' IQBAL HAMEED-UR-RAHMAN, J.-Through this petition the petitioner seeks quashment of F.I.R. No,452 dated 15-12-2006 registered under section 11 of the Offence of Zina (Enforcement of Hudood)
Ordinance 1979 at Police Station Muzaffarabad District Multan.
2. Brief facts of the case are that Muhammad Bashir complainant lodged a report at the police station that on the night intervening 14/15-12-2006 he was sleeping in his house with his family when in the morning he found the doors of the house open and his daughter Mst. Rabia Bibi aged 15 years was not present. Some golden ornaments and precious clothes were also missing.
Complainant started searching his daughter, after he was told by the witnesses that Mst. Rabia Bibi had been seen going in the company of Allah Ditta petitioner and Muhammad Ramzan etc. The complainant approached Muhammad Ramzan etc. Who accepted that they had abducted Mst.
Rabia and promised to return her but later on they have refused to do so. Hence the F.I.R.
3. Learned counsel for the petitioner has submitted that the F.I.R. In question is based on mala fide and has been lodged by distorting the facts. Mst. Rabia is sui juris and being major she has contracted marriage with Allah Ditta petitioner of her own free-will and volition according to the injunctions of Islam and her Nikah was duly performed and registered on 13-12-2006;- that respondent No,3 who is father of Mst. Rabia being annoyed of her marriage with the petitioner has got the impugned F.I.R. Registered on 15-12-2006. It is further stated that section 11 of the Offence of Zina (Enforcement of Hadood) Ordinance 1979 has been omitted by virtue of Criminal Law Amendment (Protection of Women) Act, 2006. Therefore, section 11 of the Ordinance .VII of 1979 was no more an offence on the day of occurrence. Therefore the impugned F.I.R. Is liable to be quashed on this score alone; that the complainant himself has stated in the F.I.R. That Mst. Rabia Bibi was 15 years old. It has been held by the superior Courts of the country that where a girl has attained puberty she is competent to contract marriage and the said Nikah is liable to be recognized.
Reliance is placed on Mst. Zeenat Bibi and another v. The State and 2 others (2005 PCr.LJ 1312), Mauj Ali v. Syed Safdar Hussain Shah and another (1970 SCM R 437). It is also submitted that the witnesses of Nikah have later on been won over by the complainant therefore their affidavits denying the factum of Nikah are of no legal effect. Relying upon Mirza Allah Ditta alias Mirza Javaid Akhtar v Mst. Amna Bibi and another (2004 YLR 239) it is submitted that where both man and woman admit factum of Nikah and solemnizing marriage with each other, then requirement of producing two witnesses is not mandatory and presumption of truth would be attached to the Nikah which is acknowledged by both the spouses.
4. On the other hand learned counsel for the complainant has argued that Mst. Rabia Bibi is a minor girl of the age of 15 years. Her Nikah had been illegally got registered by concealing the fact declaring her to be 18 years of age; that the petitioner has not joined the investigation and that section 11, of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 would now fall under section 375, P.P.C. i.e, Offence of rape and the same can be got amended. Hence no question arises for getting the F.I.R. Quashed.
5. I have heard the learned counsel for the parties and gone through the record.
6. Criminal Law Amendment (Protection of Women) Act, 2006 has been promulgated and brought on the Statute Book on 2-12-2006 and has come into force from the said date. By virtue of section 17 of the Act, Section 11 of Ordinance No, VII of 1979 has been omitted. Section 17 of the Criminal Law Amendment (Protection of Women) Act, 2006 reads as under ' '"Omission of sections 10 to 16, 18 and 19, Ordinance VII of 1979. In the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (Ordinance No, VII of 1979) sections 10 to *16 and 18 and 19 shall be omitted."
' As stated above the present occurrence took place on 15-12-2006 meaning thereby that till that date section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance had been omitted from the Statute book and was no more a part of the law .
7. Even as per contents of the F.I.R. The offence of abduction was not made out. Mst. Rabia Bibi is present is Court in person. She states that she had not been abducted by any person. Rather she affirms that she is sui juris and being pubert girl has contracted marriage with the petitioner. The contention of the learned counsel that section 11 of Ordinance No,VII of 1979 can validly be amended with section 375, P.P.C. Is also of ho avail. Section 375, P.P.C. Deals with the cases of rape.
The victim of this case i.e, Mst. Rabia Bibi who is present has not levelled allegation that she has been subjected to rape by any person. She is the star witness of the occurrence but she does not support the prosecution story. She urges that since being sui juris she has contracted Nikah with the petitioner of her own free-will, therefore, her father being ired of her said action has got the impugned F.I.R. Registered against the petitioner and others. In view of the statement of the alleged victim, .Provisions of either section 11 of Ordinance No,VII of 1979 or section .375, P.P.C. Are not attracted. Since the occurrence had taken place on 15-12-2006 i.e, after 2-12-2006 when the new law had come into force which had omitted section 11 of the Ordinance No,VII of 1979 from the Statute book, therefore, the impugned F.I.R. Could not have been registered under the said section.
If offence of Zina was alleged to have been committed, complaint of the same could only be filed in the Court as per section 9 of the Criminal Law Amendment (Protection of Women) Act, 2006 and the impugned F.I.R. Was not warranted by law. In fact the registration of case by the police would defeat the purpose of introducing the amendment. Since the impugned F.I.R. Was registered after enforcement of the Criminal Law Amendment (Protection of Women) Act, 2006, the same is not warranted by law.
7-A. In view of the above discussion, this petition is allowed. Resultantly, F.I.R. No,452 dated 15-12- 2006 registered under section 11 of the Offence of Zina (Enforcement of Hadood) Ordinance 1979 at Police Station Muzaffarabad District Multan is quashed.
F.I.R quashed