Quashment in Court Marriage Case | Pakistan Law Reports

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/11 Offence of Zina (Enforcement of Hudood ) Ordinance, 1979-Suit for jactitation -Court of competent jurisdiction has held that respondent girl was never married with claimant and she was not his wedded wife—If this portion of allegation is ousted from contents of FIR the respondent girl being sui juris was entitled to contract marriage with her free will and consent and she has exercised her right by marrying with petitioner-No offence in such circumstances has been committed by petitioner~As present petition remained pending since long sending of petitioner again to learned trial Court for filing an application under Section 265-K Cr.P.C . will not be in interest of justice and it is a fit case where High Court can exercise powers under S. 199 of Constitution as also under S. 561-A Cr.P.C . for quashment of proceedings-Preceding quashed proved to 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 Akhtar daughter 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 turn up. She was searched and Nisar Ahmed and Hafiz Abdul Ghaffar witnesses told 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 Man were 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 . Naureen Akhtar had filed a suit for jactitation of marriage on 7.10.1998 and the learned Judge Family Court dismissed the suit, against which appeal was accepted and W.P. No. 4269/99 was filed by the complainant which was also dismissed and the judgment of the learned appellate Court has attained finality whereby suit of Mst . Naureen Akhtar has been decreed and in the presence of this judgment and decree further proceedings in the abovesaid FIR will be abuse of process of law as according to the Supreme Court of Pakistan in Azam's case reported in "PLD 1984 S.C. 95" the finality is attached to the decree of the Family Court and the criminal proceedings cannot be allowed to continue after obtaining the decree by the accused. 4. On the other hand learned counsel for the State opposes this petition on the ground that the application under Section 265-K Cr.P.C . can be moved and in the presence of alternate remedy this petition is not maintainable with is liable to be dismissed. 5. While replying this question learned counsel for the petitioner has relied upon "2000 SCMR page 122" in which it has been held that in appropriate cases this Court can interfere under Section 561-A Cr.P.C . and can quash the proceedings inspite of availability of alternate remedy. 6. I have heard the learned counsel for the parties and also perused the 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 of marriage on 7.10.1998 which was dismissed by the learned Judge Family Court on 2.3.1999 but the appeal against the said judgment and decree filed by Mst . Naureen Akhtar was accepted and the suit of Mst . Naureen Akhtar for jactitation of marriage against Suleman has been decreed. This judgment was assailed through W.P: No. 4269/99 which was dismissed by this Court on 17.6.1999 hence it can safely by said that the judgment and decree passed in favour of Mst . Naureen Akhtar has attained the finality and the Court of competent jurisdiction has held that Mst . Naureen Akhtar was never married with Suleman and she was not his wedded wife. If this portion of the 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.