Suit for Jactitation can save the husband from FIR

PLJ 2009 Cr.C. (Peshawar) 361

Present: Muhammad Alam Khan, J.

Mst. UMME KULSOOM and 3 others--Petitioners

versus

STATE and another--Respondents

Crl. Misc. Q.P. NO. 182 of 2007, decided on 17.3.2008.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 561-A--Offence of Zina (Enforcement of Hudood) Ordinance, 1979, Ss. 11 & 16--Quashment of FIR--Petitioner was divorced by her previous husband--Petitioner with her own free will contracted a second marriage--Out of wedlock a baby was also born which petitioner was having in her lap when she appeared before High Court--Suit for jactitation of marriage also pending before Family Court of exclusive jurisdiction--No justification for registration of the case--FIR quashed.     [P. 363] A

Petitioners in person.

Nemo for Respondent No. 1.

Mr. Alamzeb Khan, DAG for State.

Date of hearing: 17.3.2008.

Judgment

Mst. Umme Kulsoom d/o Fazal Manan R/o Buland Killa, Tehsil and District Karak has filed quashment petition against the State and Muhammad Javed son of Abdul Manan R/o Buland Killa Tehsil and District Karak wherein the petitioners have prayed for quashment of FIR No. 141 dated 7.11.2006 of Police Station, Sabir Abad, District Karak under Sections 11 and 16 Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

2. Brief facts of the case are that Mst. Umme Kulsoom petitioner was married to Respondent No. 2 Muhammad Javed and unfortunately the relationship between the spouses became strained and Respondent No. 2 divorced. Mst. Umme Kulsoom. After the completion of her iddat period she contracted a second marriage with Muzamil-ur-Rehman alias Muzamil son of Saida Mir Petitioner No. 2 and out of the wed lock a baby was born namely Miss: Muhesha Rehman who is a sucking baby in the lap of her mother Mst. Umme Kulsoom. That lateron as Muhammad Javed Respondent No. 2 was claiming to be the husband Mst. Umme Kulsoom and thus Mst. Umme Kulsoom filed a suit for jactitation of marriage against Respondent No. 2 in the Court of learned Senior Civil Judge/Judge Family Court, Karak bearing Suit No. 159/FC of 2006. The Respondent No. 2 in order to pressurize Mst. Umme Kulsoom reported the matter to the police of Police Station, Sabir Abad District Karak. That on 3.11.2006 Mst. Umme Kulsoom petitioner who was his legally wedded wife and was living with him has suddenly disappeared from her house. On checking of the house he found that she has taken with her Rs. 20,000/- cash and Nine (9) Tolas golden ornaments. It was further alleged in the FIR that through reliable sources, he has come to know that she has eloped with one Muzamil-ur-Rehman Petitioner No. 2 for the purpose of marriage and that Mst. Nazira wife of Saida Mir and Muhammad Safir son of Abdul Munir are also privy to this elopement. Consequently the police registered a case vide FIR No. 141 dated 7.11.2006 of Police Station, Sabir Abad District Karak under Sections 11 & 16 Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

3. It was submitted by the Petitioner No. 1 that she was married to Muhammad Javed real cousin Respondent No. 2 but subsequently the relations became strained and she was divorced by Respondent No. 2, that after completing her idat period, Mst. Umme Kulsoom, with her free will, contracted second marriage with Muzamil-ur-Rehman Petitioner No. 2 and she is living with him having peaceful and happy matrimonial life and out of the wed lock a baby was also born.

4. Mst. Umme Kulsoom appeared pursuant to a notice by this Court and she produced her National Identity Card which shows that she is sui juris and she has contracted second marriage with Muzamil-ur-Rehman, after being divorced by Respondent No. 2 Muhammad Javed. She further asserted that she has filed a suit for jactitation of marriage which is pending before the Judge, Family Court Karak in which she has also claimed her dower and dowry.

5. I have gone through the record of the case and considered the submissions made by the petitioners.

6. It is abundantly clear on the record that Mst. Umme Kulsoom was married to Muhammad Javed Respondent No. 2 but unfortunately this matrimonial relations of husband and wife were not successful and resultantly, Mst. Umme Kulsoom was divorced by her previous husband Respondent No. 2. Thereafter, Mst. Umme Kulsoom with her own free will contracted a second marriage with Muzamil-ur-Rehman Petitioner No. 2 and is happily residing with Petitioner No. 2 out of this wedlock a baby was also born which Mst. Umme Kulsoom was having in her lap when she appeared before this Court.

7. As suit for jactitation of marriage between Mst. Umme Kulsoom and Muhammad Javed Respondent No. 2 is pending before Family Court of exclusive jurisdiction in view of Section 5 of West Pakistan Family Court Act, 1964 which the learned Court will decide after recording pro and contra evidence, thus, in these circumstances, there was no justification for the registration of the case as aforesaid.

8. Resultantly, this quashment application is accepted and FIR bearing No. 141 dated 7.11.2006 of Police Station, Sabir Abad District Karak under Sections 11 & 16 Offence of Zina (Enforcement of Hudood) Ordinance, 1979 being abuse of the process of the Court is quashed, the petitioners are on bail and their liability of the bail bonds are discharged, they need not surrender to the bail bonds. A copy of this order be sent to the District Judge, Karak for placing the same on the record of Suit No. 159/FC of 2006 titled Mst. Umme Kulsoom Vs. Muhammad Javed pending in the Court of Senior Civil Judge/Judge Family Court, Karak.

(M.A.K.Z.)  FIR quashed.