' Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner seeks quashment of F.I.R. No,379 registered on 18-9-2002 under sections 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 at Police Station Saddar Kabirwala, District Khanewal on the statement of Muhammad Kabir-respondent No,3 who is father of the petitioner.
2. It has been stated in the said F.I.R. That Mst. Sakina petitioner aged about 21/22 years was married with Muhammad Mansha the nephew of the complainant and Rukhsati was still to take place but she developed illicit relations with Ghulam Shabbir a servant of Abid Hussain Shah. She had gone on 9-9-2002 at about 6-00 a.m. To ease herself alongwith Mst. ZOhran wife of Muhammad Hussain but she did not return and on search the witnesses told that she was found in the company of Ghulam Shabbir -and other accused while going in a car towards Kabirwala. She had also taken away five Tolas golden ornament etc. After the registration of the case the investigation has been completed and challan submitted.
3. Learned counsel for the petitioner contends that the actual name of the petitioner was Shamim Bibi and it has been wrongly mentioned as Sakina Bibi. It is further contended that the petitioner contracted marriage with Mazhar Hussain on 11 9-2002 with her free-will and consent and has not committed any offence while she was never married with Muhammad Mansha and she also filed a suit for jactitation of marriage which has been decreed in favor of the petitioner vide judgment, dated 3-6-2003 by the learned Judge, Family Court, Multan. Copies of the judgment alongwith the statements of witnesses produced by the petitioner before the said Court have been placed on the record. Relying upon Muhammad Azam v. The State PLD 1984 SC 95 the learned counsel contends that the pendency of the criminal proceedings against the petitioner in the trial Court in the above circumstances will be abuse of process of law and F.I.R may be quashed.
4. I have heard the learned counsel for the petitioner. The respondent is not present. He is, therefore, proceeded against ex parte. Learned counsel for the petitioner has produced copy of ex parte judgment, dated 3-6-2003 passed by the learned Judge, Family Court, Multan whereby the suit filed by the petitioner for jactitation of marriage has been decreed against Muhammad Mansha with whom earlier Nikah of the petitioner was shown in the F.I.R. Nikahnama of the petitioner with Mazhar Hussain is also placed on the record. The petitioner claims to have contracted marriage with Mazhar Hussain being sui juris with her free-will and consent. Even as per contents of the F.I.R.
The petitioner was aged about 21/22 years and thus, was sui juris. Copy of Nikahnama has been produced on the record. Learned counsel for the petitioner also correctly relied upon Azam's case (supra) to contend that the proceedings in the criminal case after the abovesaid judgment and decree passed by the learned Judge, Family Court, Kabirwala unless it is set aside by the competent forum will be abuse of process of law. I have perused the ex parte judgment, dated 3- 6-2003 passed by the learned Judge, Family Court, Multan. It shows that defendant No,2 had appeared in the Court and filed written statement but thereafter he absented himself and proceeded against ex parte. It shows that he had lost his interest in the said case. Learned counsel has pointed out that the said ex parte judgment has not ueen assailed any further by the complainant or Muhammad Mansha, so-called husband of the petitioner.
5. In the above circumstances when the petitioner has contracted marriage with Mazhar Hussain Azhar out of her free-will and consent being sui juris while her Nikah with Muhammad Mansha as claimed in the F.I.R. Has not been proved, I am of the considered view that the pendency of the proceedings in the trial Court as a result of F.I.R. No,379, dated 18-9-2002 registered at Police Station Saddar Kabirwala will be abuse of process of law. This Court is mindful that after submission of report under section 173, Cr.P.C. The petitioner has an alternate remedy by filing application under section 265-K, Cr.P.C. Before the learned trial Court but in the circumstances of the present case I think that any recourse to it will be sheer wastage of time and this Court is fully competent to quash the F.I.R. In suitable cases. Reliance can be placed on 2000 SCM R 122. Therefore, this writ petition is accepted and the impugned F.I.R. Alongwith consequent proceedings pending before the learned trial Court is quashed.
6. However, it is made clear that if the judgment and decree, dated 3-6-2003 passed by the learned Judge, Family Court is set aside by the competent forum, the complainant can file application before the learned trial Court for revival of the criminal case and this order will have no bar for initiation of criminal proceedings.