Present: Shaukat Aziz Siddiqui, J.
Mst. ADEELA BIBI and another--Petitioners
STATE and 4 others--Respondents
W.P. No. 4222 of 2010, decided on 23.1.2012.
, 1973-- Pakistan
----Art. 199--Pakistan Penal Code, (XLV of 1860), S. 365-B--Quashing of FIR--Two sisters were combined in Nikkah--Act of accused was totally against norms of society--Accused contracted marriage with each other just after 40 days of asserted divorce, which iddat period of first wife i.e. real sister of accused--Question of--Conjunction of two sisters during subsistence of marriage of first sister and marriage with second sister during iddat period of first sister was placed at same footing--Determination--Courts always cognizance of offence smelled out from contents of FIR and not of a particular section inserted by police on face of FIR and once Court is cognizant of the matter, it has to proceed in accordance with law--If some other cognizable offence spells out from the facts, then High Court is not bound by offences inserted by police and law has to take its course--High Court was not inclined to exercise constitutional jurisdiction as normal procedure of law is not to be deflected by exercise of constitutional jurisdiction--Petition was dismissed. [Pp. 147 & 156] A, D & E
----Before expiry of iddat, talaq is not effective. [P. 147] B
Muslim Family Laws Ordinance, 1961 (VIII of 1961)--
----S. 7--Talaq--Substantive as well as procedural law regarding talaq--Talaq is not effective until expiry of ninety days and in case of pregnant women till delivery, whichever is earlier. [P. 154] C
Raja Tahir Masood, Advocate for Petitioner.
Raja Rizwan Abbasi, Advocate for Respondent No. 5.
Mr. Rehan-ud-Din Khan, learned standing counsel for State.
Date of hearing: 23.1.2012.
Through instant constitutional petition, Adeela Bibi and Wajid Hussain, petitioners have sought quashment of FIR No. 231, dated 22.07.2010, offence under Section 365-B PPC, registered at Police Station Koral, Islamabad, registered on the complaint of one Abdul Qayyum, father of Mst. Adeela Bibi (Petitioner No. 1).
2. The prosecution story, in brief, as depicted from the FIR is that the complainant informed the police on 22.07.2010 that he is engaged in the business of selling milk and a resident of Gora-mast, District Islamabad. On 21.7.2010 his daughter namely Mst. Adeela Bibi was found missing from the house. On further query, jewelry items and considerable cash was also found missing. Subsequently, it revealed that Wajid Hussain, (Petitioner No 2) has enticed away his daughter for purpose ofZina in connivance with co-accused Azhar Mehmood. During the course of investigation it revealed that the real sister of the Petitioner No. 1, namely Mst. ShahidaParveen, is the wife of the Petitioner No. 2, with whom the Petitioner No. 1, Mst. Adeela Bibi has contracted marriage.
3. The prayer for quashment of the FIR has been made on the ground that out of a strong liking for Petitioner No. 2, Mst. Adeela Bibi, Petitioner No. 1 has contracted marriage with him, with her free will, without any element of force, coercion or intimidation. It is maintained that the registration of FIR is tainted with mala fide, ulterior motives and in order to coerce, pressurize and humiliate the petitioners. Along with the petition, a Nikahnama Bearing No. 669 dated 22.07.2010, purportedly registered at UC-30, Chah Sultan,
has also been appended as a proof of marriage. Column No. 21 of the said Nikahnama finds it mention that "first wife has been divorced". In order to substantiate the factum of talaq a Talaqnama/Divorce Deed dated 11.06.2010 has also been annexed with the petition. In the said deed Petitioner No. 2 admitted to have married with the real sister of Petitioner No. 1 namely Mst. Shahida Parveen daughter of Abdul Qayyum(complainant) in the month of April, 2010 and through the said instrument contended to have pronounced divorce upon Mst. Shahida Parveen due to estranged relations, on 11.06.2010 i.e. just within three months of marriage. Rawalpindi
4. Although the factum of marriage between the petitioners was asserted in the petition with vehemence, however, on account of the rather serious nature of the allegations leveled against the petitioners, I, before going into the legal and factual issues raised before me, considered it just and appropriate to examine the petitioners in terms of provisions of Order X, Rule 2 of the CPC. On 19.01.2012 both the petitioners appeared before the Court they approved and re-affirmed the factum of their marriage. The I.O. was also directed to verify the Entry No. 669 dated 22.07.2010 at UC 30, Chah Sultan,
, regarding registration Nikahnama of the petitioners, which he reported to be duly registered. Rawalpindi
5. Learned counsel for the petitioner while referring to above mentioned factual aspects contends that the complainant did not mention in the FIR the factum that the Petitioner No. 2 was his son-in-law which shows his mala fide; that the ingredients to constitute offence under Section 365-B PPC are missing, more particularly, in view of statement of alleged abductee; that local police in league with the complainant lodged the frivolous FIR.
6. Learned counsel for the respondent assisted by the learned Standing Counsel vehemently opposed the petition and submits that according to the statement of Mst.Shahida Parveen, the first wife of Petitioner No. 2, she has been residing with her husband till 21.07.2010; that two sisters have been combined in the Nikkah of Petitioner No. 2; that from the facts and circumstances of the case offence under Section 493-A PPC is made out; that act of the petitioners is totally against the norms of the society; that challan of the case has already been submitted.
7. After hearing the learned counsel of the parties at length and going through relevant record of this case with their able assistance I have observed that this case involves some important issues. It is an admitted position on record that the marriage of the Petitioner No. 2 with elder sister of Petitioner No. 1, i.e. Mst. ShahidaParveen, was solemnized on 21.04.2010. The Petitioner No. 2 contended to have divorced her on 11.06.2010. The record reveals that a copy of the Divorce Deed sent to Union Council Girja, District Rawalpindi on 30.06.2010 but the same was returned by the said Union Council with the objection that the divorcee Mst. ShahidaParveen was not resident of the said UC. Thereafter, the same was referred to Union Council Koral, District Islamabad on 02.07.2010, where the divorcee Mst.Shahida Parveen is stated to be residing. Be that as it may, but the fact remains, that the petitioners contracted marriage with each other on 22.07.2010, just after 40 days of asserted divorce, which is the Iddat period of first wife, i.e. the real sister of Petitioner No. 1. Now the questions for determination before this Court are that what is the status of successive marriage with the real sister of first wife during her Iddat period? And whether any criminal consequences flow from such marriage if contracted?
8. Before dwelling upon the above propositions, I deem it necessary to explain the classes of women who are prohibited to a man and marriage with them is unlawful in the light of injunctions of Holy Quran, which are as follows:--
Surah Al-Baqarah, Chapter-2, Verse-221:
Do not marry unbelieving women until they believe: a slave woman who believes is better than an unbelieving woman, even though she allure you. Nor marry (your girls) to Unbelievers until they believe: a slave man who believes is better than an Unbeliever even though he allure you. Unbelievers do (but) beckon you to the Fire. But Allah beckons by His Grace to the Garden (of Bliss) and forgiveness, and makes His Signs clear to mankind: that they may receive admonition.
Surah Al-Nisa, Chapter-5, Verse-22:
And marry not women whom your fathers married - except what is past: it was shameful and odious - an abominable custom indeed.
Surah Al-Nisa, Chapter-5, Verse-23:
Prohibited to you (for marriage) are: your mothers, daughters, sisters; father's sisters, mother's sisters; brother's daughters, sister's daughters; foster-mothers (who gave you suck), foster-sisters; your wives' mothers; your step-daughters under your guardianship, born of your wives to whom ye have gone, no prohibition if ye have hot gone in; (those who have been) wives of your sons proceeding from your loins; and two sisters in wedlock at one and the same time, except for what is past; for Allah is Oft-Forgiving, Most Merciful.
Surah Al-Nisa, Chapter-5, Verse-24:
Also (prohibited are) women already married, except those whom your right hands possess: thus hath Allah ordained (prohibitions) against you: except for these, all others are lawful, provided ye seek (them in marriage) with gifts from your property, desiring chastity, not lust. Seeing that ye derive benefit from them, give them their dowers (at least) as prescribed; but if, after a dower is prescribed, ye agree mutually (to vary it), there is no blame on you, and Allah is All-Knowing All-Wise.
Surah Al-Nisa, Chapter-5, Verse-25:
If any of you have not the means wherewith to wed free believing women, they may wed believing girls from among those whom your right hands possess: and Allah hath full knowledge about your faith. Ye are one from another: wed them with the leave of their owners, and give them their dowers, according to what is reasonable: they should be chaste, not lustful, nor taking paramours: when they are taken in wedlock, if they fall into shame, their punishment is half that for free women. This (permission) is for those among you who fear sin; but is better for you that ye practice self-restraint. And Allah is Oft-Forgiving, Most Merciful.
Surah Al-Baqarah, Chapter-2, Verse-228:
Divorced women shall wait concerning themselves for three monthly periods. Nor is it lawful for them to hide what Allah hath created in their wombs, if they have faith in Allah and the Last Day. And their husbands have the better right to take them back in that period, if they wish for reconciliation. And women shall have rights similar to the rights against them, according to what is equitable; but men have a degree (of advantage) over them. And Allah is Exalted in Power, Wise.
Surah Al-Baqarah, Chapter-2, Verse-230:
So if a husband divorces his wife (irrevocably), he cannot, after that, remarry her until after she has married another husband, and he has divorced her. In that case there is no blame on either of them if they reunite; provided they feel that they can keep the limits ordained by Allah. Such are the limits ordained by Allah which He makes plain to those who understand.
Surah Al-Nisa. Chapter-5. Verse-3:
If ye fear that ye shall not be able to deal justly with the orphans, marry women of your choice, two, or three, or four; but if ye fear that ye shall not be able to deal justly (with them), then only one, or (a captive) that your right hands possess.
That will be more suitable, to prevent you from doing injustice.
From the above quoted verses of the Holy Quran, 19 classes of women emerge against whom there is an express prohibition. These set of classes have very exhaustively been enumerated in a Division Bench judgment of the honorable Lahore High Court passed in case of Iftikhar Nazir Ahmed Khan and others versusGhulam Kibria and others (PLD 1968 Lahore 587). The opinion of the Court was authored by his lordship Mr. Justice Muhammad Akram, J (the then he was). I feel pleasure to borrow a passage from the said judgment to elucidate my point:--
"There are in all 19 classes of women who are prohibited to a man and a marriage with them is unlawful. They are as under:--
(i) Mothers; (ii) Daughters; (iii) Sisters; (iv) Father's sister; (v) Mother's sister; (vi) Brother's daughter; (vii) Sister's daughter; (viii) Foster-mother; (ix) Foster-sister; (x) Mother-in-law; (xi) Wives' daughters (step-daughters); (xii) Son's wives; (xiii) father's wife (step-mother); (xiv) TWO SISTERS IN CONJUNCTION: (xv) Married women; (xvi) Idolatress (Mushrikat); (xvii) One's thrice divorced wife; (xviii) A woman in Iddat (probation); (xix) More than four wives. In legal terminology they are generally called "Muharramat" (Women forbidden in marriage).
The prohibitions in the Nikkah are of two kinds perpetual and temporary. Broadly speaking the perpetual prohibition against marriage arises on account of consanguinity, fosterage and affinity. In these cases the prohibition is absolute and eternal. But the temporary and relative prohibition arises from some impediment in the way of the marriage which is not permanent in its nature and the obstacle is liable to be removed. Fatawa-e-Kazi Khan (Pages 167-169) in the "Chapter onMuharramat" (Women forbidden to be married), has dilated upon this broad division into the two classes of women; mo-abada (permanently prohibited) and ghair-mo-abada (temporarily prohibited) women in marriages.
In all there are seven classes of women falling in this last category ghair-mo-abada (temporarily prohibited women). The interdict against the marriage with them is not perpetual. The temporary prohibitions are against (i) exceeding the number of wives allowed by law; (ii) conjunction of two sisters; (iii) conjunction of a free woman and a slave girl; (iv) marriage with an idolatress; (v) marriage with an other's wife; (vi) marriage with an other's moattada (in the Iddat of another) (vii) conjunction of two such females as could not have intermarried, if one of them was a male."
9. There is a consensus amongst Muslim jurists that the conjunction of two sisters is Haram, an act of sin of highest order and falls within prohibited degree. However, a difference has arisen as to whether such marriage is Batil (void ab-initio, nugatory) or Fasid (invalid, vicious and defective)? Majority of the Hanafi jurists believe that such marriage is Fasid. This distinction between Batil and Fasid leaves some material impacts on the consequences of such marriage, civil as well as criminal. Civil liabilities are not the subject of instant petition; therefore, same are left to be discussed at some other appropriate time. However, regarding criminal liability arising out of such marriage, most of the Hanafi jurists, including Imam Abu Hanifa (R.A), are of the opinion that it does not call for infliction of punishment ofHadd however, they are unanimous that in view of its serious repercussion it has to be dealt seriously and Tazir must to be inflicted. I shall revert to this discussion a little later.
10. Now, I advert to another important question for determination before me that whether conjunction of two sisters during subsistence of marriage of first sister and the marriage with the second sister during Iddat period of the first sister is placed at the same footing or there exists some difference between the two?
It is well settled proposition of Islamic Jurisprudence that before expiry of Iddat, Talaq is not effective. The commands of Allah Almighty as ordained in the Holy Quran are very clear, lucid and plain in this regard. It is mandated in Chapter No. 65, Verse No. 1, Surah Al-Talaq:
"O Prophet! When ye do divorce women, divorce them at their prescribed periods, and count (accurately) their prescribed periods: and fear Allah your Lord: and turn them not out of their houses, nor shall they (themselves) leave, except in case they are guilty of some open lewdness, those are limits set by Allah: and any who transgresses the limits of Allah, does verily wrong his (own) soul: thou knowest not if perchance Allah will bring about thereafter some new situation."
The prohibition regarding expelling the women during the Iddat by the husband or express ban upon the women of her leaving the house of the husband herself, during such period are manifestly speaking that after co-habitation and pronouncement of Talaq the women does not relieved of the contract of marriage until the Iddatperiod prescribed by the injunctions of Holy Quran and Sunnah is expired. Therefore, there is no difference between the Moattada (woman observing Iddat) and the women still in Nikkah as both of them are considered to be bind by the contract of marriage. One of the great classical authorities on Tafseer, Imam Muhammad ibnAhmed Qurtubi (died 671 AH) in his famous Al-Jami al-Ahkam al-Qur'an commonly known as Tafseer-e-Qurtubi, while interpreting this verse has said:
Similar view has been expounded by Ibn Kaseer in Tafsir al-Qur'an al-Azim, popularly Tafsir ibn Kaseer:--
While interpreting this verse, Sayyid Abul Ala Maududi in his famous Tafheem-ul-Qur'an has made a lengthy discussion. However, the Hanafi view, in this regard, has been explained by him as follows:--
"She is entitled to both lodging and maintenance. This is the opinion of Umar, Abdullah bin Masud, Ali bin Husain (Imam Zain-al-Abidin), Qadi Shuraih and IbrahimNakhai. The same has been adopted by the Hanafis. and the same is also the viewpoint of Imam Sufyan Thauri and Hasan bin Saleh. This is supported by the Hadithof Daraqutni in which Abdullah bin Jabir reports that the Prophet (peace be upon him) said: The woman who has been divorced thrice has a right to lodging and maintenance during the waiting-period. This is further supported by those traditions in which it has been reported that Umar had rejected the Hadith of Fatimah bint-Qais, saying: We cannot abandon the Book of Allah and the Sunnah of our Prophet (peace be upon him) on the word of a woman. This shows that the Sunnah of the Prophet (peace be upon him) in the knowledge of Umar must be that such a woman is entitled to both maintenance and lodging. Furthermore in a tradition from Ibrahim Nakhai there is the explanation that Umar rejecting the Hadith of Fatimah bint-Qais, had said: I have heard the Prophet (peace be upon him) say that such a woman has a right to lodging as well as to maintenance. The first argument that Imam Abu Bakr al Jassas has given in his discussion of this question in his Ahkam al-Quran is that Allah has explicitly said: Divorce them for their prescribed waiting periods. This divine command also applies to that person who might have taken his wife back after divorcing her twice in the first instance, and now he is left with only one divorce to pronounce. His second argument is: When the Prophet (peace beupon him) taught this method of pronouncing divorce that one should either pronounce divorce in such a period of purity in which one may not have had sexual intercourse, or in a state when the signs of a woman's being pregnant might have appeared. In this he did not make any distinction between the first, second, or final divorce. Therefore, the divine command: Lodge them (in the waiting period) where you yourselves live, will be regarded as relevant to every form of divorce. His third argument is: The maintenance and lodging of the pregnant woman, whether divorced revocable or irrevocably, is binding on the husband, and in respective the non-pregnant revocably divorced woman also both these rights are binding. This shows that the maintenance and lodging have not been made incumbent on the basis of pregnancy but because both are legally bound to stay in the husband's house. Now, if the same injunction be applicable to the irrevocably divorced non-pregnant woman also, there can be no reason why her lodging and maintenance should not be incumbent on the man divorcing her."
In one of the leading authorities of Hanafi fiqh, Durr-al-Mukhtar, it is said:
"When a man marries a woman whilst her sister is observing her Iddat, arising from (even) an irreversible (or Bain) divorce (given by him) after a valid (Saheeh) marriage or is observing her Iddat arising from an invalid (Fasid) marriage (with him) the marriage is not valid according to us (the Hanifites)."
According to Hedaya (Translation by Charles Hamilton), one of the primary sources of Hanafi Fiqh, it has been laid down:
If a man marry, a woman whom it is not lawful for him marry, and afterwards have carnal connexion with her, he does not incur punishment, according to Imam AbuHanifah (RAA) but if he be at the time aware of illegality, he is to be corrected by a Tazeer, or discretionary correction. The two disciples and Imam Shafi' (RAA) have said that he is liable to punishment, when he marries the woman, being aware of the illegality; because as the contract has not been executed in regard to its proper subject, it is of course void; for here the woman is not a proper subject of marriage, because the proper subject of marriage; or of any other deed, is a thing which is a proper subject of the effects of such deed; now one of the effects of marriage is the legalizing of generation; but as the woman is among those who are prohibited to the man, the contract of marriage with her is consequently nugatory, in the same manner as contract of marriage between man and woman.
The argument of the Imam Abu Hanifa (RAA) is that the contract has taken place in regard to its proper subject as the woman is, a proper subject of marriage, because the proper subject of any deed is a thing which admits of the ends intended being obtained from it; now the end of marriage is the procreation of children, and to this every daughter of Adam is competent; the case therefore admits of the contract being engaged in with respect to all its effects, and of all its effects being obtained from it; but on account of the prohibition in the sacred text, the legalization of generation is not obtained; and such being the case error is occasioned, as error is a thing which is the appearance of a proof, and not the substance of one; and as, in the present case, the man has perpetrated an offence for which the stated punishment, or Hadd is not appointed, Tazeer, or discretionary correction, must be inflicted."
In this regard, I am also fortified by the dictum laid down by the honorable Federal Shariat Court of Pakistan in case of Muhammad Arif Versus State, reported as PLD 1982 FSC 292, wherein the instant proposition of law was under discussion. The larger bench of the
Federal Shariat Court rendered a unanimous decision and the opinion of the Court was authored by one of the great scholar of his time, his lordship Mr. Justice Malik Ghulam Ali (the then he was). It was held:
A quite similar view has been taken by the honorable Lahore High Court in the case of Mst. Irfana Faiz and another Versus The State and 2 others (2006 P.Cr.LJ199) wherein the petitioners contracted marriage just after 3 days of divorce to the real sister of the Petitioner No. 1 by her husband, Petitioner No. 2. The petitioners, therein, sought relief of quashment of FIR, and while dismissing the petition in limine the Court held:
"I am of the considered opinion that before expiry of Iddat, Tallaq is not effected and since in the present case distinguishing feature is that Petitioner No. 2 marriedMst. Irfana Petitioner No. 1 who stood within the prohibited degree, before expiry of Iddat period, hence, I am not inclined to legalize such marriage on the touchstone of law declared by Honorable Supreme Court in the cited judgment by ignoring the distinguishing feature of present case. Even otherwise, constitutional petition being equitable/discretionary relief, same cannot be extended/ exercised when grant of such relief is immoral, unfair or against the dictates of good conscience and fairplay, as held in the case Secretary to the Government of Punjab Vs. Ghulam Nabi PLD 2001 SC 415. To me, the marriage between the parties just three days after the alleged divorce with the real sister of the earlier wife is an unholy alliance which cannot be perpetuated by this Court through the relief sought in this constitutional petition."
11. The above mentioned lightships leave no room to hold to the contrary that such marriage is unlawful and calls for penal consequences. During the course of writing this judgment I have come across to some authorities where due to English translation of the Arabic expression "FASID" by some authors, like D. F. Mulla in Principles of Muhammadan Law, with the word "IRREGULAR" some misconceptions have arisen and the IRREGULAR MARRIAGE has been treated and taken in the same way as some "irregularity" under our procedural laws. This assumption is entirely wrong, misconceived and does not fit within the scheme of Islamic law and jurisprudence. The term FASID by no stretch can be equated to mere IRREGULARITY as employed and used under the common law. The term FASID is a quite distinct, wide and broad expression used by the Muslim legal philosophers which includes the meanings "illegal, unlawful, invalid, vicious and defective". The term FASID has its own context, perspective and meanings therefore, persons charged with the commission of offences of marriages within the prohibited degree, though the prohibition might be temporary, cannot be absolved from the penal consequences of such grave offences against the society and state, while benefitting from the connotation "irregularity".
12. Having said so, now, I advert to the position under the prevalent law of the land as envisaged under Section 7 of the MUSLIM FAMILY LAWS ORDINANCE, 1961 [ORDINANCE NO. VIII OF 1961] setting forth the substantive as well as procedural law regarding Talaq. Even viewing from this angle, the talaq is not effective until the expiry of ninety days and in case of pregnant women till delivery, whichever is earlier Section-7 reads as under:
7. Talaq.--(1) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the Chairman a notice in writing of his having done so, and shall supply a copy thereof to the wife.
(2) Whoever, contravenes the provisions of sub-section (1) shall be punishable with simple imprisonment for a term which may extend to one year, or with fine which may extend to five thousand rupees, or with both.
(3) Save as provided in sub-section (5) talaq, unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which notice under sub-section (1) is delivered to the Chairman.
(4) Within thirty days of the receipt of notice under sub-section (1), the Chairman shall constitute an Arbitration Council for the purpose of bringing about reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.
(5) If the wife be pregnant at the time talaq is pronounced, talaq shall not be effective until the period mentioned in sub-section (3) or the pregnancy, whichever later, ends.
(6) Nothing shall debar a wife whose marriage has been terminated by talaq effective under his section from remarrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective, (emphasis supplied).
Therefore, I am constrained to hold that even the plea of sending notice to the Chairman, Union Council is of no help to the petitioners as allegedly the notice was sent on 30.06.2010 and the second marriage was contracted on 22.07.2010, just within 22 days of the notice under Section 7 of the Ordinance ibid. I am afraid that from this view the case of the petitioners is more serious, devastating and stern. Because, sending of the notice gives implication that the Petitioner No. 2 was fully aware that he was committing a criminal act and tried to shield the same.
13. This Court while dealing with such cases as the instant one cannot absolve itself from the duties cast upon it to preserve the supreme and fundamental values of our social system in which the institution of the family finds prime importance. Allah Almighty opens up Surah Al-Nisa with the following words;
"O mankind! reverence your Guardian-Lord, who created you from a single Person, created, of like nature, his mate, and from them twain scattered (like seeds) countless men and women; fear Allah, through Whom ye demand your mutual , (rights), and (reverence) the wombs (that bore you): for Allah ever watches over you."
This verse calls upon every Muslim to preserve the family system and correlates it to fear from Allah (Taqwah). From this it is apparent that institution of family is regarded as a source of all piety, peace and harmony in the society. Islam refuses to give protection to those who invade upon such a sacred institution of the society. It disdains to consider life in terms of carnal desires. It discourages to ridicule pious relations to fulfill human lusts. This hardly needs a discussion that on no account the conduct which is immoral, seditious and opposed to all canons of propriety can be approved by the Courts of law, what to talk of doing so, while exercising constitutional jurisdiction. I am mindful of the fact that technically it may not be a Batil (void) marriage but such type of marriage ruin the entire fiber of family life and devastating to the culture we live in. Here again, I am fortified in my view by the judgment in Irfana Faiz supra, wherein while referring to the judgment of honorable Supreme Court in Shaukat Ali's case, 1972 SCMR 236, it is held that "the Courts do not function in vacuum and must take due notice of social and moral environment prevailing in community, such as, tendency on part of some young men to abuse provisions of law in furtherance of their illicit love affairs."
14. As for as the contention of the learned counsel for the petitioners that no offence under Section 365-B PPC is made out is concerned, suffice it to say is that, Courts always take cognizance of the offence smelled out from the contents of FIR and circumstances of the case and not of a particular section inserted by the police on the face of the FIR and once the Court is cognizant, of the matter, it has to proceed in accordance with law. Even by agreeing with the learned counsel for the petitioners that prima-facie the ingredients of offence under Section 365-B PPC may be lacking in the instant case, I am of the considered opinion that if some other cognizable offence(s) spells out from the facts and circumstances of the case, then this Court is not bound by the offences inserted by the police and the law has to take its course.
15. So far as the question that which particular offence is attracted in the peculiar circumstances of the case, the same is left for determination by the trial Court, while framing the charge as it is the exclusive jurisdiction, domain and prerogative of the trial Court, to which, it is improper for this Court to interfere at this stage.
16. As the challan has already been submitted, therefore, in view of the dictums laid down by the Court of apex in cases of Col. Shah Sadiq Vs. Muhammad Ashiq & others (2006 SCMR 276) and Industrial Development Bank of Pakistan and others Vs. Mian Asim Fareed and others (2006 SCMR 483), I am not inclined to exercise the constitutional jurisdiction as the normal procedure of law is not to be deflected by exercise of constitutional jurisdiction. Even otherwise, no exceptional circumstance and jurisdictional defect has been pointed out to warrant interference; hence the instant petition is dismissed, with no orders as to costs.
(R.A.) Petition dismissed