1. GHULAM MUST AFA MUGHAL, J.---The captioned appeal by leave of the Court has been directed against the judgment of the Azad Jammu and Kashmir High Court dated 29.04.2020, passed in W rit Petition No.181 of 2019.
2. The precise facts forming the background of the captioned appeal are that the appellants, herein, as per their stand are husband and wife and their Nikah was solemnized on 16.02.2018 with their free consent according to Sharia in lieu of dower Rs. 200,000/-which was paid in shape of gold ornaments. The Nikah was registered on 22.02.2018. It was alleged that respondent No. 3, father of appellant No.2, herein, under the pressure of his relatives was not willing to perform Rukhsati of appellant No.2, whereupon she herself decided to populate with the appellant No. 1 and left the home of her father on 15.01.2019. She appeared before the Civil Judge/ Magistrate, Court No. 3 and filed a complaint agains t the persons who were creating hurdles in the population with appellant No. 1. It was stated that the father of appellant No. 2 under undue pressure of his family members made an application at police station Chatter Kallas for registration of a concocted case against the appellants in the offences under sections 10, 11, 19 ZA acid 14 EHA vide FIR No. 07/2019. It is stated that as the father himself admitted the Nikah of the spouses even then the police lodged an FIR for harassment of the appellants in order to have the marriage of appellants dissolved, whereupon the appellants, herein, filed the writ petition before the High Court on 23.01.2019 and challenged the legality and validity of an FIR No. 07 of 2019 registered on 27.01.2019.
2. The appellants took the categoric stand before that the learned High that they are spouses and are living as husband and wife and have not committed any offence listed in the FIR which has been registered on the behest of the close relatives of the father of the appellant for harassment of the appellan ts, therefore, the same may be quashed. Meanwhile, the appellant No. 2 approached the Judicial Magistrate for protection of her life with the request to send her in the shelter home. It was claimed that before the High Court, the respondents filed comments and have levelled different allegations against the appellants and also claimed dissolution of marriage through a decree passed on the basis of Khula by the Civil Judge/ Family Judge Gojra District Toba Taik Singh, Pakistan, dated 26.05.2018, and some documents were also filed by the respondents which shows that the husband of the appellant No. 2 also filed an application for setting-aside the ex-parte decree which was dismissed and an application for restoration was filed, which has also been dismissed in default. It was further stated that the appellant No. 2 was kidnapped from shelter home by respondent No. 3 and others family members and FIR to that effect was registered on 23.02.2019 (FIR No. 06/19) and when the High Court come across through the said position on 26.02.2019, the learned High Court ordered to SSP, Muzaf farabad to produce the appellant No. 2 from the custody of respondents before the High Court on 21.05.2019. The appellant No. 2 was produced but her statement was not recorded and she was asked to reproduced on 13.03.019 after medical treatment. The respondent No. 3 filed written statement on 01.08.2019 and denied the marriage of the appellant and also claimed that there is no Nikah between the parties on the basis of a decree passed by the Family Judge Gojra, Pakistan on the basis of Khula. It was further stated that the FIR has rightly been registered against the appellant at Police Station Chatter Kailas and the same cannot be quashed. Moreover , it was claimed that huge quantity of gold ornaments and Prize Bonds amounting to Rs. 200,000/- have been taken away by appellant No. 2 at the time of leaving the house which are liable to be recovered and the Nikah which was performed earlier has also been cancelled by the District Mufti while holding an inquiry that Nikah Khawan was not authorized to perform the Nikah.
3. After hearing the parties, the learned High Court through the impugned judgment refused to quash the FIR on the ground that at the time of registration of FIR No 107/2019, there existed no valid Nikah between the parties on 16.02.2018. It was further observed that the marriage was dissolved by the Court of competent jurisdiction on 16.05.2018. Ayaz Hussain filed an application for setting-aside the ex-parte decree in the relevant Court on 01.03.2019 which is also indicative of the fact that at present parties have no lawful relationship. Finally , the learned High Court sent appellant No. 2 in the Dar-ul-Aman, Muzaf farabad till further orders.
3. Ch. Shoukat Aziz, the learned Advocate for the appellants argued with vehemence that Tayyaba Qayyum is suijuris lady who has contracted marriage with Ayaz Hussain out of her free consent in accordance with Sharia on 16.02.2018 and Nikah was registered on 22.02.2018. After Nikah the Rukhsati was to be performed but under the pressure of some family members, the father of the appellant No. 2 refused the same whereupon, Tayyaba Qayyum herself went to Judicial Magistrate, Muzaf farabad on 16.01.2019, and filed an application under section 200 of Cr.P.C. and got her statement recorded against the respondents. The learned Advocate further argued that despite of the fact that there was no other claimant of Tayyaba Qayyum, even then, her father lodged an FIR against her at Police Station Chatter Kailas on 17.01.2019 that too, after the Nikah. The learned Advocate further argued that the police without holding an inquiry and looking into the legality and proprietary of the matter without any lawful authority registered a case in the heinous offences in presence of lawful marriage. He submitted that while registering the case, the police has transgress its authority because no case is the offences under sections 10, 11 and 16 can be registered against the spouses when the lady alleged to have been kidnapped, has made a categoric statement before the Magistrate and subsequently before the High Court that she has not been kidnapped by anybody rather has contrac ted marriage out of her free will and consent in accordance with Sharia.
4. The learned Advocate further argued that in the circumstances, was a fit case for quashment and the learned High Court for erroneous reasons has not quashed the FIR rather has directed the incharge of the Shelter home to keep Tayyaba Qayyum in shelter home for an indefinite period and the order amounts to illegal confinement which cannot be made by the Court of law. The learned Advocate further argued that from the judgment it appears that the learned High Court is much influenced from the exparte judgment passed by the Family Judge Gojra, Pakistan. Fact of the matter is that decre e itself at most can be treated a notice of Talaq under the Family Courts Act, 1964 and the rules made thereunder . Secondly , an application filed on behalf of Ayaz Hussain for setting-aside the ex parte decree and dismissal of the same against the dismissal of the application for restoration does not come into the way of the spouses becau se the decree was not final and the same was not an obstacle/ hurdle in the reunion of the spouse as has been held in the cases reported as Fazli-eSubhan v. Mst. Sabereen and others [PLD 2003 Peshawar 169]: Mst. Dilshad Akhtar and others v. State etc. [PLD 1996 Lah. 145], Hafiz Abdul Waheed v. Mrs. Asma Jehangir and another [PLD 1997 Lahore 301], Zulfiqar Ali v. Mt. Yasmeen Mukarram and another [PLD 2011 Lahore 458] and Attiq Ahmed Khan v. Noor -ul-Saba and another [2011 CLC 1211]. He further placed reliance on the case titled Aziz-ur -Rehman v. Nasir Yousaf and others , Civil PLA No. 115 of 2018 decided on 12.04.2018. The learned Advocate further argued that there is no other claimant, of the Tayyaba Qayyum and both the appellants claim themselves as husband and wife, therefore, their statement is liable to be accepted and no Qazi or Mufti has any lawful authority to declare their Nikah invalid on any ground whatsoever . He argued that the Nikah can be declared unlawful by the Family Court constituted under the Family Courts Act or any other appropriate Court specially authorized in this regard. The learned advocate further argued that even in the case of two claimants, the preference is given to the Nikah which is owned/supported by the lady because a women cannot be thrown by the Court to live a miserable life. He placed reliance on the cases reported as M. Shawal v. Sonia Farooq [2019 SCR 934] and Shapal Anjum v. Samina Kousar [2019 SCR 226]. The learned Advocate further argued that the Division Bench of the learned High Court was not competent to send Tayyaba Qayyum in shelter home for an indefinite period which is otherwise amount to illegal confinement. He placed reliance on the case reported as Safeena Bibi v . Zahoor Ahmed [2006 SCR 41 1] In the case reported as Fazli-e-Subhan v. Mst. Sabereen and others [PLD 2003 Peshawar 169], referred to herein, it was observed as under:- "In view of the above, we are of the cons idered view that in case of divorce through "Khula " it is not obligatory on the wife to re-marry a third person before entering into re-marriage tie with her first husband and same is the case here. The re-marriage with same husband of course would be subject to performance of another Nikah. Section, 7(6) of the Muslim Family Laws Ordinance also allows such re-union without Halala, hence we see no restraint either in the Muslim Family Laws Ordinance or in the Injunction of Quran and Sunnah, not to allow the prayer of the husband for re-union with his wife when she is ready to live again as wife of the petitioner within the limits of God."
5. In the case reported as Mst. Dilshad Akhtar v. State [PLD 1996 Lah. 145], the single bench of the Lahore High Court has observed as under:- "The petitioners being sui-juris, have lawfully married each other and in these circumstances the offence as alleged in the FIR is not made out, conviction of accused in the circumstances is not possible and continuance of investigation under these circumstances against the petitioners and other co-accused will simply amount to unnecessary harassment. In fact in these circumstances the continuance of the investigation by police amounts to mala fide action on the part of the Investigation Agency in collusion with the complainant party just to harass the petitioner No. 1 and to put an illegal pressure on her to leave her husband and bow to the wishes of her parents against her own free will. Reference here may be made to Art. 4(2)(b) of the Constitution of Pakistan wherein it is laid down that no person shall be prevented from or be hindered in doing that which is not prohibited by law. The law did not prohibit the petitioners from marrying each other and does not prohibit them from living with each other as husband and wife. This is their Consti tutional guarantee and it cannot be taken away by any one. Similarly Art. 35 of the Constitution of Islamic Republic of Pakistan makes it the duty of the State to protect the marriage, the family , the mother and the child. Therefore, whenever any person is threatened with the violation of any of the rights which have been guaranteed by him under the constitution he can invoke the constitutional jurisdiction of Art. 199 of the Constitution seeking protection of Court against any official agency to enforce his rights under the constitution and in such an eventuality it is the duty of this Court to satisfy itself that the fundamental rights guaranteed to the people of Pakistan under the Constitution of Pakistan are not infringed and violated by any Government or State Functionaries / Agencies. The proceedings, therefore, under Art. 199 of the Constitution .are competent against any criminal inquiry/investigation if the same encroaches upon any fundamental rights guaranteed by the Constitution, violates some other law or is motivated for some mala fide reasons".
6. In the other case reported Zulfiqar Ali v. Mst. Yaseen Mukarram and others [PLD 2011 Lahore 458], it was held as under:- " ......This argument was accepted and in accordance with the injunctions of Quran and Sunnah, it was held that "the pronouncement of Khula' by the Court would amount to a single divorce, therefore, until the third divorce takes place the petitioner would be at liberty to marry his wife again, consequently , the parties can rejoin as husband and wife on the solemnization of nikah without the intervention of third person. " The aforesaid judgment was followed in Muhammad Ayub Khan v. Mst. Shahla Rasheed and another supra where again the re-union of husband and wife, whose marriage had been dissolved by the court on the ground of Khula, was allowed but only by way of re-marriage.' Further support can be drawn from Fazl-e-Subhan v. Mst. Sabereeen and 3 others supra wherein it was held that we are of the considered view that in case of divorce through Khula, it is not obligatory on the wife to remarry a third person before entering into re-marriage tie with her first husband" and same is the case here. The re-marriage with same husband would of course be subject to the performance of another Nikah . Section 7(6) of the Muslim Family Laws Ordinance also allows such re-union without 'Halala: hence we see no restraint either in the Muslim Family Laws Ordinance or the injunctions of Qur'an and Sunnah not to allow the prayer of the husband for re-union with his wife when she is ready to live again as wife of the petitioner within the limits of God"
7. In the case reported as Attique Ahmed Khan v. Noor -ul-Saba and another [2011 CLC 1211], it was observed as under:-- "6. In the present case too, the marriage was dissolved at the request of the respondent. Pronouncement of "khula" by the Court is a single divorce, as the husband never accepted it voluntarily , hence this kind of dissolution of marriage is known as Talaq-ul-Ba'ayen. Relying upon the dictum laid in the above cited judgment, it is declared that before reunion in such-like cases "Halala " is neither a condition precedent, nor the decree of "Khula" is a hurdle in the way of re-union"
4. Conversely , Mr. Abdul Rasheed Abbassi and Raja Shujaat Ali Khan, Advocates argued with vehemence that the judgment of the learned High Court is unexceptional and has rightly been given on the facts and law hardly requires any interference by this Court. He submitted that both the parties were residing in Chatter Kallas, whereas, the Nikah has been performed at Jalalabad by the Nikah Khawan who was not authorized in this behalf rather he has illegally utilized the register of third person thus, the District Mufti after holding an inquiry has rightly declared the Nikah invalid and also disqualified the so-called Nikah Khawan for further performing as Nikah Khawan. He further argued that the constitutional Courts do not interfere in the police investigation where the cognizable offence on the basis of record appears to have been committed because the investigation under law is a statutory duty of the police, hence, the police cannot be restrained from performing its duties. If the appellants have any grievance that can only be redressed after challan by the relevant Court. In this regard he placed a reliance on the cases reported as M. Saleem v. M. Zaman and others [2014 SCR 809], Zahoor Ahmed v. Rukhsana Kousar and others [2000 SCMR 707] and Khadim Hussain v. Abdul Basit and others [2002 MLD 1250 ]. The learned Advocate further argued that where the proper case is made out but the parties have no moral case even then the writ cannot be issued. He added that in the present.case, the so-called Nikah has been dissolved by the Family Judge Gojra, Pakistan and the application for setting-a side the ex-parte decree filed by appellant No. 1 has been dismissed. He submitted that the application for restorati on has also been dismissed in default, therefore, at least of present there exists no lawful relationships between the appellants therefore, allowing them to live together as husband and wife would be sheer violation of Sharia and in such state of affairs, the Court being part of the society cannot grant such a relief which promote immoral activities. The learned Advocate placed reliance on a reported case titled M. Hanif Khan v. M. Halim Khan and others [2000 PLC (C.S.) 171]. The learned Advocate lastly submitted that the writ can be entertained and granted only where the violation of law is pointed out. In the case of cognizable offences, it is the duty of the Police Officer to register a case and proceed further . If the case has not been made out, then the police Officer has to close the same under the preceding section of Cr.P.C., therefo re, the interference at any stage is not justified. The learned Advocate further argued that the disputed question of facts cannot be resolved in writ jurisdiction because as to whether the Nikah was performed with the consent of appellant No. 2 or in a lawful manner is the question of fact and this Court cannot decide the same. In this regard, Mr. Abdul Rasheed Abbasi, the learned Advocate for respondents referred to and relied upon the cases reported as Sohail Yousaf v. Yasir Riaz and others [2019 YLR 1284 ], Parveen Azam and others v. SSP District Mirpur and others [2015 SCR 837], Shan Muhammad v. M. Younas and others [2014 SCR 183], M. Saleem v. M. Zaman and others [2014 SCR 809], Khadim Hussain v. Abdul Basit and others [2002 MLD 1250 ] Dr. Ghulam Mustafa v. The State and others [2008 SCMR 76], Col. Shah Sadiq v. M. Ashiq and others [2006 SCMR 276], Haji Sardar Khalid Saleem v. M. Ashraf and others [2006 SCMR 1192], Brig. (Reid) Imtaiz Ahmed v. Government of Pakistan and others [1994 SCMR 2142 ], Habib Ahmed v. M.K.G. Scott Christian and others [PLD 1992 SC 353], AI. Rehman v. District Police Officer and others [PLD 2015 Lah. 413], Shevo v. Regional Police Officer and others [PLD 2009 Kar. 24], Resident of Village Sathra v. Azad Government and others [2018 CLC Note 119, p.106], AJK Government and others v. Dr. M. Amin [2014 SCR 258], Abid Hussain Jaffri and others v. Azad Government and others [1998 PLC (C.S.) 141], Farooq Ahmed v. Custodian and others [2018 SCR 1], Finance Department v. Ch. M. Naseer and others 2020 PLC (C.S.)
8. Note 48, p.42], Secretary Services and others v. Bashir Mir [2015 SCR 851], Fazal Hussain v. M. Ashraf and others [2006 SCR 163] and Raja M. Hayat Khan v . Board of Revenue AJK and others [1999 YLR 147 ].
9. In the case reported as Khadim Hussain v . Abdul Basit and others [2002 MLD 1250 ], it was observed as under:- ".... that the High Court has no jurisdiction to quash criminal proceedings at the stage of investigation or thereafter as has been held in number of cases, referred to above, by the Supreme Court of Pakistan. It may be further pointed out here that the High Court in exercise of writ jurisdiction is not competent to assume the role of investigating agency or the trial Court to give verdict as to whether an accused person has committed an offence or not. It is for the ordinary Court to decide the matter under the relevant law ."
10. In the other case reported as 2014 SCR 809, it was held as under:- "8. According to plain phraseology of section 561-A, Cr.P.C. and the principle of law enunciated by the superior Courts, while exercising such powers, the High Court or Shariat Court cannot assume the role of investigating agency for the purpose of appreciation of the material which is yet to be finalized by the investigating agency . In the instant case, the investigation has not been finalized. The learned Shariat Court has drawn conclusion on the basis of some presumptions. In our considered view, it is not a proper course of law. The learned Shariat Court cannot while exercising the inherent powers under section 561-A, Cr.P.C., interfere with the process of investigation or hamper the same. If such practice is allowed, it may amount to interfere in the domain of investigating agency which is abuse of the process of law and Courts, hence, such practice must be avoided at all costs.
11. In the other case referred to and relied upon by Abdul Rasheed Abbasi, the learne d Advocate for the respondents, reported as Abid Hussain Jafri v . Azad Government and others [1998 PLC (C.S.) 141 ], it was held as under:- " If it is found that the person seeking relief by way of writ petition has no legal or moral case, then irrespective of the fact that the Chief Secretary or, for that matter , any other departmental authority is bound to obey the orders of the Prime Minister , the High Court may refuse to issue a writ of mandamus in exercise of its discretionary powers vested in it......."
5. We have heard the learned Advocate for the parties and gone through the record of the case. It may be stated that appellant No.2, Tayyaba Qayyum is a sui-juris lady and as per her stand, she has contracted marriage with Ayaz Hussain on 16.02.2018 with her free consent in lieu of dower amounting to Rs. 200,000/-. The Nikah was registered on 22.02.2018. The record further reveals that Rukhsati was not performed due to family pressure resultantly , appellant No. 2 herself left the home of her father and appeared before the local Magistrate and made a statement that she wants to populate with her husband as due to pressure of the family , her father is not willing to perform the Rukhsati. In this background, FIR No. 07/2019 was lodged by the father of the appellant No. 2 against the appellants at Police Station; Chatter Kallas on 27.01.2019, in the offences under sections 10, 11, 19 ZA and 14 EHA. The appellants, herein, filed a writ petition before the Azad Jammu and Kash mir High Court for quashment of the same which after necessary proceedings through the impugned judgment has been declined by the learned.
12. High Court. It is an admitted position that no one else is claiming the hand of Tayyaba Qayyum except Ayaz Hussain. The learned High Court has declined the relief to her on two grounds because an ex-parte decree for dissolution of the marriage on the basis of Khula has been passed by the Famil y Judge Gojra Toba Taik Singh, Pakistan on 26.05.2018 which is still in existence and an application filed by appellant No. 1 for cancellation of the decree has been dismissed in default. Secondly , the learned High Court has also given the reasons for not issuing the writ and restraining the police from investigation. We are of the view that as the appellants, herein, are still claiming as husband and wife which fact has also been owned by Mst. Tayyaba Qayyum during her statement recorded by the learned High Court on 13.03.2019. After recording the statement, Tayyaba Qayyum was sent to shelter home by the learned High Court. In our estimation, the decree passed by the learned Family Judge Gojra is doubtful as the same has not been ackno wledged by Tayyaba Qayyum and even otherwise, such decree does not operate as complete Talaq in the light of case law referred to and relied upon by Ch. Shoukat Aziz, the learned Advocate for the appellants, hence, is not a hurdle in reunion of the spouses. We have no quarrel with the arguments advanced on behalf of the respondent that FIR disclosing the cognizable offences cannot be quashed in exercise of writ jurisdiction. This Court has also taken the same view in some cases which have rightly been referred to us by the learned Advocate for the respondents, however , each and every case is to be judged in the light of its peculiar facts and circumstances. As stated above, in the present case, no one else is claiming the hand of Tayyaba Qayyum rather her father has also admitted her Nikah with appellant No. 1 that is why he has attempted to file a suit for dissolution of marriage in Gojra, Pakistan. We have also noticed that District Mufti has declared the Nikah illegal. We are of the view that no Mufti or Qazi except the Court empowered under Family Court Act 1993, has the jurisdiction to entertain any proceedings or declare the Nikah of the spouses illegal. Mere fact that the person of locality has not performed the Nikah does not invalidate the same. We have also noticed that the learned High Court has also observed in the impugned judgment that section 10 in this case is not attracted. So far as the sections 11 and 16 are concerned, Tayyaba Qayyum has also made a categoric statement that she has not been abducted by anyone. We are conscious of the fact that the Courts do not intervene in the police investigation but where an FIR has been registered against the spouses without due inquiry and taking notice of the facts, the Courts cannot shut its eyes and a grave misuse of authority by the police can be checked and corrected in exercise of writ jurisdiction. It may be stated that it is not an absolute rule that the High Court cannot interfere in the investigation even though if it is proved that the case has been regis tered without lawful authority by police by misusing its authority . In suitable cases, these powers can be exercised as has been held in the case reported as Anwar Ahmed Khan v . The State and another [1996 SCMR 24 ] wherein, it was held that:- "17. It Is well-settled principle that where investigation is mala fide or without jurisdiction, the High Court in exercise of its Constitutional jurisdiction under Article 199 is competent to correct such proceedings and pass necessary order to ensure justice and fair-play . The Investigating Authorities do not have the entire and total authority of running investigation according to their whims."
13. We have also noticed that the learned High Court has sent a lady in the shelter home for an indefinite period which tantamount to illegal confinement. In the similar circumstances in the case reported as Safeena Bibi v. Zahoor Ahmed [2006 SCR 411] a lady was sent by the High Court in shelter home for an indefinite period and this Court on appeal has set-aside the order and observed as under:- "If the person is a minor , the Court may make over his custody to the guardian which will be dealing with him in accordance with law, but if the person is major , the only jurisdiction which the Court can exercise is to set him at liberty whether illegally or improperly detained in public or private custody or not. The Court may 'set at liberty', but cannot restore status quo ante against the wishes of the person brought before it. Such a course will lead to curtailment of liberty for which there is no warrant under section 491 nor can such an order be sustained under section 561-A of the Code as it cannot be said that allowing a person freedom of movement is an abuse of the process of the Court."
14. The aforesaid report clearly contains that the High Court on an application under sections 491 and 561-A, Cr.P.C. can only set the person at liberty and cannot pass any other order . In the instant judgment, the learned Acting Chief Justice has detained the petitioner in central jail Muzaf farabad, which prima facie seems to be an illegal order . The same is, hereby suspended till further order subject to objections from other side. The petitioner shall be released immediately . The Senior Superintendent of Police Muzaf farabad is directed to provide the escort to the petitioner and the S.S.P . should also ensure that Mst. Safeena 'Bibi should safely reach to her destination where she wants to go.
15. In view of the above, while setting aside the impugned judgment passed by the learned High Court dated 29.04.2020, the writ petition stands accepted in the terms that FIR No. 07/ 2019 lodged at Police Station Chatter Kallas, in the offences under sections 10/ 11, 19 ZA and 14 EHA, against the appellants, herein, stands quashed.
16. The appellant No.2 who is in the shelter home as per order of the High Court, is set at liberty and is allowed to follow her choice. No order as to costs.