SARDAR MUHAMMAD SADIQ KHAN, J.--- This criminal revision petition is addressed against the judgment of the Shariat Court dated 12.2.2004 whereby the FIR lodged against respondents No,1,2 & others, is quashed.
2. Precise summary of facts forming back ground of the revision petition is that a case for the offences under sections 10/11, 16/18 ZIIA and 109 APC was registered at Police Station Thorar, against the respondent No,1 & others on 12.10.2003. It was stated in the FIR that the respondents abducted Saeeda Khanum, the sister of complainant Fardos Khan S/O Roeel Khan when she went to fetch water from Nala Mahel. It was further alleged in the FIR that respondent No,1, who hails from Charala, Tangi Hillan, has abducted his sister for the purpose of committing Zina. It was further stated in the FIR that 4/5 days prior to the occurrence, the mother of respondent No,1 came at their home and remained talking to Saeeda Khanum. The father of respondent No,1 was also asking for marriage of his son (respondent No,1) with Saeeda Khanum but the complainant refused to agree because Saeeda Khanum was already engaged to Waqar Haroon and her "Nikkah" was also solemnized.
3. After registration of FIR, the local police started investigation. Statements of different inhabitants were recorded by the Police. The respondents tiled an application under section 561-A Cr.P.0 in the Shariat Court for quashment of FIR. Another application tor interim relief was also filed in the Shariat Court for grant of pre-arrest bail. The learned Shariat Court admitted the application for Pre-arrest bail. After necessary proceedings, the learned Shariat Court, quashed FIR No, 43/2003 through the impugned judgment, hence, this revision petition.
4. Ch. Shoukat Aziz, Additional Advocate-General, representing the State, argued that the respondents have violated the injunctions of Islam; they have committed the offence of Zina and the Shariat Court was not justified in quashing FIR No,43/2003 on the basis of compromise. He further contended that respondent. No,2 was in the "Nikkah" of Waqar Haroon and she was abducted by respondent No,1, therefore, a married woman cannot contract second marriage as ordained in the injunctions of Islam and the law of the land. He further stated that the Shariat Court has committed serious illegality while mentioning that the marriage of respondent No,2 and Waqar Haroon was agreed but "Nikkah" and "Rukhsati" had not taken place whereas it is proved that "Nikkah" had been performed. He argued that the compromise between the complainant Fardous Khan and respondents, is unlawful which cannot he made basis for judgment in a criminal case. He further submitted that the respondents have committed the offence of Zina, therefore, by accepting the revision petition, the judgment of the Shariat Court may be set-aside and the Police Station Thorar be directed to proceed against the respondents under law.
5. On the other hand, Raja Sajjad Ahmed Khan Advocate, the learned counsel for the respondents supported the judgment of the Shama Court on numerous grounds. He contended that respondents No,1 and 2 have contracted marriage out of their free will and without fear on 7.10.2003. They are living as husband and wife and they have kids. Initially, the father 01' respondent-No,2 Saeeda Khanum, agreed for her marriage with respondent No,1 but later on, he changed his stance and decided to marry her with Waqar Haroon. Saeeda Khanurn, the respondent No,2 refused to marry with Waqar Haroon and entered into valid "Nikkah" with Safeer Khan, respondent No,
1. He further stated that a false case was registered at Police Station Thorar against his clients and the local police had barricaded the residence of respondent No,1, therefore, the Shariat Court has rightly quashed the FIR registered against the respondents. The learned counsel forcefully contended that the complainant, being "Wali" of respondent No,2 has rightly entered into compromise and the compromise can be termed as consent of the "Wali" which is quite in accordance with the law. He finally submitted that the respondents are adult sane and they have not violated any injunction as ordained in Islam, therefore, the revision petition may be dismissed.
6. We have heard the learned counsel for the parties and have also gone through the record of the case made available. A study of the record reveals that a case for the offences under sections 10/11, 16/18 ZHA and 109 APC was registered against the respondents at Police Station Tharar. on 12.10.2003. The complainant Fardous Khan, who is real brother of Saeeda Khanum. lodged FIR No, 43/2003. The police started investigation. On 16.12.2003, the respondents filed an application under Section 561-A, Cr.P.C. in the Shariat Court alleging herein that a criminal case has been registered against them, therefore, the same may be quashed. Another application for grand of pre-arrest bail was also filed in the Shariat Court which was admitted and pie-arrest bail was allowed to the respondents.
7. A perusal of the record reveals that no "Nikkahnama" or any other document has been produced in support of the claim that respondent No,2 was in the "Nikkah" of Waqar Haroon. An affidavit has been filed b) Saeeda Khanum, respondent Not in the Shariat Court in which she has submitted that she is a virgin and unmarried; her parents engaged her with Safeer Khan 5/0 Muhammad Riaz RIO Charala. Due to engagement, she fell in love with Safeer Khan and later on, her parents have broken the engagement against her will. Her parents wanted to marry her to some other person. that is why she left her home with her own will. Neither she has been abducted by any body nor she was married to any other pet ,on before "Nikkah" with Safeer Khan. The only statements recorded by the police have been placed on record which cannot be relied in presence of the affidavit filed by respondent No,2.
8. It may be mentioned here that the complainant Fardous Khan S/O Roeel Khan, who is real brother of respondent No,2, has handed down a compromise-deed on 22.1.21)04. It is stated in the compromise-deed. that Muhammad Safeer Khan and Saeeda Khanum are lawfully wedded husband and wife and they are free to live together. It is further mentioned that the complainant party does not want to continue the proceedings before the Police and in the Courts, thus, the same be withdrawn. According to injunctions of Islam, the consent of adult sane couple is sufficient for "Nikkah". The social customs also demand the consent of "Wali". In our view, the compromise- deed handed down in shape of "Iqrar Nama" executed between the parties, is sufficient to prove the validity of "Nikkah" of respondents No,1 and 2 which fulfils the requirement of traditions and the social custom whereas the affidavit filed by respondent No,2 in the Shariat Court further strengthens the version of respondents No,1 and 2 that they have not violated the injunctions of Islam. The registered "Nikkahnama" which is at page 11 of the file of Shariat Court also supports the version of the respondents.
9. The argument of the learned counsel for the petitioners that the Shariat Court has committed illegality while recording the impugned order on the basis of compromise-deed, is having no substance. Nothing has been mentioned in the compromise-deed whether respondent No,2 was in the "Nikkah" of Waqar Haroon or any other proof of her alleged "Nikkah" with Waqar Haroon has been placed on record thus, it shows that all the criminal 'proceedings initiated by the complainant were only in the name of "Gharrat" and the same were withdrawn by them through the compromise. The respondents: being sui juris have lawfully married each other and in these circumstances the offence as alleged in the FIR is not made out; conviction of accused was not possible and continuance of investigation under the circumstances against the respondents may amount to unnecessary harassm ent, therefore, FIR i. rightly quashed by the Shariat Court The respondents are adult sane and according to Constitutionally guaranteed fundamental rights, they cannot be deprived from their right of marriage. Our this view is supported by the case titled Mst. Dilshad Akhtar another vs. State etc, reported as [PLJ 1996 Lahore, 91], wherein it is observed that:- ...Reference here may be made to Art. 4 (2) (b) of the Constitution of Pakistan wherein it is laid down that no person shall be prevented from or be hindered in doing that which is not prohibited by law. The law did not prohibit the petitioners from marrying each other and does . not prohibit them from living with each other as husband and wife. This is their Constitutional guarantee and it cannot be taken. away by any one Similarly Art. 35 of the Constitution of Islamic Republic of Pakistan makes it the duty of the State to protect the marriage, the family, 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 of Art. 199 of Constitution seeking protection of Court against any official agency to enforce his rights under the Constitution and in such an eventuality, it is the duty of this Court to satisfy itself that the fundamental rights guaranteed to the people of Pakistan under the Constitution of Pakistan are not infringed and violated by any Government or State Functionaries/Agencies."
The above quoted observation transpires that it is the fundamental right of an adult person to marry according to his free will and no State, Agency or Government can deprive him of this right.
The Courts have to enforce the fundamental rights of the pet son who claims to be affected by any act of the agency. In the instant case the respondents married according to their own choice. The compromise-deed executed between the parties also strengthens the claim of respondents.
Previous "Nikkah" is not proved, therefore; proceedings in a criminal case against the respondents is abuse of the process of Court.
10.It will be pertinent to mention here that as per FIR, the complainant himself has reported that the mother of respondent No,1 went to their home and remained talking to respondent No,2, also supports the version of respondent No,2 which she has taken in the affidavit filed by her. Another tact mentioned in the FIR is that the father of Safeer Khan offered for marriage of his son Muhammad Safeer with Saeeda Khanum but the parents of respondent No,2 refused to do so. It shows that both the families were interlinked prior to the incident. This also strengthens the claim of respondent No,2 taken in the affidavit wherein she has claimed that' previously her parents agreed upon and ' engaged her with Muhammad Safeer. Thus, the prosecution story fails on this ground as well.
11. Another important point which needs consideration is that Waqar Haroon, has never appeared before any Court or agency in support of the claim that his wife has been abducted by some one. It is not possible that a person whose wile has been abducted. remained silent or failed to approach the Courts of law for an indefinite period. The prosecution has failed to bring on record the "Nikkahnama" of Waqar Haroon which denies the claim as incorporated in the FIR. The compromise-deed has further denied the claim of the prosecution and it cannot be said that the Shariat Court has committed any illegality or infirmity while recording the impugned judgment.
12.It may be observed here that the FIR against respondents No,1,2 & others was:lodged on 12.10.2003. According to the affidavit tiled by respondent NO.2, the "Nikaah" took place between respondents No,1 and 2 on 7.10.2003. The "Nikkahnama" also bears same date i,e 7.10.2003 which shows that the "Nikkah" between the spouses took place 4 days prior to lodging of FIR. Thus, the version of the petitioners that respondent No, I has abducted the respondent No,2 for the purpose of the commission' of Zina, has no substance. Our this view finds support from the case titled Mst.
Nasrin Akhtar r v. State, reported as [PLJ 1994 Cr.C (AJK) 389 wherein it is observed that:- ''... In this case, in the light of the documents available on record, on December 26, 1993, the 'statement of the accused-petitioner was recorded by Sub Judge/ M.I.O Pallandari wherein she stated that she wanted to contract her marriage wish Aurangzeb out of her own free will but her father and uncle. Wazir and her cousin Mehboob were against this marriage and now they were all out to damage her. She also deposed that she apprehends some foul play on their part. It is also admitted by the prosecution that she subsequently contracted her marriage with Aurangzeb accused on December 28, 1993. After her arrest, she was produced before Lady Doctor, who opined that she was above 16 years of age and further that intercourse was committed with her within last six days. This report was given by her on 5.1.1994. This shows that apparently in the light of this report, the spouses enjoyed their sex after they contracted the marriage with each other In this case, admittedly no accusation has been levelled against the female accused-petitioner that previously she was married to any other person I think as she was adult therefore, was legally competent to contract marriage with any person of her choice including Aurangzeb.
(underlining is ours)
The above quoted observation shows that the petitioner married to the person of her own choice whereas her father, uncle Wazir and cousin Mehboob were against this marriage and they were all out to damage her. The Court while considering the application under Section 561-A Cr.P.C, filed by the accused-. petitioner, opined that she was adult; therefore, was legally competent to contract marriage with the person of her own- choice, therefore, the HR filed against the accused-petitioner was quashed. In the case in hand, respondent No,2 contracted marriage with the person of her own choice. Moreover; through a compromise-deed, the father and brother of respondent No,2 agreed upon and approved the marriage of respondents, therefore, the Shariat Court has rightly quashed FIR No,43/2003 filed against the respondents.
The upshot of above discussion is that finding no force in this revision petition, the same stands dismissed.