RAJA SAJJAD AHMAD KHAN, J.---The supra titled writ petition has been addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby, following prayer is made by petitioners:- "It is, therefore, humbly prayed on behalf of petitioners that by accepting the instant writ petition, the FIR No.59/2017 dated 12.07.2017 in Police Station, Khori Naseerabad may kindly be declared illegal, without lawful authority, without jurisdiction, based on mala fide intention and same may kindly be quashed. If the petitioners are entitled to any other alternate appropriate or consequential relief that may also be granted to meet the ends of justice."
2. Precise facts as stated in the writ petition are that petitioners have contracted marriage out of their free will and consent in accordance with Sharia and in this regard petitioner No.1 got recorded her statement before Magistrate 1st Class, Muzaffarabad on 12.07.2017. It is further stated that respondent No.4 lodged an FIR No.59/2017 dated 12.07.2017 in offences under sections 10, 11, 16, 19 Z.H.A and 14, E.H.A against them. It is further stated that impugned FIR has been lodged against the petitioners with the mala fide intention and for ulterior motive for harassing the petitioners and they are being threatened to face dire consequences. The Police agency in light of impugned FIR is going to arrest them whereas the petitioners committed no offence whatsoever, therefore, FIR bearing No. 59/2017 dated 12.07.2017 in the aforesaid offences is against the law, fundamental right of the petitioners, misuse of the authority, harassment, and is liable to be quashed.
3. The petition was admitted for regular hearing on 08.11.2017. The respondents have contested writ petition by filing written statement, wherein it is stated that petitioners have been involved in heinous offence and filed the supra titled writ petition along-with application for suspension of FIR No.59/2017 whereas they are nominated in the said FIR who compiled a false, fabricated and forged Nikahnama. It is further stated that while filing complaint and recording statement before the Magistrate 1st Class, opted the version that petitioner No.1 wanted to marry to petitioner No.2 with consent of her parents whereas in para No.2 of the writ petition it has been categorically stated that her parents refused to marry with petitioner No.2, hence contents of the statement recorded before Magistrate 1st Class, and writ petition are clear cut contradictory in nature which indicated forgery and fraud committed by them while according to law they cannot opt the version contrary to the version already adopted in the competent Court of law, therefore, the petition may be dismissed.
4. Mohammad Pervez Mughal, the learned counsel for the petitioners reiterated the grounds taken in the writ petition and argued that alleged F.I.R is baseless and has been registered just to harass and victimize the petitioners. The petitioners are legally wedded spouse who performed their Nikah at Muzaffarabad. He further submitted that Mst. Tanzeela Bibi also got recorded her statement before Judicial Magistrate Muzaffarabad on 12.07.2017 that the Nikah performed at Muzaffarabad in accordance with law. He also submitted that the impugned FIR may be quashed on the ground that the same has been registered illegally against the accused-petitioners. He referred and relied upon PLD 1982 FSC 42.
5. On the other side, Raja .Ayyaz Ahmad Khan, learned A.A.G and Mohammad Hanif Minhas, learned counsel for private respondent while controverting the arguments advanced by learned counsel for petitioners submitted that an alternate remedy is available to the petitioners, so the instant writ petition is not maintainable and same is liable to be dismissed in the circumstances. Mr. Haneef Minhas, learned counsel for the private respondent while referring different documents submitted that petitioners have committed forgery while affixing forged thumb impression on the Niakh Nama of the respondent No.6 and prayed for dismissal of writ petition.
6. I have heard the learned counsel for the parties and have gone through the record made available and considered the case referred to and relied upon by the learned counsel for the parties.
7. A careful perusal of the record reveals that petitioners Nos.1 and 2 have contracted marriage on 12.07.2017. Prior to Nikah, petitioner No.1 got recorded her statement before Magistrate 1st Class Muzaffarabad on same day. An FIR was registered against the petitioners on 12.07.2017 at 5.00 p.m. at, Police Station Khori in offences under A sections 10, 11, 16, 19 of the Offence of Zina (Enforcement of Hadd) Act, 1985 and section 14, E.H.A. The petitioners filed the instant writ petition on 17.07.2017 along with an application for interim relief which was granted. The petitioner No.1 on Court order appeared on 08.11.2017 and admitted Nikahnama as correct. The writ petition was admitted for regular hearing on same day. Father of petitioner No.1 also filed an application under Rule 37 of AJK High Court Procedure Rules, 1984 which was allowed. He also filed an application wherein it has been - alleged that his signature and thumb impression on the Nikah Nama are forged and requested for direction of investigation. This Court vide order dated 20.10.2017 directed to Investigation Officer to investigate and submit report. After due process police received a report from Nadra Office wherein it is replied that due to lack of required information no match has been found.
8. A perusal of above mentioned document makes it clear that petitioner No.1 has contracted marriage with her free will. She got recorded her statement before the Magistrate which was later on confirmed by her before this Court. The petitioners are major Muslims and marriage has been taken place and consummated between them. A child has also born out of this wedlock. In the circumstances of the case every effort should be made to protect the marriage having taken place. The life and liberty has been granted under section 4 of the Interim Constitution Act, 1974, which is as under:- "Security of person. No person shall be deprived of life or liberty saves in accordance with law.
"Word life used in this section also means a happy life which a married couple is entitled to lead and enjoy. Life without personal rights is not of worth living. Enjoyment of personal life including right of married couple to live together is a basic human right which has been protected by the Constitution."
9. In such situation it can be safely held that impugned FIR has been registered by violating the fundamental rights of the petitioners.
10. I am aware of the fact that exercise of powers under extraordinary writ jurisdiction are very limited and can be exercised only in extraordinary circumstances where there is violation of law or principle of law found.
11. However, as the impugned FIR has been registered in offence under section 10, Z.H.A, The word Zina has been defined in section 4 of the Offence of Zina (Enforcement of Hudood) Act, 1985 which is as under:-- "A man and woman are said to commit Zina if they willfully have sexual intercourse without being validly married to each other."
12. The petitioners have affirmed the Nikahnama dated 12.07.2017 and after this Nikah they are living as husband and wife which is sufficient proof of valid marriage. According to principle of Muhammadan Law the presumption of valid marriage can be ascertained from the fact of acknowledgment by a man or woman as husband and wife. This view finds support from PLD 1982 FSC 42 referred to and relied upon by the counsel for the petitioners.
In a case reported as Azad Government of the State of Jammu and Kashmir v. Mohammad Din and others 2017 CLC 1288 the Hon'ble Apex Court has held that:-- "It is the duty of the court to protect the family life in genuine cases. We are conscious of the fact that Police cannot be restrained from performing its statutory duty of investigation of the cases registered in cognizable offences but the fact remains that when the parties are husband and wife, their version is supported by duly registered Nikahnama and there is no counter version regarding Nikah, then in such circumstances, the offence of Zina cannot be said to have been committed and registration of the case as well as continuation of investigation in such circumstances can safely be termed as mala fide and without lawful authorities."
The crux of the above discussion is that writ petition is accepted and the impugned FIR No.59/2017 registered at police station, Kahori on 12.07.2017, in offences under sections 10/11, 16, 19 of the Offence of Zina (Enforcement of Hadd) Act, 1985 and 14, E.H.A. is hereby quashed being registered in violation of law and fundamental rights of the petitioners with no order as to cost.