Wednesday, 30 May 2012

Quashment of Zina FIR on the bases of Nikahnama

PLJ 2011 Lahore 127
[Bahawalpur Bench Bahwalpur]

Present: Mazhar Iqbal Sidhu, J.

Mst. SOMIA BIBI--Petitioner

versus

SHO etc.--Respondents

W.P. No. 1017-Q of 2010, decided on 27.4.2010.

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Penal Code, (XLV of 1860), Ss. 365-B, 496 & 109--Constitutional petition--Quashing of FIR--No offence is made as the star witness of prosecution had categorically stated before I.O. as well as before the Court that no such incident had ever taken place--During investigation offence u/S. 365-B, PPC was deleted whereas offence u/Ss. 109 & 496-A, PPC were added to FIR--Abductee categorically denied her Nikah--Contracted marriage with accused of her free own will, without any coercions and misrepresentation--Validity--Photocopy of Nikahnama was present on file--If there were two Nikah Namas then, law requires that nikah nama to which parties to nikah nama admit and acknowledge would be taken to be genuine--Abductee was sui juris and she had contracted marriage of her own free will, therefore, no offence was constituted--FIR was quashed.         [Pp. 129 & 130] A & B

PLD 1998 FSC 42 & 1994 PCr.LJ 111, rel.

Sardar M. Shehzad Dukhar, Advocate for Petitioner.

Mr. Khalid Pervaiz Opal, Learned DDPP for Respondents.

Date of hearing: 27.4.2010.

Order

Mst. Somia Bibi, being the abductee of FIR No. 51/2010 dated 25-02-2010 has filed Instant constitutional petition seeks quashing of the FIR.

2.  The case has been lodged on the complaint of Mushtaq Ahmad Respondent No. 2 father of the petitioner alleging therein that on 19-02-2010, petitioner was married with Altaf Ahmad s/o Musa, the departure of the bride was not yet been taken place. It has been alleged in the FIR that on 24-02-2010 at about 09:00 a.m. Abdul Sattar, Abdul Jabbar, Noor-uz-Zaman, Khuda Bakhsh, Muhammad Hussain and 3/4 unknown persons abducted Mst. Somia Bibi petitioner in order to induce or to compel her for marriage. Hence this petition.

3.  The case has been investigated by the investigating agency. During investigation offence under Section 365-B PPC was deleted whereas offence under Sections 109, 496-A PPC were added to the FIR vide case Diary No. 19 dated 25-04-2010 written by Zia-ur-Rehman ASI/I.O. During the investigation, Mst. Somia Bibi appeared before the I.O on 12-04-2010 and made statement under Section 161 of the Cr.P.C. according to which she narrated that she was not abducted by any body; she solemnized marriage with Abdul Sattar accused of the FIR (Respondent No. 3) on 25-02-2010 of her own free will and volition and she has also repudiated her first Nikkah with Altaf Ahmad. She has also stated that she is living with her husband Abdul Sattar.

4.  In support of this petition, it has been contended on behalf of the petitioner that no offence is made as the star witness of the prosecution Mst. Somia Bibi has categorically stated before the investigating agency as well as before the Court that no such incident has ever taken place. It has been further contended that during the investigation offence under Section 365-B PPC has been deleted. This fact by itself makes the entire prosecution story false. It has been further argued that the alleged Nikkah of Mst. Somia Bibi with Altaf Ahmad is absolutely false and the petitioner does not accept and acknowledge it. Mst. Somia Bibi petitioner has also been appearing before this Court and kept on acknowledging her Nikkah with Abdul Sattar. It is further submitted that to further continue proceedings in this FIR would be sheer wastage of time and would be abuse of process of law.

5.  On the other hand, learned counsel for the respondent has vehemently opposed the contentions of learned counsel for the petitioner on the ground that Mst; Somia Bibi was abducted and under duress false Nikahnama has been fabricated by Abdul Sattar accused/respondent. It has also been submitted that first Nikah of Mst. Somia Bibi with Altaf Ahmad is genuine. Therefore, no case of quashing of FIR is made out. Thus, petition may be dismissed.

4.  Heard and record perused.

5.  According to the contents of FIR, first Nikah which was stated to have been solemnized on 19-02-2010 of Mst. Somia Bibi with Altaf Ahmad is not before this Court. It is very important that according to prosecution's own case, the departure of the alleged abductee was not yet taken place. Mst. Somia Bibi has categorically denied her Nikkah with Altaf Ahmad during the course of investigation and also before this Court. She has acknowledged that she contracted marriage with Abdul Sattar respondent (accused of the FIR) on 24-02-2010 of her own free will, without any coercions and misrepresentation. Photocopy of the Nikahnama is present on the file. If there are two Nikah Namas then, the law requires that Nikah Nama to which parties to the Nikah Nama admit and acknowledge shall be taken to be genuine.

6.  In this respect, reliance has placed on PLD-1998-FSC-42 (Arif Hussain and Azhra Perveen appellants versus The State) wherein it has been held:--

(a)        Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) and 1994-PCRLJ-1111 (Mst. Naseer Khatoon versus The SHO P.S City Mianwali and others) wherein it has been held:--

"Quashing of FIR--Petitioner girl was major and she had married voluntarily with the male accused--No justification, therefore, was available to register the case against the couple under Ss. 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979--Registration of the case was consequently declared to be without lawful authority and the FIR was quashed accordingly".

Mst. Somia Bibi is sui juris and she has contracted marriage of her own free will, therefore, no offence is constituted. This being so, registration of the case vide FIR No. 51/2010 dated 25.02.2010 under sections 365-B, 496 and 109 PPC is declared to be without lawful authority and the same is hereby quashed.

7.  No order as to costs.

(R.A.)  FIR quashed.


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