her in a car and they also took away the other articles detail of which has been mentioned in the F.I.R.
4. Learned counsel for the petitioner contends that the petitioner was not earlier married, who has also filed a suit for jactitation of marriage and by contracting marriage with her free-will and consent being sui juris with Muhammad Akram she has not committed any offence. It is next contended that it has not been mentioned in the F.I.R. That the marriage of the petitioner with whom was performed and subsequently bogus Nikah Nama with Ghulam Farid has been prepared to frustrate marriage of the petitioner with Muhammad Akram. Relies upon PLD 2004 SC 219, to contend that the petitioner could contract marriage without the consent of Wall and the F.I.R. Is liable to be quashed.
5. On the contrary, learned counsel for the complainant opposes this petition on the ground that Mushtaq and Mazhar, the alleged witnesses of Nikah Nama between the petitioner and Muhammad Akram have sworn affidavits to the effect that no such Nikah was ever performed in their presence. It is next contended that the petitioner was a married woman and during the subsistence of earlier marriage the performance of second marriage with Muhammad Akram as claimed is illegal and they are guilty of cognizable offences. It is further contended that she had been abducted through force and Nikah Nama with Ghulam Farid is a genuine document, which is being produced in the Court.
6. Learned Additional Advocate-General opposes the petition on various grounds.
7. I have heard the learned counsel for the parties and also gone through the contents of the F.I.R.
As well as the documents annexed with the petition. In the above-said F.I.R. Which is impugned in this petition and quashment of which is being sought for, it has not been got mentioned by the complainant that when the earlier marriage of the petitioner took place. Even, the name of Ghulam Farid her alleged first husband was not mentioned in the F.I.R. In such circumstances, this Court finding the claim of the complainant regarding earlier marriage of the petitioner suspiciously indulged in the matter and called for police record. According to the Investigating Officer no Nikahnama of the petitioner with Ghulam Farid was produced by the complainant at the time of registration of the case, which has been produced today in the Court by learned counsel for the complainant-respondent No.2, which allegedly bears thumb-impressions of the petitioner.
8. Mst. Azra Bibi petitioner is present in Court along with her husband and I have obtained her thumb-impressions as well as signatures in English and Urdu on blank paper. When seen even with the naked eye there is a lot of difference in the shape of thumb-impressions of the petitioner both obtained in this Court as well as shown on the Nikahnama with Ghularn Farid. On the other hand, on the Nikah Nama with Muhammad Akram, she has put her signatures in English. The falsity of Nikahnama produced by the complainant is also prima facie proved from the factum that the complainant is resident of Vehari, but the said Nikah with Ghulam Farid is shown to have been performed in Ward No.6, Union Council No.17, Daulat Gate, Multan on 4-9-2004 and registered on 14-12-2004, even after lodging the F.I.R. On 2-11-2004.
9. From the above, I am satisfied that the Nikahnama of the petitioner with Ghulam Farid was prepared by the complainant subsequently in order to frustrate her Nikah with Muhammad Akram performed with her free-will and consent against the wishes of the complainant, who is real brother of the petitioner. It is generally noticed that in this region the false claim of earlier marriage of the girl, who being sui juris contracts marriage against the wishes of her parents is introduced to involve both the spouses in the criminal case. In the present case no reliance can be placed on the Nikahnama produced by the complainant in the Court to show that the petitioner was earlier married with Ghulam Farid and I have no hesitation in believing the version of the petitioner that she was virgin and has contracted marriage with Muhammad Akram out of her free-will and consent. It is not disputed even in the Court by the complainant that the petitioner was not sui juris and could not contract marriage with her free-will and consent. Even in the Nikahnama produced by the complainant her age has been mentioned as 24 years.
10_ I am not much impressed by the contention of the learned counsel that Mushtaq and Mazhar Hussain alleged witnesses of the Nikah between the petitioner and Muhammad Akram have sworn affidavits to the effect that no such Nikah was performed in their presence as the possibility cannot be ruled out that such affidavits were procured from them under the threat to involve them in the present case. Moreover, in PLD 1983 FSC 42, it has been held that if the spouses claim them husband and wife, the other formalities can be ignored and their simple statement is sufficient.
11. In the present case, I don't see that the conduct of the police is above the board and they allowed the complainant to prepare bogus Nikahnama of the.Petitioner with Ghulam Farid. In such circumstances, it is not expected that they will conduct fair and impartial investigation. No doubt this Court is reluctant to interfere in a criminal case at investigation stage as the purpose of the same is to collect the evidence, but in exceptional cases like this indulgence can be made to save the innocent citizens from the agony of the investigation to be conducted by the police.
12. In the above facts and circumstances, when the petitioner has contracted marriage with Muhammad Akram with her free-will and consent and the claim of the complainant that she was earlier married with Ghulam Farid has been prima facie proved false, I am of the view that the F.I.R.
Does not disclose commission of any cognizable offence and further proceedings therewith will be sheer wastage of time and abuse of process of law. Hence this writ petition is accepted and the impugned F.I.R. Is quashed.
F.I.R. Quashed.