P L D 1995 Lahore 629 (PLP)

The petitioner filed an application to allow the amendment `of writ of harassment and conversion of the same for quashment of the F1_R. No.152/95 dated 23-5-1995 registered at Police Station Garjakh, District Gujranwala under section 11 of Offence of Zina (Enforcement of Hudoodl Ordinance, 1979. the C.M. was allowed by this Court and the present petitioners filed an amended writ praying for quashment of F.I.R. No.152/95 registered on 23-5-1995 under section 11 of the aforesaid Ordinance.

2. Parawise comments asked for, by this Court, have been recevied, which disclose that the age of the petitioner No.l is 19/20 years and on 22-5-1995 the S.H.O., was given an application by the complainant Mst. Akhtar widow of Muhammad Ali. Upon that F.I.R. No.152/95 dated 22-5-1995 under section 11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was registered against the accused persons. During the investigation section 380, P.P.C. was also added. According to him Mst. Samina and Rizwan Tabassum have not joined investigation and the Nikahnama had not been produced before the 1.0. whether petitioner Mst. Samina has contracted a valid Nikah with Rizwan or not and the particulars of Nikahnama are yet to be verified from the Nikan Registrar.

3. Learned t;ounsel for the petitioner submits that the F.I.R. is based upon sheer mala fides of the respondent-S.H.O., the provisions of section 11, Enforcement of Hudood Ordinance, 1979 are not attracted to the petitioner's case as petitioner No.l submits that she has contracted Nikah out of her free will and consent with Rizwan Tabassum. Moreover the S.H.O. concerned has no authority to go into the validity of the marriage contracted by the petitioner The addition of section 380, P.P.C. shows that after coming to know that a valid Nikah exists between the petitioner and accused Rizwan T'bassum they have added mala fidely the offence of section 380, P.P.C.

4. I have heard the learned counsel for the petitioner and have perused the F.I.R. As far as the provisions of section 11 of Enforcement of Hudood Ordinance, 1979 are concerned when the petitioner who is sui juris standing in Court is categorically denying her abduction or kidnapping by the accused for the purpose of contracting Nikah with her why the Court should not believe her as in this case she would be the only aggrieved party, in case, the offence at all has taken place. So far as the validity or invalidity of Nikah solemnised under the Family Laws Ordinance, 1961 is concerned the validity of marriage cannot be questioned by an Investigating Agency as the marriage is a civil contract between two consenting and sui juris parties the presence of Nikahnama .between the marital spouses is a sacred document. Its validity or invalidity can only be challenged before the Court who is possessed with the jurisdiction to look into it. "Adult" under section 1 of the aforesaid Ordinance means 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. Section 11 of Enforcement of Hudood Ordinance, 1979 for all intents and purposes can only be interpreted for kidnapping or abduction of a woman with intent that she may be compelled to marry any person against her will or that she may be forced or seduced to illicit intercourse or knowingly that she will be forced or seduced to illicit intercourse--shall be punishable.

5. For all purposes provisions may be interpreted in favour of a woman who is actually kidnapped, abducted or induced to compel for marriage against her will or will be compelled and in this way the wrong done to her shall be redressed in terms of provision of this section but these in no case can be interpreted against a woman who is sui juris and for all purposes can enter into contract of marriage out of her sweet will, choice and consent. Any such contract of marriage, howsoever to the detriments, of blood relations is a sacred document and has to be given due consideration after its bona fides are proved. No investigating agency can flout the same and use the registration of case as a whip against the marital spouses to avenge the vengeance of annoyed relatives and flout the sacred institution of marriage against the Injunctions of Holy Qur'an which gives great emphasis to the reunion of marital spouses.

6. In the result I accept this petition and quash the F.I.R. in question. M.BA./S-465/L Petition accepted.