2021 P Cr (PLP)

LUBNA SALEEM PERVEZ, J.

The petitioners, Mst. Hira Imtiaz and Zahid Hameed, through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 read with section 561-A, Cr.P.C. seek quashment of FIR No. 397/2020, dated 24.08.2020, registered for offence under section 365-B, P.P.C. at Police Station Industrial Area, I-9, Islamabad.

2. Necessary facts of the case are that the petitioners, who are adult muslims, contracted marriage on 28.04.2020, and are living as husband and wife. Whereas, Complainant/Respondent No.3 got registered the subject FIR under section 365-B, P.P.C. against Petitioner No.2 and other four co-accused for abduction of Petitioner No.1 with the intention of committing Zina.

3. Learned counsel for the petitioner submitted that the allegations levelled against the Petitioner No.2 are malicious, false, frivolous and incorrect and the impugned FIR is liable to be quashed; that no case of kidnapping, abduction inducing petitioner No.1 for marriage under section 365-B, P.P.C. has been made out against Petitioner No.2 by the Complainant/Respondent No.3 as the Petitioner No.1 has contracted marriage with Petitioner No.2 with her own free will; that the subject FIR is aimed at pressurizing the Petitioner No.2 to leave the Petitioner No.1; that prior to registration of subject FIR, the Petitioner No.1 registered complaint under section 200, Cr.P.C. before the Judicial Magistrate, Model Town, Lahore, twice due to life threats extended by the complainant and her other relatives, where she got recorded her statement that she has not been abducted by anyone and left her father's house empty handed. Learned counsel lastly contended that ad-interim pre-arrest bail has already been granted to the petitioners by the learned Additional Sessions Judge, Islamabad-West, in the present FIR. Therefore, by accepting the instant writ petition, the FIR in question is liable to be quashed.

4. On the other hand, learned counsel for the Respondent No.3/Complainant, inter alia, submitted that the petitioners have alternate remedies under section 249-A, Cr.P.C. before the concerned Trial Court, therefore, the petition is not maintainable and liable to be dismissed; that the Nikahnama has been registered after registration of the subject FIR, that investigation in the case has not been completed which is necessary for coming to a just conclusion by the learned Trial Court, therefore, present petition is liable to be dismissed.

5. Learned State Counsel also adopted the arguments of learned counsel for Complainant and prayed for dismissal of instant petition as presently not being maintainable.

6. Arguments heard. Record perused.

7. From perusal of the record it is evident that due to dire life threats from her father and other relatives, Petitioner No.1 herself approached the Court of Judicial Magistrate, Model Town, Lahore through Complaint under section 200, Cr.P.C. and got recorded her statement on 30.04.2020 and 10.08.2020, before the learned Judicial Magistrate while categorically stating therein that she is sui juris and aged about 17 years, she has contracted marriage with Petitioner No.2 with her free will and is happily living with her husband and no one has abducted her. Learned counsel, however, contended that the Petitioner No.1 is a minor as admittedly she is only 17 years of age and cannot be accepted as sui juris. In this regard, it is pertinent to mention here that under Muahmmadan Law, every Muhammadan of sound mind, who has attained puberty, may enter into contract of marriage and if the marriage is contracted without his/her consent, it would be a void as per para 251 of Principles of Muhammadan Law by D.F. Mulla's which is reproduced as under:-

251. Capacity for marriage. - (1) Every Muhammad of sound mind, who has attained puberty, may enter into a contract of marriage (2) . (3) A marriage of Muhammadan who is of sound mind and has attained puberty, is void, if it is brought about without his consent. Explanation.- Puberty is presumed, in the absence of evidence, on completion of the age of sixteen years in case of female and eighteen years for male.

8. In the present case petitioner No. 1 is of sound mind, attained the age of puberty and admittedly she is of seventeen years of age as per record, therefore, has validly entered into the contract of marriage with her free will and consent with petitioner No. 2.

9. Moreover, Complainant, prior to registration of subject FIR, as a result of agreement reached at between him and brother of Petitioner No.2 and took the custody of Petitioner No.1 by executing an affidavit in this regard on 30.04.2020 which is also available on record but afterwards threatened and pressurized the petitioners for divorce. The subject FIR was subsequently registered on 24.08.2020, whereas, the contracting marriage on 28.04.2020, statements of Petitioner No.1 before the learned Judicial Magistrate recorded on 30.04.2020 and 10.08.2020 and affidavit executed by Complainant at the time of taking custody of the Petitioner No.1 from brother of Petitioner No.2 on 30.04.2020, all are prior to the date of registration of FIR, therefore, it cannot be said that the Complainant, at the time of registration of the FIR on 24.08.2020, was not in knowledge of the solemnization of marriage of the Petitioners. The impugned FIR thus, is not only based on concealment of fact but deliberate transcribing of incorrect facts with mala fide intentions. The contention of the learned counsel for petitioners that the FIR has been registered just to pressurize the Petitioner No.2 to leave the Petitioner No.1 through pronouncement of Talaq, is thus confidence inspiring and I am of the considered view that no offence has been committed by petitioners as alleged in the FIR and there is no probability of conviction of the accused/petitioners even if the prosecution evidence is recorded. Reliance in this regard can safely be placed on the case law reported as Rizwana Bibi v. The State and another (2012 SCMR 94) wherein, the Hon'ble apex Court in view of the statement of the alleged abductee before the Court that no one abducted her rather she has contracted marriage with the accused with her free will and is residing with him, ordered for quashment of FIR. Moreover, it is also well settled that when no offence is made out and the complaint is found to be falsely made and to continue with the trial appears to be abuse of the process of court and reflects no probability of conviction of the alleged accused, then the FIR is liable to be quashed by the High Court by exercising inherent powers under section 561-A, Cr.P.C. Reliance in this regard is placed on the case law reported as (Raja Haq Nawaz v. Muhammad Afzal and others (1968 SCMR 1256), Muhammad Nawaz v. SHO, Police Station, Sabzi Mandi, Islamabad and others (2017 PCr.LJ 133), Abdul Ghani v. Kandero and another (1977 PCr.LJ 135) and Mahmood ul Hasan v. Imtiaz Khan and another (PLD 1963 (W.P) Lahore 481).

10. In view of what has been stated above, the instant petition is allowed and the impugned FIR No. 397/2020 dated 24.08.2020, registered against the petitioners for offence under section 365-B, P.P.C. at Police Station Industrial Area, I-9, Islamabad, is hereby quashed. SA/40/Isl. Petition allowed.