1. ' FARRUKH ZIA G. SHAIKH, J.---1 & 2. This Constitutional petition is filed by the petitioner stating that she used to reside at Shaheed Makhdoom Bilal Colony, Larkana, whereas her father is Peon in Sessions Court while her mother is house wife and that the petitioner has 11 brothers and sisters, who are residing at the addressed mentioned hereinabove. The petitioner has stated that she, out of her own free-will and without any coercion, duress or undue influence of any nature whatsoever on 4-2-2008 left the house of her parents and contracted Nikah with Riaz Hussain son of Ghous Bux Jatoi and she along with her husband obtained free-will Certificate on the same day i.e, 4-2-2008 from the Court of 1st Judicial Magistrate, Moro.
2. ' That on examination Nikahnama it is apparent that the same was registered on 6-2-2008 wherein the age of the petitioner was mentioned as approximately 19 years. That on 6-2-2008 respondent No,3 Roshan Ali son of Muhammad Bux Laghari, the father of the petitioner, lodged an F.I.R. Vide Crime No, 26 of 2008 at Police Station, Dari District Larkana for offences under sections 365-B and 452 of the Pakistan Penal Code, which, inter alia, alleged that Riaz Hussain son of Ghous Bux Jatoi along with other persons, on gun point had abducted her daughter petitioner Mst. Seema.
3. ' That the facts and circumstances of this case do not fall within the ambit of sections 365-B and 452 of the Pakistan Penal Code mentioned in the F.I.R. As it is well settled Principle of criminal law that actus non facet reum nisi mens sit rea, a deed does not make a man guilty unless his mind is guilty. The prosecution or the complainant, as the case may be, bears an extremely heavy onus of proof whereby the prosecution has to prove beyond a reasonable doubt every element of the B offence with which the accused is charged. For the sake of convenience sections 365-B and 452 of the Pakistan Penal Code are reproduced herein below:--- "365B Kidnapping, abducting or inducing woman to compel for marriage etc.---Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced, or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment for life, and shall also be liable to fine; and whoever by means of criminal intimidation as defined in this code or of abuse of authority of or any other method of compulsion, induces any woman to go from any place with intent with that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid.
452. House-trespass after preparation for hurt, assault or wrongful restraint.---Whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
4. ' It is apparent that the prosecution or complainant has failed to make out any case against Riaz Hussain son of Ghous Bux Jatoi as the ingredients of actus reus and mens rea are not satisfied in the F.I.R. And the bare lodging of F.I.R. Shows that even if for the sake of argument, this case is sent- up for trial, the prosecution will not be able to establish its case as alleged. We see that misrepresentation, fraud and concocted version of facts is flouting on the record of the Police documents supplied by the Complainant. The crux of the matter in this case revolves around the age of the petitioner.
5. ' Mr. Abdul Haleem Qureshi, learned counsel appearing for the petitioner has stated that the contents of the F.I.R. Are false, frivolous and baseless. He has stated that the date of age of the petitioner is 1-11-1989 and in order to establish his case, he has relied on the case of Mst. Aziz Mai v.
6. S.H.O. Police Station Jalalpur Pirwala, District Multan and another (PLD 1977, (Lahore) 432), in which, it was stated that a girl being sui juris, was competent to contract marriage. He has further placed reliance on the case of Mst. Sughran Mai v The State (PLD 1980 Lahore 414), wherein it was held that under Mohammadan Law, the age of puberty, was presumed as the age of 14 years.
7. ' On the other hand, Mr. Manzoor Ahmed Junejo, learned counsel appearing for the respondent No,3 has vehemently argued that the petitioner was abducted, but the only proof on which, he can rely is F.I.R. In question and School Leaving Certificate, which shows the date of petitioner's birth as 5-3- 1997, which is corroborated by the documents of the Union Council-II, Larkana City, whereby date of birth is shown as 5-3-1994.
8. ' We do not see any force in the arguments forwarded by the learned counsel for the respondent No,3. There are various reasons for the same as the statement filed by the petitioner before this Court on 28-2-2008 shows that the date of birth of the petitioner was 1-11-1989 and the Certificate from Head Mistress, Government Primary Girls School Moddle, Larkana, also clarifies that the date of birth of the petitioner as per Registration No,2559 is 1-11-1989. On query from the Court, the respondent No,3 father of the petitioner and the mother, who were both present in Court, were unable to state the date of any of their 12 children but were sure about the date of the petitioner.
9. The parents of the petitioner basically are residents of a village, it is not surprising that they do not know the age of any of their children let alone the petitioner for that matter.
10. ' However, notwithstanding the above, as mentioned in the preceding paragraph that the only issue in this case is revolving around the age of the petitioner, therefore, vide order dated 26-3-2008, S.H.O. Women Police Station 'A' Section, Sukkur, was directed to depute a responsible lady constable to accompany the petitioner and take her to Medical Superintendent, Civil Hospital, Sukkur, where only a lady doctor may be allowed to examine the petitioner in order to determine her age and puberty. This order of the Court was complied by Dr. Ahmed Bux Bhutto, Medical Superintendent, GMC, Hospital Sukkur, Dr. Hazoor Bux Tunio, Chief R.M.O, GMC Hospital, Sukkur, Dr. Muhammad Younas Shaikh, Chief Dental Surgeon, GMC Hospital, Sukur, Dr. Abdul Wahid Abbasi, Radiologist, GMC Hospital, Sukkur and Dr. Mumtaz Abbassi Senior, Women Medical Officer, GMC Hospital, Sukkur, who by a detail report opined that the Medical Board was constituted on 28- 3-2008 in order to ascertain the age of the petitioner and from general appearance, bodily development, Dental & the Radiological opinion, her age appears to be about 17 years. Dr. Mumtaz Abbassi, Senior Women Medical Officer, further stated that on the external examination, secondary sexual character breast, axillary hairs and pubic hairs are fully developed and that the petitioner had started menstrual cycle since 3/4 years and the same was regular. Further, the petitioner had reached the age of puberty at the time of her marriage dated 4-2-2008. It is needless to say that under the Child Marriage Restraint, Act, of 1929, by virtue of section 2(a)I Child means a person, if a male, under 18 years of age and if a female under 16 years of age.
11. ' Apart from the above, there are numerous lacunas including delay in lodging of the F.I.R. And hopelessly trying to make out a false case against the petitioner. The statement of the petitioner has been recorded in Court and she is adamant that she wants to live with her husband despite requests and serve persuasion by her parents specifically her mother who at all material times, was present in Court and has attended each and every hearing.
12. ' Mr. Habibur Rehman Shaikh, learned Assistant Advocate General, Sindh, appearing for the State has stated that there is no need to rely on the School Leaving Certificate when the Medical Certificate is available on Court file in which it is clearly mentioned that the petitioner is 17 years old and further that she has made a statement in Court that she wants to live with her husband Riaz Hussain son of Ghous Bux Jatoi therefore, he has frankly conceded to the quashment of the F.I.R. In question.
13. ' From the above discussion on legal as well as factual issues, we are of the considered view that the entire case against the petitioner and her husband, is false and no case is made out under F.I.R.
14. No, 26 of 2008 of Police Station, Dari, District Larkana, registered for an offence under sections 365-B and 452 of the Pakistan Penal Code, and further that the petitioner was never abducted, and married Riaz Hussain son of Ghous Bux Jatoi out of her own free-will.
15. ' Accordingly, we quash F.I.R. No,26/08 of Police Station, Dari, District Larkana, registered for offences under sections 365-B and 452 of Pakistan Penal Code, and restrain the parents of the petitioner from interfering with the peaceful matrimonial life of the petitioner and her husband Riaz Hussain Jatoi. We also restrain the officers of the Police Station, Dari, District Larkana or any other law enforcing agency to harass, humiliate or disturb the life of the petitioner and her said husband, in any manner whatsoever. Having said that, we are conscious of the fact that parents of the petitioner have every right to meet their daughter i.e, the petitioner, who is still not 18 years of age and therefore, falls within the ambit of the Guardians and Wards Act, 1890. In such circumstances if the parents desire they are at liberty to file an application under section 12 of the Guardians and Wards Act, 1890, to allow them visitation with their daughter in case she refuses to meet her parents. We, therefore, allow this petition with no order as to costs.
16. ' Petition stands disposed off along with listed application. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.