1996 PLP 1028 (MLD)

This habeas petition was filed under section 491, Cr.P.C. by the petitioners for the recovery and production of Mst. Sughran Bibi before this Court.

2. Brief facts are that the mother of Mst. Sughran Bibi, Zareena Bibi was married with Shakir Ali. From this wedlock one child Mst. Sughran Bibi was born. However, the relations between the spouses ran into difficulties and the marriage was ultimately broken. She was divorced by her husband on 9‑1‑1985. Mst. Sughran Bibi is present before this Court.

3. It may be mentioned that earlier a writ petition was filed for the same purpose also. Mst. Sughran was produced on 28‑8‑1995 wherein she had stated that she was living with her father with her own free will and this statement resulted in the dismissal of the petition filed on behalf of Zareena Bibi, her mother.

4. Mst. Sughran Bibi at first shilly‑shallied but soon she brusqacly stated that she would like to live with her mother. She added that her father had coerced her to affix her thumb‑impressions on some blank papers with a view to marry her with a person not known to her.

5. Mst. Sughran Bibi is about 14 years old. She possesses sharp intellect. She is intelligent enough to form her independent opinion. In the given situation the respondent/father was legally bound to elicit the opinion of Mst. Sughran Bibi in this matter. In our society the parents usually ignore the consent of the womenfolk at the time of their Nikah which cannot be approved for the sole reason that our religion has conferred such discretion upon them.

6. No doubt the earlier writ petition filed by Mst. Zareena was dismissed on the ground that Mst. Sughran expressed her readiness to live with her father but that does not mean that the same application cannot be repeated. In Mst. Farrukh Naheed Hashmi v. Syed Shah Ibrar Qadri 1994 PCr.LJ 1361 this aspect of the matter was thoroughly examined and it was observed as follows:‑‑ "Moreover the decision of an application under section 491, Cr.P.C. is not a judgment, so the question of bar of section 369, Cr.P.C. does not arise and even reconsideration of a matter on successive applications is not barred if a case is made out on fresh grounds. See Muhammad Ajmal Khan v. Lt.‑Col. Muhammad Shafaat PLD 1976 Lah. 396 (FB). Again where question of liberty of a citizen or of legality of the custody is involved the Court cannot refuse to perform the duty merely on technical grounds." In Naseem Fatima v. Government of West Pakistan PLD 1967 Lah. 103 it was observed as under: "A second petition on fresh grounds is not barred by reason of the dismissal of earlier petition for the Court is concerned with the examination of the question whether the custody is in fact lawful or not, which depends upon the lawfulness of the order and not on the rejection of an earlier petition. It is generally accepted that a second application under section 491 is competent, if fresh facts have emerged and on fresh grounds."

7. A fresh cause of action has arisen in favour of the petitioner as the respondent coerced her minor daughter to put her thumb‑impressions on the blank papers to get her married with a person not known to Mst. Sughran Bibi.

8. If some alleged Nikahnama showing the Nikah of Mst. Sughran Bibi with some one has in fact been prepared, that will not be binding upon her for she has unequivocally stated that it was the result of coercion. The respondent in all probability did so for some financial gains.

9. For the foregoing reasons this petition is accepted. Mst Sughran Bibi is allowed to accompany her mother. Disposed of. H.B.T./2‑180/L??????????????????????????????????????????????????????????????????????? ?????????? Petition accepted.