FAISAL NAEEM SARWAR vs STATION HOUSE OFFICER, POLICE STATION DIJKOT
This matter concerns a constitutional petition filed under Article 199 of the Constitution of Pakistan 1973, seeking the quashment of an FIR registered under Section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The petitioner, accused of abduction, contended that the alleged abductee was a sui juris adult who had entered into a valid marriage with him of her own free will, supported by a registered Nikahnama and birth certificate. The core legal question was whether a criminal case for abduction could be maintained when the alleged abductee is a major who has entered into a lawful marriage. The Court, upon reviewing the police record and confirming the age and voluntary nature of the marriage, held that no cognizable offence had been committed. The Court quashed the FIR, ruling that where two major Muslims of sound mind solemnize a marriage out of their free will, no offence under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is constituted, and the registration of such a case constitutes an abuse of the process of law.
- Can an FIR for abduction be quashed if the alleged abductee is a sui juris adult who has entered into a valid marriage?
- Does the marriage of two major Muslims of sound mind out of free will constitute an offence under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979?
- Is the registration of a criminal case against a couple who have entered into a lawful marriage considered an abuse of the process of law?
- Section 11, Offence of Zina (Enforcement of Hudood) Ordinance, 1979
- Section 154, Code of Criminal Procedure 1898
- Muslim Family Laws Ordinance, 1961
ORDER
' MUHAMMAD MUZAMMAL KHAN, J.--- Petitioner being an accused of F.I.R. No,175, dated 30-3-2006 under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 registered with Police Station Dijkot District Faisalabad, prayed its quashment on the ground that the alleged abductee namely Mst. Babra Nasim entered into a tie of marriage with him on 27-2-2006 through a registered Nikahnama. It was contended that Mst. Babra Nasim according to her birth certificate issued by the Secretary, Union Council No,253/R-B, Faisalabad, is of 20 years age, having been born on 15-11-1985. It was further submitted that Mst. Babra Nasim being major/sui juris solemnized the marriage out of her free will/volition and nobody abducted her thus, no cognizable offence in terms of section 154, Cr.P.C. Was committed. It was also emphasized that registration of criminal case on complaint of mother of the alleged abductee was not only unauthorized but was also misuse of the process of law thus, the same deserved to be quashed in constitutional jurisdiction of this Court.
2. On Courts' requisition Muhammad Ashraf Sub-Inspector of Police Station Dijkot District Faisalabad appeared along with the case file and submitted that according to preliminary investigation Mst. Babra Nasim the alleged abductee is of 20 years age and entered into a tie of marriage with the petitioner, of her own accord. The official present in Court further submitted that petitioner's Nikah with Mst. Babra Nasim was duly performed by a registered Nikah Khwan and the Nikahnama has been registered in accordance with the law applicable.
3. I have heard the learned counsel for the parties and have examined the police record. According to the attested copy of extract from the birth register maintained by Union Council No,253/R-B, District Faisalabad, Mst. Babra Nasim was born on 15-11-1985. Her birth entry was entered at Serial No,123 of the birth register. Abductee is also mentioned as 20 years old in the Nikahnama whereas, in the F.I.R. She had been shown as major, without mentioning any age. Undeniably, Mst. Babra Nasim being major/sui juris with the age of 20 years performed Nikah with the petitioner and also sworn an affidavit on 27-2-2006 that nobody had abducted her and she left the house of her mother, of her own empty-handed.
4. According to Muslim and Hudood Laws, a girl on attaining of puberty will be deemed to have attained majority. The complainant has not given age of the alleged abductee and according to her own declaration before this Court and in the Nikahnama she is of 20 years of age. There is no doubt that Mst. Babra Nasim is major and appeared to be sensible from her appearance. Both these spouses are living together. In view of respective claims of the parties and Nikahnama registered with Union Council concerned, it appeared that there had been a lawful marriage between the petitioner and Mst. Babra Nasim thus, they have not committed any cognizable offence. Law regarding marriages is settled by this time to the effect that where 2 major Muslims of sound mind solemnize marriage, out of their free will, by entering into a contract for procreation of legalization of their children, according to the Muslim Family Laws Ordinance, 1961 no cognizable under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is made out. Reference in this behalf can be made to the judgments in the case of khalid Pervez and others v. The State PLD 1981 FSC 306; Muhammad Imtiaz and another v. The State PLD 1981 FSC 308; Arif Hussain and Azra Parween v. State PLD 1982 FSC 42 and Muhammad Ramzan v. State PLD 1984 FSC 93.
5. For the reasons noted above, registration of criminal case against the writ petitioner was apparently without commission of cognizable offence and was opted by the police concerned, out of sheer misuse of process of law. This petition is accordingly accepted and by quashing the F.I.R.
No,175 dated 20-3-2006 under section 11 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 registered with Police Station Dijkot District Faisalabad writ as prayed, is issued with no order as to costs.