2017 PLP 222 (YLRN)

SHAHNAWAZ TARIQ, J.

Through the captioned Constitutional petition, petitioner Guhram Khan has invoked Constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with prayer to issue Rule Nisi for production of the detainee, namely Mst. Tehmina (wife of the petitioner), from the illegal confinement of private respondents Nos.1 to 7, through respondent No.8, before this Court and after recording her statement she may be set at liberty and allowed to go wherever she likes.

2. The relevant facts spelt out from the instant petition are that the alleged detainee namely Mst. Tehmina daughter of Abdul Rehman Sarki, respondent No.3, sworn her affidavit of freewill and contracted marriage with the petitioner on 05.3.2015, out of their love affair and the spouses were residing together happily; since they had contracted marriage without consent and agreement of the parents of the alleged detainee, therefore, her relatives became annoyed with the petitioner and were trying to separate the couple and causing them serious harassment. It is further averred that 22.3.2015, in the morning at about 11.30 a.m., when petitioner and his wife Mst. Themina were available in their house, respondent No.1 SHO SIP Ghulam Sarwar along with his subordinate staff accompanied with private respondents raided the house of petitioner and they caused kicks and fists blows to all the inmates of the house and ultimately at the instance of private respondents, respondent No.1 and other police personnel forcibly taken away petitioner's wife Mst. Tehmina and hided her at some unknown place. It is further stated that respondents Nos.1 to 7 not only caused damages to the house hold articles of the petitioner, but looted valuables from the house, i.e. gold ornaments, clothes, television and dish antenna, etc. It is also stated that respondents Nos.1 to 7 in collusion with each other, have wrongfully confined wife of the petitioner against her wishes, as such the life, liberty and modesty of the detainee is in danger. The petitioner time and again approached the respondent No.8 SSP Kashmore @ Kandhkot to intervene into the matter and get his wife released from wrongful confinement of the respondents, but he is reluctant to take any action in the matter. Ultimately, petitioner filed instant petition for recovery of his wife, allegedly detained by her father and others.

3. This Court vide order dated 31.3.2015, issued notices to the respondents, as well as A.A.G., while respondent No.8 SSP Kashmore was directed to ensure safety of the alleged detainee as well the petitioner. On 07.4.2015, notices were again ordered to be issued to the private respondents Nos.2 to 7 and respondent No.3 was directed to produce alleged detainee Mst. Tehmina before this Court on next date. Despite repeated directions, the alleged detainee was not produced before this Court. On 04.5.2015, the respondent No.8 SSP Kashmore was directed to recover and produce the alleged detainee before this Court with note of caution that in case order of the Court is not complied with by respondent No.8, appropriate order shall be passed on next date. It is significant to mention that petitioner in his petition has raised specific allegations that respondent No.1 SHO SIP Ghulam Sarwar Sarki, P.S. Tangwani had raided his house on 22.3.2015 and forcibly taken away his wife to some unknown place, therefore, instead of respondent No.1, the respondent No.8 SSP Kashmore was directed to produce respondent No.3 and the alleged detainee Mst. Tehmina before this Court but despite clear directions, respondent No.8 SSP Kashmore had not bothered to appear before this Court nor complied with the subject order.

4. On 07.5.2015, in compliance of directives issued by this Court to respondent No.8 SSP Kashmore, respondent No.1 SHO SIP Ghulam Sarwar Sarki of P.S. Tangwani produced respondent No.3 Abdul Rehman Sarki and one girl, who according to him were respondent No.3 and Mst. Tehmina. On query, said girl asserted that her name is Mst. Tehmina and she is daughter of respondent No.3.

5. While controverting the said contention, petitioner vehemently contended that the girl produced by the respondents Nos.1 and 3 is not his wife Mst. Tehmina, but she is her cousin Mst. Reshma daughter of Muhammad Hafeez Sarki, who is real paternal uncle of the alleged detainee. Petitioner further stated that his wife has not been produced before the Court and she might have been killed by the private respondents and he in support of his claim produced original affidavit of freewill executed by Mst. Tehmina and their Nikahnama with her photograph affixed thereon.

6. Considering the sensitivity of the issue and to ascertain identity of the girl who was produced before the Court and if she was an imposture then to produce real Mst. Tehmina before this Court, I.T branch of this Court under directions, had taken photograph and thumb impression of the girl who was produced before this Court, which are available on record. I.T branch of this Court was further directed to verify the photograph and finger prints of said girl produced before the Court from NADRA. Considering the above scenario, respondent No.8 SSP Kashmore was again directed to conduct a comprehensive inquiry in the matter specifically with regard to the identity of Mst. Tehmina daughter of Abdul Rehman Sarki, the respondent No.3 and wife of the petitioner and to produce her before this Court without fail. It was further directed that if it is found in said inquiry that the girl who has been produced before the Court, is not real Mst. Tehmina, proper action shall be initiated by respondent No.8 SSP Kashmore in accordance with law against said girl, respondent No.3 Abdul Rehman Sarki and respondent No.1 SHO SIP Ghulam Sarwar Sarki of P.S. Tangwani.

7. On 13.5.2015, neither respondent No.8 SSP Kashmore appeared nor furnished any report, and even the alleged detainee was not produced in compliance of order of this Court. However, as per statement filed by DSP Anwar Ali Mithani, preliminary inquiry revealed that family members of the girl who was produced on last date before this Court, have confirmed that her name is Tehmina and she is holding CNIC No.43502-0651888-8 issued by NADRA on 22.4.2015 and a copy whereof was annexed along with statement. Whereupon petitioner vehemently contended that said CNIC is bogus and the same has been managed by respondents after filing of the instant petition in order to hide the real Mst. Tehmina, wife of the petitioner.

8. Conversely, the respondent No.3 denied said version and stated that his brother Muhammad Hafeez has no daughter with the name of Mst. Reshma. Consequently, respondent No.3 was directed to produce his brother Muhammad Hafeez and his daughter Mst. Reshma before this Court on next date as well as DSP Tangwani Muhammad Sadique Odho present in Court was directed to ensure attendance of said Muhammad Hafeez and his daughter Mst. Reshma before this Court. Said DSP was further directed to produce the entire relevant record from NADRA in relation to the said Muhammad Hafeez, particularly the B-FORM showing names etc. of all his family members. On 21.5.2015, the respondent No.8 SSP Kashmore, namely Umar Tufail appeared in Court and after going through the case file undertook that he will produce the real girl through the respondent No.1 SIP Ghulam Sarwar Sarki, S.H.O. P.S. Tangwani within a week and in case of failure to produce the said lady by said SHO, a criminal case under sections 365-B and 302, P.P.C. with other relevant provisions of P.P.C. including an attempt to misguide the Court by producing some other girl instead of the wife of petitioner, will be registered by SSP himself as complainant against the SHO and others.

9. On 02.6.2015, DSP Anwar Ali Mithani, Incharge SSP Kashmore filed a vague statement in compliance of orders of this Court which was not serving any useful purpose to ensure the compliance of order passed by this Court on 21.5.2015, whereby SSP Kashmore was granted one week time for compliance. Perusal of said statement reflected that no sincere and serious efforts were made for compliance of subject order, therefore, SSP Kashmore was again directed to ensure the compliance of the subject order and produce Mst. Tehmina before this Court without fail. On 02.06.2015, learned A.A.G. filed a statement on behalf of the SSP Kashmore showing that an FIR vide Crime No.32 of 2015, under sections 364, 193, 452, 506(2), 395, 427 P.P.C. has been registered on complaint of the petitioner against respondent No.1 S.H.O. P.S. Tangwani, namely SIP Ghulam Sarwar Sarki and others, including Mst. Reshma, who appeared before this Court posing herself to be Mst. Tehmina, and investigation of the case is under progress.

10. On 09.6.2015, learned A.A.G. filed a statement of respondent No.8 SSP Kashmore, and contended that in compliance of the subject order, the detainee Mst. Tehmina has been recovered and he produced her before this Court. The petitioner identified her to be same Mst. Tehmina, his wedded wife. Learned counsel for petitioner vehemently contended that since Mst. Tehmina remained under forcible custody of her parents and other relatives and after hectic efforts, she has been produced before the Court, therefore, in the prime interest of justice, she may be sent to Darul Aman to make up her mind and then her statement may be recorded. Learned AAG considering the circumstances of the case, extended no objection and supported the contention raised by learned counsel for petitioner to send Mst. Tehmina to Darul Aman. Considering the peculiar circumstances of the case, Mst. Tehmina was ordered to be sent to Darul Aman, Larkana till next date, in order to make up her mind and decide her future independently and her statement be recorded without any duress and fear. Incharge Darul Aman, Larkana, was directed not to allow meeting of Mst. Tehmina with anybody without prior permission of this Court.

11. Today, Gulnaz Ali Abbasi, Assistant Director, Darul Aman produced the custody of Mst. Tehmina before this Court and she also produced register of visitors for perusal of the Court as well as parties. Perusal of the register reflects that during the period of the lodgment of Mst. Tahmina in Darul Aman, none of the parties had visited her. In her statement, Mst. Tehmina candidly submits that she being sui juris had contracted her marriage with petitioner but now she wants to join her father Abdul Rehman and her custody may be handed over to him. Learned counsel for petitioner raised objection that the person present in Court with the name of Abdul Rehman is not same person. Learned AAG submits that SSP Kashmore @ Kandhkot may be directed to hand over the custody of Mst. Tehmina to her real father and also submit such report to this Court through Additional Registrar.

12. Considering the peculiar facts and circumstances referred supra, the alleged detainee Mst. Tehmina being sui juris wants to join her father, therefore, she is allowed to reside with her father at her own sweet will. However, SSP Kashmore @ Kandhkot is directed to ensure the identification of father of the detainee namely Abdul Rehman and then hand over her custody to him under execution of Personal Bond in the sum of Rs.5,00,000/- in order to ensure the safety of the life of Mst. Tehmina. Respondent No.8 S.S.P. Kashmore is further directed to furnish fortnightly reports to this Court through Additional Registrar regarding safety of the life of Mst. Tehmina. The In-charge Darul Aman is directed to hand over the custody of Mst. Tehmina to respondent No.8 SSP Kashmore after completion of codal formalities for compliance of subject order in letter and spirit. Inspector Muhammad Sadiq, Investigating Officer of Crime No.32 of 2015 lodged at Police Station Tangwani files statement which is taken on record and copy whereof supplied to learned counsel for the petitioner. He further submits that accused Abdul Rehman who had appeared before this Court, has been arrested and remanded to judicial custody, while nominated accused SIP Ghulam Sarwar, Abdul Qadir, Hussain Ahmed, Abdul Karim, Shafique Ahmed, Shah Bux alias Shahooro and Mst. Reshma (alleged Mst. Tehmina) have already obtained pre-arrest bail from the concerned Court.

13. The I.T branch of this Court is directed to provide photograph and thumb impression of the girl who was produced before this Court, which are available on record and the verification of the photograph and finger prints of said girl issued by NADRA to the investigation officer under proper receipts. Learned DDPP Shikarpur is directed to monitor the investigation proceedings of case lodged vide FIR No.32 of 2015, and in case of any hardship or deliberate deviation in order to frustrate the investigation by investigation officer, he may approach the Additional Registrar of this Court for appropriate orders. Investigating Officer is directed to conclude the investigation and submit Challan before the concerned Court. Respondent No.8 SSP Kashmore and S.H.O. P.S. Tangwani are directed to provide legal protection to the petitioner especially against the private respondents. Inspector General of Sindh Police is directed not to assign any posting to SIP Ghulam Sarwar Sarki till final disposal of case lodged vide FIR No.32 of 2015. Copy of this order be transmitted to Inspector General of Sindh Police, learned DDPP Shikarpur and SSP Kashmor @ Kandhkot through learned AAG Sindh for information and follow up for its compliance in letter and spirit. Consequently, instant Constitution petition stands disposed of. SL/G-20/Sindh Order accordingly.