MUHAMMAD QASIM KHAN, J. --- Through this writ petition, Muhammad Maqsood (petitioner) seeks quashing of F.I.R. No, 134/2015 dated 08.08.2015 under Sections 365-B, 380, P.P.C. registered at police station Seet Pur, District Muzaffargarh.
2. The contention of learned counsel for the petitioner is that entire story as set up in the F.I.R. is nothing more than bundle of lies, otherwise, Mst. Mehnaz was never abducted by any body, nothing was stolen from the house of the complainant, rather Mst. Mehnaz being a puberty of her own contracted marriage with the petitioner, therefore, no offence has been committed and further continuation of proceedings/trial under the impugned F.I.R. would mean nothing but wastage of time.
3. On the other hand, learned counsel representing the respondent/complainant has opposed the above arguments of learned counsel for the petitioner by contending that according to the Birth Certificate of Mst. Mehnaz Bibi (victim) the date of birth of said girl is 14.02.2002, as such, on the day of her abduction i,e, 28/29.07.2015, she being just being thirteen years of age, was minor. The learned counsel for the complainant, therefore, argued that Mst. Mehnaz Bibi (abductee), under the garb of her alleged marriage, was being subjected to rape by the petitioner; as otherwise, she being a minor girl could not enter into marriage.
4. I have considered the arguments of learned counsel for the parties and perused the available record.
5. It has been observed that in the F.I.R. specific allegations had been levelled by the complainant against the present petitioner and others and the alleged occurrence had been disclosed in details, but nowhere in the F.I.R. the complainant had given the age of Mst. Mehnaz (alleged abductee). Pursuant to the argument of learned counsel for the petitioner with regard to marriage of said Mst. Mehnaz with the petitioner, the learned counsel for the complainant/respondent has although produced Birth Certificate of Mst. Mehnaz, which shows the date of birth of Mst. Mehnaz as 14.02.2002, as such, on the day of alleged occurrence she would become just about thirteen years, but it is manifest that according to the Birth Certificate the date of birth was got entered on 02.09.2015 i,e, about one and a half month after the registration of case, which fact by itself raises serious questions about authenticity of the said Birth Certificate.
6. At this stage, it may be clarified here that Mst. Mehnaz, throughout, has taken a specific and clear stance, before the police, that she is pubert, she has contracted marriage with Maqsood Hussain (present petitioner) with her free will and consent and that she is now living with him and performing matrimonial life.
7. Apart from the above factual aspect, even if the date of birth as given in the Birth Certificate is taken as correct and Mst. Mehnaz (alleged abductee) is considered to be about thirteen years of age, even then, this Court in the case 'ALLAH NAWAZ versus STATION HOUSE OFFICER and four others"
(PLD 2013 Lahore 243) while determining the status of marriage of a girl below the age of sixteen years, who is otherwise pubert, held that in the absence of any evidence to the contrary, said girl shall be presumed to be pubert. In this respect guidance was sought from a judgment of the Hon'ble Supreme Court of Pakistan "1. YOUSUF MASIH ALIAS BAGGAH MASIH,
2. YOUNUS MASIH ALIAS JOONA MASIH versus THE STATE" (NLR 1995 SD 42), wherein, their lordships held that "All original texts of Hanafi Jurisprudence are unanimous on point that 9 years is minimum age on which declaration of a girl about her puberty can be accepted." Therefore, for all intents and purposes the relationship of Mst. Mehnaz Bibi with Maqsood (petitioner) would remain to be that of husband and wife, as just on the ground of minority the marriage will not become invalid, unless consent of the minor who enters into marriage, is not obtained. In this respect reference may be made to the case "MST. HAJRA KHATOON and another versus STATION HOUSE OFFICER, POLICE STATION FATEH JANG, DISTRICT ATTOCK and 2 others" (PLD 2005 Lahore 316), wherein it has been held that "Nikah/Marriage contracted by a woman, not having attained the age of majority, as defined in law, but having attained puberty as defined in Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is valid and not void." Furthermore, even the Child Marriage Restraint Act (XIX of 1929), does not declare marriage of a girl who is pubert but under the age of sixteen years, to be invalid or void.
Had the legislators any intent to declare the marriage of a girl below the age of majority, invalid, a specific clause could be inserted in the Child Marriage Restraint Act (XIX of 1929). In the absence of any such specific provision in the Act, ibid, it would behighly unjust to import a negative intent which was not considered by the legislators at the time when said law being formulated.
8. The next question would be whether the case of such a couple would fall within the definition of Section 375, PPC and whether this relationship can be termed as "rape"? In order to elucidate this point, Section 375, PPC is reproduced hereunder:--- "375. Rape.---A man is said to commit rape who has sexual intercourse with a woman under circumstances falling under any of the five following descriptions:---
(i) against her will;
(ii) without her consent;
(iii) with her consent, when the consent has been obtained by putting her in fear of death or hurt;
(iv) with her consent, when the man knows that he is not marriage to her and that the consent is given because she believes that the man is another person to whom she is or believes herself to be married; or
(v) with or without her consent when she is under sixteen years of age."
Although Section 375(v), PPC provides that in case of sexual intercourse of a man with a girl under the age of sixteen would amount to rape, whether such act is committed with or without the consent of such girl, but I am afraid this Section cannot be made applicable to the case where a girl, though under the age of sixteen years, in explicit terms admits to have entered into marriage, as is the case in hand. Keeping, in view the dictum laid down in the cited judgment, the relationship of Mst. Mehnaz with Muhammad Maqsood/petitioner cannot be equated with "rape", nor it can be said that performance of conjugal rights by the spouses, even though the girl may be below the age of sixteen years but has attained puberty and is also consenting party to such marriage, cannot be termed as "unlawful sexual intercourse" so as to attract Section 375, PPC in order to initiate proceedings against them.
9. For what has been discussed above, since Mst. Mehnaz Bibi claims herself. to be puberty and has admitted her wilful nikah with Maqsood Hussain/petitioner before the police, as also before this Court and further pursuant to the statement of Mst. Mehnaz the Investigating Officer also recommended for cancellation of case, therefore, registration of F.I.R. and further proceedings thereon, would be nothing but abuse of process of law and sheer wastage of time, as otherwise, there is no chance whatsoever about ending of trial in petitioner's conviction. Consequently, this writ petition is allowed and case F.I.R. No, 134/2015 dated 08.08.2015 under sections 365-B, 380 P.P.C. registered at police station Seet Pur, District Muzafargarh with all proceedings thereon, is hereby quashed.