' Ahmad Khan and Mst. Sarsanda, petitioners seek quashment of F.I.R. No,90 under sections 10/11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with sections 420/468/471 and 109, P.P.C. Registered on 19-3-2001 with Police Station Joharabad, District Khushab as both the petitioners claim to have married with each other being sui juris of their own freewill through Nikahnama, Annexure "C" to this petition.
2. According to F.I.R. Which was lodged by Fateh Khan on 18-3-2001, her daughter Mst. Sarsanda aged 22/23 years was married with Niaz Gul one and a half month prior to registration of the F.I.R. At Rawalpindi. On 18-3-2001 at about 7-30 p.m. After being free from meal, the complainant called Sarsanda but in response to the call, there was no one to reply. On search of the house, Mst.
Sarsanda was found missing. On checking it was also revealed that cash amount of rupees two lacs and golden ornaments worth Rs,40,000 were also missing. After a short while, the complainant was told by Javed and Aslam that Mst. Sarsanda was seen in a car in the company of Ahmad Khan and others. It was alleged by the complainant that in summer season he used to go to the Khewra and in the last summer season Ahmad Khan had developed illicit liasions with Mst. Sarsanda. On coming to know of that, the complainant left Khewra and came to Chak No,45 alongwith his family.
Mst. Sarsanda was allegedly abducted by Ahmad Khan alongwith others for committing Zina.
3. This petition came up for hearing on 13-4-2001 when the S.H.O. Police Station, Jauharabad was directed to appear on 19-4-2001 alongwith record. On this date the Investigating Officer was directed to get the thumb-impression of Mst. Sarsanda on a blank paper before a Magistrate and then send the same alongwith Nikahnamas, one with Niaz Gul and other with Ahmad to the Handwriting Expert for comparison. Then on 30-5-2001 when the S.H.O. Was present in Court he was asked as to whether he has recorded the statement of Mst. Sarsanda under section 161, Cr.P.C. The reply was in negative. Accordingly statement of Sarsanda was got recorded under section 161, Cr.P.C. And also on oath in which she stated that she was never married to Niaz Gul, she did not know Niaz Gul, her father was telling lie that I was married to Niaz Gul, the signature on the Nikahnama with Niaz Gul were obtained from me in Daml Aman after deceiving me through Mrs. Tayyaba, Zameer, Advocate and that she had made present statement in Court with her own free- will. On the said date, that is, 30-5-2001, arguments were addressed by learned counsel for the parties and the case was adjourned for today.
4. In support of this petition, learned counsel for the petitioners submits that both the petitioners being sui juris have contracted marriage with each other of their own freewill as such no offence is made out and continuation of further proceedings on the impugned F.I.R. Would be an abuse of process of law as in view of the statement of Mst. Sarsanda there is no likelihood of any conviction being recorded against the petitioners. Further submits that Mst. Sarsanda alias Sameena in her statement made before this Court on 30-5-2001 had stated that she was never abducted and had married with Ahmad Khan of her own free-will. Adds that a sui juris woman in Islam can contract Nikah of her own free-will and the Nikah if performed under coercion is no Nikah in the eye of law.
Further adds that this Court has ample power under Article 199 of the Constitution to interfere where material on record shows that the investigation was launched shows either malice in law or fact. In support of his submissions, learned counsel for the petitioners has relied upon Mst. Humaira Mehmood v. The State PLD 1999 Lah.
494.
5. On the other hand, learned counsel for the complainant submits that the petitioners having approached the learned Magistrate and then the learned Additional Sessions Judge in revision could not have filed this Constitutional petition seeking quashment of the F.I.R. According to learned counsel the petitioners having resort to adequate remedy, they were estopped to continue parallel proceedings before this Court. Further submits that the petitioners have not disclosed these facts in the writ petition. Adds that there are two versions on record, one put forward by the complainant that Mst. Sarsanda was married with Niaz Gul and other by Mst. Sarsanda that she married Ahmad Khan with her own free-will and was never married to Niaz Gul, in such a situation where factual controversy is involved, this Court ordinarily does not interfere, with the investigation and it is the domain of the police to find out the truth and that interference with the investigation by this Court would amount to pre-empting the jurisdiction of the police and the trial Court.
Learned counsel submits that the Nikahnama produced by the petitioners is forged document as the part of the Nikah produced by them from the Nikah Register carries the names of the petitioners while in the original register, the said Part relates to the Nikah between different parties.
He further submits that if the petitioners are not satisfied with the investigation, they can seek the remedy before the hierarchy of the police and this Court at investigation stage should not interfere.
In support of his submission, learned counsel has relied upon 2000 SCMR 722, 2000 CLJ 648, 2001 SCM R 155-574 and PLD 2001 Lah.
22.
6. It may be noted here that on 30-5-2001, Ch. Naseer Ahmad Bhutta, Advocate addressed arguments on behalf of the complainant. He had stated that about 150 Pathans from the complainant side were present outside the Court room and he had given them the impression that the High Court cannot quash the F.I.R. Because there are two Nikahnamas. This conduct of the learned counsel is not proper and cannot be countenanced but in the larger interest of justice, I would not like to dilate upon this issue any further.
7. Mr. Muhammad Hanif Khatana, learned Additional Advocate-General had drawn my attention to the Nikahnama of Niaz Gul with Mst. Sarsanda. He submitted that the said Nikahnama bears the thumb-impression of left hand of Mst. Sarsanda from which it can be inferred that the thumb- impression was got hurriedly rather in a deceitful manner. Further submitted that in Darul Aman someone had met Mst. Sarsanda and got her left thumb-impression. Also submitted that the Nikahnama between Sarsanda and Niaz Gul allegedly took place on 5-2-2001 but was registered only on 30-3-2001 when the case was got registered on 19-3-2001. In spite of all these submissions, learned Additional Advocate-General concluded that the F.I.R. May not be quashed and appropriate direction may be issued for investigation to be carried out by an honest gazetted Police Officer.
8. .1 have heard learned counsel for the parties at great length, have myself gone through the police file and the precedents cited by learned counsel for both the sides. The main controversy in this case is whether Mst. Sarsanda was ever married with Niaz Gul or she had contracted marriage with her own free-will with Ahmad Khan. I had also asked the S.-I./S.H.O. Whether any statement of Mst. Sarsanda was recorded under section 161, Cr.P.C. But reply was in negative. Accordingly, on 19- 4-2001 I directed the Investigating Officer to produce Mst. Sarsanda and Ahmad Khan before the learned Magistrate who will get their thumbimpression/signature and then both the Nikahnamas one with Niaz Gul and other with Ahmad Khan would be sent to Handwriting Expert/Finger Print Bureau for comparison. Both the petitioners were also directed to be produced on the next date of hearing. On the next date, that is, 30-5-2001 statement of Mst. Sarsanda was recorded by this Court and also by the Investigating Officer which is on the file. In her statements, Mst. Sarsanda has disowned the Nikah with Niaz Gul, thumb-impression on the Nikahnama with Niaz Gul were obtained from her in Darul Aman after deception by Mrs. Tayyaba Zamir, an Advocate, her father wanted to marry her with an old Pathan, she herself left for Rawalpindi with Ahmad Khan, on 15-3- 2001 she with her consent performed Nikah witn Ahmad Khan, she was never abducted, had not taken any golden ornaments and cash amount and that she wanted to live with Ahmad Khan as his wife. The report of the Finger Print Bureau is also on the police file. According to the report left thumb-impression appearing on the Nikahnama with Niaz Gul is that of Mst. Sarsanda and similar is the position on the Nikahnama with Ahmad Khan but the very distinguishing feature is that the Nikahnama between Mst. Sarsanda and Ahmad Khan (present petitioners) bears the right thumb- impression of Mst. Sarsanda. This report of the Finger Print Bureau supports the version of Mst.
Sarsanda that her thumb-impression on the Nikahnama with Niaz Gul was deceitfully obtained by Mrs. Tayyaba Zameer, Advocate. It is provided under the law that female has to put her right thumb-impression while in case of male, thumb-impression of left hand is to be affixed. It is also noteworthy that whole of the Nikahnama allegedly between Niaz Gul and Mst. Sarsanda is filled/written in black ink, the signatures of Niaz Gul are in black ink, the signatures and thumb- impression of Wakeels of Mst. Sarsanda are also in black ink but the thumb-impression of Mst.
Sarsanda is only in blue ink. All the more the signature of the Nikah Registrar are also in black ink. All this shows that Nikahnama was later on prepared and then through a deceitful manner the thumb-impression and that too of left hand was procured. The date of marriage as given in the said Nikahnama is 5-2-2001 but the date of its registration is 30-3-2001 when the impugned F.I.R.
For the abduction of Mst. Sarsanda was lodged on 19-3-2001. A perusal of the Nikahnama between Niaz Gul and Sarsanda would reveal that the age of Niaz Gul is given as 56 years and he has been shown as Randwa. This document produced by the complainant party itself supports the version of Mst. Sarsanda that her father wanted to marry her with an old man. All the more in the Nikahnama between Niaz and Sarsanda, the column name of the ward, Town/Union Council have been left blank and even in the seal of the Nikah Registrar neither the name of Union Council nor the Ward number have been given and are left blank. The complainant is resident of Chak No,45, District Khushab and according to him he used to go to Khewra in summer season. It is not understandable how the Nikah of Sarsanda with Niaz Gul was performed at Rawalpindi when the address of Fateh Khan. Complainant is given as of Kliushab. In our society the Nikah is performed at the residence of the bridegroom and not at the temporary residence of the bride. Niaz Gul with whom allegedly the Nikah of Mst. Sarsanda was performed had never been joined in the investigation. All these tends to show that the Nikahnama of Mst. Sarsanda with Niaz Gul was prepared later just to show Sarsanda having already been married The complainant himself stated in the F.I.R that he is a labourer but it is not believable that a labourer would be having cash of Rs,2,00,000 in his house and golden ornaments of Rs,40.000 ' Now coming up the legal position in such-like cases, the law has been so settled by now that in Islam a sui juris woman can contract Nikah of her own free-will and a Nikah performed under coercion or by getting thumb-impression in a deceitful manner is no Nikah in law. The condition precedent for constituting a marriage contract is the consent of the parties to the marriage contract and the marriage contract without the consent of the parties is not valid. There is no denying the fact that marriage with a woman during the subsistence of her earlier marriage with some other man is illegal and void. Section 34 of the Code of Muslim Personal Law specifically caters to this situation.
' The material brought on record of this file and the police file and the way in which the Nikahnama of Mst. Sarsanda with Niaz Gul was prepared, that is by getting the left hand thumb-impression affixed on the plaint, leaving blank the column of name of Ward, name of Union Council, date of performing the Nikah and date of its registration, the Nikah having been performed at Rawalpindi which is not the place of residence of Bride and the fact that Mst. Sarsanda has disowned her Nikah with Niaz Gul and has owned with Ahmad Khan entered on 15-3-2001, a presumption of valid marriage would arise in favour of both the petitioners in terms of section 268(c) of Mohammadan Law by D.F. Mulla and in the light of judgment of the Federal Shariat Court reported as PLD 1982 FSC
42. If Niaz Gul has any grouse about the Nikah of Mst. Sarsanda with Ahmad Khan, he can very well go to the Court of Plenary jurisdiction, that is the Family Court to have a conclusive finding.
' Now coming to the quashment of the F.I.R., I am of the view that there is no cavil with the proposition that the function of the Court and the police are complementary and are not overlapping and each institution should ordinarily remain with the parameters of its own domain.
However, in Shahnaz Begum's case PLD 1971 SC 167 it was observed that if an investigation is launched mala fide or is clearly beyond the jurisdiction of the Investigation Agencies, then it may be possible for the action of the Investigation Agencies to be corrected by a proper proceedings under Article 98 of the Constitution of 1962 or under section 491, Cr.P.C. If the applicant in the later case is in detention. In the case of Adamjee Insurance Company Limited v. Assistant Director 1989 PCr.LJ 1921 their Lordships of the Sindh High Court observed that proceedings under Article 199 of the Constitution will be competent against even inquiry/investigation if its encroaches upon a fundamental right as guaranteed by the Constitution or it violates some other law or is motivated formala fide reasons but not to invoke the inherent powers under section 561-A, Cr.P.C. In Anwer Ahmad Khan v. The State and another 1996 SCM R 24 it was observed by their Lordships of the Honourable Supreme Court "it is well-settled principle that where investigation is mala tide or without jurisdiction, the High Court in exercise of its Constitutional jurisdiction under Article 199 is competent to correct such proceedings and pass necessary orders to ensure justice and fairplay.
The - investigation authorities do not have the entire and total authority of running investigation according to their whims".
' The aforesaid resume of the case-law would show that this Court has the ample authority under the Constitutional jurisdiction to interfere where there is material on record to show that the investigation launched demonstrates either malice in law or. In fact. In the instant case, there are features enumerated in paras. 8 to 11 of this order which lend strong credence to the allegation of mala fide against the police and the State functionaries. It is, therefore, held that the case registered vide F.I.R. No,90 of 2001 on 19-3-2001 under sections 10/11 of Ordinance VII of 1979 read with sections 420/468/471 and 109,' P.P.C. With Police Station Jauharabad District Khushab is false and no occurrence of the kind alleged ever took place. Prima facie the Nikah of Mst. Sarsanda with Ahmad Khan is valid and no prosecution under the Hudood Laws can be instituted against them without a conclusive finding of a Family Court against the Nikah in question. The case registered and the proceedings initiated pursuant thereto reflecting mala fides are of no legal effect and are hereby quashed. C Both the petitioners are behind the bars, they shall be released forth with.