Mst. Sakina has in this writ petition prayed for quashment of F.I.R. No. 404, dated 17-5-2002 registered at Police Station City Muzaffargarh under sections 10 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Facts culminating in the said F.I.R. Are that the petitioner Mst. Sakina has filed a suit for ' dissolution of marriage against Ghulam Sarwar respondent No.3, which was decreed ex parte in her favour on 11-9-2001. On 26-12-2001 she contracted another marriage with Allah Yar. Subsequently on 12-1-2002 respondent No.3 moved an application for setting aside the aforesaid ex parte decree which was accepted ex parte by the learned Judge Family Court, vide order, dated 4-5-2002 whereby said ex parte decree was set aside and suit for dissolution of marriage was restored.
2. Thereafter, on 17-5-2002 Ghulam Sarwar, first husband of the petitioner lodged an F.I.R. With Police Station City Muzaffargarh alleging that despite subsisting marriage with him, his were Mst.
Sakina has eloped with Allah Yar, is living with him and they are both leading an adulterous life.
3. In this Constitutional petition Mst. Sakina has prayed for the quashment of the aforesaid F.I.R. On the ground that after obtaining ex parte decree of dissolution of marriage and observing the period of Iddat she had entered into a marriage contract with Allah Yar on 26-12-2001, therefore, no offence is made out against her or Allah Yar; since at the time of her said Nikah her former marriage did not subsist, therefore, subsequently setting aside of ex parte decree of dissolution of marriage, dated 4-5-2002, would not prove that the petitioner entered into a Nikah with Allah Yar with criminal intent to commit Zina hence if proceedings under the impugned F.I.R. Are allowed to continue it would cause rest miscarriage of justice and abuse of the process of law.
4. Petition is opposed by the learned counsel for respondents. Arguments heard, writ petition and the Annexures appended therewith perused.
5. It is true that on 26-12-2001 ex parte decree for dissolution of marriage was holding the field and petitioner's period of Iddat had also expired hence no offence was committed by. Her or Allah Yar in entering into a Nikah contract with each other. However, it is also equally true that on 4-5-2002 the said ex parte decree was set aside by the Family Court and suit for dissolution of marriage was restored and revived. The petitioner filed connected Writ Petition No.6500 of 2002 assailing the aforesaid order of setting aside ex parte decree and revival of her suit for dissolution of marriage but thereafter on 7-9-2002 she appeared in that suit alongwith her counsel before the Family Court and made a statement that she does not want to pursue that case and on her statement the said suit was dismissed as withdrawn. Aforesaid connected writ petition was, therefore, dismissed as having become infructuous because the ex parte decree for dissolution of marriage owed its existence on the basis of suit for dissolution of marriage and with the withdrawal of that suit the said ex pane decree passed in that suit became non--existent. Even if the order for setting aside the ex parte decree was declared as without lawful authority, object of revival of .The aforesaid ex parte decree for dissolution of marriage would not have been achieved due to the withdrawal of the suit.
6. After the withdrawal of the suit for dissolution of marriage there is no bar or impediment on the previous Nikah of the petitioner. Presently there are two Nikahs of the petitioner and it is settled that during subsistence of a Nikah a woman cannot contract another valid marriage. In the changed scenario the petitioner cannot claim her second Nikah valid merely because when it was contracted there was no bar. Her cohabitation with Allah Yar, her second husband would, therefore, obviously be deemed as adultery with logical implication and inference of illicit sexual intercourse with him. Precisely, that is the allegation in the F.I.R. Which is sought to be quashed. In the circumstances stated above, no case for quashment is made out; if the petitioner does not want to live with her former husband the only way out for her is to seek separation on the principle of Khula' from the. Competent Court and till the decree is granted in her favour to stay apart from her second husband. Petition dismissed.
N.H.Q./S-580/L