1. JUSTICE RAZA ALI KHAN, J. --- This application has been filed under Section 561-A, Cr.P.C. for quashment of F.I.R. No. 54/2019 registered at police station Baloch in the offences under Sections 10/11, 16/19, ZHA on 19.06.2019.
2. The petitioners have challenged the on the ground that petitioner No. 2 is a sui-juris lady and has contracted marriage with petitioner No. 1 out of her free will and consent, therefore, the registration of the impugned F.I.R. is misuse of the authority by the police and the continuation of the same is an abuse of process of law.
3. The learned counsel for the petitioners argued that the F.I.R. registered against the petitioners is based on mala-fide as is very much apparent from its contents. He further argued that petitioner No. 1 had contracted valid marriage with petitioner No. 2 and he referred to Nikahnama in this respect and placed reliance on 2016 SCR 1068 and PLD 2017 High Court AJK 66.
4. The learned AAG on the other hand opposed the application and submitted that petitioner No. 2 is minor girl, therefore, the contract of Nikkah without any wali is illegal.
5. I have heard the learned counsel for the parties and gone through the record of the case.
6. The petitioners claimed that they have contracted marriage in accordance with Sharia and in support of their claim, they placed on record a copy of registered Nikkahnama annexure `PB'. There is no other claimant nor any counter-version regarding Nikkah of petitioner No. 2 has been taken, therefore, in such circumstances an F.I.R. under the Zina Ordinance cannot be allowed to continue operational. Though the Courts are not expected to interfere in the investigation of a case, however, if on the face of record, no offence appears to have been committed and the accused are claiming as husband and wife and there is no counter-version of Nikkah, this Court in exercise of its inherent jurisdiction, under section 561-A; Cr.P.C. has ample powers to quash proceedings if it comes to the conclusion that even if entire evidence is brought on record, there is no likelihood that the petitioners would be convicted ultimately. I am fortified in this view from the judgment of Hon'ble Supreme Court of Azad Jammu and Kashmir rendered in Criminal Appeal No. 19/16 titled Qamar Pervaiz and another vs.The State and others decided on 17.04.2017. Relevant observations recorded in para 6 of the judgment are reproduced as under:-- "6. The stand of the appellants before the Shariat Court was that they are husband and wife and have duly contracted Nikah with their freewill and consent and registration of the case in the presence of Nikah was a misuse of the authority on behalf of police and was mala fide. The learned Single Judge in the Shariat Court has not considered the application rather bail has been allowed to them. A perusal of the F.I.R. as well as the other record reveals that no one else is claiming the hand of appellant No. 2 and in the presence of a valid Nikah, which is admitted by both the appellants, registration of the case under the provisions of Zina Ordinance was not justified. 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 authority."
7. So far the argument of the learned AAG that petitioner No. 2 is minor, hence, Nikah without Wali is invalid, has no substance because it appears from annexure PA i.e. Form B that she is a sui juris lady, hence, she competently contracted Nikah with petitioner No. 1 out of her free will.
8. As the petitioners are claiming to be husband and wife and petitioner No. 2 has got recorded her statement that she has contracted marriage with petitioner No. 1 out of her free will and no one kidnapped her, thus, in the above situation, the story narrated by complainant has lost its significance as well as veracity when Madiha Pervaiz, petitioner No. 2 spilled the beans about her alleged abduction, so, it will be a futile exercise to proceed further with criminal investigation, therefore, the continuation of the proceedings against the legally wedded spouses under the Zina Ordinance would be an abuse of process of law. In my (sic) of the considered view this is a fit case for quashment of F.I.R.
9. In view of above the application under Section 561-A, Cr.P.C. is accepted and F.I.R. No. 54/19 registered at police station Baloch in the offences under Sections 10/11, 16/19, ZHA on 29.06.2019 stands quashed.