' IJAZ AHMAD CHAUDHRY, J.---Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioners namely Mst. Rabia and Muhammad Rafique seek quashment of case F.I.R. No.129 dated 10-7-2004 registered under section 11 of Offence of Zina (Enforcement of Hadood) Ordinance VII of 1979 at Police Station, Sanawan District Muzaffargarh on the statement of Ghulam Mustafa on the ground that they are validly married to each other and the registration of the case is with mala fide intention.
2. The brief allegation in the F.I.R. Is that on 6-7-2004 Mst: Rabia petitioner No.1 aged about 13 years had gone to the house of complainant's cousin namely Naseer Ahmad but she did not return whereupon the complainant went to the house of Mian Naseer and it was told by Mian Naseer that she had not come to his house. The complainant then along with the witnesses started searching for her and it was told to them by Malik Muhammad Sharif and Mian Zafar P.Ws. That at about 7-30 a.m. Muhammad Rafique, Ghulam Abbas and Ghulam Akbar were seen while taking away Mst.
Rabia in a white colour car towards western side. The complainant suspected that Mst. Rabia was enticed away by the accused persons.
3. Learned counsel for the petitioners contends that Mst. Rabia and Muhammad Rafique have contracted marriage with each other on 22-7-2004 with the consent of Mst. Rabia who is sui juris and she was not abducted by anybody as narrated in the F.I.R. It is further contended that when the alleged abductee Mst. Rabia is not supporting the story of the complainant while present in the Court, it is a fit case for quashment of F.I.R. And by contracting marriage with respondent No.2 out of her free-will and consent, she or the other accused have not committed any offence. According to the learned counsel she has already been kept in Darul Amaan for a considerable period to find out whether she was under the influence of other accused, but each time she has made consistent statement belying the story of her abduction and claimed to have contracted marriage with petitioner No.2 out of her free-will and consent, hence the continuation of the investigation and further proceedings with the F.I.R. Will be abuse of process of law, which may be quashed. Relies upon Muhammad Tariq Mahmood v. S.H.O. 1997 PCr.LJ 758; Mst. Sher Bano v. The State 2004 Pak Cr.LJ page 349; Mst. Zaibun-Nisa v. S.H.O. And others 2003 YLR page 2576; Arif Hussain others v. The State PLD 1982 FSC page 42 and Hafiz Abdul Waheed v. Mrs. Asma Jehangir PLD 2004 SC page 219.
Also contends that mere non-registration of the Nikahnama is not a ground for continuation of the proceedings with the F.I.R. As both petitioners Nos.l and 2 are admitting them to be husband and wife and there is nothing on the record to controvert their version. Relies upon "PLD 2000 FSC 63"; "1987 MLD page 1637" and "NLR 1990 SC page 190", "PLD 1980 Lah: page 7"; "PLD 1980 Lah: page 14"; "PLD 1985 SC page 942" in support of his contentions.
4. Learned counsel for the complainant on the other hand opposes this petition on the ground that petitioner No.1 Mst. Rabia was a minor being aged about 13/14 years when she was abducted and she may be handed over to the parents as consent of the minor cannot be taken into consideration. Relies upon "PLD 1980 Lah: pages 7 and 14" in support of his contentions. Also relies upon "1997 MLD page 962" and "1997 MLD page 641" to Contend that the marriage cannot be solemnized without the consent of Wali. It is also contended that petitioner No.1 and the complainant are Shia by faith and she could not contract the marriage without the consent of Wali.
Also relies "1997 Pak Cr.LJ page 1437"; "2000 YLR page 960" and "PLD 2003 SC page 849" in support of his contentions.
5. I have heard the arguments of the learned counsel for the parties and also perused the record.
Mst. Rabia petitioner No.1 is the alleged abductee and her father has got lodged F.I.R. Claiming her to be aged about 13/14 years at the time of the alleged occurrence. On the other hand petitioner No.1 claims to have contracted marriage with Muhammad Rafique petitioner No.2 being sui juris on 22-7-2004 with her free-will and consent and the registration of the to her is with mala fide intention and ulterior motive.
6. During proceedings of this writ petition notice was issued to respondent No.2 Altaf Hussain (complainant), who entered appearance through learned counsel on 18-5-2005 and then the case was adjourned on number of dates for different reasons. However, on 23-5-2005 petitioner No.1 was directed to be lodged in Darul Amaan and till then she is continuously living there. She appeared before this Court on different dates and made consistent statement denying her abduction and contracting marriage with respondent No.2. On 6-6-2005 the Investigating Officer also appeared before this Court and stated that petitioner No.1 in her statement recorded by him during the investigation had denied the story of the F.I.R. And he sought time to complete the investigation.
7. On 27-6-2005 as the contradictory stand was being taken by both the parties about the age of petitioner No.1 she was directed to produce before the Medical Board of Nishter Hospital, Multan for determination of her age. On 30-6-2005 requisite report of the Medical Board was received and her age was determined about 17/18 years. Thereafter both the parties sought adjournment to effect compromise but in vain and today the arguments have been heard on merits. The main stress of learned counsel for the complainant/ respondent No.3 is that petitioner No.1 being minor could not contract marriage without the consent of Wali and moreover there is not a registered document. The Investigating Officer also states that he has held the accused guilty only for the reason that according to the allegation petitioner No.1 was enticed away on 6-7-2004 while Nikah was performed on 23-7-2004 and during the intervening period they are guilty of Zina-bil-Raza. On the query of this Court the Investigating Officer has failed to show that whether there was any direct evidence that both the petitioners had been seen by anybody while living as such. It appears that the Investigating Officer has declared the petitioners guilty merely on suspicion which is not permissible in criminal cases.
8. Petitioner No.1 according to the report of the Medical Board has been found sui juris and on the other hand the only document in possession of the complainant is the birth certificate, which cannot be preferred in the present case for the determination of the age of petitioner Mst. Rabia, who is claiming her to be major/sui juris. Moreover the allegation is being levelled that the said certificate has been fabricated as the relative of the complainant is a Nazim and it is not difficult to procure such certificate in this region and cannot be preferred over the opinion of the Medical Board, which has determined the age of petitioner No.1 after conducting required tests. Moreover under section 2 clause (c) of Offence of Zina (Enforcement of Hadood) Ordinance, VII of 1979 the "adult" has been defined as under:-- "adult" means a person who has attained being a male the age of eighteen years or, being a female the age of sixteen years, or has attained the puberty."
Admittedly the age of petitioner No.1 has been determined by the Medical Board between 17 to 18 years and even otherwise there is no allegation that she had not still attained the puberty. Even from her physique and appearance while present in the Court she seems to be major. In 1970 SCMR 437 the Honoruable Supreme Court held that a Muslim girl attaining puberty is competent to marry of her own free-will and on this ground her custody was declined to her father and the order of the High Court permitting her to go and live with the husband was maintained. As such if petitioner No.1 has contracted marriage with petitioner No.2 of her free-will and consent, she has not committed any offence. Even otherwise petitioner No.1 was the star witness of the prosecution case, who is not supporting its story regarding her abduction or enticing away by the co-accused and the prosecution is left with no evidence on the record to prove the allegation of abduction or enticement except suspicion. Under Article 35 of the Constitution of Islamic Republic of Pakistan, 1973, it is the duty of the State to protect the marriages. The case-law cited by the learned counsel for the complainant cannot be relied upon in view of the recent judgment of the Honourable Supreme Court of Pakistan reported in "PLD 2004 SC page 219". The relevant portion is reproduced as under:-- "For what has been stated above, it is hereby held/declared/ordered:---
(i) that as per judgments of the Federal Shariat noted in para 6 of this judgment, consent of "Wali" is not required and a sui juris Muslim female can enter into valid `NikhaVmarriage of her own freewill."
Moreover in "PLD 1982 FSC page 42" and "1984 FSC page 93" the Federal Shariat Court has even held that subject to other facts of a given case, an admission by a couple that they were married would constitute sufficient proof of marriage. As such the petitioner cannot be held guilty of the offence merely for the reason that their Nikalmama was not got registered.
9. Since both the petitioners claimed to have contracted marriage with free-will and consent of petitioner No.1 and there is no sufficient evidence about the abduction of petitioner No.1 who even has not supported the prosecution story, further proceedings with the F.I.R. Will be abuse of process of law, which cannot be allowed to continue being a sword hanging on the heads of the petitioners for pressurizing them to dissolve the marriage according to the wishes of the complainant. This Court has already satisfied itself by keeping petitioner No.1 in Darul Amaan for a considerable period so that she could be able to make some independent statement if was under the influence of the co-accused with whom she had been residing after her alleged enticement as claimed by the complainant, but each time while appearing in this Court she has made consistent statement that she was not abducted by anybody and admitted to have contracted marriage with her free will and consent with petitioner No.2.
10. For what has been discussed above this writ petition is accepted and the impugned F.I.R. Is quashed. Petitioner No.1 is set at liberty, who at her option, is allowed to go with petitioner No.2 as they are legally husband and wife. No order as to costs.
F.I.R. Quashed.