' This is a petition for quashment of F.I.R. No,102 of 1994, dated 13-6-1994 under section 11 of Ordinance VII of 1979 registered with Police Station Gunjial Tehsil and District Khushab.
2. According to F.I.R., the complainant Muhammad Faraq reported to the police that on the night between 12/13-6-1994, he alongwith his children was sleeping in his Dera; at about 4 a.m. When he suddenly got up, his daughter Mst. Razia Khatoon (petitioner) aged about 14/15 years was found missing. He was told by Sher Khan of the village that he had seen Mst. Razia with Sadiq son of Dost Muhammad of the same village going towards Utra Farm. The complainant alleged that his daughter was abducted by Sadiq for the purpose of committing Zina.
3. Learned counsel in support of the writ petition contended that Mst. Razia, petitioner, is sui juris and has married with her own free-will and accord with Muhammad Sadiq according to Muslim rites as Muhammad Sadiq is close relative of the petitioner and was engaged earlier to him; hence has committed no offence. According to the learned counsel, the case against Muhammad Sadiq has been lodged as respondent No,2 was not willing to give the hands of the petitioner to Sadiq and he wanted her to marry with some one else which the petitioner disliked.
4. On the other hand, learned counsel for the respondent No,2 vehemently contended that firstly the Court has no jurisdiction to interfere in the case and secondly the Nikah, as alleged was not performed on 4-6-1994 but on 14-6-1994 in the light of statement of Nikah Registrar. Further contended that the petitioner has committed fraud and misled the Court by stating in Para.4 of the writ petition that the petitioner after marriage also made a statement under section 164, Cr.P.C.
Before the learned Civil Judge/Magistrate Section 30, Jauharabad. It was argued that the marriage without the custom and consent by parents is against the Islamic teachings.
5. The Investigating Officer present in Court submitted that Nikahnama is doubtful as on record there are two Nikahnamas of spouses with cuttings. He has produced the original Nikah Registrar before the Court for examination. The report of respondent No,1 has also been placed on file.
6. It is an admitted fact that petitioner is a sui juris. According to F.I.R., her age is shown to be 14/15 years while according to Nikahnama, her age has been shown as 25/26 years. As the petitioner and Sadiq after bail joined the investigation, to determine the age of the petitioner, a Medical Board headed by Medical Superintendent D.H.Q. Hospital, Khushab was constituted and the Medical Board declared her age as 18 years.
7. As the spouses joined investigation, the S.P. Khushab directed the Investigating Officer to finalize investigation in the light of direction. Both the parties agreed to decide the issue on oath. According to the report, the complainant party nominated 11 persons whereas accused party nominated 23 persons for oath. The complainant party refused to take oath from any person nominated by the petitioner. However, seven witnesses of Nikahnama voluntarily took oath on the Holy Qur'an that the Nikah was performed in their presence on 4-6-1994. The investigation was also headed by the D.S.P./S.D.P.O. Mitha Tiwana. The complainant then moved an application to the D.I.-G., Sargodha Range for transfer of investigation on 9-8-1994. The investigation was entrusted to D.S.P./S.D.P.O.
Noor Pur. He interrogated both the parties on 28-8-1994 and initiated proceedings afresh. To check the authenticity of Nikahnama.
8. I have examined the Nikah Register produced by the Investigating Officer and have seen both the Nikahnamas.
9. As pointed out by the learned counsel for respondent No,2 and by the Investigating Officer, there is nothing to doubt. The fact is that the witness mentioned in the Nikahnama perhaps did not turn up hence another Nikahnama was prepared. If there would have been any mala fide on the part of Nikah Registrar, it would have easily been destroyed. The Nikah Registrar present in Court has also confirmed that the Nikah was performed on 4-6-1994 genuinely. So far as statement under section 164, Cr.P.C. As pointed out in para. 5 of the petition, seems to be a legal misunderstanding. The statement was indeed recorded by the learned Magistrate on 16-6-1994 in the complaint filed by the petitioner.
10. As already observed, it is an admitted fact that the petitioner is suit juris and contracted marriage of her own accord and free will on 4-6-1994 which has been confirmed by her in statement recorded by the learned Magistrate Section 30, on 16-6-1994 and even today in this Court, the petitioner confirmed her stand in the presence of her father. As the case was cancelled after proper inquiry on 12-8-1994, further investigation to probe into the authenticity of Nikahnama in spite of oath taken on Holy Qur'an by seven witnesses of Nikah voluntarily is nothing but abuse of process of law and humiliation of spouses. It is now well-settled law that proceedings under Article 199 of the Islamic Republic of Pakistan 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 reason and the sections of the Police Officers are in no case sacrosanct so as to exclude from judicial scrutiny. According to Muhammadan Law marriage is not sacrament but is a civil contract and every Muslim of sound mind who has attained puberty is entitled to enter into a contract of marriage and is at liberty to marry any one he or she likes and the guardian has no right to interfere. According to Article 35 of the Constitution it is the duty of the State to safeguard the fundamental right of marriage.
11. I am constrained to observe that such marriage without the consent of parents particularly by young girl may be against the family tradition and moral values but has the sanction of law and such spouses cannot be deprived of valid legal valuable right, because of above consideration.
12. In view of what has been discussed above, the writ petition is allowed. Resultantly, F.I.R. No,102 of 1994, dated 13-6-1994 under section 11 of Offences of Zina (Enforcement of Hudood) Ordinance VII of 1979 registered with Police Station Gunjlal, District Khushab is hereby quashed.