' SH. AHMAD FAROOQ, J.---Through the instant constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has prayed that the proceedings qua the F.I.R. No, 301 of 2003, 8-9-2003, registered in Police Station Urban Area, District Sargodha, under sections 10 and 16 of Offence of Zina (Enforcement of Hadood) Ordinance, 1979, and section 498, P.P.C., be quashed and the registration of the case against the petitioner be declared without lawful authority and of no legal effect. The petitioner also prayed for passing of a direction to respondent No,1 not to arrest him during the investigation of the impugned F.I.R.
2. Brief facts necessary for the adjudication of the lis in hand are that the present petitioner got married according to "Sharia Muhammadi" and without registration of formal "Nikhanama" to one Abdul Qadir about eight years ago, who was the brother of her step-father. Out of the said wedlock, no issue was born, however, the spouses adopted a child, namely, Muhammad Usman. The petitioner contended that the said Abdul Qadir verbally pronounced "Talaq" thrice in March, 2007, and thereafter, expelled her from his house. Allegedly, the mother and the step-father of the petitioner pressurized the petitioner to join respondent No,2 despite being divorced orally. The petitioner married one Kamran Ahmad son of Muhammad Sufian on 8-8-2003 vide "Nikhanama", which was registered in Union Council No,144/5, Jamia Masjid, Sargotha. The petitioner maintained that the former husband, namely, Abdul Qadir/respondent No,2 in connivance with respondent No,1 got a case registered against her and Kamran Ahmad vide F.I.R. No, 301 of 2003, dated 8-9-2003, in Police Station Urban Area, District Sargodha, under sections 10 and 16 of Offence of Zina (Enforcement of Hadood) Ordinance, 1979, and section 498, P.P.C., with ulterior motive. The petitioner claimed that she being major, sui juris and divorcee got marriage to Kamran Ahmad and as such, cannot be alleged to have committed the offences incorporated in the F.I.R., However, the petitioner admitted that she had not obtained certificate regarding effectiveness of "Talaq" as her earlier "Nikah" with Abdul Qadir was oral according to "Shari Muhammadi" and no "Nikhanama" was registered. She also admitted that "Nikha Khawan" while performing her "Nikah" with Kamran Ahmad showed her as unmarried/virgin in Column No,5 of the "Nikhanama" with ulterior motive and in order save his own skin. In this regard, Kamran Ahmad had submitted an application against the said "Nikha Khawan" to the learned Sessions Judge, Sargodha, on 4-9-2003, which is still pending adjudication. The petitioner claimed that the investigation of the impugned F.I.R. Would tantamount to abuse of process of law and as such, the same deserves to be quashed. The petitioner asserted that no adequate and efficacious remedy is available to her except to invoke the constitutional jurisdiction of this Court.
3. Learned counsel for the petitioner argued that the petitioner was a divorcee at the time of contracting her second marriage with Kamran Ahmad. He further submitted that the former husband of the petitioner, namely, Abdul Qadir, orally pronounced "Talaq" thrice in March, 2003, which became effective and as such, no certificate in this connection was required to be obtained from the concerned Union Council, particularly when the "Nikah" of the present petitioner with Abdul Qadir was not formally executed/registered. He argued that the present petitioner is living with Kamran Ahmad as his legally wedded wife in pursuance of a "Nikah", which was solemnized on 8- 8-2003. He also informed this Court that out of the said wedlock, two issues have born during the last seven years, Lastly, he argued that the impugned F.LR. Has been got registered by the former husband of the present petitioner with mala fide intentions and the investigation thereon are abuse of the process of law.
4. Conversely, the learned Additional Advocate-General argued that the petitioner was never divorced by her first husband, namely, Abdul Qadir, and as such, could not be considered as a divorcee according to the provisions of Muslim Family Laws Ordinance, 1961. He further argued that the question of contracting a second marriage by a woman without being divorced by the first husband is a question of fact, which could only be decided on the basis of evidence produced by the parties before the Investigating Officer as well as in the trial Court. Finally, he argued that this Court has got no jurisdiction to resolve the disputed question of fact in constitutional jurisdiction.
5. Arguments heard. Record perused.
6. Admittedly, the present petitioner, was married to Abdul Qadir and the question whether the present petitioner was divorced orally by the said Abdul Qadir is undoubtedly a question of fact, which requires recording of evidence. Similarly, the validity of the marriage of the present petitioner with Kamran Ahmad during the subsistence of an existing marriage and their continuous cohabitation for a period of about seven years is again a controverted question of fact, adjudication of which is only possible after production of relevant evidence and the same is in power and possession of the parties. It is worth-consideration that the present petitioner/Mst.
Kaneez Akhtar filed a suit for dissolution of marriage against Abdul Qadir on the basis of "Khula" on 18-7-2003 and the same was dismissed due to non - appearance of the petitioner on 22-9-2003.
From the contents of the afore-mentioned suit, it has also transpired that the present petitioner admitted the birth of a son, namely, Muhammad Usman, whereas in the instant petition she has contended that no issue was born out of her marriage with Abdul Qadir and they adopted a son, namely, Muhammad Usman. Secondly, according to Nikhanama of the present petitioner with Kamran Ahmad, dated 8-8-2003, the present petitioner has been shown as "Maiden". It is also alleged that the second husband of the present petitioner namely, Kamran Ahmad, also prepared a forged and fake divorce deed, dated 30-8-2003, which was submitted to the Union Council No,144/5, Sargodha. Moreover, there are serious allegations of commission of "Zina" against the present petitioner as well as Kamran Ahmad and commission of offence under section 498, P.P.C.
The investigation of the F.I.R. No, 301 of 2003, 8-9-2003, registered in Police Station Urban Area, District Sargodha, under sections 10 and 16 of Offence of Zina (Enforcement of Hadood) Ordinance, 1979, and section 498, P.P.C., has almost been completed and only a report under section 173, Cr.P.C. Is to be forwarded, to the concerned Court. It is significant that the Investigating Officer of the aforementioned F.I.R. Has found the present petitioner as well as Kamran Ahmad, prima facie guilty of the commission of the offences. Therefore, the ordinary course of trial before the competent Court should not be allowed to be deflected by resorting to constitutional jurisdiction.
This Court has no jurisdiction to give a finding on the disputed question of fact in the exercise of its constitutional jurisdiction. The quashment of an F.I.R., wherein the petitioner and a co-accused are alleged to have committed a serious offence, would tantamount to throttling the investigation, which is not permissible in law. In arriving at this conclusion, reliance is placed on the judgments reported in 2008 SCM R 76 and 2008 SCMR 1192.
7. For what has been stated above, the F.I.R. No, 301 of 2003, 8-9-2003, registered in Police Station Urban Area, District Sargodha, under sections 10 and 16 of Offence of Zina (Enforcement of Hadood)
Ordinance, 1979, and section 498, P.P.C., against the present petitioner and co-accused Kamran Ahmad, and proceedings thereon cannot be declared to be without jurisdiction or abuse of process of law Hence, the instant constitutional petition, being devoid of any legal force, is dismissed.