PLJ 2022 AJ&K 38
Azad Jammu & Kashmir Interim Constitution, 1974 (VIII of 1974)--
----Art. 44--Criminal Procedure Code, (V of 1898), S. 561--Quashment of FIR--Petitioners were contracted Nikah--Lodging of FIR--Unnecessary harassment--Petitioners Nos. 1 & 2 being sui juris have lawfully married to each other and in these circumstances offences alleged in impugned F.I.R are not made out against them and continuance of investigation by police and dragging petitioners in Court would be a futile exercise, which may amount unnecessary harassment to petitioners--Petition was accepted. [P. 42] C
Azad Jammu & Kashmir Interim Constitution, 1974 (VIII of 1974)--
----Art. 44--Writ jurisdiction--This Court in exercise of writ jurisdiction is not competent to assume role of investigating agency or trial Court to give verdict as to whether an accused-person has committed an offence or not. [Pp. 39 & 40] A
Criminal Procedure Code, 1898 (V of 1898)--
----S. 561-A--Inherent powers--This section confers inherent powers upon this Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of process of any Court or otherwise to secure ends of justice--These powers are very wide and can be exercised by this Court at any time. [P. 40] B
Mr. Muhammad Pervaiz Mughal, Advocate for Petitioners.
AAG for Respondents Nos. 1 to 4.
Ch. A. Naeem, Advocate, for Respondent No. 5.
Date of hearing: 2.12.2021.
PLJ 2022 AJ&K 38
Present: Sadaqat Hussain Raja, C.J.
MISBAH and another--Petitioners
versus
SENIOR SUPERINTENDENT OF POLICE DISTRICT MUZAFFARABAD and 4 others--Respondents
W.P. No. 1622 of 2020, decided on 2.12.2021.
Order
The captioned writ petition has been addressed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, read with Section 561-A,Cr.P.C for quashment of F.I.R No. 123/2020, registered against petitioners at Police Station, Kahori, on 9.11.2020, in offences under Sections 11, 16, 19, ZHA, 468 & 471/APC.
2. The precise facts culminating into filing of the instant Writ Petition are that petitioners are 1st Class State subjects of AJ&K and Petitioner No. 1, being an adult and sui-juris lady, contracted ‘Nikah’ as per her free consent, with Petitioner No. 2 on 12.10.2020 through registered 'Nikahnama' Annexure-PC dated 12.10.2020, but Respondent No .5 got registered F.I.R No. 123/2020 against them at Police Station Kahori Naseerabad on 09.11.2020, in offences under Sections 11, 16, 19, ZHA, 468 & 471, APC. It is further averred that under the provision of law as well as Shariat, petitioners have legal right to contract marriage with their free will, but non-petitioners with mala fide intention registered the impugned F.I.R have created obstacles and hardships in their matrimonial life; therefore, by accepting the instant writ petition, the aforesaid impugned F.I.R may be quashed.
3. Upon the aforesaid writ petition, comments were summoned from respondents, who filed the same and negated the contents of writ petition as well as 'Nikahnama' and deposed that Petitioner No. 1 was kidnapped by Petitioner No. 2 with the connivance of others and they also prepared forged and fake document, of 'Nikahnama'; hence, writ petition is not maintainable.
5. At the very outset, it is significant to observe here that this Court in exercise of writ jurisdiction is not competent to assume role of investigating agency or the trial Court to give verdict as to whether an accused-person has committed an offence or not. The aforesaid view finds support from a case reported as Khadim Hussaln v. Abdul Basit and 6 others [2001 SCR 447], wherein, it was held by the Apex Court as under:
"Irrespective of the view taken by the High Court in the aforesaid case we are of the view that the High Court has no jurisdiction to quash criminal proceedings at the stage of investigation or thereafter as has been held in number of cases, referred to above, by the Supreme Court of Pakistan. It may be further pointed out here that the High Court in exercise of writ jurisdiction is not competent to assume the role of investigating agency or the Court to give verdict as to whether an accused person has committed an offence or not. It is for the ordinary Court to decide the matter under the relevant law. "
The Apex Court in a case reported as Shan Muhammad v. Muhammad Younis and 4 others [2014 SCR 183], laid down that:-
"The High Court/Shariat Court while acting under Section 561-A, Cr.P.C. has no power to take the role of investigating agency and declare that the F.I.R. was not correctly registered. It has powers to interfere under Section 561-A, Cr.P.C. for implementation cementation of order of the Court and to secure the ends of justice."
Thus, this Court while acting under Section 561-A, Cr.P.C. has no power to take the role of investigating agency and declare that the F.I.R. was not correctly registered; however, it has powers to interfere under the aforesaid Section for implementation of order of the Court and to secure the ends of justice.
7. Coming to the instant case, Petitioner No. 1 is a sui juris lady who contracted Nikah with Petitioner No. 2 on her own accord. She also filed a complaint under Sections 107 & 151,Cr.P.C in the Court of Judicial Magistrate Muzaffarabad on 12.10.2020 stating therein that she as per her free consent wants to marry with Petitioner No. 2 and she is getting record her statement without any duress, whereas her parents wants to marry her with a proclaim offender. It is pertinent to mention here that according to the injunctions of Islam, the consent of adult sane couple is sufficient, for proving a valid Nikah. According to 'Nikahnarna' Annexure-PC, Petitioners Nos. 1&2 being sui juris have lawfully married to each other and in these circumstances the offences alleged in the F.I.R are not made out against them, and continuance of investigation by the police would be a futile exercise, which may amount unnecessary harassment, to the petitioners. My this view finds support from an unreported judgment of Hon'ble Supreme Court of Azad Jammu and. Kashmir titled Syed Azad Hussain Shah v. Syeda Saba Asghar and others (Civil PLA No. 86 of 2.012 decided on 19.06.2012) , wherein it was observed as under:
"Moreover, the statement of Mst. Saba Asghar, Respondent No. 1 which is a most relevant evidence in this Courts have categorically stated that she entered into Nikah with the deceased on her own will and no one has abducted her. In the presence of the said statement, no further evidence is required in this Court. The marriage is a civil contract and every Muslim of sound mind, who has attained puberty, can enter into contract of marriage and it is void only when it is solemnized without his/her consent. According to principle of Muhammadan Law the presumption of valid marriage can be ascertained from the fact of acknowledgement by a man or woman as husband and- wife".
8. It is relevant to observe here that normally F.I.Rs are not quashed; however, in the cases where it is found that a sui juris lady contracted 'Nikah' with her free consent and F.I.R has been registered against such couple on account of revenge, then such like F.I.Rs ought to be quashed in order to secure the ends of justice because marriage is a civil contract and every Muslim of sound mind, who has attained puberty, can enter into contract of marriage and according to the injunctions of Islam, the consent of adult sane couple is sufficient for proving a valid Nikah and according to principle of Muhammadan Law the presumption of valid marriage can be ascertained from the fact of acknowledgement by a man or a woman as husband and wife; however, it is void only when it is solemnized without his/her consent.
9. Consequently, the instant writ petition is admitted and accepted; therefore, it ordered that the impugned F.I.R. No. 123/2020, registered against petitioners at Police Station, Kahori, on 09.11.2020, in offences under Sections 11, 16, 19, ZHA and 468 & 471, APC etc is hereby quashed. The copies of the instant order shall be sent to official respondents for compliance.
(Y.A.) Petition accepted
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