' Through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Mst. Irshad Elahi has prayed for the quashment of F.I.R. No,268 of 1995 registered at Police Station Saddar Rahimyar Khan ,on 15-7-1995 on the statement of her father Mian Bashir Ahmad son of Jam Nabi Bakhsh under sections 148, 149, 452 and 337, P.P.C. Read with Article 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
2. It has been alleged in this petition that her Nikah with Muhammad Akhtar son of Jam Hazoor Bakhsh was performed according to Shariat on 5-1-1995 with the express approval and consent of her father, respondent ,No,2 but subsequently the said respondent changed his mind and he restrained the petitioner from going to the house of her husband and also instituted a false case of dissolution of marriage in the Family Court of Rahimyar Khan without the knowledge and consent of the petitioner. The petitioner claims that she never put her thumb-impression on any plaint for dissolution of marriage nor did she engage any counsel nor put in appearance before any such Court and her father got this ex pane within a period of one month from the institutions thereof_ through forged and fictitious proceedings and also got the aforesaid F.I.R. Registered at Police Station Saddar Rahimyar Khan in collusion with the police, in spite of the fact that she never intended to get her marriage dissolved nor was she ever abducted but taking resort to this false F.I.R. Her husband Muhammad Akhtar was arrested by the police. She was also compelled to get separation and with this intention in mind she was kept in illegal detention. It was in the circumstances that Sultan Ahmad, a real brother of her husband Muhammad Akhtar, filed a writ petition before this Court on the basis of which the petitioner was recovered by a Bailiff and produced before the Court. Her statement was then recorded on 29-11-1995. The matter was converted into a bail application and she was enlarged on bail on that very date. It was thereafter that she approached the Judge Family Court for getting the ex parte decree in suit for dissolution of marriage set aside which was consequently set aside on 20-12-1995. She has claimed that in these circumstances which were very well-known to the police and also to her father Bashir Ahmad, the F.I.R. Is liable to be quashed.
3. After this writ petition had been filed, the comments of the police were sent for. It was, however, maintained by the Inspector/S.H.O. In his comments that this decree for dissolution of marriage had become operative with effect from 13-7-1995 and in this connection he had recorded the statement of the Secretary of the Union Council. He claimed further that an application moved for setting aside this ex parte decree was got dismissed from the Court of learned Judge Family Court Rahimyar Khan on 31-10-1995. According to him, he also recorded the statement of Abdul Sami, Advocate, counsel for Mst. Irshad Elahi on 17-12-1995 according to whom this suit for dissolution of marriage had been brought by Mst. Irshad Elahi of her own free will and accord and she had also put her signatures thereupon. It was in these circumstances that both Muhammad Akhtar and Mst.
Irshad Elahi were arrested on 23-11-1995.
4. These comments were placed on record on 21-3-1996. Meanwhile on 6-3-1996 one Mumtaz Ahmad moved an application under Order 1, Rule 10, Civil Procedure Code through his counsel Raja Sohail Iftikhar for being impleaded as a party to this writ petition claiming therein that Mst. Irshad Elahi had, of her own sweet-will and consent and with the consent of her parents on 12-7-1995, contracted Nikah with him and it was after the Nikah that on the night between 14/15-7-1995 she was abducted by her previous husband with regard to which F.I.R. No,268 of 1995 (in question) was registered. A copy of this application was handed over to the learned counsel for the petitioner Malik Ghulam Farid, who on 10-10-1996 stated at the Bar that he had no objection to the impleadment of Mumtaz Ahmed applicant, in order to resolve the controversy between the parties once for all. This application (C.M. No,50 of 1996) was, therefore, allowed and Mumtaz Ahmad was also impleaded.
5. On 13-3-1996 this Mumtaz Ahmed filed Writ Petition No,735 of 1996 against Ch. Talib Hussain, Civil Judge/Judge, Family Court, Rahimyar Khan, Mst. Irshad Elahi and Muhammad Akthar for a declaration to the effect that the order of the learned Family Judge dated 20-12-1995 had been passed illegally, without lawful authority and was, therefore, of no legal effect and was inoperative as against the rights of the petitioner. This writ petition was admitted to regular hearing on 3-11- 1996 for considering as to whether the Judge Family Court had jurisdiction to set aside the ex parte decree for dissolution of marriage or not. Since common questions of law and facts are involved in both these writ petitions, they are intended to be disposed of through this single judgment.
6. It is pertinent to note at the very outset that Bashir Ahmad, complainant in the case, has placed on record his affidavit in which he has solemnly affirmed and declared that some unknown persons had entered into his house with the intention of abducting his daughter Mst. Irshad Elahi wife of Muhammad Akhtar forcibly and the F.I.R. No,268 of 1995 was got recorded by him due to suspicion and some misconception. According to him Muhammad Akhtar is his son-in-law while the other persons nominated therein as accused, are also his close relatives and in a gathering of the respectable of the Biradari he was assured/convinced about the innocence of Muhammad Akhtar on the Holy Qur'an. He added that his daughter Mst. Irshad Elahi was living happily with her husband Muhammad Akhtar and, as such, he had no objection to the quashment of the F.I.R.
7. In another writ petition (W.P.No,756 of 1996) brought by Mumtaz Ahmad on 1-8-1996, Muhammad Arif Hanif, A.S.P. City Rahimyar Khan being a member of the District P.S.A. Looked into the matter and after recording the statements of all the concerned and taking into consideration the results drawn from the investigation of all other Investigating Officer he arrived at the conclusion that Muhammad Akhtar was the real husband of Mst. Irshad Elahi; that Mumtaz Ahmad petitioner claiming Mst. Irshad Elahi as his wife, produced some other girl in the family Court and thus succeeded in getting an ex parte decree passed for dissolution of marriage; that later on this decree was challenged by Muhammad Akhtar which was finally set aside and that Mst. Irshad Elahi was never kidnapped/abducted by anybody and she was living with her husband Muhammad Akhtar. He, therefore, finally observed that the stand taken by Mumtaz Ahmad in Writ Petition No,753 of 1996 (the contents of which are not before this Court was baseless. (A certified copy of this report has been placed on record of this Court by Malik Ghulam Farid, Advocate today).
8. I have heard the parties at considerable length and have also given my earnest consideration to the facts and circumstances, as can be gathered from the record available before me.
9. The Criminal Miscellaneous No,858-B of 1995 (initially Writ Petition No,2931 of 1995) was also dealt with and disposed of by me. Sultan petitioner therein claimed that Mst. Irshad Elahi daughter of Bashir Ahmad of Basti Sultan was lawfully wedded wife of his real brother Hafiz Muhammad Akhtar and their Nikah was performed on 5-1-1995 where after she remained performing her marital obligations; but Bashir Ahmad father of Mst. Irshad Elahi who was a greedy person subsequently got a suit for dissolution of marriage filed by some other woman who impersonated herself as Mst.
Irshad Elahi before the Judge Family Court, on 23-5-1995 which was decreed ex parte on 27-6-1995 without the appearance of Mst. Irshad Elahi or without recording her evidence. It was also claimed in the said writ petition that Muhammad Akhtar brother of the petitioner filed an applicator for setting aside this ex parte decree on 19-7-1995 and the learned Judge Family Court directed the issuance of a notice in the name of the respondent Mst. Irshad Elahi in the ordinary process and also by post and telegraphically for 30-7-1995 and the operation of the impugned decree was also suspended. This allegation finds support from Annexure 'D', a certified copy of the order 19-7-1995.
Sultan went on claiming that Bashir Ahmad father of Mst. Irshad Elahi had in collusion with S.H.O.
Police Station Saddar Rahimyar Khan got a case F.I.R. No,268 of 1995 registered against Muhammad Akhtar and others under sections 148, 149, 452 and 337, P.P.C., read with Article 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and Mst. Irshad Elahi was being compelled to go back to Bashir Ahmad and had been illegally confined at Kol Sabzal Police Station.
A Bailiff of this Court was directed to recover Mst. Irshad Elahi and produce her before the Court on 26-11-1995. On that date, however, it was contended with vehemence that after this petition had been entertained and order for the recovery and production of Mst. Irshad Elahi was passed, Muhammad Sadiq, Inspector/S.H.O. Police Station Kot Sabzal made her an accused in the case and sent her to the judicial lock-up.
10. Malik Gliulam Farid. Advocate, learned counsel for the petitioner, therefore, requested that Mst.
Irshad Elahi be summoned and her statement be recorded and then this writ petition be converted into a hail application. Mst. Irshad Elahi was accordingly summoned from the Judicial lock-up for 29-11-1996. Her statement was recorded on that date. She stated in unequivocal words that she was never abducted by Muhammad Akhtar and that she did not bring any suit for dissolution of marriage against her husband Muhammad Akhtar and all the proceedings regarding institution of the suit on her behalf against Muhammad Akhtar for dissolution of marriage and its being decreed against ex parte had been carried out without her knowledge and approval. It was in these circumstances that this petition was converted into a bail application and she was enlarged on hail on that very date.
11. Seen in this perspective the story introduced by Mumtaz Ahmad (in Writ Petition No,735/96) appears nothing but totally concocted one and farce. The suit of Mst. Irshad Elahi was decreed in her favour ex parte allegedly on 27-6-1995. She did not like to wait for the period of Iddat and happily agreed to enter into a second marriage with Mumtaz Ahmad on 12-7-1995. It has been held in Allah Dad v. Mukhtar Ahmad and another 1992 SCM R 1273 by the Shariat Appellate Bench, Supreme Court of Pakistan that a marriage contract during the period of Iddat is not merely an irregular marriage: it has been termed by the Muslim Jurists as Batil (void). The minimum period of Tddat is three periods of menstruations which do not necessarily extend to 90 days and could be 39 days, as per this esteemed judgment, because this is the period in which it is possible for a woman to have three menstruations with two intervening periods of purity. In the instant case, however, thirty nine days were also not complete when Mst. Irshad Elahi allegedly entered into a second marriage with Mumtaz Ahmad. In fact, it was on the 15th days (i,e, on 12-7-1995) after 27-6- 1995 when her alleged was performed. Mst. Irshad Elahi is obviously an illiterate woman. Today without giving out my mind with regard to the intention behind it, I asked Mst. Irshad Elahi to put her signatures on a blank paper. She categorically stated that she cannot do so because she only puts her thumb-impression. It is claimed that this Nikah was performed in the presence and with the express approval of her father Bashir Ahmad who put his signatures thereon as her Wali/Vakeel.
Bashir Ahmad was also asked to put his signatures on a blank paper which he accordingly did. This paper is mark-A (Placed on file). These signatures of Bashir Ahmad do not at all resemble/tally with signatures purporting to be his, on this Nikahnama. I have, therefore, a strong feeling that this.
Nikahnama is a forged and fictitious document and all concerned with the performance of this Nikah were/are guilty of forging this document.
11-A. The investigation carried out in this case reportedly by Muhammad Sadiq Inspector/S.H.O.
Police Station Kot Sabzal has also been thoroughly dishonest. In his comments submitted by him in the instant writ petition (No,32 of .1996), it is stated that the ex parte decree for dissolution of marriage had become operative with effect from 13-7-1995 and in this connection he had recorded the statement of Secretary Union Council and got this fact verified. Mumtaz Ahmad and his counsel have not so claimed before the Court but even if it be assumed for the sake of arguments, without holding, that this Inspector had recorded the statement of the Secretary Union Council and got this fact verified that the Tallaq/decree for dissolution of marriage had become operative with effect from 13-7-1995, how on earth could Mumtaz Ahmad enter into a marriage contract with Mst. Irshad Elahi, a day earlier i,e, on 12-7-1995?
12. The contention of learned counsel for Mumtaz Ahmad that the decree for dissolution of marriage had attained finality and the Judge Family Court had no jurisdiction whatsoever to set aside the same, also carries little force. There can be no controversy that the provisions of Civil Procedure Code are not applicable to the proceedings before the Family Courts in view of the clear mandate of section 17 of the West Pakistan Family Courts Act, 1964 as held in Almas Khakwani, etc. v. Additional District Judge, etc. 1991 M LD 965, but it does not follow therefrom that the Judge Family Court was not competent to set aside the ex parte decree when he was convinced that Mst. Irshad Elahi had not brought the suit for dissolution of marriage. It is wrong to assert that this ex parte decree was set aside by the learned Judge Family Court on the application of Muhammad Akhtar.
True that he had moved an application on 28-11-1995 for the restoration of his previous application for setting aside the ex parte decree. Dismissed on 31-10-1995 (certified copy of the same is available as Annexure 'E') but a perusal of the order-sheet (Annexure 'E/1') shows tlrt 0112.0-12-1995 it was after recording the statement of Mst. Irshad Elahi who was identified by her counsel Mr. Ayyaz Ahmad. Advocate that this ex parte decree was set aside. I do not find anything wrong with this order particularly so when it has all along been asserted and vehemently claimed by Mst. Irshad Elahi that she never filed the suit for dissolution of marriage and it in fact had been done by her father Bashir Ahmad who was obviously in league with Mumtaz Ahmad. I have also no doubt in my mind that it was Mumtaz Ahmad who, in collusion with Bashir Ahmad, the father of Mst. Irshad Elahi first manoeuvred to get this suit for dissolution of marriage instituted and then after obtaining an ex parte decree hastened to prepare a fabricated and forged Nikahnama in order to claim that Mst. Irshad Elahi became his lawfully wedded wife on 12-7-1995, hardly on the fifteenth day thereafter.
13. Bashir Ahmad claimed today in the open Court that all this was done by Mumtaz Ahmed, who is a very clever person and has a long criminal history and who is already married and has children.
Without commenting on what he has stated, I cannot help observing that it is a very sad state of affairs that in our society such black-sheep are also in abundance. He cared little about the Injunctions of Islam with regard to Iddat nor did he. Have any regard for the laws of the land and continued playing foul and trickeries one after the other.
14. The story regarding the abduction of Mst. Irshad Elahi on the night between 14/15-7-1995, which has been made basis of the instant F.I.R. No,268 of 1995 also does not appear to be plausible or believable. If the version of Mumtaz Ahmad, that Mst. Irshad Elahi had been married to him on 12-7- 1995, be believed then there was no occasion for her to be present at the house of her father Mian Bashir Ahmad on the said night. Still further there should have been a mention of this marriage, having taken place on 12-7-1995, in the F.I.R. Because it has been claimed by Mumtaz Ahmad that Bashir Ahmad had acted as Vakeel/Wali of his daughter and it was with his express consent and approval that she entered into this second marriage. The version of this F.I.R. Has further been made of doubtful import by the complainant himself through an affidavit and he has stated in so many words that the lodging of this F.I.R. Was the result of some suspicion or misconception. I am not inclined to believe him even. To me he appears to be a liar. But be that as it may, the fact remains that the version of the F.I.R. Does not inspire any confidence.
15. , The learned counsel for Mumtaz Ahmad has also tried to urge before me that this 'Court has no jurisdiction to entertain this writ petition or to order its quashment. For this he has placed reliance on Iqbal Hussain v. The State PLD 1985 Lah. 65; Muhammad Shabbir and others v. Muhammad Ayub PLD 1988 SC(AJ&K) 176 and Muhammad Hanif and others v. Mst. Shama Mai 1986 PCr.LJ 746 besides referring to what has been laid down in A. Habib Ahmed v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353.
' I have had the privilege of going through these judgments and I am of the opinion that they have no bearing on the facts of the instant case. In PLD 1992 Supreme Court 353, it was held that "If prima facie the offence had been committed the ordinary course of trial before the Court was not to be allowed to be deflected through an approach to special revisional or inherent jurisdiction of High Court" and the "justice required that it should be enquired into and tried". This pronouncement of law holds good for all times to come and there cannot be any second op;iion that if the accused are not, as a result of the trial found guilty they have a right to be declared as "honourably acquitted by a competent Court". On the other hand if the evidence against the accused discloses a prima facie case then "justice clearly requires that the trial should proceed according to law". The inherent jurisdiction of the High Court is not an alternative jurisdiction or additional jurisdiction. It is only in the interest of justice to redress grievances for which no other procedure is available. It was so held in this esteemed judgment and it was added that the bar given by section 561-A, Cr.P.C.
Can certainly, not be so utilized as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute. But in Mst. Nasreen Begum alias Sakina and another v.
S.H.O., Police Station Jahania District Khanewal and another 1992 PCr.LJ 1455, F.I.R. Was lodged against petitioners by father of the alleged abductee and it was held that registration of case against both the accused was mala fide and criminal proceedings were nothing but abuse of process of law. The F.I.R. Was, therefore, quashed having been registered without lawful authority and being of no legal effect.
' Similarly in Natho Bibi v. S.H.O. Police Station Kahna and others 1994 PCr.LJ 367 where questioned F.I.R. Was found to have been recorded just to frustrate the proceedings initiated by the lady accused before the Judge Family Court for dissolution of marriage and the reading of the F.I.R. And other evidence recorded thereafter did not inspire any confidence, the F.I.R. Was quashed.
16. It is thus abundantly clear that this Court has jurisdiction to quash the F.I.R. In an appropriate case keeping in view the fact and circumstances of the same.
17. Article 203-DD of the Constitution of Islamic Republic of Pakistan, 1973 pertains to "case decided" and it has very ably been interpreted in PLD 1985 Lahore 65 and 1986 PCr.LJ 746 (referred to by the learned counsel for Mumtaz Ahmad). In PLD 1985 Lahore 65 it was observed as under:-- "A plain reading of the Article shows that it is an amalgam of the language used in sections 435 and 439 of the Cr.P.C. It appears that the above Article has been enacted with the purpose of conferring total revisional jurisdiction on the Federal Shariat Court to examine 'the correctness, legality or propriety' of the orders passed by the trial Court in cases under the Hudood Ordinance.
So, the Federal Shariat Court, now enjoys both appellants as well as revisional powers in all the Hudood cases tried by Sessions Judges/Additional Sessions Judges."
' Again in para. No,5 of the,said judgment it was held as under:-- "By creating a separate hierarchy of Shariat Courts and conferring revisional jurisdiction on Federal Shariat Court the Legislature has made its intention clear that revisional power in Hudood cases shall be exercised only by the Federal Shariat Court. Again, the words "case decided" used in Article 203-DD cannot be taken in isolation. No substance is found in the arguments of the learned counsel for the petitioner that the revisional jurisdiction conferred on Federal Shariat Court talks only of 'case decided' and a case which has not yet been finally adjudicated upon is not covered by Article 203-DD..Such an intention in the absence of expressed terms cannot be imputed to the Legislature. It would lead to anomalous situation if revision in the 'case decided' under Hudood Laws would lie to the Federal Shariat Court while against the orders passed during the pendency of such cases it would be maintainable before another forum. The words 'as to the regularity of any proceedings' occurring in Article 203-DD also include the 'pending case'. In this view of the matter, the legality and correctness of the orders passed in such proceedings can also be competently examined and revised by the Federal Shariat Court."
' It was so held in 1986 PCr.LJ 746 also.
' It follows that legality or correctness of order passed in such proceedings could be competently examined and revised by the Federal Shariat Court and revision before the High Court would, therefore, be not maintainable.
18. These judgments have, however, no bearing whatsoever on the facts of the case in hand. There is no "case decided" before me no is there any case pending before any Court of competent jurisdiction in connection with this F.I.R. The conferring of total revisional jurisdiction on the Federal Shariat Court to examine the "correctness, legality or propriety" of the orders passed by the trial Court in cases under the Hudood Ordinance is not controverted nor can there be any second opinion that the Federal Shariat Court now enjoys both appellate as well as revisional powers in all Hudood cases tried by the Sessions Judges/Additional Sessions Judges. In the instant case the petitioner has come only to get the FIR. Quashed and in the circumstances explained by her reflected in this judgment, am fully convinced that this F.I.R. Has to be I quashed being based on mala fides and having been resorted only to compel and force Mst. Irshad Elahi and her husband to fall apart, in which attempt both Mumtaz Ahmad and Bashir Ahmad have very badly failed.
19. Consequently I accept this writ petition and quash F.I.R. No,268 of 1995 and dismiss the Writ Petition No,735 of 1996 filed by Mumtaz Ahmad.
F.I.R. Quashed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.