2004 P Cr (PLP)

Through this Constitutional petition, Mst. Razia Bibi‑petitioner has sought quashment of F.I.R. No. 53/1999 registered at Police Station, Madrisa, on 21‑4‑1999, for offences under sections 11/10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, at the instance of Mst. Elahi Sain, mother of the petitioner, wherein the petitioner was sent up to face trial.

2. Complainant, who is respondent No.2 in this petition has not put in appearance despite service of notices, so there is no option for this Court but to proceed with the case in the absence of the complainant.

3. The necessary facts as given in the F.I.R., are that on 19‑4‑1999, the complainant got up at about 10.00 p.m. to ease herself and saw that her daughter Mst. Razia Bibi was missing. The complainant woke up her son Bagh Ali and started searching for Mst. Razia Bibi. During search, Nazir Ahmad and Muhammad Ali P.Ws. informed the complainant party that Mst. Razia Bibi was going alongwith Riaz Ahmad on a motorcycle and that Muhammad Akram armed with .12 bore gun and Zia Ahmad were also going alongwith Mst. Razia Bibi, and Riaz Ahmad on another motorcycle. It was alleged in the F.I.R. that Riaz Ahmad and other accused had enticed away Mst. Razia Bibi in order to commit Zina with her.

4. After completion of investigation challan/report under section 173, Cr.P.C. was sent up against the petitioner (who was cited as victim in the F.I.R.), Riaz Ahmad and another accused for offence under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, read with section 363, P.P.C. The petitioner moved an application before the learned trial Court under section 265‑K, Cr.P.C. seeking pre trial acquittal mainly on the ground that she had contracted marriage with Riaz Ahmad and nobody abducted or committed Zina with her. That application was dismissed by the learned trial Court vide order, dated 2‑7‑2001 on the ground that the occurrence took place on 19‑4‑1998 while Riaz Ahmad and Mst. Razia Bibi entered into marriage on 21‑4‑1998 after the abduction of Mst. Razia Bibi; and that whether Mst. Razia Bibi was competent to enter into marriage at the relevant time, also needed inquiry.

5. I have heard the learned counsel for the parties and gone through the record. It has been noticed that Mst. Razia Bibi‑petitioner and Riaz Ahmad contracted marriage on 20‑4‑1999 and Nikah Nama to that effect is available on the file as annexure‑B, which has presumption of truth; that the petitioner and Riaz Ahmad are living as husband and wife and out of the wedlock two children have born; that the learned Additional Sessions Judge has completely overlooked the fact that Mst. Razia Bibi, who was alleged victim and abductee, did not support the r prosecution case and had categorically stated that she had contracted marriage with Riaz Ahmad with her free consent. A perusal of the impugned order reveals that the learned trial Court has dealt with the application of the petitioner in a cursory manner, as is evident from the following facts:‑‑‑ (i) that serial number of the case F.I.R. has been mentioned as 35/1999, while the actual number is 53 of 1999; (ii) that the date of occurrence has been mentioned as 19‑4‑1998, while the same was 19‑4‑1999; and (iii) that the date of Nikah has been mentioned as 21‑4‑1998, while the Nikah was registered on 20‑4‑1999.

5. According to age certificate issued by the Board of Doctors the petitioner was more than 18 years at the time of her examination, which was conducted on 5‑10‑1999. This certificate makes it crystal clear that the petitioner was sui juris at the time of her marriage. The provisions of section 4 of the Offence of Zina (Enforcement of Hudood) Ordinance VII, 1979, define Zina as follows:‑‑‑ "A man and a woman are said to commit 'Zina' if they wilfully have sexual intercourse without being validly married to each other." The petitioner, who has entered into Nikah with Riaz Ahmad, cannot be said to have committed Zina.

7. Considering all the above‑narrated facts I allow this petition, quash the above noted F. I. R. as well as the proceedings pending before the learned trial Court in lieu of that case. H.B.T./R‑30/L Petition allowed.