2008 P Cr (PLP)

SARDAR MUHAMMAD NAWAZ KHAN, CJ.

This is an application under section 561-A, Cr.P.C. with the following facts:-- The petitioners, per their claim, are spouses who married in Karachi on 22-9-2007. Before marriage petitioner No.2 voluntarily appeared before justice of peace and got a free-will deed executed wherein it is stated that she wanted to enter in marital tie with Muhammad Zareef petitioner No.1. Thereafter, they entered into marriage and they have placed a Nikahnama on the file of this Court. The respondent No.2, father of petitioner No.2, lodged a report with Police Station Rawalakot on 25-8-2007 wherein he alleged that petitioner No.1 abducted her daughter petitioner No.2 on the night falling between23rd/24th of September, 2007. On this report, the police concerned registered F.I.R. No.252 of 2007 against the petitioners under sections 10, 11, 19 and 14 Z.H.A. After registration of F.I.R., the police chased to arrest them but they appeared before District Court of Criminal Jurisdiction at Rawalakot for pre-arrest bail. Their request was turned down and, they were taken into custody. They again moved for bail before Tehsil Court of Criminal Jurisdiction- from where their bail plea was declined consequently, they filed second bail application before District Court of Criminal Jurisdiction. The said Court allowed their bail plea however, a condition with regard to bail of petitioner No.2 Amina Farooq was imposed by the said Court and it was that she be released from the custody provided a Mehram stands as surety for hint. The petitioner No.2 Amina Farooq did not accept this condition and as a result of it she is in jail. Petitioner No.1 Muhammad Zareef also refused to come out of the custody and did not furnish surety bond therefore, both the petitioners at present are in jail. They, through the present application under section 561-A, Cr.P.C., seek quashment of F.I.R. No.252 of 2007 lodged with police station on 25-8-2007. The learned counsel for the petitioners submitted that the case registered against the petitioners was a false case as they did not commit any offence alleged against them. According to him, both the petitioners are spouses and they out of their free-will and choice contracted marriage before registration of the case therefore, they committed no offence as alleged by the prosecution. Neither it is a case of abduction or enticement nor it is rape or theft in view of the circumstances of the case, the learned counsel maintained. He, during his arguments, relied upon Nasreen Akhtar's case 1994 PCr.LJ 2016 wherein it is held that the accused had contracted marriage with the co-accused and proof of the marriage was available on police record. The accused thus, was found to have committed no offence therefore, the proceedings pending against the accused and co-accused before trial Court were quashed in the circumstance in exercise of the power available under section 561-A, Cr.P.C. and they were acquitted accordingly. On the other hand, the learned counsel for the complainant and the learned Additional Advocate-General contended that petitioner No.1 Muhammad Zareef abducted petitioner No.2 who was minor at the time of abduction and having done so, he committed rape with her. They further contended that the version of marriage was false and the petitioner No.1 in order to avoid the consequences of the case registered against him prepared false and fabricated documents like Nikahnama, free-will certificate and statement of the petitioner No.2 before Magistrate 1st Class. They in order to substantiate their contention referred the date of incident mentioned in the F.I.R. and submitted that the occurrence took place on one day before the date of Nikah, therefore, this fact by itself proved the subsequent business with regard to marriage as incorrect and false. According to them, Mst. Amina petitioner No.2 was minor and assuming it that they entered into marriage it was no marriage in the eye of law as the same has been contracted during minority of the petitioner No.2. The learned counsel, therefore, requested to disallow this application as the case against the petitioner could be decided only on evidence before the Court of competent jurisdiction. After hearing the learned counsel for the parties, the record made available by the police and the petitioners has been examined carefully. While dealing with question of minority, it may be observed that the F.I.R. has been lodged by the father of the petitioner No.2 Mst. Amina Farooq, the age of Amina Farooq as disclosed by her-father in the F.I.R. is 18 years. She has also been medically examined and the medico-legal report is on record of the police. According to this report, there was no mark of violence. Her sexual characteristics are well-developed. She was menstruating at the time of her examination. Her bone age is 18 years. Likewise all the relevant documents like Nikahnama, free-will certificate and the statement before the Magistrate 1st Class would show her age as 18 years. This Court for his own satisfaction called petitioner No.2 Amina Farooq from the jail and inquired her about the marriage and her age. Her statement was reduced into writing. She on solemn affirmation categorically stated before the Court that she out of her free-will and consent contracted marriage with Muhammad Zareef petitioner No.1 and she did not except Muhammad Zareef want to live with anybody else whoever may be. It is interesting to note here that per prosecution case, she is accused but at the same time they are pressing hard for a case of abduction, enticement and rape etc. thus, it would show that by keeping petitioner No.2 Mst. Amina Farooq on the side of accused, the prosecution is found to have negated its own story of abduction, enticement and rape etc. The learned counsel for the prosecution when confronted with this position they had nothing to say. Had she been abducted, enticed away or raped she could be the best evidence in such a case but by prosecuting her as accused means that the prosecution has no case as alleged by them. The question then arises as to whether in such a case when both male and female are major and adult and they have contracted marriage out of their free-will and consent constitutes any offence? The answer is in negative. Moreover, the prosecution by placing the female spouse in the line of accused have accepted that the case against the accused persons is baseless thus, such a case if allowed to continue will result into nothing but incarceration of the petitioners-herein. Though medico-legal report confirms that she has been subjected to sexual intercourse but it becomes immaterial in the back-drop of the marriage the spouses have admitted. The possibility of Zina before marriage has also been considered. This is a presumption only and in criminal law, a presumption how strong it may be cannot substitute proof. In a case of Zina the standard of evidence is much more strict than in other criminal cases. This Court is fully satisfied that the petitioners by entering into wedlock when they are adult and major have committed no offence. Under section 561-A, Cr.P.C., this Court is fully competent to quash the proceedings before any Court of competent jurisdiction if it is convinced that it is abuse of process of the Court or take any action which is found in the interest of justice. No doubt, the case is yet to be challaned but the police record would show that the investigation is complete and no case under law, is found to have been made out against the petitioners therefore, it would be against the interest of justice if it is allowed to continue and keep the petitioners in jail any more. The result, therefore, is that F.I.R. No.252 of 2007, dated 25-8-2007 stands cancelled and it is directed to release the petitioners forthwith. H.B.T./19/H.C.(AJ&K) F.I.R. Quashed.