Quashment in Court Marriage Case

PLJ 2003 Lahore 959

[Multan Bench Multan]

Present: IJAZ AHMAD CHAUDHRY, J. IRFAN MAQBOOL-Petitioner

versus

STATION HOUSE OFFICER, P.S. DAULAT GATE, MULTAN and another-Respondehts

W.P. No. 7620 of 2000, decided on 7.1.2003. Criminal Procedure Code, 1898 (V of 1898)--

—-S. 561-A-Constitution of Pakistan, 1973 Art. 199-Offence u/S. JO/11Offence of Zina (Enforcement of Hudood) Ordinance, 1979-Suit for
jactitation-Court of competent jurisdiction has held that respondent girlwas never married with claimant and she was not his wedded wife—If thisportion of allegation is ousted from contents of FIR the respondent girl
being sui juris was entitled to contract marriage with her free will andconsent and she has exercised her right by marrying with petitioner-Nooffence in such circumstances has been committed by petitioner~Aspresent petition remained pending since long sending of petitioner againto learned trial Court for filing an application under Section 265-KCr.P.C. will not be in interest of justice and it is a fit case where HighCourt can exercise powers under S. 199 of Constitution as also under S.
561-A Cr.P.C. for quashment of proceedings-Preceding quashed provedto be abuse of process of law. '                             [P. 962 & 963] A & B

Mr. Muhammad ArifAlvi, Advocate for Petitioner.

Syed AltafHussain Bokhari, Law Officer for Respondents.

Date of hearing: 7.1.2003.

order

This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan 1973, has been filed by the petitioner for the quashment of FIR No. 238 registered on 27.8.1998 under Section 10/11 of

960 Lah.                           IRFAN MAQBOOL alias v. S.H.O.                                     PLJ

(Ijaz Ahmad Chaudhry, J.)

the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 at P.S. Daulat Gate, Multan, on the statement of Shabbir Ahmed.

2.  The brief allegations in the FIR are that Mst. Naureen Akhtardaughter of the complainant aged about 19  years was a student of BA in
Government Girls Degree College Multan. Her nikah was solemnized on

15.6.1997  and rukhsati was yet to be held. Mst. Naureen Akhtar on

10.3.1998        in order to attend the College had left the house but did not turnup. She was searched and Nisar Ahmed and Hafiz Abdul Ghaffar witnessestold that she had been seen in the company of the petitioner at 9.00 a.m.near the Sweet Shop while they travelled in a Rackshawa. Parents of Manwere approached and they promised to return Mst. Naureen Akhtar but they
did not return hence this case was registered.

3.        Learned counsel for the petitioner contends that Mst. NaureenAkhtar had filed a suit for jactitation of marriage on 7.10.1998 and thelearned Judge Family Court dismissed the suit, against which appeal wasaccepted and W.P. No. 4269/99 was filed by the complainant which was alsodismissed and the judgment of the learned appellate Court has attainedfinality whereby suit of Mst. Naureen Akhtar has been decreed and in thepresence of this judgment and decree further proceedings in the abovesaidFIR will be abuse of process of law as according to the Supreme Court ofPakistan in Azam's case reported in "PLD 1984 S.C. 95" the finality isattached to the decree of the Family Court and the criminal proceedingscannot be allowed to continue after obtaining the decree by the accused.

4.        On the other hand learned counsel for the State opposes thispetition on the ground that the application under Section 265-K Cr.P.C. canbe moved and in the presence of alternate remedy this petition is notmaintainable with is liable to be dismissed.

5.        While replying this question learned counsel for the petitionerhas relied upon "2000 SCMR page 122" in which it has been held that inappropriate cases this Court can interfere under Section 561-A Cr.P.C. andcan quash the proceedings inspite of availability of alternate remedy.

6.        I have heard the learned counsel for the parties and also perusedthe contents of this petition as also the documents attached herewith. It is an
admitted fact that Mst. Naureen Akhtar had filed a suit for jactitation ofmarriage on 7.10.1998 which was dismissed by the learned Judge FamilyCourt on 2.3.1999 but the appeal against the said judgment and decree filedby Mst. Naureen Akhtar was accepted and the suit of Mst. Naureen Akhtarfor jactitation of marriage against Suleman has been decreed. This judgment
was assailed through W.P: No. 4269/99 which was dismissed by this Courton 17.6.1999 hence it can safely by said that the judgment and decree passedin favour of Mst. Naureen Akhtar has attained the finality and the Court ofcompetent jurisdiction has held that Mst. Naureen Akhtar was nevermarried with Suleman and she was not his wedded wife. If this portion ofthe allegation is ousted from then contents of the FIR then Mst. Naureen

2003             Malik fazal abbas v. secretary to THfi govt.         Lah. 961

(Muhammad Khalid Alvi, J.)

Akhtar being sui juris was entitled to contract marriage with her free will and consent and she has exercised her right by marrying with the petitioner. No offence in such circumstances has been committed by the petitioner. As this petition remained pending in this Court since 17.7.2000, the sending of the petitioner again to the learned trial Court for filing an application under Section 265-K Cr.P.C. will not be in the interest of justice and it is a fit case where this Court can exercise powers under Section 199 of the Constitution as also under Section 561-A Cr.P.C. for the quashment of proceedings proved to be abuse of process of law.

7.    This petition is accepted and the proceedings relating to the impugned FIR are quashed.

(M.Y.)                                                                        Proceedings quashed.