' Through this writ petition, the petitioner seeks quashment of case F.I.R. No,53 of 2001, dated 12-5- 2001 under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance No,VII of 1979, registered with Police Station Jandanwala, District Bhakkar.
2. Story of the prosecution as narrated by the complainant in the F.I.R. Is that on the day of occurrence i,e, on 11-5-2001 he had gone to say Jumma prayer and when he came back home, he found missing the petitioner Mst. Roqiya, his daughter aged about 20/21 years. He went out in search of her. When he reached on metalled road, Ahmed Din and Zahoor Din met him and told him that they had seen her daughter alongwith Ghulam Abbas, Noor Muhammad and Mst. Fatima in car and they were going towards Chak No,61/D.B. He also stated that about 2 years back he married his daughter alongwith Ghulam Abbas but 2 days after marriage, she came back home and thereafter suit filed by her for dissolution of marriage was decreed in her favour. Subsequently Ghulam Abbas developed illicit relations and taken her away for the purpose of Zina. Feeling aggrieved of this F.I.R. The petitioner filed the instant writ petition.
3. Learned counsel for the petitioner contends that the impugned F.I.R. Is result of mala fide and the same is illegal, unlawful and without jurisdiction. He further contends that F.I.R. Has been lodged only to harass the petitioner and her husband. Learned counsel further contends that the petitioner is legally wedded wife of Ghulam Abbas and she has every right to live with her. Hence the F.I.R., being illegal is liable to be quashed.
4. On the other hand learned counsel for the respondent No,2 contends that before passing of 90 days, the petitioner has rejoined and it period applies to the petitioner even in the case of dissolution of marriage through Court. Learned counsel further contends that as the marriage was dissolved through a judgment and decree of the Court, therefore, the petitioner could not join with each other as husband and wife and they are committing Zina with each other. He further contends that it is well settled law that after the dissolution of marriage without the intervening marriage between the women and husband, second marriage could not be contracted by the same women and husband. Learned counsel lastly contends that the F.I.R. Is based on true facts hence it cannot be quashed on the grounds mentioned in the writ petition.
5. I have heard arguments of both the sides and perused the record. The petitioner claims that a decree for dissolution of marriage was obtained on 15-3-2000 by the petitioner but during the Idit period she joined her husband just after two months after the decree and they contracted 'Sharee Nikah'. Though they were husband and wife and Talaq could be revoked before the expiry of 90 days hence the petitioner and her husband are living as husband and wife and the impugned F.I.R.
Has been lodged with mala fide intention and ulterior motive for the redressal of personal grievance by the complainant. Learned counsel for the petitioner has relied upon section 7 of the Muslim Family Laws Ordinance, 1961; which reads as under:--- "7. 'Talaq'.---(1) Any person who wishes---
(2) ....................
(3) ....................
(4) ....................
(5) ...................
(6) Nothing shall debar a wife whose marriage has been terminated by Talaq effective under this section from remarrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective."
' Case cited by the learned counsel for the petitioner titled Nawab Bibi and 14 others v. Mst. AnWar Bibi and 6 others (PLD 1970 Lahore 1) also supports contention raised by learned counsel for the petitionel and the facts of the said case also apply to the instant case in which the principle has been laid down by the then learned Judge that pre-condition of marriage with stranger cannot be claimed in case of Kliula', Petitioner also relies upon PLD 1975 Lahore 1118, 1980 PC.r.LJ 122. By the case-law cited above it cannot be said that the petitioner by joining her husband before effectiveness of Talaq has committed a offence and they can be held guilty for the same. Hence the F.I.R. Lodged vide No,53 of 2001 registered with Police Station Jandanwala, District Bhakkar is abuse of process of law and it cannot be allowed to continue in the circumstances of this case, the same is quashed by accepting this writ petition.
F.I.R. Quashed.