' The petitioners seek abashment of F.I.R. No,196 of 2000 under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) registered at Police Station A-Division, Sheikhupura.
2. The background of the case is that Mst. Rokia Bibi widow of Muhammad Hussain caste Rajput, resident of Javaid Street, Tariq Road, Sheikhupura, made statement under section 154, Cr.P.C.
Before Muhammad Yasin, A.S.I., Police Station A-Division Sheikhupura on 25-4-2000 that her husband has died and she was nourishing her children by earning her wages by doing labour work and that she has four children, Amjad Parvaiz, Sajjad, Shehbaz Ahmad and Shehnaz Bibi aged about 14/15 years. It was also stated that Shehnaz Bibi was studying in class 10 in the Public Model School which is situated at Javaid Street, Tariq Road, Sheikhupura and on 17-4-2000 she came back after leaving her daughter Shehnaz Bibi to school and when again she went to take her back from school she was not in the school which caused concern to her and she started searching her but invain. Meanwhile Nadeem Yousaf son of Malik Muhammad Yousaf caste Arain, resident of Malik Mehr Din Street, Khalid Road, Sheikhupura, Mansoor Ahmad son of Sardar Ali, caste Rajput, resident of Javaid Street, Tariq Road, Sheikhupura, informed her that they had seen Muhammad Anwar son of Inayat Ullah, Shahid Hussain, Athar Hussain, Azhar Hussain, Safdar Hussain, Zahid Hussain, sons of Muhammad Anwar, Shameem Anwar, Naeema Anwar daughters of Muhammad Anwar, caste Syed Hashmi, residents of Safdar Ice Factory Bhakhi Road, Sheikhupura boarding Mst.
Shehnaz Bibi in a Hi-Es vagon along with them going to Faisalabad Road. The complainant continued demanding back the hand of her daughter from Muhammad Anwar who kept her on promises but later on flatly refused. The complainant stated that Athar Hussain etc. Had abducted her daughter Shehnaz Bibi with the intention to commit Zina with her.
2. On 13-5-2000 Shehnaz Bibi showing her as wife of Athar Hussain resident of House No,4, Gali No,4, near Chowk Purani Anarkali opposite Police Station Purani Anarkali, Lahore through Syed Ahsan Mehboob Bokhari, Advocate moved an application before the Assistant Commissioner, Saddar Sub-Division, Lahore for getting a statement recorded under section 164, Cr.P.C. And the said application was marked to the Duty Magistrate where Syed Ahsan Mehboob Bokhari, Advocate identified Mst. Shehnaz Akhtar and the learned Magistrate recorded her statement under section 164, Cr.P.C. Thereafter, an application was moved by Mst. Shehnaz Akhtar to the Assistant Commissioner, Saddar, Lahore for medical examination and the examining Medical Officer vide his report, dated 24-5-2000 reported that she was between 15 to 16 years of age.
3. The learned counsel for the petitioner has submitted that Mst. Shehnaz Akhtar has attained puberty is sui juris and is adult as per section 2(A) of Zina (Enforcement of Hudood) Ordinance, 1979 and that her mother petitioner No,1 has been threatening her in cruel manner and her uncle Muhammad Din has been humiliating and harassing her since after the death of her father and died 2-1/2 years ago and that Rokia Bibi in connivance with Muhammad Din had arranged the marriage of the., petitioner Mst. Shehnaz. Akhtar with one Abdul Ghaffar who is nephew of Rokia' Bibi and cousin of her against the wishes and consent of Mst. Shehnaz Akhtar and as also the said Abdul Ghaffar was already married and an addict of heroin and that Rokia Bibi and Muhammad Din had received Rs,30,000 tried their leveled best but Mst. Shehnaz Akhtar refused to contract marriage and even stated that she will prefer death over such marriage and that under these pressing circumstances she had to leave the house of her mother and she contracted marriage with Muhammad Athar on 2-4-2000 according to her free will and consent and exercising her Constitutional fundamental rights and that the marriage was registered on the same date and the copy of the Nikahnama is Annexure-A, her affidavit is Annexure-B and that after marriage the petitioners Nos.1 and 2 are living as wife and husband and that the F.I.R. No,196 of 2000 under section 11 of the Offence of Zina (Enforcement of Hudood) Order (VII of 1979) was got registered at Police Station A-Division, Sheikhupura by the respondents which is Annexure-C and her statement under section 164, Cr.P.C. Is Annexure-D, her application for medical examination is Annexure-E medical report is Annexure-F and that this was done to harass and pressurize the petitioner No,2 and his family members with mala fide intention and to force and take back petitioner No,1. It has also been stated that petitioner No,1 also got herself examined about the pregnancy which report is positive and dated 27-5-2000 and is Annexure-G. The learned counsel for the petitioner has relied on Mst. Sabai and another v. The State (1988 PCr.LJ 1429); Muhammad Salim and others v. The State (1990 PCr.LJ 971); Banaras v. S.H.O. And others (1995 PCr.LJ 94); Mst. Bushra Bibi v. S.H.O. (1995 PCr.LJ 401); Mst. Dilshad Akhtar and another v. The State (PLD 1996 Lahore 145), Mst. Nadia Siddique v.
S.H.O. And others (1997 PCr.LJ 594); Muhammad Tariq Mahmood and others v. Station House Officer, Police Station Millat Park, Lahore (1997 PCr.LJ 758); Muhammad Riaz and others v. The State (1997 PCr.LJ 991); Wamiq Mumtaz, Mst. Shumaila Mumtaz v. The Station House Officer, Police Station Gowalmandi, Lahore and others (1997 SD 215); Mst Saima Syed and another v. The S.H.O., Shandara, Lahore and another (1997 MLD 1573).
4. On the other hand the learned counsel for the respondents and the learned counsel for the State have taken the stand that the true or falsehood of the allegations in the F.I.R. Will be seen by the police and thereafter at the trial and that the abashment at this stage would amount to interference in the investigation by the police.
5. I have given due consideration to the valuable arguments on both sides.
6. There is no cavil with the proposition that the investigation is the right of the police and it should come to its natural conclusion without interference but there are also not two opinions on the point that proceedings under Article 199 f the Constitution are competent against any criminal inquiry or investigation if same encroaches upon any fundamental right guaranteed by the Constitution or violates some other law or is motivated by some mala fide reasons.
7. In the case of Mst. Sabai and another v. The State (1988 PCr.LJ 1429) where lady petitioner was suit jurist, made a statement in the Court, of her marrying man of her own free will and a Nikah Khuwan admitted having performed the Nikah and the Nikahnama was also produced on record, this Court held that the lady petitioner was legally wedded wife of man and no offence whatsoever had been committed by them and the F.I.R. Was quashed.
8. In the case of Muhammad Banaras v. S.H.O. And others (1995 PCr.LJ 94) the F.I.R. Was quashed with the observation that F.I.R. Would be quashed by High Court in exercise of its writ jurisdiction when it is obvious that no Court on evidence available on record could convict accused on charge levelled against him and that the alleged abductee was suit juris and had already entered into marriage with accused three months before registration of F.I.R.
9. In the case of Muhammad Tariq Mahmood and others v. Station House Officer, Police Station Millat Park, Lahore (1997 PCr.LJ 758) where allegation was of Zina and accused was more than 18 years of age had entered into Nikah with her free-will with male accused 10 months prior to lodging the F.I.R. By her father, it was observed that the marriage was a contract between man and woman which is entered into for procreation of children and basis of such a contract was proposal and acceptance and that adult woman was competent to choose her husband without the blessing of Wali and that parties have solemnized the marriage with their free consent and both of them being adult and sui juris, they had not committed any offence whatsoever, under the law and police could not register the case against them unless the offence committed was cognizable as contemplated under section 154, Cr.P.C. The Constitutional petition was accepted and the F.I.R.
Registered under section 11, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 109, P.P.C. Was without lawful authority and of no legal effect.
10. In the case of Mst. Dilshad Akhtar and another.v. The State (PLD 1996 Lahore 145) the F.I.R. Was quashed where the age of the petitioner was 14 years and she had contacted marriage with her own free-will.
11. In the case of Mst. Biishra Bibi v. S.H.O. (1995 PCr.LJ 401) where the age of abductee was not less than 15 years and she had attained puberty and had entered into Nikah five months prior to lodging of F.I.R. With her own consent and the F.I.R. Was quashed.
12. In the case of Mst. Nadia Siddique v. S.H.O. And others (1997 PCr.LJ 594) the F.I.R. Was quashed in view of the petitioner's statement made in the Court about her having voluntarily married the accused being sui juris and it was observed that her conviction in the case was not possible and the continuation of proceedings would have amounted to unnecessary harassment.
13. In the case of Muhammad Riaz and others v. The State (1997 PCr.LJ 991) wherein Nikah of alleged abductee with the accused had been proved which had been duly registered with Union Council and element of corpus delicate being absent, it was observed that prosecution had no legs to stand upon and the F.I.R. Was quashed.
14. In the case of Wamiq Mumtaz v. S.H.O. (1997 SD 215) where F.I.R. Was registered at the instance of daughter's father against her daughter and her husband who was sui jurist and had entered into marriage with her husband before registration of F.I.R. Nikahnama was placed on the record, it was observed that there was no legal justification for registration of F.I.R. And the F.I.R. Was quashed.
15. In the case of Mst. Sajida Bibi v, S.H.O. (1997 PCr.LJ 788) where case had been registered at the instance of the father of the applicant against the accused mentioned therein for the abduction etc. And as the applicant was sui juris and had already married with the accused of her own accord and there was no basis for the registration of the case, the F.I.R. Was quashed.
16. In this view of the matter, in the instant case the age of the petitioner No,1 being between 15 and 16 years, she having attained puberty. The Nikah having been admitted to be with her own free consent supported by her statement under section 164, Cr.P.C. The F.I.R. Tent amounts to humiliation and harassm ent to the petitioners and violation of their fundamental rights to marrying according to their choice with their own free-will, is liable to be quashed and is hereby, quashed.