1. MUHAMMD ROSHAN ESSANI, J.--- By this Constitutional petition the petitioner has sought following relief:--
(a) This Honourable Court be graciously pleased to declare that the Nikahnama, dated 22-12-1997 is forged and fabricated document as such ineffective and the petitioner is not the legally-wedded wife of respondent No,2 on the basis of forged Nikahnama.
(b) This Honourable Court be pleased to quash the F.I.R. No,43 of 1999 registered at Police Station Bhitai Nagar, Hyderabad under section 10(2) of Zina Ordinance.
(c) Order legal proceedings against all the respondents for having prepared false and forged documents.
(d) Any other relief which this Honourable Court deems fit and proper.
2. The brief facts of the case as disclosed in the petition filed by petitioner Mst. Samina Akhtar are that respondent No,1 is the real uncle of the petitioner while the respondents Nos.2 to 4 are his sons and rest of the respondents are his collaborators. The respondent No,1 is an scrupulous, diehard, intriguer, reckless and desperado. He spoils the hell from where he drinks water. The respondent No,1 was always at logger heads with late Karam Khan i.e. Father of the petitioner for many reasons, though real brother, Karam Khan, therefore, distanced himself from him. The father of the petitioner used to reside in Shandadpur with his family, subsequently he got job in Cadet College, Petaro and shifted there. After his retirement, he settled in Hussainabad, Hyderabad. He had never allowed the respondent No,1 to visit his house, after the death of the father of petitioner in the year 1997 the respondent No,1 very clearly planned to revive and restore the dormant relations with the family of petitioner. In that direction he put his fore legs in the house and offered to extend his sympathetic craftsmanship for getting the domicile, P.R.C. And job for the petitioner and her brothers. He obtained passport size photographs of the petitioner and her brothers which were later on exploited by him to meet his nefarious designs. He within short span of time as per plan, demanded the hand of the petitioner for respondent No,2 from the mother but she, who was already scared of him due to his wicked acts, refused pointblank as the petitioner had already engaged with Ahmer alias Anis Sahto her close relative. The pointblank refusal of petitioner's mother, regenerated the antagonistic feelings of respondent No,1 and sarcastically he expressed his displeasure and stopped visiting the petitioners and her family. The respondents Nos.1 and 2, in league and with the connivance of other respondents in the first instance got prepared a forged and fabricated affidavit purported to have been sworn and signed by the petitioner before the Railway Magistrate on 24th December, 1997, expressing her desire to marry respondent No,2. Thereafter, they all collectively got prepared a forged Nikahnama of petitioner to have married with respondent No,2 on 22nd December, 1997, though on both these occasions/dates, the petitioner had never stepped out the thresh hold of her house. Somehow the news of forged affidavit reached the ears of the petitioner and her other family members, as such, the petitioner swore an affidavit before First Class Magistrate, Latifabad refuting to have sworn an affidavit before the Magistrate having desired to marry or married with respondent No,2.
3. It is further stated that after sometime, the respondents again made known the petitioner and her family that she had married with the respondent No,2 and such Nikahnama had also been registered. According to petitioner, this was very shocking for the entire family, hence, the petitioner through her brothers rushed to offices of Municipal Corporation, Hyderabad and Cantonment Board, Hyderabad to find out if any such Nikahnama stood registered, but there was no such thing and the petitioner obtained such certificates from aforementioned offices which indicates the stand of petitioner. This was certainly a pressure tactic to disgrace the respectable virgin petition to succumb to the designs of respondents Nos.1 and 2. When they failed in their nefarious designs, the respondents Nos.1 and 2 played another havoc and made a calculated, false, derogatory and insinuating applications to the S.S.P., Hyderabad, which according to petitioner may be, prated, that the petitioner is the wedded wife of the respondent No,2 and was living in his house but on 28th December, 1997, left the house on the pretext of meeting her friend and on the way she was going in a rickshaw with Ahmer alias Anis Sahto that she has been taken away by Ahmer with intention to committing Zina with her. The respondents pressurised the S.S.P., Hyderabad, who ultimately ordered registration of F.I.R. At Bhitai Nagar Police Station, Hyderabad.
4. The F.I.R. Was registered after the lapse of 1-1/2 years as it was registered on 2-6-1999. This F.I.R.
5. Was a managed affair as such the investigation was commenced. Resultantly the police succeeded in arresting innocent brothers Ahsan and Saeed while the petitioner and Ahmer alias Anis sahto in order to save their honour and prestige surrendered before the learned Sessions Judge and obtained pre-arrest bail. After usual investigation police has sent up the petitioner, her brothers Ahsan and Saeed and Ahmer alias Anis Sahto under charge-sheet and they are facing trial. The respondents 1 and 2 have left no stone unturned to harass and humiliate the petitioner and her members of the family.
6. It is further averred that the respondents have devilished and mala fide designs and they want to ruin the life of petitioner so that she may surrender to the dictates of the respondents, which is not possible. The respondents are bent upon to devastating the whole family.
7. The petitioner has further stated that in the ordinary course of nature, the petitioner would have been prepared to face the ordeals of trial in the Courts but in this man dominating society and system prevailing it would be too long time to get out of the trap laid not only against her but the entire family The petitioner by then would be a forlorn spinster lady and every one would alienate sympathies from her.
8. According to petitioner since there is no other efficacious remedy to save the honour and reputation than to invoke' the extraordinary Constitutional jurisdiction of this Court.
9. We have heard Mr. Kandim Hussain Unar, learned counsel for the petitioner and Mr. Kamaluddin Memon, learned counsel for respondents 2, 4, 5, 7 and 8 so also respondent No,1 in person.
10. The prayer of the petitioner to declare that the Nikahnama, dated 22-12-1997 is forged and fabricated document, as such ineffective and the petitioner is not the legally-wedded wife of respondent No,2 on the basis of forged Nikahnama is beyond the jurisdiction of this Court as such relief under Article 199 of the Constitution of Islamic Republic of Pakistan cannot be granted.
11. It is well-settled that Constitutional jurisdiction is purely discretionary and discretion cannot be exercised as a matter of course but it is to be exercised with great care and Caution. The power under Article 199 of the Constitution is not intended for deciding the disputed questions of facts and thwart the procedural law.
12. The Article 199 orthe Constitution of Islamic Republic of Pakistan, lays down that subject to the condition if this Court is satisfied that no other alternate or efficacious remedy is available under Law then this Court can issue appropriate writ directing performance of anything which is required by law and pass orders restraining doing for anything which is not permitted by law or is contrary to law and this Court could also declare any act to be of no legal effect being unlawful.
13. In case of dispute between the spouses Family Courts were created under Family Courts Act, 1964, to adjudicate the family disputes between the parties. Under section 5 of Muslim Family Courts Act, 1964, the exclusive jurisdiction was vested in the Family Courts to adjudicate a suit regarding the declaration to the effect that Nikahnama was a forged and fabricated document. The Family Court was only competent to decide the suit for jactitation of marriage.
14. The prayer made in the clause (a) reproduced hereinabove shows that the respondents have falsely pretended that the petitioner was married with the respondent No,2. It amounts to jactitation of marriage. The schedule appended with the Family Courts Act, 1964, shows that the jurisdiction in respect of jactitation of marriage was vested in the Family Courts, therefore, the petitioner in given circumstances can move the Family Court by way of a suit for jactitation of marriage. This Court under its Constitutional jurisdiction cannot embark upon the powers/jurisdiction of Family Court, which is competent to decide about the existence or non- existence of the marriage or validity and invalidity of the Nikahnama.
15. Thus, the dispute relating to false marriage lay wholly within the jurisdiction of Family Court and it is also made clear that section 23 of the West Pakistan Family Courts Act is not a bar to such suit. In this context I am fortified by case of Syed Muhammad Iqbal Hussain shah v. Mst. Farhat Jehan a' nd others reported in 1991 CLC 1787.
16. So far prayer in clause (b) is concerned the petitioner did not approach the trial Court under section 249-A, Cr.P.C. Or 265-K, Cr.P.C. As the case may be but has directly filed the present petition under Article 199 of the Constitution of Islamic Republic of Pakistan, for the quashment of the proceedings.
17. The jurisdiction under Article 199 of the Constitution is not an additional or alternate jurisdiction and when alternate remedy is available then petition under Article 199 of the Constitution is not maintainable. The powers of High Court under Article 199 of the Constitution though are very wide but they are not supposed to be exercised to override the alternate remedy.
18. In case of A. Habib Ahmed v. M.K.G. Scott Christian and 5 others reported in PLD 1992 SC 353, it was observed that the ordinary course of trial before the Court was not to be allowed to be deflected by approach to special revision or inherent jurisdiction of High Court.
19. In yet another case of Khalid Mukhtiar v. The State reported in PLD 1997 SC p.275, it was observed that ordinarily High Court does not quash the proceedings, unless trial Court exercises its power under section 249-A or 265-K, Cr.P.C. Which are incidentally of the same nature and in a way akin to and co-related with quashment of proceedings. The High Court can exercise its jurisdiction in exceptional cases to prevent abuse of the process of Court or otherwise the ends of justice.
20. Thus, the resort to the provisions of Article 199 should not be made lightly as the same would tend to circumvent the due process of law. Consequently, the petition stands dismissed with no order as to costs.
21. By our short order, dated 12-1-2000 we had dismissed the present petition and above are the detailed reasons for the same.