MUHAMMAD BANARAS vs S.H.O. and others

' Through this writ petition, Muhammad Banaras, petitioner, seeks quashment of case F.I.R. No,439 of 1994, dated 8-9-1994 registered with Police Station Shorkot City being illegal, mala fide, without jurisdiction and abuse of process of law.

2. The brief facts are that petitioner entered into marriage with Mst. Mumtaz Akhtar on 10-6-1994 in accordance with Muslim rites and the Nikahnama was duly registered with the Nikah Registrar. The father and brother of Mst. Mumtaz felt annoyed and started pressurising and threatening the spouses of dire consequences, as such Mst. Mumtaz filed Writ Petition No,9794 of 1994 before this Court. The learned Judge was pleased to direct the respondent S.H.O. Not to, harass the petitioners in an unlawful manner and instead act strictly in accordance with law. Respondent No,1 S.H.O. Fully knowing the direction of this Court in the aforesaid writ petition, registered a case after 11 days on the complaint of Gul Muhammad son of Waryam vide F.I.R. No,439 of 1994 under section 10/11 of Ordinance VII of 1979 against the petitioner, his brother and one Abdul Majeed for the alleged abduction of Mst. Mumtaz Akhtar.

3. Learned counsel for the petitioner in support of the petition contended that Mst. Mumtaz is sui juris has entered into marriage in accordance with Muslim rites with her own free-will and accord.

He also contended that the F.I.R. Was lodged with unexplained delay of 9 days and the direction passed by this Court in Writ Petition No,9794 of 1994 has been cared little. In support of his case he relied on Nazir Ahmed and others v. The State PLD 1982 FSC 252.

4. Learned counsel for respondent No,3 contended that Mst. Mumtaz was being illegally detained by Muhammad Banaras, petitioner, against her wishes. He requested that respondent No,2, father, be given opportunity for 15 minutes to have a meeting with her daughter. The opportunity was provided and they had a talk for about 20 minutes. Learned counsel in support of his version relied on Azhar Ali v. The State PLD 1982 FSC 248.

5. In her statement Mst. Mumtaz stated that she is sui juris; she was never abducted by any one and contracted marriage with her own free-will with Muhammad Banaras, petitioner.

6. I have heard learned counsel for the parties at length and have perused the file carefully.

According to birth certificate of Mst. Mumtaz, she is aged 21 years and 8 months while according to her school leaving certificate her age is 15 years, seven months and 12 days. In the case of Nazir Ahmed, supra, it was held:-- "Now the provisions of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 may be analysed.

Subsection (2)(a) thereof defines adult as meaning a person who has attained, being a male, the age of eighteen. Years or being a female the age of sixteen years, or has attained puberty. Thus a male or female of lesser age than prescribed can also be an adult if he/she has attained puberty."

' According to section 251 of Muhammadan Law, the age of puberty is even taken to be 15 years and below for the purposes of puberty.

7. Mst. Mumtaz has admittedly entered into marriage with Muhammad Banaras, petitioner three months prior to lodging of the F.I.R. She has fully supported the case of Muhammad Banaras, petitioner, by stating that she had married with him of her own free-will. Further according to Article 35 of the Constitution of Islamic Republic of Pakistan, it is the duty of the State to safeguard the fundamental right of marriage. In the case of Adamjee Insurance Company Limited v. Assistant Director 1989 P Cr. L J 1921 it was observed by their Lordships of the Supreme Court that proceeding under Article 199 of the Constitution will be competent against even inquiry/investigation if it encroaches upon any fundamental right as guaranteed by the Constitution or it violates some other law or is motivated for mala fide reasons.

8. For all that has been stated above, the continuance of proceedings against the petitioner in a case under the offence of Zina (Enforcement of Hudood) Ordinance, 1979 will amount to unnecessary harassm ent. The result is obvious and no Court on such evidence can convict the petitioner on the charge leveled against him. The result is that writ petition succeeds and is allowed. Consequently F.I.R. No,439 of 1994, dated 8-9-1994 under section 10/11 of Ordinance VII of 1979 Police Station Shorkot City District Jhang is hereby quashed.