Danish Farooq Vs SHO etc

FORM No. HCJD/C-121

ORDER SHEET

LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

W.P. No. 49970 of 2022 Danish Farooq Vs. Station House Officer, etc.

Sr. No. of Date of Order with signature of Judge, and that of order/ order/ Parties’ counsel, where necessary proceedings Proceeding 19.09.2022 Mr. Shahid Mehmood Khan Khilji, Advocate for petitioner.

Mr. Khawar Raza Ghuman, Advocate for complainant/respondent No. 2.

Mr. Muhammad Jahanzaib, A.A.G. along with Maalik A.S.I.

Through this constitutional petition, petitioner seeks quashing of case F.I.R. No. 562 of 2022 dated 16.04.2022 registered against him under Section 365-B P.P.C. in Police Station Sadar, Pindi Bhattian for abduction of Mst. Nazia Nasir, respondent No.3, by stating that he and respondent No.3 have got married with each other on their own free will and consent, therefore, afore-referred F.I.R. is liable to be quashed.

2.On the other hand, learned counsel for the respondent No. 2 states that respondent No. 3 is an underage minor as her date of birth is 28.09.2009, which makes her age less than 13 years and she not being a sui juris person could not contract marriage with her free will and consent, therefore, the instant F.I.R. cannot be quashed.

3.The facts in brief are that Yasir Ali, Respondent No. 2, who is the brother of Respondent No. 3 got F.I.R. No. 562 of 2022 dated 16.04.2022 registered against the petitioner and others under Section 365-B P.P.C. in Police Station Sadar, Pindi Bhattian for abduction of Mst. Nazia Nasir respondent No.3 for the purpose of

committing Zina bil Jabr. The said accused persons were also stated to have taken away Rs.69,000/- and gold ornaments weighing 5 tolas from the house of the complainant. The petitioner’s claim is that respondent No. 3 had got married with him of her own choice, free will and consent on 14.07.2022 and nikahnama was registered with Metropolitan Corporation Sargodha wherein date of birth of the respondent No.3 was mentioned as 03.06.2004 according to which it is claimed that she was a sui juris person and had also attained the age of majority. The respondent No.3 had also appeared before Magistrate Section- 30, Sargodha, where she had got recorded statement of her marriage with free consent. The claim of the respondent No.2 is that his sister is a minor having date of birth 28.09.2009 recorded in the school leaving certificate and certificate issued by the department where she was vaccinated as a child immediately after her birth.

4.On the last date of hearing, Investigation Officer was directed to record statement of respondent No.3 which although has been recorded, however, no conclusive result relating to age of the said respondent could be reached by him. As the verification of age of the respondent no. 3 was the material factor to determine whether she was sui juris and could give valid consent for marriage, today said respondent was asked in the Court whether she would consent to have herself medically examined to determine her age, to which she has flatly refused. Generally, where a person withholds the best available evidence, court may draw presumption against the said person in terms of Illustration (g) of Article 129 of the Qanun-e-

Shahadat Order, 1984 that the same would be unfavourable to the said person and had been withheld with sinister motive. This goes without saying that the said presumption is a rebuttable presumption but presently there is no material available with this Court to conclude that the respondent No. 3 was sui juris.

5.Marriage being a contract, it was to be seen whether parties thereto were adult, major and were fully aware of the consequences of the same to give consent. Although, a sui juris girl could enter into a marriage contract of her free will, choice and consent but the case of minor girl would be an exception to said general rule because a minor girl could neither make a valid proposal nor make a valid acceptance for marriage. Besides controversial issues could not be decided in Constitutional jurisdiction of this Court.

6.In these circumstances, this Court is not inclined to quash the F.I.R. registered against the petitioner due to reason that respondent No. 3 might be underage and not sui juris, which question could be determined by the learned Trial Court after recording of evidence and the same cannot be adjudicated by this Court in its Constitutional jurisdiction. For what has been discussed above, the instant constitutional petition is dismissed.

(Muzamil Akhtar Shabir) Judge MuzamilMohsin* Approved for reporting