In this Constitutional petition the petitioners seek quashment of case F.I.R. No.353/91 registered under section 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979, on the complaint .Of respondent No.2 who is the father of petitioner No.1.
2. The case of the petitioners is that they -of their own free will have entered into contract of marriage. The original Nikahnama dated 11-4-1991 has been placed on the record. Petitioner No.1 is present in person and when asked has confirmed that the same bears her thumb-impressions and that she married petitioner No.2 with her own free will. She has placed on record a certified copy of birth register according to which her date of birth is 4-5-1973 which mean that on the date of marriage she was about 18 years old. Respondent No.2 who is father of petitioner No.1 got a case registered through F.I.R. No.353/91 under section 10/11 of Zina Ordinance, that petitioner No.1 whose name was mentioned as Sakina Bibi was abducted by Muhammad Zaman Khan petitioner No.2 and others who had committed Zina with her. .
3. The petitioner No.1 says that respondent No.2 her father wanted to give her in marriage to someone else which was not liked by her, therefore, she of her own free will without any coercion or pressure from anybody married petitioner No.2. In this view of the matter, the alleged abductee does not support the case as made out by her father respondent No.2 in this F.I.R. The petitioners have placed on record affidavits of Ghulam Zakar Khan, Amir Bakhsh, Muhammad Ramzan and Muhammad Bakhsh who have deposed hat petitioner No.1 with her own free will contracted marriage with petitioner No.2 and that she was not abducted by any one. They are also present in Court and have confirmed that these affidavits bear their thumb-impressions.
4. Learned counsel for respondent No.2 submitted that as a matter of fact petitioner No.1, who has described her name as Nasreen alias Sakina is not Sakina (sic) is major therefore, she in order to plead that she being major could contract the marriage described herself as Nasreen alias Sakina.
Respondent No.2 who is present in Court when asked admitted that he has only two daughters out of which one is petitioner No.1 and the other is Huseena Bibi. If he has only two daughters out of which one is Huseena Bibi and the other is admittedly petitioner No.1. She might be ordinarily called as Sakina Bibi but as a matter of fact her name appears to be Nasreen alias Sakina Bibi.
Respondent No.2 also admitted that Huseena Bibi his other daughter was married to Ghulam Hussain, a copy of whose Nikahnama has been placed on the record. There is no force in the submission of the learned counsel for respondent No.2 that petitioner No.1 was guilty of distorting the fact about her age.
4-A. Even if the stand of respondent No.2 regarding age of petitioner No.1 is accepted, according to the same she was about 14 years old when contracted marriage, as such, had attained the age of puberty, therefore, under Muhammadan Law could contract marriage.
5. The registration of case at the instance of respondent No.2 through F.I.R. No.353/91 in dispute for the foregoing reasons cannot be sustained as the same has been got registered with mala fide intention to take revenge from the petitioners who have contracted marriage against the wishes of respondent No.2. Criminal proceedings have been initiated in this case which are nothing but abuse of process of law. The petitioners are wife and husband according to Muhammadan Law as all the ingredients of a valid Nikah between them have been fulfilled i.e. Ajab-ul-Qabool in the presence of the witnesses.
6. For the foregoing reasons this writ petition is accepted. The case F.I.R, No.353/91 dated 29-10-1991 is hereby declared to have been registered without lawful authority and of no legal effect and quashed. There will be no order as to costs.
SA./N-42/L