P L D 2009 Lahore 223 (PLP)

ZUBDA-TUL-HUSSAIN, J.

Mst. Rabia Khizer petitioner No.1 has claimed that she married Inam Ullah alias Saeed/petitioner No.2 of her own free-will but this matrimony being without the blessing of the private respondents especially respondent No.3, Khizer Hayat who is father of the petitioner No.1, a false case under section 365-B, P.P.C. has been registered at the instance of the said Khizer Hayat at Police Station Choochak District Okara vide F.I.R. No.619 dated 16-11-2008. The petitioner No.1 has completely refuted the allegation that she has been abducted by the petitioner No.2 and the other persons nominated as accused in the F.I.R. The petitioners have accordingly filed the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 for quashment of the said F.I.R.

2. It is an admitted fact that the petitioner No.1 Mst. Rabia Khizer also filed a complaint before the Illaqa Judicial Magistrate against her father, i.e. respondents 3 and 5 other persons under section 506, 148 and 149, P.P.C. wherein she reiterated the factum of her marriage with the petitioner No.2 and accused the said persons for causing threats to her life. She also recorded her statement before the learned Magistrate in support of the complaint. It has been argued on behalf of the petitioners that in the wake of assertions of the petitioner No.1 not only the F.I.R. is totally baseless and source of misuse of process of law but during the investigation of the case has also been found false.

3. The learned counsel for the respondent No.3 has questioned the maintainability of the writ petition on the ground that the petitioner No.1 by filing the aforesaid complaint under section 506, P.P.C. has availed of an alternate remedy and before the conclusion of the proceedings of the complaint the writ petition was not proceedable. The learned counsel pointed out that the said complaint was filed on 18-11-2008 whereas the present constitutional petition has been instituted subsequently on 26-11-2008, which according to him, was sufficient to show that the petitioners were prosecuting their cause simultaneously at two different forms. The learned counsel then vehemently argued that the petitioner No.1 i.e. Mst. Rabia Khizer is not suit juris as she is minor by age, not competent to enter into a contract of marriage of her own free-will.

4. I am afraid, the contentions of the learned counsel for the respondents have no bearing on the facts and circumstances of the case. The institution of the complaint under section 506, P.P.C. is not alternate remedy but is based on absolutely different alleged cause of action. The relief prayed for, in the instant writ petition, is not admissible in the complaint case. The objection against the maintainability of the writ petition on this score is, therefore, not tenable.

5. Regarding the age of the petitioner No.1 Mst. Rabia Khizer, there are two fold aspects of the matter. The learned counsel for the respondents has relied upon the School Leaving Certificate showing the date of birth of the petitioner No.1 in the year 1997. The other aspect of the matter is that under the order of this court the petitioner No.1 was got medically examined by the Special Medical Board constituted for the purpose. In the opinion of the Board, on physical, Radiological and Dental Examination, the petitioner No.1 Mst. Rabia Khizer was found to be of 18/19 years of age.

6. There is no doubt that according to the School Leaving Certificate the petitioner No.1 has not yet attained the age of majority but at the same time it is not disputed that she is a puberty lady which fact is further strengthened by the unanimous opinion of Medical Board indicating her age as 18/19 years. By virtue of this report she has also attained the age of majority but even otherwise she being pubert lady shall be deemed to be sui juris and is entitled to enter into a tie of marriage of her own volition. She has completely refuted the allegation of her abduction and, therefore, the allegation contained in the F.I.R. including the alleged mode and method of abduction are baseless in the given situation, and there hardly remains occasion or chance of conviction of the accused in the aforesaid F.I.R. No.619 of 2008 when the alleged abductee has denied the allegation of abduction and has admitted her Nikah/marriage with the petitioner No.2. The prosecution of the case under the aforesaid F.I.R. will be nothing but an abuse of process of law.

7. It is true that if prima facie an offence is made out of the contents of the F.I.R., the ordinary course of trial before the competent court should not be allowed to be deflected by resorting to constitutional jurisdiction of the High Court but where the extraordinary circumstances exist on the face of the record and the spouses have openly admitted and pronounced their valid marriage which is also supported by the formal Nikahnama, the offence alleged against them would not be deemed to have been committed. In such a situation the extraordinary jurisdiction under Article 199 of the Constitution can be exercised to the rescue of the petitioners because when the law does not prohibit the petitioners from marrying each other and they have entered into a valid contract of marriage, it is the duty of the State to protect the marriage and the family and at the same time it is the duty of the Court to satisfy itself that fundamental rights guaranteed to the petitioners under the Constitution are not infringed and violated by any Government or State functionary. Reliance in this behalf may be placed upon the case of Mst. Dilshad Akhtar, and another v. State and others PLD 1996 Lah. 145.

8. The Nikahnama, as already stated, is admitted by the petitioners Nos. 1 and 2 and the law does not permit the third party to challenge its validity when the contents thereof are admitted by the husband and the wife. The contention of the learned counsel for the respondents that the Nikah of the petitioner No.1 was invalid for want of permission of "Wali" and the marriage of the petitioner was also not valid in the eye of law is without any force. Nikah of sui juris girl could not be invalid for the reason that the "Wali" had not extended his permission. It may also be mentioned that the petitioners have personally appeared before the court and they have testified the factum of their marriage. The judgments in the case of Shabbir Hussain alias Papu v. Station House Officer, Police Station Bumbanwala District Sialkot and 3 others 2006 PCr.LJ 1260 and Muhammad Musa v. The State and 5 others 2007 PCr.LJ 1342 relied upon by the learned counsel for the petitioners are on all fours to the case of the petitioners.

9. Even if the contention of the learned counsel for the respondents regarding the age of the petitioner No.1 Mst. Rabia Khizer is not disputed, the marriage contracted by the petitioners would not be invalid or void. It was held in the case of Mst. Hajran Khatoon and another v. Station House Officer, Police Station Fateh Jang, District Attock and 2 others PLD 2005 Lah. 316 that the female though not having attained the age of majority had attained puberty could not be compelled to sever her Nikah/marriage entered by her own free-will.

10. In all, the aforesaid cited judgments, the F.I.Rs. registered against the accused were quashed by accepting the constitutional petition. In the instant case, as already stated, firstly the petitioner No.1 Mst. Rabia Khizer has already attained the age of majority as per report of the Special Medical Board and even if she is not yet over the age of 18 years she is admittedly a pubert lady and as such she was entitled to enter into a contract of marriage by her choice, with the petitioner No.2. The allegation of abduction and the occurrence as alleged in the F.I.R. having totally been refuted by the alleged abductee, the impugned F.I.R. has no basis for legal proceedings. The writ petition is, therefore, accepted and to save the petitioners from the abuse of process of law the F.I.R. in question is quashed.

11. Before parting with the order it may also be mentioned that by an order dated 27-11-2008 passed by this court the petitioner No.1 Mst. Rabia Khizer was directed to be lodged at Darulaman. She has, however, today stated that she does not want to remain in the Darulaman anymore and she wants to accompany her husband. As the F.I.R. has already been quashed and the petitioner Mst. Rabia Khizer has been found to be sui juris, she is allowed to proceed according to her own free will. The order for her retention in the Darulaman is vacated. N.H.Q./R-2/L F.I.R. quashed.