Mst. BUKHTAWAR MAI vs S.H.O., POLICE STATION KHAIRPUR SADAAT, DISTRICT
This petition was filed for the quashment of F.I.R. registered under section 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979. The core legal question was whether an F.I.R. for abduction and Zina should be quashed where the alleged abductee is sui juris, has attained puberty, and has contracted a valid marriage with one of the accused. The Lahore High Court held that since the Nikah was established, no proof of minority was provided by the complainant, and medical and personal inspection showed the female to be sui juris and of the age of puberty, the marriage was valid, and the criminal case was a result of a family dispute over a Watta marriage. The court laid down the principle that a Muslim female who has attained puberty or the age of majority is competent to contract a valid marriage of her own free will, and criminal proceedings cannot be maintained against such a marriage.
- Can an F.I.R. under the Offence of Zina (Enforcement of Hudood) Ordinance be quashed when the alleged abductee contracts a valid marriage?
- Is a Muslim female who has attained puberty competent to contract a marriage without the consent of her guardian?
- What evidentiary value does an X-Ray report hold regarding the determination of age in criminal proceedings involving alleged abduction?
- Section 10, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 11, Offence of Zina (Enforcement of Hudood) Ordinance 1979
' This is a petition for quashment of F.I.R No,22 of 2000, dated 1-3-2000 registered at Police Station Khairpur Sadaat, District Muzaffargarh under section 1 0/ 11 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979).
2. Brief facts according to the F.I.R. Lodged by Rajab Ali, complainant, father of Mst. Faizan Mai, are that on 20-2-2000, while the complainant was away to Karachi, was informed on telephone by Wahid Bakhsh that his daughter Mst. Faizan Mai aged 15 years had been abducted by Jumma, Muhammad Ismaeel sons of Ghulam Ali and Mst. Bakhtawar wife of Ghulam Ali. After receiving said information, the complainant reached his house where he found Mst. Faizan Mai missing, he searched for her and accused persons, but could not get any clue. He was allegedly informed by the witnesses that they have seen his daughter alongwith abovesaid accused going towards their house. Motive behind the occurrence as stated was that the accused persons demanded the hand of Mst. Faizan Bibi for Jumma accused, but the complainant refused the same and all the accused persons have abducted his daughter for commission of Zina.
3. The learned counsel for petitioner contends that Mst. Faizan Bibi being sui juris has contracted marriage with Noor Muhammad alias Jumma on 23-2-2000 and thereafter they are leading happy matrimonial life. He further submits that it was Watta marriage as Mst. Aamna Bibi sister of Noor Muhammad alias Jumma was married with Lal Khan brother of complainant, Rajab Ali. Learned counsel submits that in consequence of investigation conducted by the police, all the accused named in the F.I.R. Were found innocent and vide Zimni No,16, dated 24-4-2000, the S.H.O. Had recommended for cancellation of case. He further submits that the petitioner is sui juris and has attained the age of puberty and under the law she was competent to contract marriage and therefore, no offence has been committed.
4. Conversely, the learned counsel for complainant has opposed the petition and has contended that Mst. Faizan Mai being 15 years of age' was minor and was not competent to contract marriage without the consent of his Wali .
5. I have heard the learned counsel for parties at length and have also perused the record. Nikah between Mst. Faizan Mai and Noor Muhammad alias Jumma is admitted. No proof whatsoever has been produced by the complainant oral as well as documentary about the age of Mst. Faizan Mai.
She is present in the Court and appears to be sui juris. The definition of adult and minor as per Statute Book is that the adult person is he, who has attained the age of 18 years in case of male and 16 years in case of female or has attained puberty, which ever is earlier. The minor means a person who is not adult. It means that a person being female can be "adult" before attaining the age of 16 years. Mst. Faizan Mai, when asked by the Court about her age she has stated that she is 18 years of age. X-Ray report has also been produced by her, where the age of alleged abductee has been shown as 18 years. Undoubtedly the age of some person according to X-Ray report can be given preference over the oral assertions made in the F.I.R. As already stated this is Watta marriage and in such-like marriages there is every chance of family dispute. It appears that in the present case the complainant has tried to settle his old cudgel with the petitioner party.
6. According to Mulla a male or female who has attained puberty is at liberty to marry anyone to whom she or he likes and the guardian has no right to interfere. Further, according to presumption of marriage detailed in Article 268(c) of Muhammaden Law, the factum of acknowledgment of man or woman as husband and wife is accepted as valid marriage. The marriage is a civil contract and every Muslim of sound mind, who has attained puberty may enter into contract of marriage and it is only void when it is brought about without his or her consent. In the instant case marriage of Mst. Faizan Mai and Noor Muhammad is established during the police investigation as valid Nikahnama was produced before the police.
7. In view of what has been discussed above, the petition is allowed and F.I.R. No,22 of 2000, dated 1- 3-2000 registered under section 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) with Police Station Khairpur Sadaat, District Muzaffargarh is hereby quashed.
F.I.R. Quashed.