This judgment proposes to decide two Constitutional petitions, one in hand and the other WP. 592 of 2005, as both these petitions raise similar questions of law/facts and seek similar relief of quashment of FIR No. 335 dated 12.12.2004 under Section 11 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1997 registered with police station Bambanwala District Sialkot, lodged on complaint of Respondent No. 2.
2. Precisely, relevant facts as deciphered from the FIR are that Amanat Ali son of Abdur Rasheem complainant reported to the police on 12.12.2004 that he was informed by his mother-in-law on telephone that his sister-in-law Mst. Saima was missing from her home whereupon the complainant left for the house of his in-laws. According to the complainant, (Respondent No. 2) his father-in-law is away to Saudi Arabia and in his absence the named accused including the writ petitioner abducted Mst. Saima while she has gone to attend a telephone call from Saudi Arabia in the neighbourhood. After registration of above referred criminal case Mst. Saima Bibi filed a Constitutional petition (W.P. 20595-2004) for quashment of the FIR that she is being harassed by the police. She claimed that she was of 19 years age and had entered into a tie of marriage with Shabbir Hussain writ petitioner out of her own free will/volition and thus, has committed no cognizable offence. Her writ petition was disposed of by this Court with a direction to the police that she should not be harassed but her prayer with regard to quash the FIR was declined on the ground that she was not aggrieved party. Shabbir Hussain alias Pappoo filed Constitutional petition in hand with the alike assertions, raised by Mst. Saima by relying on Nikah Nama dated 6.12.2004 and the other writ petitioner namely Muhammad Hanif who is his maternal uncle also asserted that no cognizable offence was committed by any of the accused persons thus registration of criminal case is not only unauthorized/misuse of process of law but also being violative of provisions of Section 154 Cr.P.C. may be quashed in extra ordinary jurisdiction of this Court.
3. I have heard the learned counsel for the parties and have examined the police record. The complainant who is brother-in-law of the alleged abductee Mst. Saima has himself mentioned in the FIR age of the abductee as 17 years. Mst Saima besides sworning affidavit to the effect that no budy abducted her, her age is 19 years; entered into a tie, of marriage with Shabbir Hussain petitioner against a dower of Rs. 3,000/- out of her own volition, personally appeared before the Court and supported the stance of both the writ petitioners. According to her marriage was performed through registered Nikha Nama dated 6.12.2004 and since then she is living with her husband Shabbir Hussain.
4. According to Muslim Law, a girl on attaining of puberty will be deemed to have attained majority, which in our country is about 13 years. The complainant has given age of the alleged abductee as 17 years and according to her own declaration before this Court and in the Nikah Nama she is of 19 years of age. There is no doubt that Mst. Saima is major and appeared to be sensible from her appearance. Both these spouses are living together for the about 1 1/4 years. In view of the respective claims of the parties and Nikah Nama registered with Union Council Samnabad Lahore, it appeared that there had been a lawful marriage union inter Shabbir Hussain alias Papoo/Mst.
Saima daughter of. Muhammad Iqbal and they have not committed any cognizable offence. Law regarding marriages is settled by this time to the effect that where 2 major Muslims of sound mind solemnize marriages by entering into a contract for procreation and legalization of their children, according to the Muslim Family Laws Ordinance, 1961 no cognizable under the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 is made out. Reference in this behalf can be made to the judgments in the cases of Khalid Parvez and others versus The Sate (PLD 1981 FSC 306), Muhammad Imtiaz and another Versus The State (PLD 1981 FSC 308), Arif Hussain and Azra Parween Versus State (PLD 1982 FSC 42) and Muhammad Ramzan Versus State (PLD 1984 FSC 93).
5. For the reasons noted above, registration of criminal case against the writ petitioner was apparently without commission of cognizable offence and was opted by the police concerned, out of sheer misuse of process of law. Both the above-referred Constitutional petitions are accordingly accepted and by quashing the FIR No. 335 dated 12.12.2004 under Section 11 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1997 registered with police station Bambanwala, District Sialkot, writ as prayed, is issued with no order as to costs.