2005 P Cr (PLP)

The petitioners stand implicated in F.I.R. No.102 of 2005 under section 11 of Offence of Zina (Enforcement of Hudood) Ordinance VII, 1979 of Police Station Sargodha Road, Faisalabad on 12-2-2005. According to the F.I.R. the complainant's daughter, Mst. Zeenat Bibi 12/13 years old was abducted by petitioner No.2, Babar Javed with help of co-accused for the purpose of Zina.

2. The learned counsel for the petitioners contends that allegation against the petitioners is devoid of any force. The petitioner No.1 is a sui juris and she married with petitioner No.2 with her free consent on 19-1-2005. He further submits that petitioner No.1 has not been abducted by anyone. She has contracted marriage with petitioner No.2 for which she is legally competent being a pubert girl. On the above ground, the learned counsel for the petitioners seeks quashment of F.I.R. No.102 of 2005.

3. On the contrary, the learned counsel for the respondent No.3 contends that petitioner No.1 is only 12 years and 7 months old, therefore, she is not legally competent to execute Nikah with petitioner B No.2. According to him she is neither major nor sui juris, therefore, her Nikah is invalid and is not recognized by the law. He further submits that F.I.R. has rightly been registered which cannot be quashed under writ jurisdiction.

4. Both the parties have reached to one point that if the petitioner No.1 is sui juris or major then her Nikah is legal and valid. However, the learned counsel for the petitioners also contends that a pubert woman is competent to contract a valid marriage and it will be deemed a marriage of a sui juis girl. He further submits that Islamic Law C recognizes the above fact, therefore, petitioner No.1 being pubert has contracted a valid marriage, even at the age of 12 years and 7 months. In support of his contentions, he has referred several cases.

5. The learned counsel for the respondent No.3 submits that under the Offence of Zina (Enforcement) Ordinance VII, 1979, 16 years is a minimum age to attain majority. Petitioner No.1 in this case is only 12 years and 7 months old. This fact of age is not disputed seriously by the learned counsel for the petitioners. In Abdul Ghaffar v. Ishtiaq Ahmad Khan 1997 PCr.LJ 1150, this Court, after considering several cases, held that a girl after reaching to pubert age can lawfully contract marriage even against the consent of her parents. Earlier to this judgment similar finding is found in Mauj Ali v. Syed Safdar Hussain Shah 1970 SCMR

437. In the present case, the petitioner No.1 is 12 years and 7 months old, therefore, she is a pubert. In a recent judgment of the Honourable Supreme Court reported as Hafiz Abdul Waheed v. Mrs. Asma Jehangir PLD 2004 .SC 219, it has been held that a sui juris Muslim girl can contract marriage of her own accord. On question of status of a pubert 1970 SCMR 437 is followed and reiterated. It is also accepted in the said Supreme Court judgment that an admission or pronouncement by a couple that they are married can also be .a sufficient proof of a valid marriage. In para. 6 of PLD 2004 SC 219, the previous judgments on the above points have been referred. For convenience, para.6 of the judgment is ,reproduced as under:

"(6) In Muhammad Imtiaz and another v. The State PLD 1981 FSC 308, Arif Hussain and Azra Perveen v. The State PLD 1982 FSC 42, Muhammad Ramzan v. The State PLD 1984 FSC 93 and Muhammad Yaqoob and another v. The State and 3 others 1985 PCr.LJ 1064, the Federal Shariat Court has been consistently taking the view that a sui juris Muslim girl can contract marriage of her own accord and the consent of her Wali or other relations is not requisite to the validity of marriage. Earlier in Mauj Ali v. Syed Safdar Hussain Shah and another 1970 SCMR 437, this Court had held that a Muslim girl attaining puberty is competent to marry of her own free-will and on this ground her custody was declined to her father and the order of the High Court permitting her to go and live with the husband was maintained. In PLD 1982 FSC 42 and PLD 1984 FSC 93 the Federal Shariat Court has even held that subject to other facts of a given case, an admission by a couple that they were married, would constitute sufficient proof of marriage." In, concluding para.29, the Honourable Supreme Court in the above judgment made certain declarations. The two declarations made in para.29 are reproduced as under: (i) For what has been stated above, it is hereby held/declared/ ordered that as per judgments of the Federal Shariat Court, noted in para.6 of this judgment, consent of 'Wali' is not required and a sui juris Muslim female can enter into valid `Nikah'/marriage of her own free-will. (ii) Statement of law contained in the judgments of the Federal Shariat Court, noted in para.6 of this judgment is binding on the High Court and Courts subordinate to the High Court. As noted above, para.6 of the judgment includes that a pubert woman can marry competently, validly, legally and of her own accord. The second declaration mentioned above bound High Court and Courts subordinate to the High Court to follow the judgment of the Honourable Supreme Court reported in PLD 2004 SC

219. According to the known books on the subject, puberty starts with menstruation. Therefore, in view of the above, the marriage between petitioners Nos.1 and 2 is declared valid. The logical outcome of this finding is that petitioners cannot be deemed as accused persons of committing offence under , section 11 of Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979. In view of the above discussion, this writ petition is allowed. Resultantly, F.I.R. No.102 of 2005, dated 12-2-2005, under section 11 of Offence of Zina (Enforcement of Hudood) Ordinance VII, 1979 of Police Station Sargodha Road, Faisalabad is quashed and declared unlawful and of no legal effect. H.B.T./Z-93/L F.I.R. Quashed.