MST. NADIA SIDDIQUE Versus S.H.O.
ORDER
The petitioner -Mst. Nadia Siddique has moved this Constitutional Petition bearing No.2944 of 1995 against respondents Nos. l to 3 praying therein that the proceedings arising out of. F.I.R. No.72 of 1995, dated 4-3-1995 registered under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 registered with Police Station, Hanjarwal be quashed being without lawful authority and result of malice. It is contended by the learned counsel that the petitioner is legally-wedded wife of Shabbir Hussain vide Nikahnama, dated 5-1-1995.
2. Muhammad Siddique and Mst. Massarat Siddique parents of the aforementioned petitioner have also filed Writ Petition No.3578 of 1995 praying that Mst. Nadia aforementioned be recovered and be produced before- the Court and her statement be recorded as they apprehended that their daughter might have done to death by the respondents Nos.2 to 6 of the writ petition.
3. Today both the parties are present before the Court and have been heard at length. Mst. Nadia petitioner made verbal statement in the open Court that she is a sui juris aged about 18 years and has married with Shabbir Hussain respondent No.2 with her free consent arid owl accord and stated that she will go with her husband as she is pregnant. She further states that she is living with her husband happily. The statement of Mst. Nadia Siddique as prayed for by the parents in Writ Petition No.3578 of 1995 has been recorded in their presence in the open Court and their apprehension that their daughter might have done to death by respondents Nos.2 to 6 does not exist hence the Writ Petition No.3578 of 1995 being devoid of merits stand dismissed. So far as Writ Petition No.2914 of 1995 filed by the petitioner Mst. Nadia Siddique is concerned, in the light of the statement made by her, the allegation is not proved and ingredients of section 11 of the Offences of Zina (Enforcement of Hudood) Ordinance VII of 1979 are not attracted by any stretch of imagination; the petitioner got married with Shabbir Hussain on 5th January, 1995; the Nikahnama was duly registered on 28-1-1995 while the F.I.R. was lodged on 4-3-1995.
4. Malik Maqbool Elahi, Advocate, learned counsel for the respondent vehemently contended that the petitioner Nadia Siddique concealed the facts from the Court as previously she was also enticed and abducted by said Shabbir Hussain whereupon a case F.I.R. No.256 of 1993 was registered on 21-9-1993 under section 10/16 of the Offences of Zina (Enforcement of Hudood) Ordinance VII of 1979; in lieu of the compromise between the parties, the said Shabbir Hussain respondent divorced Mst. Nadia respondent, hence the complainant did not prosecute the case F.I.R. No.256 of 1993. The divorce, dated 30-6-1994 given by the said Shabbir Hussain to the petitioner Nadia Siddique became effective on 29-11-1994. The said Shabbir Hussain respondent enticed and married Nadia without an intervening marriage with a 3rd person which tantamounts Zina and covered under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979.
5. It is pertinent to bring it on record that Shabbir Hussain filed suit for restitution of conjugal rights on 24-10-1993; the plea taken by Nadia while she was in the custody of her parents was that she never married with him; the alleged Nikahnama was in fact the outcome of fraud and the marriage never consummated. It is interesting that Mst. Nadia Siddique petitioner also filed a suit for dissolution of marriage against the said Shabbir Hussain on 23-12-1993; wherein she pleaded that the alleged marriage was in fact a fraud, under threat and duress and she never accepted the said Shabbir Hussain as her husband and the marriage never consummated as she was a student of 9th class at the relevant time. The fact that Nadia Siddique was minor on 9-9-1993 when her first alleged Nikahnama was prepared is established from the contents of F.I.R. and even the fact that Nikah was void (Fasid).
6. The contention of the learned counsel that the Nikah after the divorce dated 3-6-1994 given by Shabbir which became effective on 29-11-1994 without intervening marriage with a third person is nothing but an offence of Zina is devoid of force; in case Hakim Khan and 2 others v. Government of Pakistan through Secretary Interior and 2 others PLD 1992 SC 595 and in case Allah Dad v. Mukhtar and another 1992 SCMR 1273. Their Lordships of Supreme Court have examined the question as to whether under Hudood Ordinance offence of Zina can be said to have been committed in a case where the provisions of section 7 of the Muslim Family Laws Ordinance have not been complied with. It was held that the offence of Zina is not constituted. It is admitted fact that the previous marriage between Nadia and Shabbir Hussain was a void marriage (Fasid) as mentioned in the F.I.R.; she was minor hence has a right to repudiate the marriage for which purposes she filed a suit for marriage resulting divorce was given to her in the Court. The question whether the marriage without intervening marriage with a third person is a valid, irregular or void marriage or what are its consequences. This issue is not before the Court. The proper forum for the determination of the issue raised by the learned counsel is the concerned Family Court who has the jurisdiction as for matrimonial disputes jurisdiction exclusively laid with family Courts created under special statute. This Court in its extraordinary jurisdiction is not competent to decide this issue in writ petition.
7. For all that has been stated above, in view of the law laid down in cases Abbas Khan and 3 others v. Mst. Sat Bhrai and 2 others 1993 CLC 2181, Mst. Sabai and another v. The State and others 1988 PCr.LJ 1429, Muhammad Banaras v. S.H.O. and others 1995 PCr.LJ 94, Mst. Ruqqia Bibi v. S.H.O. etc. 1995 PCr.LJ 978 and Mst. Bushra Bibi v. S.H.O. 1995 PCr.LJ 401, the continuation of proceedings in case F.I.R. 72 of 1995, dated 4-3-1995 registered with Police Station Hanjarwal under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 read with section 380, P.P.C. against the petitioner's husband etc. will amount to unnecessary harassment. The result is obvious that no Court on such an evidence can convict respondent No.2 on the charge levelled against him. Resultantly, the writ petition succeeds and is allowed. Consequently, the said F.I.R. No.72 of 1995, dated 4-3-1995 registered with Police Station Hanjarwal is hereby quashed with no order as to costs. However, the petitioner in Writ Petition No.3578 of 1995, if so advised, can avail remedy of Civil Court to resolve the validity or otherwise of the marriage.
N.H.Q./N-340/L ????????????????????????????????????????????????????????????????????????????????? F. I. R. quashed.