' This is a petition for quashment of F.I.R. No,82/95 under section 11/16 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) registered at Police Station Marot, Tehsil Fortabbas at 5-35 p.m. On 26-8-1995 at the instance of Muhammad Irshad son of Mehangay Khan, brother of abductee Mst. Dilshad Akhtar, petitioner No,1 for an occurrence alleged to have taken place on 12-8-1995.
2. It is alleged in the F.I.R. That Mat. Dilshad Akhtar, sister of the complainant has been abducted by accused Abdul Hameed who is petitioner No, 2 in this petition and three others with the object of committing Zina.
3. It is contended on behalf of the petitioners that they were married on 13-8-1995 and one Bashir Ahmad son of Jalal Din (co-accused) one of the relatives of petitioner No,1 is a witness to the Nikah and on being informed that a fictitious Nikah is being forged by the complainant side of the marriage of petitioner No,1 with one Pappu son of Naz Ali, petitioner No,1 instituted a suit for jactitation of marriage before Judge Family Court, Multan on 20-8-1995. It was later on withdrawn.
Similarly petitioner No,1 instituted Writ Petition No,5050-95 at Multan Bench of Lahore High Court seeking a restraining order against the S.H.O. P.S. Sadder, Mian Channun, P.S. City Mian Channun and P.S. Marot, Tehsil Fortabbas not to cause any illegal harassment to her. The said writ petition was also withdrawn on 4-9-1995. Then a fresh writ petition was instituted by the petitioners on 28- 8-1995 at Bahawalpur Bench, Lahore High Court again seeking a restraining order against S.H.O., P.S. Marot, Tehsil Fortabbas and the above said Pappu son of Naz Ali. That writ petition came up for hearing on 17-9-1995 and S.H.O., P.S. Marot informed the Court that F.I.R. Has been lodged against the petitioner No,2 and others and, therefore, writ petition was withdrawn on the said date.
4. The learned counsel for the petitioner submits that the petitioners are lawfully wedded to each other and no offence is made out against them and in these circumstances the above said F.I.R. Is liable to be quashed. Reference is also made to the report of Medical Superintendent, H.Q. Hospital Mian Channun, according to which, the radiological/age of petitioner No,1 Mst. Dilshad Akhtar is 17/18 years. It is further alleged that she has been shown as minor in the F.I.R. In a mala fide manner just to strengthen the criminal case against the accused. Mst. Dilshad Akhtar, petitioner No,1, present in Court has stated that she is 22 years of age. The learned counsel has placed reliance on Muhammad Banaras v. S.H.O. And others 1995 PCr.LJ 94 (Lahore), Mst. Bushra Bibi v. S.H.O. 1995 PCr.LJ 401 (Lahore), Mst. Fatima Bibi and another v. Malian and 2 others 1995 PCr.LJ 507 (Lahore) and Mst. Razia Bibi v. Station House Officer, Gunjial, Tehsil and District Khushab and 2 others 1995 PCr.LJ 797.
5. The Investigating Officer Abdul Latif A.S.I., P.S. Marot, Tehsil Fortabass, present in Court, states that the investigation has been concluded, the statement of witnesses have been recorded including the statement of Mst. Dilshad Akhtar, petitioner No 1, under section 161, Cr.PC., according to which, she has married petitioner No,2 and the Investigating Officer has further informed this Court that according to him the Nikah of the petitioners is proved.
6. On the other hand, the learned AA.-G. Representing the State has opposed this petition and submitted that petitioner No,1 is under age and her statement is of no legal value and according to the School Leaving Certificate she is 14 years old and under the circumstances, the learned AA.-G.
Suggests that she should be lodged in Dam! Aman as according to him at the moment she is not a free agent.
7. Learned counsel appearing on behalf of the complainant have contended that petitioner No,1 was abducted from Haroonabad, Nikah was performed in Mian Channu, Bashi" Ahmad who is stated to be witness of the Nikah is also a co-accused and, according to the School Leaving Certificate, the abductee is 14 years of age and, therefore, she is a minor and, in view of the above mentioned the learned counsel submits that prima facie the abduction is proved. It is further contended that the investigation has not been completed as yet, and it is on initial stages and the High Court in the exercise of its Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan of 1973 should not interfere in the investigation and after the investigation is complete and if the accused are challaned then the petitioners will have alternate remedies available to them to approach the Court of competent jurisdiction for their discharge
8. Learned counsel for the petitioners, in rebuttal to the submissions made by learned counsel for the complainant, has very competently made reference to Tahir v. The State 1990 PCr LJ 1198 wherein the medical report based on X-Ray test etc. Was preferred as against School Certificate regarding age of the accused, and has also placed his reliance on Byram D. Avari, etc. v. The State PLD 1989 Pesh. 145 (Judgment of Peshawar High Court) in which it was held that functionaries sitting in Police Station do come within the purview of Art. 199 and are amenable to directions issued under Article 199. Their actions are in no case sacrosanct so as to be excluded from judicial scrutiny and considering the merits of the case, the FIR. Was quashed and lastly has also made reference to The State v. Asif Ali Zardari and another 1994 SCMR 798 to contend that High Court has very wide powers under section 561-A, Cr.P.C. To quash any proceedings.
9. In my opinion, petitioner No, 1 is a sui juris and has reached the age of majority. The medical report had disclosed that her radiological age is 17/18 years and it is safe to rely on this report as against the School Leaving Certificate according to which, she is 14 years. In giving preference to medical report based on X-Ray etc. Over the School Leaving Certificate, I am also supported by judgment delivered by Karachi High Court in Tahir v. The State (supra). The petitioner No, 1 has made it clear again and again through various petitions filed by her in various Courts, mentioned above, that she is legally wedded wife of petitioner No, 2 and that petitioners married each other on 13-8-1995 and the Investigating Agency has also found in its investigation, as mentioned above, that there is no doubt that petitioners married each other on 13-8-1995 and their Nikah was duly registered on the said date. Furthermore, the investigation is almost complete. The petitioners have joined investigation, the statements of witnesses have been recorded including the statement of petitioner No,1 under section 161, Cr.P.C. In which she has not supported the prosecution case and she has sought the quashment of the F.I.R. The petitioners 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 in the circumstances is not possible and continuance of investigation under these circumstances against the petitioners and other co-accused will . Simply amount to unnecessary harassm ent. In fact in these circumstances the continuance of the investigation by police amounts to mala fide action on the part of the Investigating Agency in collusion with the complainant party just to harass the petitioner No,1 and to put an illegal pressure on her to leave her husband and bow to the wishes of her parents against her own free will. 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 Article 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 Article 199 of the 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 proceedings, therefore, under Article 199 of the Constitution are competent against any criminal inquiry/investigation if the same encroaches upon any fundamental right guaranteed by the Constitution, violates some other law or is motivated for some mala fide reasons. Learned counsel for the petitioners has very correctly referred to the precedents mentioned in para. 4 of this judgment and also to Byram D. Avari etc. v. The State (supra). In all these judgments it has been held that in such like circumstances the Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan is competent, in appropriate cases it can interfere in the larger interest of justice and can quash the criminal investigation if it comes to the conclusion that continuance of the criminal investigation will not serve any purpose.
10. In view of what has been discussed above, the writ petition is allowed. F.I.R No,82/95, dated 26- 8-1995 under section 11/16 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) registered at Police Station Marot, Tehsil Fortabbass, District Bahawalnagar is hereby quashed.