PLJ 2007 Lahore 958
Present: Iqbal Hameed-ur-Rehman, J.
MUHAMMAD MOSA RAZA--Petitioner
versus
STATE--Respondent
W.P. No. 828 of 2007, heard on 20.3.2007.
Constitution of Pakistan 1973--
----Art. 199--Offence of Zina (Enforcement of Hudood)
Ordinance, 1979, S. 11--Mohammadan Law, S. 251--Quashment of FIR--Marriage with
her free will and consent--Sui juris--Held: According to Muhammadan Law, S.
251, every Muhammadan of sound mind, who has attained puberty may enter into a
valid contract of marriage--Law does not permit a stranger to challenge the
validity of a nikahnama when its contents are admitted by the husband and
wife--Nikah of an adult girl is not invalid for want of permission of wali and
further marriage is not invalid on account of the alleged absence of the
consent of wali--FIR was quashed. [Pp.
961 & 962] A, B & C
PLD 2005 Lah. 316; 2005 P.Cr.L.J. 1638; PLD 1981 FSC 308
&
PLD 2004 SC 219, rel.
Syed Shahbaz Ali Rizvi, Advocate for Petitioner.
M/s. Tahir Mehmood and Rana Muhammad Nazir Saeed,
Advocates for Complainant.
Mr. Muhammad Iqbal, Inspector/SHO and Mr. Wali Muhammad
Sial, ASI in person.
Mst. Farhana Azam, Along with Kausar Parveen No. 375/C.
Date of hearing: 20.3.2007.
Judgment
The petitioner Muhammad Musa through this Constitutional
petition, seeks quashment of FIR No. 285 dated 14.10.2006 registered under
Section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at
P.S. Choti D.G. Khan.
2. Briefly stated
the prosecution case as contained in the FIR is that Mst. Farhana Azam,
daughter of the complainant, namely, Muhammad Azam, aged about 13/14 years, is
a student of 10th class, Muhammad Musa Raza (petitioner) was engaged as her
tutor who had been giving tution for five/six years. The complainant had family
terms with the petitioner. In the absence of the complainant and his family,
the petitioner Muhammad Musa had developed illicit relations with daughter of
the complainant, namely, Mst. Farhana Azam. On 14.10.2006 at 10.30 a.m., Mst.
Kalsoom daughter of Ghulam Haider, Kubra Mia wife of Riaz Husain, Fida Husain,
uncle of the petitioner Muhammad Musa Raza, and the petitioner Muhammad Musa
Raza came at the house of the complainant in a white car. At that time, Muhammad
Idrees and Muhammad Aziz were present in the house alongwith family. The
petitioner Muhammad Musa Raza and others told that they have to go to Chah
Mazarwala to see Ghulam Mustafa, son in law of the complainant and let Mst.
Farhana Azam accompany them. They left after taking Mst. Farhana Azam. The
complainant and his family waited for them a lot but they did not return. The
complainant alongwith the witnesses went to Ghulam Mustafa, his son in law, who
told that they had not come to his house. When the complainant and the
witnesses were coming back, Javed and Mumtaz met them in the way and told that
Fida Hussain, Muhammad Musa Raza (petitioner) alongwith Mst. Kalsoom, Kubra Mai
and Mst. Farhana Azam were going on Mamuri Road by car. The said persons told that
they were going to Dera Ghazi Khan. The complainant and the witnesses went to
the house of Muhammad Musa Raza petitioner but they were not there. The
petitioner Muhammad Musa Raza alongwith others had abducted the unmarried
daughter of the complainant, namely, Mst. Farhana Azam, for the commission of
Zina.
3. It is contended
on behalf of the petitioner that the petitioner got married to Mst. Farhana
Azam, daughter of Respondent No. 3, with her free-will and consent according to
Sharia and nikah was duly registered; that parents and other relatives of Mst.
Farhana Azam, wife of the petitioner, became annoyed with the said marriage and
therefore, Respondent No. 3, father of Mst. Farhana Azam has got registered
this false case against the petitioner; that the petitioner while contracting
marriage with Mst. Farhana Azam has not committed any offence; that Mst.
Farhana Azam had also got recorded her statement under Section 164 Cr.P.C.
before the Magistrate at Islamabad, wherein she had stated that she is the
legally wedded wife of the petitioner and requested that she be lodged in
Dar-ul-Aman as her parents and relatives are extending threats of her murder,
therefore, she was lodged in Dar-ul-Aman Rawalpindi by the order of the
Magistrate; that on the filing of the instant petition, Mst. Farhana Azam was
summoned and brought before this Court from Dar-ul-Aman Rawalpindi and she
appeared and has in categorical terms stated that no one had abducted her, she
of her own free-will and consent and being sui juris has contracted marriage
with the petitioner Muhammad Musa Raza and according to the Injunctions of
Islam, and her nikah was duly registered on 18.2.2004, Respondent No. 3, who is
her father, being annoyed by her marriage with the petitioner has got registered
a completely false and fabricated case against the petitioner. Learned counsel
for the petitioner further contends that Mst. Farhana Azam had attained
puberty, therefore, she was adult at the time of marriage and under Section 2-A
of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, marriage by a
woman on attaining puberty is valid and in this behalf reliance is placed upon
Mst. Hajra Khatoon and another vs. Station House Officer, Police Station Fateh
Jang, District Attock and 2 others (PLD 2005 Lahore 316); that consent of Wali
is not required and a sui juris Muslim female can enter into valid
nikah/marriage of her own free-will and the marriage is not invalid on account
of the absence of consent of Wali and in this respect reliance is placed upon
Hafiz Abdul Waheed vs. Mrs. Asma Jehangir and another (PLD 2004 SC 219); that
even under Section 251 of Muhammadan Law, every Muhammadan of sound mind, who
has attained puberty, may enter into a contract of marriage. That the witnesses
of the Nikah had been later on won over by the complainant and, therefore, the
affidavits denying the factum of Nikah it has no legal value as it has been
held in Mirza Allah Ditta alias Mirza Javed Akhtar vs. Mst. Amna Bibi and
another (2004 YLR 239) that where both man and woman admit factum of Nikah and
solemnizing marriage with each other, then requirement of producing two
witnesses under the law is not mandatory and the presumption of truth would be
attached to the Nikah which is acknowledged by both the spouses.
4. On other hand,
it has been argued on behalf of the complainant that Mst. Farhana Azam is a
minor girl and she is of the age of 13/14 years and her nikah had been illegal
got registered by declaring her to be of 16 years; that the witnesses of the
Nikah have sworn affidavits that they have no knowledge about the nikah; that
according to the school leaving certificate issued by Govt. Middle School
Thatha Gabulan Tehsil & District D.G. Khan, Mst. Farhana Azam was born on
10.10.1992 and, therefore, she had not attained puberty at the time of
marriage, as has been held in Mushtaq Ahmad vs. Mirza Muhammad Amin and another
(PLD 1962 (W.P.) Karachi 442) that according to Muslim Law the minority of a
male or female terminates when he or she attains puberty and puberty is
presumed on the completion of the 15th years according to the law by which the
parties are governed. In this respect reliance is also placed upon Abdul Razak
vs. Muhammad Muller (PLD 1956 Karachi 454); that the marriage of Mst. Farhana
Azam with the petitioner without the Wali is invalid and that in these
circumstances no question for quashing of the FIR arises.
5. I have heard
learned counsel for the parties and have gone through the record.
6. The star
prosecution witness in the case is Mst. Farhana Azam. She was summoned from
Dar-ul-Aman Rawalpindi
by this Court. She appeared in Court. By her appearance, she seems to have
attained puberty and is full grown up lady. She in categorical terms stated
before this Court that she is a sui juris and major and of her own free-will
and consent, she has contracted marriage with the petitioner and nikah has been
solemnized according to Sharia and also got registered. No offence has been
committed by the petitioner. The case against the petitioner is concocted and
fabricated which was registered by father of Mst. Farhana Azam/Respondent No. 3
being annoyed due to the marriage.
7. The age of Mst.
Farhana Azam as stated in the FIR is 13/14 years but her physical appearance
belies the same. She is a full grown up lady and has certainly attained puberty
and according to Muhammadan Law Section 251, every Muhammadan of sound min, who
has attained puberty may enter into a valid contract of marriage. Reliance is
placed upon Mst. Hajra Khatoon and another vs. Station House Officer, Police
Station Fateh Jhang, District Attock and 2 others (PLD 2005 Lahore 316).
8. The contents of
the Nikahnama have been admitted by the petitioner as well as Mst. Farhana
Azam. Statement of the wife of the petitioner/accused, namely,
Mst. Farhana Azam, and the Nikahanama belies the
prosecution story as narrated in the FIR which could not be believed. The
petitioner/accused has proved to have lawfully married to Mst. Farhana Azam,
daughter of the complainant. The law does not permit a stranger to challenge
the validity of a Nikahnama when its contents are admitted by the husband and
his wife. In this respect, reliance is placed upon Dr. Ghulam Mustafa Solangi
and 5 others vs. The State (2005 P.Cr.L.J. 1638). Moreover, the nikah of an
adult girl is not invalid for want of permission of Wali and further marriage
is not invalid on account of the alleged absence of the consent of Wali.
Reliance in this behalf is placed upon Muhammad Imtiaz and another vs. The
State (PLD 1981 FSC 308) and Hafiz Abdul Waheed vs. Mrs. Asma Jahangir and
another (PLD 2004 SC 219).
9. In view of the
above circumstances, this writ petition is accepted and FIR No. 285 dated
14.10.2006 registered under Section 11 of the Offence of Zina (Enforcement of
Hudood) Ordinance, 1979 at P.S. Choti D.G. Khan is quashed.
10. Before parting
with the judgment, Mst. Farhana Azam, wife of the petitioner, has repeatedly
requested that she be sent back to Dar-ul-Aman Rawalpindi, where she has been
inducted under the orders of the Ist Class Magistrate Rawalpindi on her
application. Therefore, request of Mst. Farhana Azam being genuine is acceded
to and Muhammad Iqbal Inspector/SHO, Wali Muhammad Sial ASI and Kausar Parveen
No. 375/C who have brought Mst. Farhana Azam from Dar-ul-Aman, Multan, are
directed to safely conduct Mst. Farhana Azam and lodge her at Dar-ul-Aman
Rawalpindi.
(M.S.A.) F.I.R.
quashed.
