' IQBAL HAMEED-UR-RAHMAN, J.--- The petitioner Muhammad Musa through this constitutional petition, seeks quashment of F.I.R. No,285 dated 14-10-2006 registered under section 11 of the Offence of Zina (Enforcement of fludood) Ordinance, 1979 at Police Station Choti, D.G. Khan.
2. Briefly stated the prosecution case as contained in the F.I.R. Is that Mst. Farhana Azam, daughter of the complainant, namely, Muhammad Azam, aged about 13/14 years, is a student of 10th class.
Muhammad Musa Raza (petitioner) was engaged as her tutor who had been giving tution for five/six years. The complainant had family terms with the petitioner. In the absence of the complainant and his family, the petitioner Muhammad Musa had developed illicit relations with daughter of the complainant, namely, Mst. Farhana Azam. On 14-10-2006 at 10-30 a.m., Mst.
Kalsoom daughter of Ghulam Haider, Kubra Mai wife of Riaz Hussain, Fida Hussain, uncle of the petitioner Muhammad Musa Raza and the petitioner Muhammad Musa Raza came at the house of the complainant in a white car. At that time, Muhammad Idrees and Muhammad Aziz were present in the house along with family. The petitioner Muhammad Musa Raza and others told that they have to go to Chah Mazarwala to see Ghulam Mustafa, son-in-law of the complainant and let Mst.
Farhana Azam accompany them. They left after taking Mst. Farhana Azam. The complainant and his family waited for them a lot but they did not return. The complainant along with the witnesses went to Ghulam Mustafa, his son-in-law, who told that they had not come to his house. When the complainant and, the witnesses were coming back, Javed and Mumtaz met them in the way and told that Fida Hussain, Muhammad Musa Raza (petitioner) along with Mst. Kalsoom, Kubra Mai and Mst. Farhana Azam were going on Mamuri Road by car. The said persons told that they were going to Dera Ghazi Khan. The complainant and the witnesses went to the house of Muhammad Musa Raza petitioner but they were not there. The petitioner Muhammad Musa Raza along with others had abducted the unmarried daughter of the complainant, namely, Mst. Farhana Azam; for the commission of Zina.
3. It is contended on behalf of the petitioner' that the petitioner got married to Mst. Farhana Azam, daughter of respondent No,3, with her freewill and consent according to Sharia and Nikah was duly registered; that parents and other relatives of Mst. Farhana Azam, wife of the petitioner, became annoyed with the said marriage and therefore, respondent No,3, father of Mst. Farhana Azam has got registered this false case against the petitioner; that the petitioner while contracting marriage with Wt. Farhana Azam has not committed any offence; that Mst. Farhana Azam had also got recorded her statement under section 164, Cr.P.C. Before the Magistrate at Islamabad, wherein she had stated that she is the legally-wedded wife of the petitioner and requested that she be lodged in Dar-ul-Aman as her parents and relatives are extending threats of her murder, therefore, she was lodged in Dar-ul-Aman Rawalpi I by the order of the Magistrate; that on the filing of the instant petition , Mst. Frhana Azam was summond and brought before this court from Dar-ul-aman Rawalpindi and she appeared and has in categorical terms stated that no one had abducted her, she of her own frre-will and consent and being sui juris has contracted marriage with the petitioner Muhammad Musa Raza and according to the Injunctions of Islam and her Nikah was duly registered on 18-2-2004, respondent No,3, who is her father, being annoyed by her marriage with the petitioner has got registered a completely false and fabricated case against the petitioner.
Learned counsel for the petitioner further contends that Mst. Farhana Azam had attained puberty, therefore, she was adult at the time of marriage and under section 2-A of the Offence of Zina (enforcement of Hudood) Ordinance, 1979, marriage by a woman on attaining puberty is valid and in this behalf reliance is placed upon Mst. Hajra Khatoon and another v. Station House Officer, Police Station Fateh Jang, District Attock and 2 others PLD 2005 Lah. 316; that consent of Wali is not required and a sui juris Muslim female can enter into valid Nikah/marriage of her own free-will and the marriage is not invalid on account of the absence of consent of Wali and in this respect reliance is placed upon Hafiz Abdul Waheed v. Mrs. Asma Jehangir and another PLD 2004 SC 219; that even under section 251 of Muhammadan Law, every Muhammadan of sound mind, who has attained puberty, may enter into a contract of marriage. That the witnesses of the Nikah had been later on won-over by the complainant and, therefore, the affidavits denying the factum of Nikah it has no legal value as it has been held in Mirza Allah Ditta alias Mirza Javed Akhtar v. Mst. Amna Bibi and another 2004 YLR 239 that where both man and woman admit factum of Nikah and solemnizing marriage with each other, then requirement of producing two witnesses under the law is not mandatory and the presumption of truth would be attached to the Nikah which is acknowledged by both the spouses.
4. On other hand, it has been argued on behalf of the complainant that Mst. Farhana Azam is a minor girl and she is of the age of 13/14 years and her Nikah had been illegally got registered by declaring her to be of 16 years; that the witnesses of the Nikah have sworn affidavits that they have no knowledge about the Nikah; that according to the school leaving certificate issued by Government Middle School Thatha Gabulan Tehsil and District D.G. Khan, Mst. Farhana Azam was born on 10-10-1992 and, therefore, she had not attained puberty at the time of marriage, as has been held in Mushtaq Ahmad v. Mirza Muhammad Amin and another PLD 1962 (W.P.) Kar. 442 that according to Muslim Law the minority of a male or female terminates when he or she attains puberty and puberty is presumed on the completion of the 15th years according to the law by which the parties are governed. In this respect reliance is also placed upon Abdul Razak v.
Muhammad Muller PLD 1956 Kar. 454; that the marriage of Mst. Farhana Azam with the petitioner without the Wali is invalid and that in these circumstances no question for quashing of the F.I.R.
Arises.
5. I have heard learned counsel for the parties and have gone through the record.
6. The star prosecution witness in the case is Mst. Farhana Azam. She was summoned from Dar-ul- Aman Rawalpindi by this Court. She appeared in Court. By her appearance, she seems to have attained puberty and is full grown up lady. She in categorical terms stated before this Court that she is a sui juris and major and of her own free-will and consent, she has contracted marriage with the petitioner and Nikah has been solemnized according to Sharia and also got registered. No offence has been committed by the petitioner. The case against the petitioner is concocted and fabricated which was registered by father of Mst. Farhana Azam/respondent No,3 being annoyed due to the marriage.
7. The age of Mst. Farhana Azam as stated in the F.I.R. Is 13/14 years but her physical appearance belies the same. She is a full grown up lady and has certainly attained puberty and according to Mohammedan Law Section 251, every Muhammadan of sound mind, who has attained puberty may enter into a valid contract of marriage. Reliance is placed upon Mst. Hajra Khatoon and another v. Station House Officer, Police Station Fateh Jang, District Attock and 2 others PLD 2005 Lah.
316.
8. The contents of the Nikahnama have been admitted by the petitioner as well as Mst. Farhana Azam. Statenient of the wife of the petitioner/accused, namely, Mst. Farhana Azam, and the Nikahnama belies the prosecution story as narrated in the F.I.R. Which could not be believed. The petitioner/accused has proved to have lawfully married to Mst. Farhana Azam, daughter of the complainant. The law does not permit a stranger to challenge the validity of a Nikahnama when it contents are- admitted by the husband and his wife. In this respect, r reliance is placed upon Dr. Ghulam Mustafa Solangi and 5 others v. The State 2005 PCr.LJ 1638. Moreover, the Nikah of an adult girl is not invalid for want of permission of Wali and further marriage is not invalid D on account of the alleged absence 'of the consent of Wali. Reliance in this behalf is placed upon Muhammad Imtiaz and another v. The State PLD 1981 FSC 308 and Hafiz Abdul Waheed v. Mrs. Asma Jahangit and another PLD 2004 SC 219.
9. In view of the above circumstances, this writ petition is accepted and F.I.R. No,285 dated 14-10- 2006 registered under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at Police Station Choti D.G. Khan is quashed.
10. Before parting with the judgment, Mst. Farhana Azam, wife of the petitioner, has repeatedly requested that she be sent back to Dar-ulAman Rawalpindi, where she has been inducted under the orders of the 1st Class Magistrate, Rawalpindi on her application. Therefore, request of Mst.
Farhana Azam being genuine is acceded to and Muhammad Iqbal Inspector/S.H.O. Wali Muhammad Sial, A.S.-I. And Kausar Parveen No,375/C who have brought Mst. Farhana Azam from Dar-ul-Aman, Multan, are directed to safely conduct Mst. Farhana Azam and lodge her at Dar-ul- Aman, Rawalpindi.