' Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners seek quashment of case F.I.R. No,30, dated 14-2-1995 under section 11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and 109, P.P.C. Registered with Police Station, Badana, Tehsil Pasrur, District Sialkot being illegal and mala fide, without jurisdiction and abuse of process of law.
2. The brief facts of the case are that the petitioner No,1 being sui juris entered into marriage with petitioner No,2 on 12-12-1994 in accordance with Muslim rites and the Nikahnama was duly registered with the Nikah Registrar. The father of the petitioner No,1, respondent No,2 felt annoyed and started pressurizing and threatening the spouses of dire consequences; ultimately got registered a case after a lapse of more than a period of two months against the petitioner No,2 and his family members including his father, sisters etc.
3. Learned counsel for the petitioners in support of the petition contended that Mst. Atiya Nasir is sui juris of 20 years of age, a student of BA. Final class and is well-aware of all her decisions; has entered into marriage with the petitioner No,2 in accordance with Muslim rites with her own accord and free will. Further contended that the F.I.R. Was lodged with unexplained delay of more than two months.
4. The learned counsel for respondent No,2 contended that petitioner No,1 was forcibly put in the car by the accused persons and was kidnapped on 8-2-1995; since then she was being illegally detained by the accused persons as mentioned in the F.I.R. Against her wishes and the case is under investigation. Further contended that the documents relating to the petitioner's Nikahnama.
Are also under scrutiny as the Nikah is fabricated one and relied upon the statement of Nikah Registrar recorded on 21-2-1995 by the Investigating Officer.
5. I have heard the arguments advanced by the learned counsel for the parties and given my anxious considerations to the arguments. I have also gone through the material placed on record.
6. Admittedly, the petitioner No,1 is sui juris of 20. Years age and is student of BA. Final residing in the hostel at Sialkot; the Nikahnama as per report of the Secretary Ward No,33, Green Town, Lahore has been registered in accordance with the law in the said Union Council and has been found genuine vide report, dated 20-3-1993 by the D.S.P., Pasrur. It is also admitted fact that the Investigating Officer requested the Illaqa Magistrate to record the statement of the Nikah Registrar vide application, dated 23-2-1995. The learned Magistrate after hearing the arguments of the learned counsel from both the sides observed that the case diary No,7, dated 21-2-1995 compiled by Fazal Khan, Inspector D.S.P. Office, is comprehensive and self-explanatory, hence no need to record the statement of the Nikah Registrar under section 164, Cr.P.C. And directed the Investigating Officer to proceed in the light of the investigation and statement recorded under section 161, Cr.P.C. On the other hand, the affidavit of the petitioner No,1, dated 12-12-1994 is also part of the police record wherein she deposed that neither she was eloped nor kidnapped by anyone and intends to marry with her own free will and accord with the petitioner No,2. Another affidavit dated 14-12-1994 of the petitioner No,1 is also part of the record wherein she deposed that she being educated lady has entered into marriage with her own free accord and will with the petitioner No,2 on 12-12-1994; both\the affidavits aforementioned are attested by the Oath Commissioner and Notary Public, Lahore, respectively; hence the genuineness of the Nikahnama is proved beyond any shadow of doubt.
7. The learned. Counsel for the petitioner was directed to produce the petitioner No,1 in. Court; Mst.
Atiya Nasir petitioner No,1 in the open Court stated that neither she was eloped nor kidnapped by the petitioner No,2 or his family members as alleged in the F.I.R.; rather on her own accord and free will entered into marriage with the petitioner No,2. An effort was made by the Court to reach a compromise between the parties; in the larger interest of family; an opportunity was provided to the mother of the petitioner No,1 for 30 minutes to have a meeting with her daughter and they, had a talk for about 30 minutes; in spite of the meeting; the petitioner No,1 reiterated her stand in the open Court in the presence of her parents and other relatives.
8. The contention of the learned counsel for the respondent that the case is under investigation and the Nikahnama is still to be verified at this stage, the writ petition is not competent and relied upon well-known case of Shahnaz Begum PLD 1971 SC 677; has no force, as firstly the Nikahnama has been found genuine by the D.S.P., Pasrur and the Secretary, Union Council Ward No,37, Lahore has confirmed it as aforementioned. So far as the statement of the Nikah Registrar is concerned seems to be an afterthought, otherwise the learned Magistrate would have not declined to record the statement under section 164, Cr.P.C. Of the said Nikah Registrar and directed the Investigating Officer to proceed in the light of statement recorded under section 161, Cr.P.C. In the case Muhammad Bashir v. The State 1984 PCr.LJ 1892 it was held that in Islamic Law contract of marriage need not be proved through a written document; if Nikah is not registered then either two witnesses can be produced in support of factum of Nikah or man and woman i,e, husband and wife may together certify factum of marriage; as in the case factum of Nikah which was not written and did not stood proved according to law; on the basis of dictum laid by the Court, the benefit of doubt was given to the accused and acquitted under section 10 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The learned counsel for the respondent contended that writ jurisdiction is a judicial discretion and has to be exercised reasonably, fairly and properly; true the exercise of writ jurisdiction by the High Court is discretionary; in this regard their Lordships in case Karamat Hussain and others v. Muhammad Zaman and others PLD 1987 SC 139; it was held that:-- "The writ jurisdiction conferred upon the High Court by the Constitution is discretionary but the right to apply for a writ is certainly not a privilege on the contrary, it is of the most valuable rights that can be conferred upon a citizen."
Further in the case of Adamjee Insurance Company v. Assistant Director 1989 PCr.LJ 1921 it was held by their Lordships of the Supreme Court that proceedings under Article 199 of the Constitution will be competent even against enquiry/investigation if it encroaches upon any fundamental right as guaranteed by the Constitution or it violates some other law or is motivated for mala fide reasons and the 'same view has been followed by this Court in case Muhammad Banaras v. S.H.O. And others 1995 PCr.LJ 94 and case reported as Mst. Bushra Bibi v. S.H.O. 1995 PCr.LJ 401.
9. According to Article 35 of the Constitution of Islamic Republic of -Pakistan, it is the duty of the State to safeguard the fundamental rights of the marriage.
10. Mst. Atiya Nasir petitioner No,1 has admittedly entered into marriage with the petitioner No,2, two months prior to lodging of the F.I.R.; the has C openly contradicted the version of F.I.R. By stating that she had married with petitioner No,2 of her on accord and free will.
11. For all that has been stated above, the continuance of proceedings against the petitioner No,2 and his family members in a case under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 will amount to unnecessary harassment. The result is obvious and no Court on such evidence can convict 'the petitioners and others on the charge levelled against them. It is not the intention of law that accused should necessary be subjected to trial irrespective of the fact that the case is made out or not. The interference by this Court in exercise of its extraordinary jurisdiction under Article 199 cannot be refused merely the case is under investigation as the whole purpose is to secure the ends of justice; therefore, a person if facing groundless charge in criminal proceedings cannot be refused under Article 199 as is the privileged right of a citizen.
12. The result is that writ petition succeeds ,and is allowed; consequently F.I.R. No,30, dated 14-2- 1995 under section 11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and 109, P.P.C.
Registered with Police Station, Badana Tehsil Pasrur, District Sialkot is hereby quashed with 'no order as to costs.