2016 P Cr (PLP)

AMER RAZA NAQVI, J.

Through listed application it has been prayed that contents of affidavit sworn by petitioner No.1 Mst. Shahida on 15.09.2014 filed in support of the petition may be expunged. Learned counsel for petitioner No.l submitted that initially this petition was filed by Mst. Shahida being petitioner No.1 and Wajid Ali being petitioner No.2. It was claimed in the petition that both have married to each other and in this respect an affidavit subject matter of this application was sworn in the Identity Branch of this Court. He further submitted that this petition, which was a harassment petition, was disposed of on 01.10.2014. Earlier to that on 16.09.2014 notices were ordered. Learned counsel has pointed out that on both these dates it is not mentioned in the orders that any of the petitioner was present in Court. He submits that only order dated 01.12.2014 shows that petitioner No.1. was present in Court. He submitted that as a matter of fact petitioner No.1 was minor and was abducted by petitioner No.2 and in order to shield himself from the operation of law, the petition was filed and after petitioner No.1 was got recovered with the assistance of elders, she had appeared in this Court and has also sworn affidavit in support of present application, in which, she has stated that she has been kidnapped by petitioner No.2. Since there was conflicting versions of the parties the petitioner No.1 was referred to Superintendent Civil Hospital Thatta to ascertain her age. Said hospital referred the petitioner No.1 to Services Hospital Hyderabad as facility was not available in Thatta. The report of Services Hospital Hyderabad has been received and according to such report the age of the petitioner No.1 has been determined between 13 to 14 years. This determination has been made by a Board consisting of five senior doctors and Vice Chancellor/Nominee being the Chairman of the Board. Learned counsel for petitioner No.2 has submitted that no notice was issued to petitioner No.2 for this examination and therefore this Court should not give any finding. He further submits that there is no need of expunging any contents of the affidavit. Mr. Saleem Akhtar, learned Additional Prosecutor General has submitted that although under Article 3 of Qanun-e-Shahadat a minor is competent to give evidence but so far as consent for marriage is concerned no minor particular in the present facts and circumstances is capable of giving any consent. He further submitted that in the memo of petition, petitioner No.1 claimed to be a major, whereas, it has now been proved that she is a minor. He further submitted that in the facts and circumstances her consent contained in freewill affidavit and Nikahnama is immaterial as that was false and furthermore her claim of being 17 years since was not correct, therefore all these documents have no value. They were inadmissible as those were executed under inducement, influence and duress, he, therefore, submits that listed application should be allowed. I have heard all the learned counsel. It is a fact that presence of petitioner No.1 is not recorded in orders dated 16.09.2014 and 01.10.2014. In view of the report of the Doctors referred above, it is prima-facie established that petitioner No.1 is minor. The contention of the learned counsel for the petitioner No.2 that a notice should have been issued to the petitioner No.2 before taking exercise of ascertaining the age of petitioner No.1 is not sustainable under the law. A false affidavit was got sworn by the petitioner No.1 under duress or under influence as it appears that she was taken away/kidnapped by petitioner No.2. In any event once it is established that she is a minor, any consent given by her in any document particularly regarding her marriage has no value in the eyes of law. In view of above facts and circumstances, listed application is allowed. The affidavit sworn by petitioner No.1 on 15.09.2014 cannot be used in advantage to petitioner No.2. With above observation this application stands disposed of: YN/S-6/Sindh Application allowed.