' IQBAL HAMEED-UR-RAHMAN, J.--- Through this constitutional petition the petitioner seeks quashment of F.I.R. No,187 of 2007 dated 3-6-2007 registered under sections 365-B, 452, 337-A(ii), 337-H(ii), 148, 149, P.P.C. At Police Station Tullamba, District. Khanewal.
2. The precise allegations in the F.I.R. Lodged against the petitioner and the pro forma respondents Nos.4 to 10 are that all the accused persons with their common intention abducted the sister-in- law of the complainant and while abducting Mst. Zubaida, they all made aerial firing and so injured the brother of the complainant namely Muhammad Ramzan.
3. It has been stated on behalf of the petitioners that the case against the petitioners and others is forged and fabricated story; that no one had abducted the sister-in-law of the complainant Mst.
Zubaida petitioner No,1, in fact, she being sui juris has entered into a marriage with petitioner No,2, which was duly solemnized according to the Shariah and thereafter registered in the concerned Union Council, as such, the abduction of Mst. Zubaida is not established as she herself has filed this writ petition; she is before this Court in person and has made a statement that no one had abducted her and that she is lawful wedded wife of petitioner No,2 Bashir Ahmad. Reliance in this regard is placed to the cases of Mst. Sughran Bibi v. D.P.O. Lodhran and 5 others 2007 YLR 1292 and Kalsoom Bibi v. Station House Officer, Police Station Dhanoot, District Lodhran and 3 others 2007 YLR 1360. It is further stated that petitioner No,2, who is employed in a firm in Masqat, he had gone there and had left behind his wife Mst. Zubaida in the house of his parents. They forcibly held Mst.
Zubaida and later on manipulated a suit for jactitation of Marriage against petitioner No,2 Bashir Ahmad. Bashir Ahmad submitted his written statement through his special attorney. Bashir Ahmad was having undue pressure from the family of Mst. Zubaida and he gave divorce to Mst. Zubaida petitioner No,1 before the Judge, Family Court, Mian Channu. Resultantly, the suit of jactitation of marriage filed by petitioner No,1 Mst. Zubaida was withdrawn. It is also submitted that Bashir Ahmad petitioner No,2 after pronouncement of "Talaq", the same was revoked, as such, it had not become effective as propounded in section 7 of the Muslim Family Laws Ordinance, 1961 that no notice has been served'on the Chairman, as such, divorce cannot be considered to have been effected as the same was not routed through a procedure contemplated in section 7 of the Ordinance. In this regard, reliance is placed on the cases of Inamul Islam v. Mst. Hussain Bano and 4 others PLD 1976 Lah. 1466 and Dr. Masood Khan v. Chairman, Arbitration Council Wah and 2 others PLD 1982 Lah.
532. Further contended that the petitioners are living as husband and wife; that the case under section 365-B, P.P.C. Is not made out. It is further stated that the complainant has also prepared a forged Nikahnama of petitioner No,1 with one Muhammad Ramzan dated 16-1-2005 prior to the Nikah of petitioner No,2 with petitioner No,1 dated 17-1-2007. In this regard Nazim Union Council No,7 Makhdoompur had lodged an F.I.R. No,38 of 2005 under sections 468, 471, 420, P.P.C. Against the Nikah Registrar, copy of the same has been placed as Annexure "E" with this petition. It is further stated that the suit for jactitation of marriage has been filed by petitioner No,1 against Muhammad Ramzan on 19-6-2007 and the same is fixed for evidence for 18-10-2007. The Nikah Khuawan is still behind the bars. The Civil Court is to determine the validity of the Nikahnama and Talaq as well as its revocation being effected or not. According to the law enunciated, the marriage of petitioner No,1 with that of petitioner No,2 Bashir Ahmad is intact; that during the period when petitioner No,1 had been forcibly removed from the house of the parents of petitioner No,2, petitioner No,1 had been under constant threat and pressure of the complainant and others and had been forced to file a suit for jactitation of Marriage and make statements before the courts under dire threats of her life, as such, the same is not to be taken into consideration. Further that petitioner No,1 before this Court fully disowns the same. It is further stated that since the allegation apart from abduction of petitioner No,1, under section 365-B, P.P.C. There are other allegations of making aerial firing and also injuring the brother of the complainant in the instant F.I.R., in the alternative partial quashment of the F.I.R. Can also be made. In this regard reliance is placed on the case of State of Islamic Republic of Pakistan through Deputy Attorney-General for Pakistan v. Kenneth Marshal and 2 others 2005 SCM R 594. Further that after the amendment of section 156, Cr.P.C. The investigation of the instant F.I.R. Can only be conducted by a Police Officer not below the rank of Superintendent of Police; further that the writ petition be accepted and the impugned F.I.R. Be quashed.
3-A. On the other hand, learned counsel for respondents and D.P.G. Contended that the Nikah of petitioner No,1 Mst. Zubaida was duly solemnized with Muhammad Ramzan on 16-1-2005 while the Nikah of petitioner No,2 Bashir Ahmad with Mst. Zubaida is subsequent as it was registered on 17-1- 2005. It is further contended that the Nikah of Mst. Zubaida with Muhammad Ramzan has not been challenged by Mst. Zubaida, as such, the said Nikah of Muhammad Ramzan with Mst. Zubaida still holds the field. The subsequent Nikah is unlawful. It is further stated that petitioner No,2 Bashir Ahmad filed a petition under section 491, Cr.P.C. On 26-3-2005 before the learned Sessions Judge, Khanewal in which Mst. Zubaida petitioner No,1 appeared before the Court on 5-4-2005 and made a statement that she has not entered into any Nikah with petitioner No,2 Bashir Ahmad and admitted her Nikah with Muhammad Ramzan dated 16-1-2005. She also stated that she is residing with her free will and consent with Muhammad Ramzan. Further that Bashir Ahmad had deposited a security of Rs,3,000 at the time of filing of the habeas petition and after the failure of the same the same amount was paid to Mst. Zubaida. It is further stated by the learned counsel for the complainant that a suit for jactitation of marriage had been filed by Mst. Zubaida before the Judge, Family Court, Mian Channun regarding the false Nikah dated 17-1-2005 of petitioner No,2 Bashir Ahmad with Mst. Zubaida in which Mst. Zubaida appeared as P.W. And did not admit her Nikah with Bashir Ahmad. She was extensively cross-examined in the said suit and subsequently petitioner No,2 Bashir Ahmad gave "Talaq" to Mst. Zubaida before the Judge Family Court, Mian Channun and resultantly, the suit filed by Mst. Zubaida was withdrawn, same was made on 21-4-2007 two years after the statement recorded before the learned Sessions Judge, Khanewal in the habeas petition.
For such a long period of more than two years, petitioner No, l Mst. Zubaida had been living with Muhammad Ramzan and has been making statements before the Courts of law. Till today, it is urged that the Nikah of Mst. Zubaida with Muhammad Ramzan has not been challenged by Mst.
Zubaida. Moreover, the Nikah of Bashir Ahmad stands revoked in view of the "Talaq" pronounced before the Judge Family 'Court, Mian Channun. In the circumstances, the cases cited by the learned counsel for the petitioners do not apply to the instant case. Moreover, controversial questions of facts and law cannot be decided in writ jurisdiction. In this regard, reliance is placed to the cases of The State through Prosecutor-General Punjab, Lahore v. Sultan Ahmed and others PLD 2007 SC 48 and Muhammad Bashir alias Bakola and 7 others v. Superintendent of Police, City Division, Lahore and 9 others 2007 PCr.LJ 864.
4. I have heard the arguments of the learned counsel for the parties and perused the record.
5. Mst. Zubaida who is the star prosecution witness in the case to the extent of her abduction, who is present before this Court, she categorically refuted the allegation of abduction and fully owns her Nikah with petitioner No,2 Bashir Ahmad dated 17-1-2005. She being sui juris with her free will and consent has contracted marriage with petitioner No,2 Bashir Ahmad. She has refuted her Nikah with Muhammad Ramzan dated 16-1-2005, which she thinks is a false and manipulated document and in this regard the Nazim of concerned Union Council has got registered a criminal case vide F.I.R. No,38 of 2005 under sections 468, 471, 420, P.P.C. Against the Nikah Khuawan, who is still behind the bars. She has also filed a suit for jactitation of marriage against Muhammad Ramzan, which is still pending adjudication before the Judge Family Court and is fixed for evidence for 18-10-2007. In the above circumstances, the petitioners have proved to have been lawfully married with each other. When the Nikahnama has been admitted by both the petitioners, the law does not permit others to challenge the validity of the Nikahnama when its contents are admitted by the husband and wife. In this regard, reliance is placed on the case of Dr. Ghulam Mustafa Solangi and 5 others v. The State 2005 PCr.LJ 1638. Even otherwise question as to which Nikahnama is valid, is a subject fit for a Family Court to adjudicate upon before the same is made a basis of criminal prosecution of the petitioners. Reliance is placed on the case of Mst. Nighat Abbas and others v. Muhammad Yousaf and others 2004 PCr.LJ 620. Whereas regarding recording of her statement before the learned Sessions Judge, Khanewal and the subsequent filing of the suit for jactitation of marriage by petitioner No,1 Mst. Zubaida against petitioner No,2 Bashir Ahmad, same is stated to have been manoeuvred by the complainant's side under threats of dire consequences to the life of petitioner No,1 Mst. Zubaida, which is not sustainable in the eye of law and the "Talaq" pronounced by petitioner No,2 Bashir Ahmad in the said suit is not sustainable, as such "Talaq" cannot be considered to have been effected as the same has not routed through a procedure contemplated in section 7 of the Ordinance. Reliance in this context can be placed to the cases of Inamul Islam v.
Mst. Hussain Bano and 4 others PLD 1976 Lah. 1466 and Dr. Masood Khan v. Chairman, Arbitration Council Wah and 2 others PLD 1982 Lah.
532. Moreover, the contentions of the learned counsel for the respondents that the Nikah of petitioner No,1 with Muhammad Ramzan dated 16-1-2005 has not been challenged, is fully rebutted from the registration of case F.I.R. No,38 of 2005 under sections 468, 471, 420, P.P.C. Against the Nikah Khuwan for preparing a forged Nikahnama as well as by filing of the suit for jactitation of marriage by Mst. Zubaida against Muhammad Ramzan, which is pending adjudication before the Judge, Family Court, concerned. Apparently, the star-witness of the prosecution case has not supported the impugned F.I.R. And the allegation of abduction has been completely rebutted, therefore, the allegations levelled in the F.I.R. Cannot sustain.
6. For what has been stated above, this writ petition is accepted and the impugned F.I.R. No,187 of 2007, dated 3-6-2007 registered under sections 365-B, 452, 337-A(ii), 337-H(ii), 148, 149, P.P.C. At Police Station Tullamba, District Khanewal, is quashed.