' Mst. Kubra Aziz petitioner has approached this Court for quashment of F.I.R. No, 244 of 2000 dated 29-8-2000 registered under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) at Police Station Sadar, Bahawalpur on the complaint of Muhammad Bashir.
2. Briefly the prosecution story as narrated in the F.I.R. Is that the complainant's three sisters are married whereas his two sisters namely Mst. Mubeen Aziz aged 15/16 years and Mst. Kubra Aziz aged about 13/14 years are unmarried and are living with him. Muhammad Aslam, his wife Mst.
Manzooran and sons Akbar and Tanvir Ahmad, being his neighbours, have the chance to visit his house. Muhammad Akbar son of Muhammad Aslam has kept pigeons on the roof of his house and mostly he used to remain on the roof for looking after the pigeons and he thereby started keeping bad eye on the sister of the complainant namely Mst. Kubra Aziz. When this fact came into the knowledge of complainant, he asked father and brother of Muhammad Akbar to stop him from doing so, but they did not pay heed to it. It is further alleged in the F.I.R. That on the preceding day of the registration of the F.I.R., at Fajar Prayer time, the sister of the complainant' Mst. Kubra Aziz went to attend the call of nature, when she was coming back and entering the door of the house, a rikshaw came and stopped on the road. Akbar and Tanvir Ahmad sons of Muhammad Aslam, Muhammad Aslam son of Qurban Hussain and Mst. Manzooran wife of Muhammad Aslam forcibly made her sit in the rikshaw and took her towards the city. The complainant has gone to mosque for offering his prayer. He was told about the occurrence by his sister Mst. Parveen and Mst. Mubeen Aziz, in whose presence the accused had forcibly abducted Mst. Kubra Aziz. The complainant contacted Muhammad Aslam for return of Mst. Kubra Aziz, who promised to return her but refused later on.
3. The learned counsel for the petitioner contended that the petitioner being a major and sui juris is entitled to contract her marriage with any person of her own choice without the consent of her Wali and so she has contracted marriage with Muhammad Akbar of her own. To substantiate his contention that the petitioner is major, the learned counsel has placed on record 2 school leaving certificates i,e, one issued by Headmistress Government Girls Primary School, Kot Noora and the other by Principal, Government Comprehensive Girls High School, Bahawalpur wherein the date of birth of the petitioner is mentioned as 6-9-1983. Besides this, a copy of medical certificate issued by the Medical Officer, Radiology Department, Nishtar Hospital, Multan has also been placed on the record as Annexure H, wherein her age has been determined as 16-18 years. The learned counsel for the petitioner has relied on the cases of Muhammad Iqbal v. The State (PLD 1983 FSC 9), Javed lqbal and other v. The S.H.O. And others (1997 M LD 3219), Mst. Rukhsana v. S.H.O., Police Station Belo, Mirpur Mathelo and others (1999 PCr.11 638) and Muhammad Tariq Mehmood and others v. Station House Officer (1997 PCr.L1 758)
4. Conversely, the learned counsel for respondent No, 2 complainant has vehemently opposed the arguments of the learned counsel for the petitioner, contending that the petitioner is under age and is not entitled to contract marriage without the consent of Wali; and that no case for quashment of F.I.R. Is made out.
5. I have heard the arguments of the learned counsel for the parties and perused the record.
6. The main point involved in the matter is whether the petitioner is major and sui juris and if it is so, whether she is competent to contract marriage of her own without the consent of a Wall'. The petitioner appeared before this Court and she categorically stated that she is sui juris aged about 18/19 years and she with her own free consent has contracted marriage with Muhammad Akbar Abbas. Even from the appearance the petitioner seems to be major and she has also stated that she has attained puberty. From the two school leaving certificates coupled with a Medical Certificate, issued by Medical Officer, Nishtar Hospital, Multan and also from the contents of Nikah Nama, it is clear that the petitioner being aged about 17/18 years, is major and sui juris.
7. The contention of the learned counsel for the petitioner that the petitioner being sui juris is competent marriage without the consent of Wali, is fortified from dictum laid down in case of Muhammad Tariq Mahmood and others v. Station House Officer (1997 PCr.LJ 758) wherein it has been held that adult woman .Is competent to choose her husband without blessing of Wali. It is so held in the case of Javed Iqbal and others v. The S.H.O. And others (1997 M LD 3219). Same view has been followed in case of Mst. Rukhsana v. S.H.O., P.S. Belo, Mirpur Mathelo (1999 PCr.LJ 638) Karachi.
From the above-quoted citations it is very much clear that the petitioner being sui juris and major, is competent to contract her Nikah of her own with a person of her own choice, without the consent of a Wali.
8. The statement of the petitioner was recorded by the Magistrate wherein she categorically stated that she was not abducted by any person and that she has contracted her marriage with Muhammad Akbar Abbas with her free consent and the case against her is false. The petitioner has made almost the same statement before this Court in presence of her brother/the complainant.
9. It is pertinent to mention here that when appeared before this Court, the police officer was directed to record her statement and join her in the investigation. The police officer recorded her statement outside the Court wherein she has categorically refuted the allegations levelled in the F.I.R.
10. In case Mst. Rukhsana v. S.H.O., Police Station Belo and others (supra), the alleged abductee stated before the Investigating Officer that she had not been abducted; had married with her free- will and produced documents in support thereof and requested him not to take any action on the F.I.R., but the Investigating Officer, however, continued to harass and humiliate her husband, therefore, the F.I.R. Was declared to have been lodged malafidely, frivolous and vexatious and the same was quashed in circumstances. Same is the situation in the case in hand.
11. Since the petitioner is a sui juris and major is competent to contract her marriage and she has contracted marriage with Muhammad Akbar Abbas voluntarily, the prosecution in the light of her statement , has no sanctity in the eyes of law, therefore, registration of case against the petitioner is mala fide, baseless.
12. For what has been discussed above, this writ petition is accepted and F.I.R. No, 244 of 2000, registered under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) at Police Station Sadar, Bhalw. Juris declared mala fide, baseless, vexatious and without lawful authority and is quashed accordingly.