ORDER MUHAMMAD HASHIM KHAN KAKAR, J.---This is an application for quashment of an F.I.R. No.34 of 2011, under section 365 read with sections 147 and 149 of the P.P.C., registered at Police Station, Sohbat Pur, District Jaffarabad on 21st June, 2011 at about 5-30 p.M. At the instance of Majid Ali son of Mir Hassan, caste Khosa (father of the abductee Mst. Ghazala) for an offence of abduction, alleged to have taken place on 19th June, 2011.
2. It is alleged in the aforesaid F.I.R. That Mst. Ghazala, daughter of the complainant, has been enticed and abducted by the applicant, who was driver of the Suzuki vehicle, hired by the management of Health Project, launched by the Government of Baluchistan, for the purpose of pick and drop of the project employees.
3. Learned counsel for the applicant contended that very registration of the F.I.R. Is result of mala fides, thus, the same is liable to be quashed. He further contended that the alleged abductee Mst.
Ghazala, being sui juris, with her on free will and consent, and by exercising her constitutional fundamental rights, contracted marriage with the applicant in accordance with the injunctions of Islam, without any pressure or coercion from any corner. Mst. Ghazala is living with the applicant as his legally wedded were, thus, the F.I.R., which is outcome of mala fides and dishonest intentions on the part of the complainant, ought to have been quashed.
4. On the other hand, Mr. Abdul Sattar Durrani, Deputy Prosecutor-General, representing the State, has taken a stand that the truth or falsehood of the allegations in the F.I.R. Will be seen by the police during course of investigation and, thereafter, by the trial court and the quashment of the F.I.R., at this stage, would be nothing, but tantamount to interfere in the investigation of the police.
5. It is true that the investigation is the right of the police and should come to its natural conclusion without interference, but there are also no two opinions on the point that proceedings under Article 199 of the Constitution of Islamic Republic of
6. Pakistan, 1973 are competent against any criminal inquiry or investigation, if the same encroaches upon any fundamental right guaranteed by the Constitution or violates some other law or is motivated by some mala fide reasons.
7. I have heard learned counsel for the parties and given my anxious consideration to the arguments advanced by them and have also gone through the material placed on file. Before reaching to a conclusion, it would be advantageous to reproduce the relevant abstract from the affidavit of alleged abductee Mst. Ghazala, copy whereof is annexed with the instant petition:
8. "That I am VIRGIN lady, Muslim, Adult, aged about 21 and am well and sufficiently in a position to think for my future betterment without any coercion, interruption of anyone of any kind of whatsoever in nature.
9. That I want to mary with one Mr. Ghulam Rasool son of Abdul Sattar, Muslim, Adult, resident of Faqeera Goth, Gadap Town, Scheme 33, Karachi Superhighway, who has serious love and affection for me and he is ready to accept me, therefore, serious love, affection and attachment have been developed in my mind in his favour resulting thereof, I have decided to mary with him on my choice by exercising the rights of FREE WILL".
10. The petition is also accompanied by a registered Nikah Nama dated 25th June, 2011, executed between the applicant and alleged abductee Mst. Ghazala. According to the said Nikah Nama, her age has been shown as 21 years. Soba Khan son of Muhammad Yousaf and Ali Nawaz son of Shah Nawaz have been shown as witnesses of the marriage between the parties, whereas the dower amount has been written as Rs.50,000 deferred.
7. Besides the above mentioned documentary evidence, the alleged abductee Mst. Ghazala also appeared before this court on 29th July, 2011 and has not supported the prosecution case and has sought quashment of the F.I.R. Lodged by her father against the applicant. The applicant and Mst.
Ghazala, being sui juris, have lawfully married each other and in these circumstances, the offence, as alleged in F.I.R. No.34 of 2011, is not made out, thus, the conviction of the applicant, in the attending circumstances, is not possible and continuance of the investigation under these circumstances against the applicant will simpliciter amounts to unnecessary harassment and abuse of the process of law. I am of the considered view that under Art.4(2)(b) of the Constitution, no one shall be prevented from or be hindered in doing that which is not prohibited by law; and, admittedly, the law did not prohibit the applicant and Mst. Ghazala from marrying each other and also does not prohibit them from living together as husband and were. Article 4(2)(b) speaks as under:-
(4) Right of individuals to be dealt with in accordance with law, etc. (1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.
(2) In Particular
(a) ------ no person shall be prevented from or be hindered in doing that which is not prohibited by law; and consequently, F.I.R. No.34 of 2011, registered under section 365 read with sections 147 and 149 of the P.P.C. At Police Station Suhbat Pur, District Naseerabad, is hereby quashed.
8. It would be relevant to mention here the learned counsel for the applicant, at the very outset, contended that the applicant has directly approached this court for anticipatory bail as well as for quashment of Crime No.34 of 2011, as his life is at stake and he is prevented from approaching the concerned court. There is no cavil to the proposition that Article 35 of the Constitution makes it the duty of the State to protect the marriage, the family and the mother and the child, therefore, whenever any person is threatened with the violation of any of the rights which have been guaranteed to him under the Constitution, he can invoke the constitutional jurisdiction under Article 199 of the Constitution and inherent powers of this Court as envisaged under section 561-A of the Code of Criminal Procedure, seeking protection of the Court against any official agency to enforce his rights under the Constitution. The proceedings, therefore, under Article 199 of the Constitution, are competent against any criminal inquiry and investigation, if the same encroaches upon any fundamental rights guaranteed by the Constitution or is motivated for some mala fide reasons.
For all that has been stated above, the continuance of the proceedings against the applicant in a case under section 365 read with sections 147 and 149 of the P.P.C. Will amount to unnecessary harassm ent. The result is obvious and no court on such evidence can convict the applicant on the charge levelled. The result is that the application is allowed,.