' IQBAL HAMEED-UR-RAHMAN, J:---Through this constitutional petition the petitioners seek quashing of F.I.R. No,316 of 2010 dated 97-2010 under section 365-B, P.P.C. Registered at Police Station Saddar Kharian, District Gujrat.
2. Respondent No,3 lodged the impugned F.I.R. With the allegation against petitioner No,1 and four others regarding the abduction of his sister namely Mst. Naila Perveen for the purpose of zina.
3. Brief facts succinctly required for determination of the instant writ petition are that petitioners are husband and wife after solemnizing remarriage vide Nikah dated 1-7-2010 according to Shariah.
The petitioners had earlier entered into marriage contract on 25-7-2008 but respondent No,3 succeeded after six months of the marriage to make separation between petitioners and forced petitioner No,1 to get divorce from petitioner No,2 by filing a suit for dissolution of marriage, which had been decreed vide judgment and decree dated 1-1-2009 and later on a certificate of effectiveness of divorce was issued by pursuing the decree.
4. It has been contended on behalf of the petitioners that the said decree had not been obtained with the free consent of petitioner No,1 rather it was the result of coercion and instigation, which made the life of the petitioners miserable and after about one year both the petitioners decided to contract remarriage and resultantly, they contracted remarriage and Nikah was duly solemnized on 1-7-2010. On this, respondent No,3 Nishat Ahmad lodged the impugned F.I.R. Against petitioner No,2 and others for abduction of petitioner No,l.
5. Mst. Naila Parveen, the alleged abductee is present before this Court, she is sui juris. She in categorical terms stated that she has contracted remarriage with petitioner No,2 Shahid Latif of her own free will and accord; that they have not committed any offence. It is further submitted that respondent No,3 lodged the impugned F.I.R. Against petitioner No,2 and others only to pressurize him to give divorce to petitioner No,1 that no one had abducted her nor any body had pressurized her for entering into the matrimonial tie with Shahid Latif. She further stated that the instant F.I.R.
Has been registered by her brother being annoyed of the said wedlock; that false case has been registered against her husband and others.
6. It is contended on behalf of the petitioners that the alleged abductee Mst. Naila Parveen is major and sui juris and well understand the loss and gain to her life and she has not been abducted by any person and that she has entered into Nikah with Shahid Latif without any coercion. It is further stated that section 7(6) of the Muslim Family Laws Ordinance, 1961 does not debar the wife for remarriage whose marriage has been terminated by Talaq effected under section 7 of Muslim Family Laws Ordinance, 1961 for re-marrying the same husband without an intervening marriage with a third person; as such, the marriage of the petitioners is duly legal and that statutory provision of law allows remarriage again with the first husband. Reliance in this regard has been placed on Syed Ali Nawaz Gardezi v. Lt. Col. Muhammad Yusuf (PLD 1963 SC 51) wherein it has been held by the Apex Court that without an intervening marriage with a third person, remarrying the first husband is held in accordance with law. In the circumstances, petitioner No,1 Mst. Naila Parveen has got recorded her statement under section 164, Cr.P.C. Before the Judicial Magistrate stating therein that no one has abducted her; that she has contracted remarriage with Shahid Latif without any coercion of her own free accord. It Is further stated that Mst. Naila Parveen is sui juris and she is fully competent to contract marriage with petitioner No,
1. In this regard reliance is placed on the cases of Mst. Sughran Bibi v. DOP Lodhran and 5 others (2007 YLR 1292) Mst. Hajra Khatoon and another v. Station House Officer, Police Station Fateh Jang, District Attock and 2 others (PLD 2005 Lahore 316). It is also submitted that simple statement of the abductee totally negates the story of the prosecution. It is further submitted that the petitioners are living as husband and wife and the case under section 365-B, P.P.C. Is not made out.
7. On the other hand, learned Additional Prosecutor-General, Punjab, assisted by the learned counsel for respondent No,3, vehemently opposed the arguments of the counsel for the petitioners contending that the F.I.R. Cannot be quashed without recording of evidence. It is further submitted that according to section 7(6) of the Muslim Family Laws Ordinance, 1961 re-marrying first husband is not permissible when such termination is for the third time so effective and thereafter further contended that according to section 312 of the Muhammadan Law for Talaq in the ahsan mode becomes irrevocable and complete on the expiration of period of Iddat. It is admitted fact that divorce had duly been effected and certificate from the Union Council after 90 days had been issued; therefore, divorce has become effective and the same cannot be revoked. Further, adverting to section 315 of the Mohammadan Law, it is stated that the divorce is valid even if it was pronounced under compulsion or in a state of voluntary intoxication, or to satisfy his father or someone else and in the circumstances without "Halala" the petitioners could not marry. It is against the injunctions of Islam, Qurran and Sunnah. It is further submitted that the statements and affidavit submitted by petitioner No,1 is with concealment of the first marriage. In fact both the petitioners are committing zina and both are liable for the same offence.
8. Arguments pro and contra have been heard, material made available on record perused.
9. The star prosecution witness in the case is Mst. Naila Parveen, who appeared before this Court and made a categorical statement that no one had abducted her nor pressurized her to enter into Nikah with petitioner No,2 and that she being sui juris, with her free consent and accord has contracted remarriage with petitioner No,2 and that she is fully enjoying her matrimonial life with him; that neither any offence has been committed by her nor by petitioner No,2. The case against the petitioner No,2 and others is concocted and fabricated story, which was got registered by the complainant being annoyed due to her marriage with petitioner No,2. Mst. Naila Parveen also got recorded her statement under section 164, Cr.P.C. Before the learned Judicial Magistrate wherein she has controverted the allegations contained in the impugned F.I.R. As well as in her affidavit stating therein that no one has abducted; she of her own accord solemnized remarriage with petitioner No,2 Shahid Latif and Nikah has been duly registered on 1-7-2010; as such, it appears that the instant F.I.R. Has been got lodged by respondent No,3 Nishat Ahmad on account of his annoyance with the remarriage of the petitioners, which the law permits as is stated in section 7(6) of the Muslim Family Laws Ordinance, 1961.
10. The contentions of the learned counsel for respondent No,3 that after the talaq has been made effective by issuance of the certificate by the Union Council, remarriage without any intervening marriage with a third person is not permissible under the law, does not bear through the reading of section 7(6) as it is quite clearly stated in the said section that "Nothing shall debar a wife whose marriage has been terminated by talaq effective under this section from remarrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective."
11. It is quite apparent from the bare reading of section 7(6) of the Muslim Family Laws Ordinance, 1961 that the talaq has been made effective, meaning, thereby that a certificate had been duly issued by the Union Council as per the requirement of Section 7 after the expiration of 90 days and the talaq become effected as per section 7(5) of the Muslim Family Laws Ordinance, 1961. Moreover, the said divorce had been effected on account of a suit for dissolution of marriage filed by Mst.
Naila Parveen petitioner No,1 and not on account of verbal pronouncement of talaq by petitioner No,2; as such it could not be considered that the talaq had been pronounced by the husband for three times; therefore, it would not be considered against the injunctions of Islam or Qurran and Sunnah. In this regard reliance is placed on Muhammad Ayub Khan v. Mst. Shehla Rasheed and another (PLD 2010 Karachi 131), Gulzar Hussain v. Mst. Mariyam Naz (2000 MLD 447), and Majmuae- Qawaneen-e-Islam, Vol. II, Qanun-e-Talak . Written by Tanzil-ur-Rehman, PP 369 and 597, wherein it has been held that "Pronouncement of Khula by court would amount to a single divorce.
Petitioner would be at liberty to re-marry respondent after solemnization of Nikah without intervention of third person. High Court, set aside impugned judgment and decree in circumstances."
12. According to the Muhammadan Law section 251 every Muhammadan of sound mind, who attained the age of majority may enter into a valid contract of marriage. In this regard reliance is placed on the case of Mst. Hajra Khatoon and another v. Station House Officer, Police Station Fateh Jang, District Attock and 2 others (PLD 2005 Lahore 316).
13. The contents of the Nikahnama have been admitted by the petitioners. The statement of the abductee as well as the presence of the Nikahnama belies the prosecution story as narrated in the F.I.R., which cannot be believed. When the Nikah has been admitted by the alleged abductee and petitioner No,2, 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). Moreover, the Nikah of an adult girl is not invalid for want of permission of Wali and further marriage is not invalid on account of the alleged absence of the consent of Wali. Reliance in this behalf is placed upon the case of Muhammad Imtiaz and another v. The State (PLD 1981 FSC 308) and Hafiz Abdul Waheed v. Mrs. Asma Jahangir and another (PLD 2004 SC 219).
14. For what has been stated above, this writ petition is accepted and the impugned F.I.R. No,316 of 2010, dated 9-7-2010 under section 365-B, P.P.C. Registered at Police Station Saddar Kharian, District Gujrat, is quashed.