' Petitioner Gulnaz Rasheed through the instant Constitutional petition has sought for quashing of F.I.R. No.14, dated 16-1-2004 under section 11 of the Offence of Zina (Enforcement of Hudood)
Ordinance VII of '1979: registered with Police Station Bambanwala, District Sialkot.
2. Briefly the facts relevant for the disposal of the same are that the said case has been registered on the written application of respondent No.2 Ishtiaq Hussain.
3. He has alleged therein that on 11-1-2004 Imtiaz and others have abducted his sister Gulnaz (petitioner) and thereafter Imtiaz and Jamal have subjected her to Zina-bil-Jabr and they also extended her threats to kill.
4. The quashing of the F.I.R. Has been sought on the ground that the petitioner i., sui juris and she of her own accord has married Imtiaz accused on 5-1-2004; that neither anybody has abducted her nor committed Zina-bil-Jabr with her, that the case is based upon falsity and mala fide of respondent No.2 Ishtiaq Hussain/complainant out of frustration over her marriage with Imtiaz accused against his wishes; and that in such circumstances the continuance of the F.I.R. Would amount to mere abuse of process of law as no useful purpose of the prosecution would be served by the same.
5. Learned counsel for the petitioner has advanced his submissions on the similar lines.
6. The learned Additional Advocate-General has submitted that the F.I.R. Is based upon the true facts inasmuch as that the accused nominated in the F.I.R. Have abducted the petitioner and thereafter Imtiaz and Jamal had committed Zina-bilJabr with her and extended her threats of life; and that Imtiaz accused is already married to her maternal niece Mst. Khawar Sultana and so his Nikah with her is void and so he can be held liable for the offence complained of.
7. Learned counsel for the respondent No.2 Ishtiaq Hussain/complainant has vehemently submitted that the petitioner has suppressed certain material facts in the petition and the same is existence of the marriage of the accused- Imtiaz with her maternal niece Mst. Khawar Sultana and on this score alone she is not entitled to nay relief and in this regard reference has been made to the cases of Nazir Amad v. Faisalabad Development Authority, Faisalabad through Director- General and 7 others 2003 MLD 727 and Lahore Development Authority through Director-General, L.D.A., Lahore v. Mst. Shamim Akhtar 2003 MLD 1543 Lahore; that according to the injunction of Qur'an Nikah of one person with maternal aunt (Khala) and maternal niece (Bhanji) at one time is Haram and in this regard Sura-e-Nisa has been referred to; that Nazim, Union Council No.102, Talwandi Khajoorwali, Thesil and District Gujranwala has issued certificate on 7-2-2004 to the effect that no notice of Talaq froni Imtiaz Ali to Mst. Khawar Sultana has been received in the said Union Council and their Nikah still subsists as per record of the same; that in view of this certificate, it can be said validly that Talaq, if any between accused Imtiaz and Mst. Khawar Sultana has not yet become effective and in this regard reliance has been placed upon the case of Ghulam Nabi v.
Farrukh Latif and 2 others 1986 SCMR 1350; that the accused nominated in the F.I.R. Have committed the offence and so they are liable for the same; and that in such circumstances without inquiry and evidence, it cannot be said that F.I.R. Either is false or based upon mala fide.
8. 1 have carefully considered the submissions made by both the parties with the help of copies of the documents annexed to the petition.
9. The petitioner claims herself to be sui juris and have entered into Nikah with the accused Imtiaz Ali for her own freewill. She in this regard has relied upon her own affidavit annexed to the petition.
Her learned counsel has submitted that Imtiaz had divorced Mst. Khawar Sultana on 5-11-2003. He has shown me the photo copy of such deed.
10. It is thus admitted that the accused Imtiaz was married to Mst. Khawar Sultana. She admittedly is petitioner's maternal niece (Bhanji). Respondent No.2 has produced the certificate issued by Riasat Ali, Nazim, Union Council No.102, Talwandi Khajoorwali, Tehsil and District Gujranwala. The same is appended to the petition as annexure 'C' . The same is to the effect that no notice of divorce to Mst. Khawar Sultana from Imtiaz has been received in the Union Council and their Nikah still subsists according to the record of the same.
11. It may be mentioned here that according to the injunction of Qur'an, Nikah of one person with maternal aunt and maternal niece at one time is HARAM.
12. It may also be mentioned here with advantage that according to the case of Ghulam Nabi v.
Farrukh Latif and 2 others 1986 SCMR 1350, Talaq becomes effective only after notice thereof is given to Chairman and period of ninety days provided for bringing about reconciliation between parties has expired and if husband does not give such a notice of Talaq to Chairman under section 7(1) of the Ordinance, it would be deemed that he has - revoked Talaq.
13. It may be mentioned here that the petitioner has not at all mentioned in her petition the factum of Nikah of accused Imtiaz with her maternal niece Mst. Khawar Sultana and divorce, if any to her by him. The reason for the same is best known to her. However, this material fact has been suppressed by her in the petition.
14. According to the cases of Nazir Ahmad v. Faisalabad Deyelopment Authority Faisalabad through Director-General and 7 others 2003 MLD 727 and Lahore Development Authority through Director- General, L.D.A., Lahore v. Mst. Shamim Akhtar and other 2003 MLD 1543 Lahore, the Constitutional remedy is discretionary in character and the person who has not approached the Court with clean hands is not entitled to the same.
15. The petition is liable to be thrown away on this score alone. However, in view of the above factual position of the case, particularly when there is allegation of Zina-bil-Jabr with the petitioner against accused Imtiaz and Jamal. I do not deem it a case for quashing of the F.I.R. It is needless to mention here that an inquiry is needed to hold that if the allegation contained in the F.I.R. Is false and based upon mala fide or not. The same is not possible in the exercise of Constitutional jurisdiction of this Court.
16. It may be mentioned here that the petitioner has referred to the case of Hafiz Abdul Waheed v.
Miss Asma Jehangir and another PLD 1997 Lahore 301. And Muhammad Imtiaz and another v. The State PLD 1981 FSC 308 and Mst. Gulnaz Bibi v. Mian Muhammad Younas, S.-I. And 2 others 2003 MLD 1608 Lahore, in her petition. These cases are not aptly applicable to her case for it's distinguishable facts and features than those cases.
17. The petition, therefore, is without any merit. The same is dismissed.
18. However, the petitioner may raise her above plea during the investigation. The Investigating Officer is expected to consider the same and conclude the investigation fairly and justly in accordance with law.