' Mst. Bushra Bibi, petitioner has filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan for quashment of F.I.R. No,650/94 registered under section 10/16 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 at Police Station Saddar, Jhang on 29-8- 1994 on the complaint of Mst. Pathani mother of the petitioner, against the petitioner as well as her husband Syed Muhammad Asif Iqbal and others.
2. The case of the petitioner, in brief, is that she being a sui juris was married to Syed Muhammad Asif Iqbal, her mother (complainant) fully participated as it was an arranged marriage. The step- father of the petitioner, Hasnain Kausar signed the Nikahnama, as petitioner's Vakeel which was solemanized on 11-4-1994. According to learned counsel, the petitioner's mother and step-father started behaving in a strange manner inasmuch as Hasnain Kausar who poses to be husband of Mst. Pathani made a false report about decoity at Petrol Pump against petitioner's husband. After investigation by the police, the petitioner's husband was found innocent. The innocence of Syed Muhammad Asif Iqbal, petitioner's husband, caused annoyance to Hasnain Kausar and Mst.
Pathani who, as mentioned above, got registered a case against the petitioner and her husband, which is being investigated by the local police.
3. On the other hand, according to F.I.R., the case of prosecution is that the complainant Mat.
Pathani after getting divorce from her previous husband, left Toba Tek Singh and started residing within the jurisdiction of Police Station Saddar Jhang alongwith her children. Asif Iqbal and Shamas Iqbal were her "Murshad" and used to visit her house. Asif Iqbal developed illicit liaison with the petitioner aged 12 years and enticed her away for Zina.
4. Learned counsel in support of the petition contended that the registration of case being result of mala fides is liable to be quashed. It was further argued that Mst. Bushra Bibi being sui juris with her own free will and with the blessing of her mother married Asif Iqbal according to Islamic rites and as such have committed no offence.
5. Learned counsel for the complainant and the respondent contended that the case is under investigation and the documents relating to petitioner's age and Nikah are under scrutiny. They further argued that when it came to the notice of people that the petitioner was carrying an illicit pregnancy of Asif Iqbal, they fabricated a fake Nikahnama.
6. I have heard learned counsel for the parties and given my anxious consideration to the arguments advanced by them. I have also gone through material placed on file. The petitioner did not mention her age in the writ petition but claims to be sui juris. According to Nikahnama, dated 11-4-1994, her age has been shown as 18 years. In the Nikahnama Hasnain Kausar has been shown as her Vakeel and father. The dower amount has been written as rupees one lac deferred {{URDU TEXT}} and a 1/4 portion of the house in Zia Colony has been shown to be given to the petitioner by her husband. The signature of Hasnain Kausar on Nikahnarna and the photograph of the marriage produced in the Court have not been denied but it was vehemently stressed by learned counsel for the complainant that the petitioner was not sui juris and her maximum age is 12 years. According to school leaving certificate (private school) as well as birth certificate issued by the Secretary Union Council No,54 Tehsil Kamalia her date of birth is 15-8-1983, hence her age at the time of Nikah was less than 11 years. Further according to the civil suit titled Mst. Pathani v. Sarfraz filed on 2-3-1994, the petitioner's age was shown as 8 years, though the suit was ex parte on 19-2-1994.
7. According to certificate No, 3207/MS, dated 8-9-1994 issued by the Medical Superintendent, District Headquarters Hospital, Toba Tek Singh, produced by the petitioner, her age by appearance and radiologically is between 16 and 17 years. In order to resolve the controversy with regard to age of the petitioner, she was referred to Medical Superintendent, Services Hospital, Lahore for opinion of the Chief Radiologist about age of the petitioner. The opinion of the doctor reads as under:- "Epiphysis of lower end of radius shows partial fusion which completes at 16-1/2 years of age, whereas the epiphysis at elbow joint have completely fused which completes at 15 years of age, hence the bone age is above 15 years and less than 16-1/2 years."
' From the above, it is, thus, established that the age Mst. Bushra Bibi, petitioner, at the time of Nikah was not less than 15 years. Reliance can also be placed on the case of Tahir v. The State 1990 P Cr. L J 1198 for a view that X-ray report is preferable against school certificate regarding age. According to Muhammadan Law, the age of puberty is even taken to be 15 years and below for the purposes of puberty. Mst. Bushra has admittedly entered into marriage with Syed Muhammad Asif Iqbal five months prior to lodging of the F.I.R. Further according to Article 35 of the Constitution of Islamic Republic of Pakistan, it is the duty of the State to safeguard the fundamental right of marriage. In the case of Adamjee Insurance Company Limited v. Assistant Director 1989 P Cr. L J 1921 it was observed by their Lordships of the Supreme Court that proceeding under Article 199 of the Constitution will be competent even against inquiry/investigation if it encroaches upon any fundamental right as guaranteed by the Constitution or it violates some other law or is motivated for mala fide reasons.
8. For all that has been stated above, the continuance of proceedings against the petitioner and others in a case under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 will amount to unnecessary harassm ent. The result is obvious and no Court on such evidence can convict the petitioner and others on the charge levelled. The result is that the writ petition succeeds and is allowed. Consequently F,J.R. No,650 of 1994 under section 10/16 of Ordinance VII of 1979 Police Station Sadar Jhang is hereby quashed.
9. A copy of this order alongwith annexures shall be forwarded to the Deputy Commissioner, Jhang who shall get an enquiry held with regard to conduct of Secretary, Union Council No,54 Tehsil Kamalia, District T.T. Singh and submit a report under his own signature to this Court limelighting the actions taken against him, if found on wrong foot.