' Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, the petitioner seeks quashment of F.I.R. No,169 of 2004, dated 4-6-2004 registered under section 16 of Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979 at Police Station, Shah Jamal, District Muzaffargarh on the written application of Rabnawaz.
2. Brief facts of the case are that on the preceding night of 4-6-2004 Mst. Sakina came to the house of complainant. She being relative of the complainant offered to prepare tea and after administering some intoxicant therein, gave it to the complaint's family. On taking the same the family members became unconscious and said Mst. Sakina took away complainant's daughter Mst. Rukhsana Mai aged about 20 years. At about 2-00 p.m. According to the complainant Abdul Aziz and Din Muhammad were coming back after attending a Punchait and saw an unidentified girl in the company of Sultan alias Shema, Muhammad Ramzan, Muhammad Ashraf, Mst. Sakina Mai and Lal Muhammad in a car. They tried to stop them but they pointed out gun towards them and left the place of occurrence. Thereafter the above said two witnesses came to the house of the complainant and found the inmates sleeping, who were awakened. Mst. Rukhsana Mai was also found missing besides dowry articles, net cash amounting to Rs,28,000 and 5 tolas of gold, etc.
3. Learned counsel for the petitioner contends that the petitioner was earlier married during her minority with one Mukhtiar Ahmad by her father, who on attaining the age of puberty filed a suit for dissolution of marriage which was decreed in her favour on 29-3-2003 and she about 7 and a half months thereafter contracted Nikah with Muhammad Sultan with her free will and consent being sui juris in the presence of witnesses on 15-5-2004 and also sworn affidavit in this regard. It is also contended that when the complainant came to know about performance of Nikah against his wishes by her daughter Mst. Rukhsana he has got registered this false case against the petitioner. It is further contended that it was wrongly mentioned during investigation that the petitioner was already married with Imtiaz on 15-3-2004 which fact was not mentioned in the F.I.R. Or in the statements of witnesses recorded under section 161, Cr.P.C. And only when the Nikah dated 15-5- 2004 was produced before the police; the fake story of her Nikah with Imtiaz was introduced to frustrate her Nikah with Muhammad Sultan performed by her being sui juris. It is also contended that the petitioner is present in Court, who is consistently making statements before the police and this Court that she is married with Sultan alias Shema and does not accept her Nikah with Imtiaz.
Hence, the impugned F.I.R. May be quashed.
4. On the other hand, learned Addl. A.-G. Assisted by learned counsel for complainant/respondent No,2 opposes this application on the ground that the factual controversies are involved in this case, as it is a case of two Nikah which can only be resolved after recording of evidence of both the parties. It is contended that the petitioner's Nikah with Sultan alias Shema was forged one and has been subsequently got prepared.
5. I have heard the learned counsel for the parties and also perused the record. Admittedly, the complainant has not got mentioned in the F.I.R. That Mst. Rukhsana was earlier married with Imtiaz and Rukhsati had yet to take place which clearly creates doubt about the genuineness of the same as the said story was only introduced during the investigation. None of the witnesses whose statements were recorded on 4-5-2004 had also not stated this fact. The police claim that Nikahnama with Imtiaz has been taken into possession. I have perused the record and found that no date is mentioned in the recovery memo. On the other hand there is statement of the petitioner on the record claiming that she performed Nikah with Sultan alias Shema with her free-will and consent being sui juris. She also had sworn an affidavit in this regard. It seems that after coming to the knowledge of Nikah of petitioner with Sultan alias Shema this story was introduced by the complainant in order to make out a case for return of Mst. Rukhsana.
6. Oftenly, it is noticed that there is tendency in this region that if the girl some how contracts marriage without the consent of her parents, she is got involved in the case along with her husband and other family members by preparing forged Nikah Nama with any one else on subsequent date, which is also clear in this case from the perusal of the F.I.R. That there was no mention her Nikah with Imtiaz, but subsequently such story was introduced. This practice cannot be allowed to continue.
7. The petitioner is not accepting her Nikah with Imtiaz the genuineness of which has become doubtful as it was allegedly performed on 15-3-2004, about three months before registration of the F.I.R., but this factum was not mentioned in the F.I.R. In PLD 1999 Lahore 494 this Court held that where consent to a Nikahnama is in dispute and a challenge is thrown to a Nikahnama which is being owned by a man and a woman who claim to be husband and wife, then presumption of truth attaches to' Nikahnama which i's being acknowledged by both spouses and not by intervener.
8. In the above circumstances, the continuation of proceedings as a result of the F.I.R. Will amount to interference in the matrimonial life of the petitioner, who being sui juris has contracted marriage with Sultan alias Shema with her free-will and consent and the paternity of a child as she is pregnant will also remain in dispute due to the pendency of these criminal proceedings. Though this Court is reluctant in interfering with the criminal case at investigation stage, but from the above facts and circumstances I am of the considered view that continuation of the investigation in the present case will be abuse of process of law and sheer wastage of time. According to contents of the F.I.R. The petitioner was 20 years old and being sui juris if she has contracted marriage with her free-will and consent against the wishes of her parents she has committed no offence in law. The complainant party cannot be allowed to interfere in her matrimonial life with the aid of the criminal proceedings initiated on wrong story. Hence, this writ petition is accepted and the impugned F.I.R. Is quashed.
F.I.R. Quashed.