PLJ 2004 Lahore
1535
Present: M. BlLAL KHAN, J.
UM-A-TAMEEM alias SAMINA BIBI & another-Petitioners
versus
S.H.O., POLICE STATION TANDLIANWALA
DISTT. FAISALABAD
& two
others-Respondents
W.P. No. 17823 of 2003, heard on
29.3.2004. Muslim Family law Ordinance, 1961 (VIII of 1961)--
—-S. 7-Offence of
Zina (Enforcement of Hudood) Ordinance 1979 (VII of 1979), Ss. 10.
16-Constitution of Pakistan,
1973-Art. 199-Offence of Zina--Quashment of FIR—Constitutional Petition—Failure
to send notice of Talak to chairman union council-Effect-Petitioner claims that on strength of divorce
deed she had contracted valid and legitimate marriage which is perfectly legal-Fact that notice
of talak was not sent to chairman Union
Council will not render talak ineffective-Continuation of proceedings in
FIR shall not serve any useful purpose and will clearly amount to abuse of process of law-Held further: Respondent No. 3 if
aggrieved may agitate matter before
appropriate forum which is judge
Family Court in instant case-Petition allowed. [P. 1537] A & B
Family Court in instant case-Petition allowed. [P. 1537] A & B
Syed Mohsan Abbas, Advocate for Petitioners.
Mr. Najib Faisal Chaudhry, Addl. Advocate
General for State.
Date of hearing : 29.3.2004.
judgment
Through this
petition, the petitioners seek quashing of FIR No. 887 dated 8.12.2003 registered
at Police Station Tandlianwala, District Faisalabad, under Sections 10, 16 of the
Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, recorded on the
application of Muhammad Yahya son of Maulvi Waqa Ullah.
2.
According to the story of the FIR as disclosed by the
complainant,
namely, Muhammad Yahya Respondent No. 3 herein, his nikah had been
solemnized with Um-a-Tameem alias Samina Bibi daughter of Hafeez Ullah
(Petitioner No. 1) but Rukhsati had not yet taken place; that Muhammad
Haris son of Ahmad Saeed (Petitioner No. 2) was on visiting terms with his
in-laws; that Muhammad Haris developed illicit liaison with his wife Um-a-
Tamim and abducted her on 8.6.2003 for the purpose of committing zina;
that Muhammad Ismaeel and Maulvi Waqa Ullah saw Muhammad Haris
taking away the wife of the complainant and informed him; that he had been
demanding the return of Um-a-Tamim; that the accused initially promised to
do the needful but finally refused as a result of which the instant case was
registered.
namely, Muhammad Yahya Respondent No. 3 herein, his nikah had been
solemnized with Um-a-Tameem alias Samina Bibi daughter of Hafeez Ullah
(Petitioner No. 1) but Rukhsati had not yet taken place; that Muhammad
Haris son of Ahmad Saeed (Petitioner No. 2) was on visiting terms with his
in-laws; that Muhammad Haris developed illicit liaison with his wife Um-a-
Tamim and abducted her on 8.6.2003 for the purpose of committing zina;
that Muhammad Ismaeel and Maulvi Waqa Ullah saw Muhammad Haris
taking away the wife of the complainant and informed him; that he had been
demanding the return of Um-a-Tamim; that the accused initially promised to
do the needful but finally refused as a result of which the instant case was
registered.
3.
The petition was admitted to regular hearing on
29.12.2003 as it
had been contended that the FIR was an outcome of sheer malafides which
were ascertainable from the record itself.
had been contended that the FIR was an outcome of sheer malafides which
were ascertainable from the record itself.
4.
The
basic argument of the learned counsel for the petitioners was
that Petitioner No. 1 had been divorced by her husband, namely,
Muhammad Yahya (Respondent No. 3) through a written divorce deed dated
5.2.2000 which became effective after a lapse of ninety days i.e. 5.5.2000.
However notice of Talaq had not been sent to the Chairman of the Union
Council in terms of Section 7 of the Muslim Family Laws Ordinance 1961. It
was thereafter that she contracted a valid and legitimate marriage with
Muhammad Haris Petitioner No. 2 on 25.5.2003 i.e. three years after the
divorce had become effective. The said marriage with Muhammad Haris is
duly registered and nikah nama exists on the file. In the background it was
argued that registration of case was absolutely not warranted and the same
had been done with a view to blackmailing, harassing, intimidating and
browbeating the petitioners. In support of his arguments he has relied on
Allah Dad versus Mukhtar and another (1992 S.C.M.R. 1273), Muhammad
Hanifand others versus Mukarram Khan and others, (PLD 1996 Lahore 58)
that Petitioner No. 1 had been divorced by her husband, namely,
Muhammad Yahya (Respondent No. 3) through a written divorce deed dated
5.2.2000 which became effective after a lapse of ninety days i.e. 5.5.2000.
However notice of Talaq had not been sent to the Chairman of the Union
Council in terms of Section 7 of the Muslim Family Laws Ordinance 1961. It
was thereafter that she contracted a valid and legitimate marriage with
Muhammad Haris Petitioner No. 2 on 25.5.2003 i.e. three years after the
divorce had become effective. The said marriage with Muhammad Haris is
duly registered and nikah nama exists on the file. In the background it was
argued that registration of case was absolutely not warranted and the same
had been done with a view to blackmailing, harassing, intimidating and
browbeating the petitioners. In support of his arguments he has relied on
Allah Dad versus Mukhtar and another (1992 S.C.M.R. 1273), Muhammad
Hanifand others versus Mukarram Khan and others, (PLD 1996 Lahore 58)
and Fida Hussain versus Mst. Najnia and
another (PLD 2000 Quetta
46). In the
case of Allah Dad vs. Mukhtar and another, the Honourable Supreme Court of Pakistan observed that if a woman
after obtaining the divorce from the husband
(pronounced or written by husband) and after the necessary period of Iddat
contracted a marriage with third person such marriage could not be held as invalid marriage just because a
notice of Talaq under Section 7 of
the Muslim Family Laws Ordinance, 1961 had not been given by the husband. In the case of Muhammad Hanif and
others versus Mukarram Khan
and others, it was held by a
learned Division Bench of this Court that a notice to the chairman local council in terms of Section 7 of the Muslim Family Laws Ordinance, 1961 was not mandatory under
the injunctions of Islam and failure to send a notice to the chairman
does not make a divorce ineffective and marriage of said a divorced woman with
a third person after the expiry of necessary
period of Iddat is not invalid. Likewis3 in the case of Fida Hussain vs. Mst. Najma and another a learned Division Bench of the Balochistan
High Court held that in spite of non-compliance of mandatory requirement of Section 7 of the Muslim Family
Laws Ordinance, 1961 even the oral Talaq was effective and
binding on the parties.
5. The learned Addl. Advocate-General has thoroughly
examined
the record and on instructions submits that signatures of Muhammad Yahya
Respondent No. 2 on the alleged divorce deed have been found to be genuine
although the Investigating Officer is of the opinion that these signatures
appeared to have been obtained on a black paper which were filled in later
on. The learned Additional Advocate-General further submits that the
Investigating Officer after holding inquiry has not come to the conclusion
that Petitioner No. 1 is an accused in the case.
the record and on instructions submits that signatures of Muhammad Yahya
Respondent No. 2 on the alleged divorce deed have been found to be genuine
although the Investigating Officer is of the opinion that these signatures
appeared to have been obtained on a black paper which were filled in later
on. The learned Additional Advocate-General further submits that the
Investigating Officer after holding inquiry has not come to the conclusion
that Petitioner No. 1 is an accused in the case.
6. Since the signatures of Muhammad Yahya on the
alleged divorce
deed have not been denied, therefore, it would not be proper to hold a probe
in these proceedings as to how these signatures were obtained. The crux of
the matter is that the signatures are there and Petitioner No. 1 claims that
on the strength of the divorce deed she had contracted a valid and legitimate
marriage which is perfectly legal. The fact that the notice of talaq was not
sent to the Chairman Union Council will not render the talaq ineffective. In
this backdrop, the continuation of proceedings in FIR No. 887 of 2003 shall
not serve any useful purpose and will clearly amount to an abuse of the
process of law. Muhammad Yahya Respondent No. 3 if aggrieved may agitate
the matter before the appropriate forum which is the Judge Family Court in
the instant case.
deed have not been denied, therefore, it would not be proper to hold a probe
in these proceedings as to how these signatures were obtained. The crux of
the matter is that the signatures are there and Petitioner No. 1 claims that
on the strength of the divorce deed she had contracted a valid and legitimate
marriage which is perfectly legal. The fact that the notice of talaq was not
sent to the Chairman Union Council will not render the talaq ineffective. In
this backdrop, the continuation of proceedings in FIR No. 887 of 2003 shall
not serve any useful purpose and will clearly amount to an abuse of the
process of law. Muhammad Yahya Respondent No. 3 if aggrieved may agitate
the matter before the appropriate forum which is the Judge Family Court in
the instant case.
. Resultantly this
petition is allowed and FIR No. 887 dated 8.12.2003 registered under Sections 10, 16 of
the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, at Police
Station Tandlianwala,
District Faisalabad, stands quashed.
(B.T) Petition accepted.
