' The petitioner No.1 is admittedly sui juris and petitioner No.2 is her first cousin. Both claim themselves to be husband and wife in terms of Nikahnama dated 20-12-1998. Through this petition, they have sought quashment of a case registered vide F.I.R. No.68/99 dated 29-3-1999 under section 365/324/395/427/109, P.P.C., Police Station Karana, Tehsil and District Sargodha. The prosecution story as given in the afore referred F.I.R. Registered on the statement of Naveed Ahmad briefly stated is that he is student of Quid-eAzam Law College, Sargodha; that 5/6 years prior to the registration of case he entered into Nikah with Mst. Irfana Tasneem (petitioner No.1); that on the fateful day he along with Mst. Irfana Tasneem (petitioner No.1) and others were going in the village to meet their relatives, as they reached Chak No.46/7, they saw a white Suzuki Car bearing No.6411 and a motor cycle Honda 125 parked there. As the complainant slowed the car, suddenly from the nearby sugarcane crop emerged Fazal Abbas armed with rifle 222 bore, Sarfraz armed with pistol 30 bore, Umar Hayat armed with gun, Riaz Ahmed armed with gun and three unknown persons.
They allegedly fired at the tyre of the complainant's car and both the tyres got burst. The car had to be stopped. Soon thereafter Fazal Abbas and Umar Hayat accused dragged Mst. Irfana Tasneem out of the car and kidnapped her. It is further alleged that Mst. Irfana Tasneem (petitioner No.1) owns eighteen acre of land to grab the said land the petitioner No.2 (Fazal Abbas) wanted to marry her but the former had refused and on that grudge she had been kidnapped. It was further alleged that the accused wanted to kill Mst. Irfana Tasneem.
2. Mst. Irfana Tasneem appeared in Court on 7-4-1999 controverted the F.I.R. Story. She stated that her father had died; that her mother had contracted second marriage and that she of her own free will contracted Nikah with (petitioner No.2) Fazal Abbas on 20-12-1998; that nobody abducted her and that Naveed the complainant in. The case registered is not her husband but is her paternal cousin. The same day statement of Mst. Irfana Tasneem's mother namely Mst. Rasheeda Bibi was also recorded. She admitted that Fazal Abbas (petitioner No.2) is son of her late husband and that her daughter i.e. Mst. Irfana Tasneem has contracted Nikah with him of her own free will, although during her minority, her Nikah was performed with Naveed (complainant and respondent No.3) her paternal cousin.
3. Learned counsel for the petitioner submitted that petitioner No.1 being legally wedded wife of the petitioner 2 and she having disowned the story of abduction, no offence is made out and the case registered be quashed. In support of the submission, learned counsel for the petitioner relied on the following:--
(i) Mst. Faranzeza v. The State (1995 MLD 1439).
(ii) Mst. Sadha Begum v. Parvaiz Ahmed Khan and 2 others (1997 CLC 1925)
(iii) Said Mahmood and another v. The State (PLD 1995 Federal Shariat Court 1).
(iv) Noor Muhammad and another v. The State (PLD 1981 Lahore 60).
4. Learned counsel for respondent No.3 complainant has opposed the prayer by submitting that petitioner No.1 is legally wedded wife of Naveed respondent No.3 in terms of oral Nikah which was performed during her childhood, but Rukhsati had not been performed and that petitioner No.2 had abducted her and thereby committed an offence. He placed on record affidavits of relatives of respondent No.3 which endorsed the version that Mst. Irfana Tasneem was married to Naveed in her childhood. Respondent No.3 also placed on record five photographs of petitioner No.1 with respondent No.3. The afore-referred photographs show both of them in intimate postures.
5. The comments submitted by the S.P., Sargodha are to the effect that during investigation it came to light that the Nikah of Mst. Irfana Tasneem was performed in her childhood with Naveed respondent No.3; that after attaining the age of puberty she was fully aware that_ she was legally wedded wife of Naveed, but the marriage has so far not been consummated as no Rukhsati has taken place. It has further been submitted in the comments that Mst. Irfana Tasneem eloped with petitioner No.2 in sequel to love affair and thereafter managed an antedated Nikah (dated 30-12- 1998) to save her skin from the clutches of law: So far as the alleged occurrence is concerned, he is of the view that no firing took place and no tyre was burst and that story given in the F.I.R proved to be a concocted version. In the afore referred circumstances, the S.P. Is of the view that Mst. Irfana Tasneem should be prosecuted under section 10(2) of Ordinance VII of Hudood Ordinance, 1979.
6. Learned Addl. A.-G. On the other hand submitted that the circumstances reveal that petitioner No. 1 's Nikah with respondent No.3 was performed when she was hardly 3/4 years old; that admittedly no Rukhsati took place and after attaining the age of puberty she appears to have exercised her option of repudiating the marriage and therefore prima facie no offence is made out.
7. Heard.
8, So far as the story given in the F.I.R. Registered, quashment of which is sought is concerned, the same has been found to be false during investigation conducted by the A.S.P., Sargodha. According to him no tyre was burst and there were marks of firing on the car either. The A.S.P., Sargodha in his comments submitted as under:-- "It is revealed during the course of investigation that in fact no firing was done by the accused party on the vehicle used by the complainant while travelling with other family members and not a single bullet bursted any tyre of the vehicle. Actually tyres were damaged with the help of sharp- edged weapon. Only one bullet mark was observed on the body of the car which proved a concocted action."
' Notwithstanding the afore referred finding with regard to the falsehood of the case registered, the Investigating Officer recommends prosecution under section 10(2), Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 on the allegation that she was already married to Naveed respondent No.3 and during the subsistence of Nikah she has managed another Nikah with petitioner o.2.
9. In the face of the statement made by petitioner No.1's mother that after's Nikah with respondent No.3 was performed during her minority, but rukhsati has not taken place; that there was no consummation and that she after attaining majority has contracted Nikah with petitioner No.2, can the police be submitted to become arbiter of the conflicting-"Nikahs" and allowed to prosecute the petitioners under Hudood Laws?-Can it be allowed to pre-empt the verdict of Civil/Family Court.
The questions which have come for consideration in the asistant case are net unique and have been commented by the superior Courts. The issue is symptomatic of a culture where the Nikah of a girl is performed in inority on account of a variety of compulsions. It is either on account of Watta Satta" or peculiar family pressures. Since a minor is not a free agent and sature enough to express her consent i.e. An essential element of "Nikah" the oman has been granted a right in Islam to exercise her option when she attains be age of puberty. And it is by now a settled proposition of law, that a girl can exercise her option of puberty even without the intervention of the 11 court.
10. In a very instructive judgment reported in Muhammad Balch v. Crown and others (PLD 1950 Lahore 203) it was held as under:-- "On principle, I can see no valid reason why the option of puberty, if one exercised under the conditions laid down by Muslim Law, should be subject to confirmation by an order of the Court. It is after all the right of an individual dependent entirely on personal choice and is not conditioned by any consideration as to whether the guardian for the marriage acted wisely or not, in selecting the spouse. I have been unable to find any authority to the effect that a Court can refuse to confirm the valid exercise of such option. There is nothing in the Holy Qur'an or in any authentic collection of Ahadis to support the view adopted by some juris consults of Islam that an order of Qazi is necessary to confirm an exercise of the option of puberty."
' Learned Judge Mr. Ameer Ali quoted a passage from Muhammadan Law which is as under:-- "But it does not follow from this that if a woman who has exercised the option were to contract another marriage, believing that she was entitled to do so, she would make herself liable to pL- ishment under the criminal law. The validity of the rescission does not depend on the imprimatur of the Qazi, as the judicial declaration is needed to provide judicial evidence in order to prevent disputes, and judicial confirmation and authentication of the exercise of the right. Ex-hypothesi, when a girl who was given by her mother in marriage during infancy on attaining puberty rescinded the contract, and married another person, she could not be convicted of bigamy although the Judge had not made his decree."
' This view was reiterated in Ala-ud-Din v. Mst. Farkhanda Akhtar (PLD 1953 Lahore 131).
In PLD 1976 Lahore page 516 it was held that a second Nikah after attaining majority would be a valid repudiation of the earlier Nikah performed during minority. It was observed as under:-- "If a minor girl enters into a second marriage on attaining puberty, it would be sufficient proof of her having repudiated the earlier marriage and subsequent marriage would be valid."
' In PLD 1995 Federal Shariat Court 1, the Court acquitted the accused in Hudood cases, who claimed to be husband and wife on the basis of Nikahnama which was later in time but the earlier Nikah of the accused was performed with the rival husband when she was a minor. It was held as under:- "It is now to be seen whether her second marriage without first obtaining a declaration from a Qazi with regard to the repudiation of first marriage was as appropriate repudiation or not. As already stated there is neither any Verse of the Holy Qur'an nor any Hadith of the Holy Prophet (p.b.u.h) and this right was acknowledged by latter Muslim Jurists, whereas there are many judgments of the superior Courts of this country where both in criminal and civil proceedings it was held that without getting approval of Qazi with regard to the repudiation of the first marriage, the contracting of a second marriage by such a Muslim wife in fact tan amounted to repudiation of the first marriage and since this right had to be essentially exercised by the wife and the approval of the Qazi was only to authenticate it, mere exercise of this right by the wife was a perfect repudiation of first marriage and there was no need to get it confirmed by the Qazi. Since there is neither any Verse of the Holy Qur'an nor any Hadith of the Holy Prophet (p.b.u.h.), the fact of the wife having contracted a second marriage without getting approval of the Qazi in respect of repudiation of her first marriage did not offend against any Injunction of Islam and was perfectly justified."
Coming to the question as to at what particular age and in what manner this option is to be exercised it is to be noted that in law no exact age or time is prescribed. There is no specific mode of its exercise either. However, the C preponderance of opinion is that it should be before the girl attains the age of 18 years. In Mst. Sardar Bano v. Saifulla Khan PLD 1969 Lahore 108 this Court held that:- "The Statute does not prescribe any particular form or procedure for repudiation of marriage; it may be by oral word or even by conduct signifying rejection of marriage. The essence of the matter is the actual repudiation of marriage before attaining the age of 18 years by the woman. Till then the marriage remains inchoate as it were, liable to dissolution of unilateral repudiation of the woman. In other words the fate of the marriage hangs by the slender thread of unilateral option to be exercised by her before attaining the age of eighteen years. Once it is exercised the marriage stands dissolved."
' Similarly in Mst. Sarwar Jan v. Abdul Majeed it was observed:-- "The withholding of event may be expressed in a variety of ways. It may be indicated by the fact that without having recourse to institution of suit for dissolution of marriage the girl may where there has been no consummation and provided also that is not more than 18 years get remarried."
In the instant case petitioner although disowns her Nikah with respondent No.3, during minority, yet even if the Nikah is admitted, the fact D remains that there was no Rukhsati and no consummation.
Absence of Rukhsati and consummation considered in the light of her and her mother's statement in Court prima facie tantamount to repudiation of the earlier Nikah which is further endorsed by her subsequent Nikah with petitioner No.2.
10. If a major woman and a man acknowledge a Nikah, presumption of r truth is attached to it and the onus lies on that person to disprove it who c-challenges the said Nikah. Section 268(c) of the Principles of Mahomedan Law by D.F. Mulla specifically caters to such situation. It reads as under:- "Presumption of marriage.--Marriage will be presumed, in the absence of direct proof, from--
(a) prolonged and continual cohabitation as husband and wife, or
(b) the fact of the acknowledgement by the man of the paternity of the child born to the woman, provided all the conditions of a valid acknowledgement mentioned in section 344 below are fulfilled, or
(c) the fact of the acknowledgement by the man of the woman as his wife."
' The presumption does not apply if the conduct of the parties was inconsistent with the relation of husband and wife, nor does it apply if the woman was admittedly a prostitute before she was brought to the man's house. The mere fact, however, that the. Woman did not live behind the Purda, as the admittedly wives of the man did, is not sufficient to rebut the presumptions.
' The objector has to go to a Family Court to rebut the presumption and get a conclusive finding. In absence of such a finding, no prosecution can be initiated.
11. The photographs placed on record by the respondent No.3 in which petitioner No.1 and the former are shown in rather amorous poses do not necessarily reflect existence of a marital bond.
The moments which have been captured in photographs could be week moments when the two young maternal cousins could not resist the compulsions of the basic human urge particularly when they were living nearby. Prima facie, these moral laxities cannot be sanctified as symbolic of marriage as no husband would have himself photographed with his wife in such intimate postures.
Without prejudice to the case of either side (in case it is taken to a Court of plenary jurisdiction i.e. Family/Civil Court) I am obliged to observe that ex facie this could be an attempt by respondent No.3 to blackmail petitioner No.1 about whom he may have had an apprehension that either she had married or was going to marry petitioner No.2 who is her real paternal cousin.
12. For what has been discussed above, I hold and declare as under:--
(i) That the Investigating Officer himself has found the case registered vide No. 68 of 1999 dated 29-3-1999 under section 365/324/395/ 427/109, P.P.C., Police Station Karma, Tehsil and District Sargodha to be concocted. This finding of the Investigating Officer has not only been endorsed by the S.P. But learned Assistant A.-G./Public Prosecutor has also taken a fair stand that no offence is made out. The prosecution does not intend proceeding any further so far as the sections mentioned in the F.I.R. Are concerned (section 365/324/395/427/109, P.P.C.). Respondent No.3 has not challenged this finding by filing comments or rejoinder. The petition to this extent has therefore become infructuous.
(ii) The prosecution under section 10(2) of Hudood Ordinance cannot be initiated without a conclusive finding of the Family/Civil Court qua the registered Nikah which is being acknowledged by the petitioner and oral Nikah which is being claimed by respondent No.3. Prima facie the so- called Nikah of petitioner No.1 performed with respondent No.3 during her minority stands repudiated by petitioner No.1 in exercise of her option of puberty which repudiation has further been endorsed by her registered Nikah with petitioner No.2 to which presumption of truth is attached.
The petition is allowed in the afore referred terms with no order as to costs.