1997 P Cr (PLP)

Rafique Ahmad Bajwa Amicus curiae. Date of hearing: 27th November, 1994. This is a petition for quashment of F.I.R. No.160 of 1994, dated 16-8-1994 registered at Police Station Pull 111 Janubi, District Sargodha under section 11 of Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979).

2. The brief facts according to F.I.R. lodged by Riaz Ahmed, complainant, father of Mst. Misbah Riaz petitioner No.2 are that on 10-8-1994 while the complainant along with her wife was away from his house and his daughter Mst. Misbah Riaz aged 18/19 years, a student of F.A. was present at home along with Jehangir Riaz, her brother, who is crippled one. During this period, Muhammad Arshad, petitioner No.1 along with others forcibly kidnapped Misbah Riaz and took her against her wishes in Car No.2626/AK for committing Zina and illicit intercourse. Muhammad Arshad, petitioner No.1 had been his domestic servant and was removed two months prior to the occurrence. Efforts were made to recover Mst. Misbah Riaz through the relatives of the culprits but in vain; hence the F.I.R. was lodged with delay of six days.

3. It was contended on behalf of the petitioners that the spouse had married with their free-will and free accord of Mst. Riaz petitioner No.2, according to Muslim rites on 11-8-1994 and the Nikahnama had been registered with the Nikah Registrar according to law. As Mst. Misbah Riaz, petitioner No.2, being sui juris was competent to marry with her own accord and free-will according to Muhammadan Law the writ petition was admitted to a regular hearing and notice was issued to the respondents for 3-10-1994. Muhammad Arshad moved an application for bail before arrest on 27-9-1994 on the plea that the Nikah was performed on 11-8-1994 while the F.I.R. was lodged on 16-8-1994 without any explanation, as such, the provisions of section 11 of Ordinance VII of 1979 were not attracted. He was granted interim bail on 29-9-1994 by this Court.

4. On 3-10-1994, during the course of arguments it revealed that Muhammad Riaz, respondent No.2, to the writ petition along with others had abducted Mst. Misbah Riaz, petitioner No.2, and others, hence a criminal case to that effect had been registered with Police Station Old Anarkali. Lahore. S.H.O., Police Station Old Anarkali was directed to recover and produce Mst. Misbah Riaz before the Court on 4-10-1994. On this date, Sub-Inspector Naveed appeared and undertook to produce Mst. Misbah Riaz and others' on 9-10-1994. Then the case was taken up on 16-10-1994 on which date Mr. M.A. Malik, Advocate appeared on behalf of Mst. Misbah Riaz and submitted that neither Misbah had signed the writ petition nor her Nikah was performed with her free-will and consent but under the pressure of Muhammad Arshad. Mr. Abdul Hamid Chaudhry, learned counsel who had originally instituted the writ petition and represented the petitioners, when confronted, stated at Bar that Mst. Misbah Riaz had voluntarily signed on the writ petition and never agitated before him that she was under some pressure. It was also revealed on the said date, it also revealed that Sub-Inspector, Naveed instead of producing Mst. Misbah Riaz, before this Court, got her statement recorded under section 164, Cr.P.C. before a Magistrate in which she allegedly stated that she had given the statement (under section 164, Cr.P.C.) of her own accord and free-will and without any pressure, and coercion. Mst. Misbah Riaz who was present in the Court stood up and requested for recording her statement. Her statement in the open Court was recorded wherein she stated that she was of 22 years of age and F Intermediate, contracted marriage of her own accord and free-will with Muhammad Arshad on 11-8-1994; she was forcibly abducted by Rafaqat Ali, Muzaffar and Sikandar Ghuman and Tahir Cheema, Advocate and was forced to make statement under section 164, Cr.P.C. In the above background the D.I.-G., Lahore was directed to take action against Sub-Inspector, Naveed for disobeying the order and making a false statement only to mislead the Court and further to transfer investigation of case F.I.R. No.281 of 1994, Police Station Old Anarkali, Lahore to some senior Police Officer with direction to recover the kidnapped persons and their production before the Court on 8-I1-1994. On 8-11-1994, Mr. Mukhtar Ahmed, S.P. Model Town, Lahore appeared and assured to recover Mst. Razia Bibi and others and the case was adjourned to 15-11-1994. On the adjourned date, the j case was taken up at 9 p.m. Muhammad Arshad, petitioner No.1 who was allowed interim bail was not present in Court. On enquiry, it transpired that Muhammad Arshad was detained illegally and kept in Hawalat without any authority. Muhammad Iqbal, first cousin of Muhammad Arshad made a statement on oath before the Court that he had met Muhammad Arshad on 13-11-1994 at 9 p.m. at Police Station Model Town while he was in lock-up in injured condition. As the S.P. was not present in Court, learned Advocate General on Court's call appeared and he was apprised of the situation and was directed to talk to the Inspector-General of Police. The S.P. appeared at 1 p.m. and when asked about Muhammad Arshad, he showed his ignorance. The suspension of Sub-Inspector, Naveed was a word of caution for the statutory functionaries to act in accordance with law and not to mislead to the Court in administration of justice but the caution reacted otherwise as the S.P. also conducted himself in the same manner. Accordingly the S.P. being the Investigating Officer was directed to recover and produce Muhammad Arshad on 16-11-1994. On 16-11-1994, at the very outset the S.P. showed his ignorance about Muhammad Arshad and asked 4for a period of 15 days to recover and produce him before the Court which request of the S.P. was declined. Mr. Irfan Qadir, learned Additional Advocate-General was addressing the Court when surprisingly Muhammad Arshad made his appearance in the Court room. His statement was recorded in which he narrated a long story of atrocities. He removed his Shalwar in the open Court and showed the signs of merciless beating. The Medical Superintendent, Services Hospital, Lahore was directed to arrange for medical check up of Muhammad- Arshad. The report of the Doctor has been received and placed on record. The conduct of the police throughout the proceedings of this case remained reprehensible. Learned counsel for the respondent-complainant argued that in the light of law laid down in Shahnaz Begum's case PLD 1971 SC 677 this Court has no jurisdiction to interfere in investigation of a case by the police. The law laid down by their Lordships of the Supreme Court (supra) does not give free-hand to the police to play havoc with the life, honour and liberty of citizens and to use it as a lever to commit atrocities on innocent citizens under the garb of investigation and if the rule laid down is allowed to apply, as canvassed, to each and every investigation, the jurisdiction of the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan will become redundant and citizens would be left at the mercy of police which is not the purpose of law. In the case of Adamjee Insurance Company v. Assistant Director 1989 PCr.LJ 1921 it was observed by their Lordships of the Supreme Court that proceedings under Article 199 of the Constitution will be competent even against inquiry investigation if it encroaches upon any fundamental right as guaranteed by the Constitution or it violates some other law or is motivated for mala fide reasons. The view taken in the case of Shamshad Ali v. S.H.O. was that the actions of the Police Officers are in no case sacrosanct so as to be excluded from judicial scrutiny. According to Article 35 of the Constitution it is the duty of the State to safeguard the fundamental right of marriage. Mr. Rafique Ahmed Bajwa, Senior Advocate appeared as amicus curiae. He argued that for a valid Nikah according to Islamic Jurisprudence, three following basic ingredients must exist:-- (i) there must be sanction of the society otherwise is prostitution; (ii) there must be consent of parents and consent of Wali, otherwise is void ( LA L) and (iii) there must be dower. The learned counsel stressed that Nikah without Wali is void and relied upon Hadidh in Trimzi Sharif narrated by Hazrat Abu Musa and Hazrat Ayesha Siddiqua. He argued that the concept of love marriage has, no sanctity id Islam and Islam even does not allow even the womenfolk to talk loudly so that it may not attract the men towards them. Learned counsel quoted and referred to Sura Nisa and Sura Noor in this respect; hence to allow a sui juris woman to enter into marriage with her own free-will and accord without the consent of parents and Wali is nothing but prostitution and such marriage is not recognized in Islam. I have heard the learned counsel at length and have gone through the file carefully. According to the Muhammadan Law marriage is not a sacrament but a civil contract as held by their Lordships of Supreme Court of Pakistan in case Khurshid Bibi v. Muhammad PLD 1967 SC

97. According to section 251 of Muhammadan Law, every Muslim of sound mind who has attained puberty may enter into a contract of marriage it is only void if it is brought about without his/her consent. However, lunatics and minors who have not attained puberty may not contract marriage without their guardians. The ingredients of valid marriage have been prescribed in section 252 of the Muhammadan Law, that is (i) proposal and acceptance by the parties to the marriage; (ii) witnesses to Nikah; (iii) dower. According to Mulla a boy or girl who had attained puberty is at liberty to marry any one he or she likes and the guardian has no right to interfere. Further, according to presumption of marriage detailed in section 268(c) of the Muhammadan Law, "the fact of acknowledgement by the man or the woman as his wife" is accepted as valid marriage. The theory advanced by Mr. Muhammad Rafique Bajwa, Senior Advocate that the consent of liking or choice marriages that is, love marriage by the adults who have attained puberty without the, consent of guardian tantamounts to prostitution and is against the teaching of Islam, is untenable as majority of the marriages are solemnized on liking of each other and are approved by the society and nowhere in Islamic jurisprudence such marriage has been forbidden rather prolonged and continued cohabitation as husband and wife is presumed to be a valid marriage in the absence of direct proof. Such marriage may be against the family traditions, tribes and customs or other which cannot be equated prostitution. In view of what has been discussed above, the petition is allowed. Resultantly, F.I.R. No.650 of 1994 registered under section 10/16 of the Offence of Zina-(Enforcement of Hudood) Ordinance (VII of 1979) with Police Station Saddar, Jhang is hereby quashed. N.H.Q./M-277/L F. I. R. quashed.