1. The petitioners seek quashment of F.I.R. No,404/97 dated 25-12-1997 under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 registered at Police Station Fazilpur District Rajanpur against the petitioners.
2. 2.Notice was given to the State and comments were also called which have been perused and arguments have been heard at length.
3. 3.The facts as alleged in the F.I.R. are that on 22-12-1997 there was ceremony circumcision of his son Nadir Hussain and to participate in the said ceremony petitioner No,2 Ghulam Sarwar son of Allah Wassaya, Riaz Ahmad son of Rasul Bakhsh, residents of Fazilpur, Bhawan Mai wife of Rasul Bakhsh, Ghazi son of Piran Ditta, Aziz and Wali sons of Jiwan caste Lashari resident of Sozala Hajipur and near relative had come and participated till late night in the programme of the said ceremony.
4. After the ceremony was over petitioner No,2, namely, Ghulam Sarwar, Riaz, Bharawan, Ghazi, Wali and Aziz stayed with the complainant. At morning prayer time the complainant got up and found that his virgin daughter Mst. Alood Mai aged 15 and 16 years and the aforesaid persons were not present. He started search of his daughter and on the way met Allah Bakhsh son of Pir Bakhsh, Talib Hussain son of Pathan Khan caste Gopan, co-villagers who told the petitioner that they had gone to Fazilpur in connection with their work and saw on the wagon stand that Ghulam Sarwar, Riaz Bharawan, Ghazi, Wali, Aziz and Mst. Alood Mai were going to Hajipur riding in a Dala. On asking they told that they were going to Hajipur for Ziarat. Complainant alongwith Allah Bakhsh and Talib Hussian P.Ws and other relatives went to Riaz son of Rasul Bakhsh for the return of his daughter Mst.
5. Alood Mai who after much excuse admitted the taking away of Mst. Alood Mai and despite promise did not return her to the complainant. The complainant also stated in the F.I.R. that Ghulam Sarwar has abducted his daughter due to illicit relationship for Zina purposes alongwith Riaz and six other accused.
6. 4.The learned counsel for the petitioner has submitted that actually the petitioner No,1 was betrothed with petitioner No,2 and later on her father wanted to marry her against her wishes and that she went with Petitioner No,2 being sui juris and had got her married with him with her free consent and that it was the petitioners' legal, constitutional and universally acclaimed human rights to marry and that there has been neither any abduction nor the commission of any Zina and that the whole story has been concocted to humiliate the petitioners.
7. 5.On the other hand, the learned counsel for the State has submitted that the law should take its own course and in case the petitioners are innocent the Investigating Officer should move the competent Magistrate for cancellation of the F.I.R.
8. 6.I have given due consideration to the valuable arguments of the learned counsel for the parties and have also gone through the comments and the record.
9. 7.The admitted position is that during the investigation the abudctee produced Nikahnama with Ghulam Sarwar Petitioner No,2 and also produced affidavit in his favour regarding the said Nikah.
10. The Nikahnama also shows that the age of the bride was mentioned as 18 years and one Yar Muhammad son of Mir Muhammad was appointed Wakeel on behalf of the bride in presence of two witnesses Jan Muhammad and Nazir Ahmed and the name of the witnesses of the marriage were also mentioned and the amount of dower was fixed as Rs,525 which was immediately paid.
11. The Nikah was performed by Molvi Mahmood-ulHasan and duly registered at Union Council on 9- 1-1998. The petitioner Mst. Alood Mai is also present in the Court and she has stated in the Court that she has been married with Ghulam Sarwar with her free consent and that there had been no abduction of her by any one and that she had gone with Ghulam Sarwar of her own accord.
12. 8.In these circumstances firstly, no offence is made out and secondly, no useful purpose will be obtained by prolonging criminal proceedings in the police when the abductee is not supporting the allegations about her abduction and admits the performance of Nikah with her free consent while she is 18 years old and sui juris. The mala fide is also apparent as he has alleged that her father wanted to marry her to a person with whom she does not want to marry.
13. 9.In these circumstances no justification is available for proceedings against the petitioners or to proceed with the investigation of the case unnecessarily. In the case of Mst. Manzooran Bibi v. The Superintendent of Police, Pakpattan Sharif and 2 others (1995 PCr.L.J. 1188) my learned brother Ch. Muhammad Nasim, J. has also taken the same view where the complainant had got recorded the F.I.R. about the forcible abduction of his wife by some persons but the wife of the complainant did not support the said allegation as according to her she was living with her parents and she desired the F.I.R. to be quashed and the Court observed that no justification in the circumstances was available for proceedings against the petitioner or to proceed with the investigation of the case and the FIR was quashed accordingly. Similarly, in the case of Mst Bushra Bibi v. SHO (1995 PCr.L.J.
14. 401) where also the petitioner was a sui juris and was married with her consent and the FIR was quashed with the observation that proceedings under Article 199 of the Constitution are competent against inquiry or investigation if the same encroaches any fundamental rights as guaranteed by the Constitution or violates some other law or is motivated for mala fide reasons. In the present case, the proceedings in the impugned F.I.R. certainly amounts to an encroachment upon the fundamental right of marriage of the petitioner with her free consent, as guaranteed by Article 35 of the Constitution.
10. For the above reasons by impugned F.I.R., is quashed.