P L D 1984 Lahore 149 (PLP)

This petition under section 491 of the Code of Criminal Procedure (V of 1898) (hereinafter called the Code) has been filed for the recovery of Mst. Shagufta Shaheen, the alleged minor daughter of the petitioner from the custody of the respondent.

2. The facts relevant for the disposal of this petition are that at the instance of the petitioner F. I. R. No. 181/83, dated 8‑10‑1983, under sections 11 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), was registered at Police Station, Lohari Gate, Lahore, against the respondent and others alleging that his daughter Mst. Shagufta Shaheen, aged about 14 years, had been abducted by the respondent on 6‑10‑1983,. Prior to the filing of this petition Mst. Shagufta Shaheen filed Writ Petition No. 4296 of 1983, in which her main grievance was that she being sui juris, aged about 20 years, voluntarily contracted marriage with Muhammad Fayaz, respondent herein on 24‑91983 but the local police was coercing her to make a statement against her will. The Station House Officer, Police Station, Lohari Gate, Lahore, denied the allegation of harassment. The statement of Mst. Shagufta Shaheen was duly recorded under section 164 of the Code. The petition was, therefore, disposed of as having borne fruit by order, dated 12‑10‑1983. Muhammad Fayaz respondent herein also filed Criminal Miscellaneous No. 2517‑B of 1983, for his bail before arrest, which was granted by order, dated 7‑11‑1983. During the pendency of the bail applica tion, this habeas corpus was filed on 1‑1983. The petition was admitted to a regular hearing on 7‑11‑1983. The alleged detenu being present in Court on the said date in connection with the hearing of the bail application was directed to appear on the next date of hearing fixed in this case. Since she had come‑ alongwith the respondent/accused, it was considered desirable to lodge her in Dar‑ul‑Aman, Lahore, by order, dated 12‑11‑1983, where she was ordered to remain till 19‑11‑1983, notwithstanding the fact that she refused to accompany her father ; on which date her statement was recorded, which reads thus :‑ "I am sui juris. My age is 17/18 years. I have voluntarily contracted the marriage and would like to go with respondent No. 2 and not my father who wants to sell me to a Zamitndar of Sahiwal District. I also apprehend danger to my life at his hands."

3. It is averred in the petition that respondent Muhammad Fayaz abducted her minor daughter by giving her false promise of bright future and arranged illegal Nikah in ante date in connivance with the Nikab Registrar, Muhammad Akram, without consent of the petitioner or any legal guardian of the minor, showing her age as 20 years, to escape the legal consequences. Mian Muhammad Afzal Wattoo, learned counsel for the petitioner has placed reliance on Shahida Perveen v. Muhammad Inayat (P L D 1980 Lah. 14), Shahida Parveen v. District Judge, Sialkot (P L D 1980 Lab, 7) and Muhammad Inayat v. Ch. Muhammad Saleem (P L D 1979 Lab. 154) to contend that as the credentials of the respondent as husband of the alleged detenu are the subject‑matter of adjudication in a criminal trial, the father being the natural guardian is entitled to her custody.

4. Ch. Rafique Ahmad Bajwa, learned counsel for the respondent has raised a preliminary objection as to the maintainability of the habeas corpus petition. He submitted that this petition is not competent under clause (a) of subsection (1) of section 491 of the Code, inasmuch as, the petition is based on an F. I. R. registered against the respondent under the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), the proceedings thereunder are not within the limits of appellate criminal jurisdiction of this Court. He next submitted that clause (b) of the said section is attracted only when a person is illegally or improperly detained in public or private custody within appellate criminal jurisdiction of this Court. In the instant case, it is submitted; that the alleged abductee herself filed Writ Petition No. 4296 of 1983 in this Court alleging that she has become sui juris and be dealt with in accordance with law and that was disposed of as having borne fruit, therefore, no question arose of any illegal or improper detention by the respondent. It .is submitted that the police never demanded her custody. She being sui juris should be set at liberty forthwith and allowed to accompany her husband.

5. There is no cavil with the proposition that this Court in the exercise of its powers under section 491 of the Code has no jurisdiction to issue al. direction in the nature of a habeas corpus in case of a person not detained, within the limits of its appellate criminal jurisdiction. In the instant case, the petitioner has not challenged any order passed by the trial Court under the provisions of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) nor any such, order has been passed for handing over the custody of the alleged abductee to respondent. Here the allegation simpliciter is that the alleged detenu was illegally or improperly detained by the respondent; This Court has, therefore, jurisdiction to entertain this petition under section 491 of the Code and to decide as to whether the alleged detention is lawful or otherwise. The preliminary objection is, therefore, overruled.

7. Ch. Rafique Ahmad Bajwa, learned counsel for the respondent, submitted that the mere statement of the father as to the age of the alleged detenu and the entry in the birth register, the authenticity of which is challenged, is not sufficient enough to infer that she is a minor. It is submitted that as per her own statement, report of the Radiologist and the Lady Doctor she is a major, has attained puberty and was, therefore, entitled to enter into a contract of marriage with the respondent. It is submitted that the F. I. R. was registered against the petitioner on 8th October, 1983, in respect of an occurrence which had taken place on 6th October, 1983, and prior to that date the Nikah was performed on 24th September, 1983. The submission is that on the day the F. I. R. was lodged, the alleged abductee was already wedded to the respondent. Such a marriage, it is submitted, is valid according to Muhammadan Law and, therefore, she is entitled to reside with her husband. Reliance was placed on Mauj Ali v. Syed Safdar Hussain Shah (1970 S C M R 437), Muhammad Ashiq v. Superintendent of Darul Arran, Lahore (1973 P Cr. L J 79), Jahan Ara Begum v. The State (P L D 1963 Dacca 464) and 7‑afar Khan v. Muhammad Ashraf Bhatti (P L D 1975 Lab. 234).

8. In Muhammud Rafique v. Muhammad Ghafoor (PLD 1972SC6) the scope of section 491 of the Code was authoritatively determined. It was held: ‑ The High Court has two‑fold jurisdiction under this section (i) to deal with a person within its appellate criminal jurisdiction according to law; and (if) to set him at liberty if he is illegally or improperly detained. The question which falls for determination, however, is that if the Court finds that the person brought before it was not being illegally or improperly confined or detained what order can be passed regarding the custody of that person. If the person is a minor, the Court may make over his custody to the guardian which will be dealing with him in accordance with law, but if the person is major, the only jurisdiction which the Court can exercise is to set him at liberty whether illegally or improperly detained in public or private custody or not.

9. The first question which prima facie requires consideration in pro ceedings under section 491 of the Code is as to what is the age of the alleged detenu. Here there are various versions of it. The first is reflected in the birth certificate, a copy of which has been filed. (Original register also examined from the police record). According to the birth entry Mst. Shagufta Shaheen was born on 12‑10‑1969. It would make her about fourteen years of age. Next is the statement of the father disclosed in the F. I. R. and the petition made in this Court supported by an affidavit which is to the same effect. Radiologist's report fixes her age at 16/17 years. There is also report of the Lady Doctor, Lady Aitchison Hospital. Lahore, according to which the girl has attained puberty. The alleged abductee has also filed an affidavit dated 12‑11‑1983, wherein she claimed to be major without specifying her age with particularity and that she is subject to menstruation. In the alleged Nikahnama her age is described as 20 years. In her statement before this Court recorded on 19‑11‑1983, she, gave her age as 17/18 years. The question of her age is, therefore, a disputed question of fact. It is, therefore, not appropriate to conclusively determine this question in these summary proceedings, particularly, when forgery is alleged. The learned counsel for the petitioner has challenged the authenticity of the medical reports and made an oral petition for re‑examination of the girl by a Medical Board. For all these reasons, it will be appropriate for the time being to rely on the entry of birth in the Union Council No. 92, Mauza Channu Shah, which was made long before the present dispute arose. I am, therefore, inclined to hold that the birth certificate tentatively appears to be genuine. I may, however, reiterate that the view expressed here is purely tentative as to the age of the petitioner. The question whether Mst. Shagufta Shaheen was sui juris at the time of alleged marriage is essentially one of fact which cannot be conclusively embarked upon in these proceedings. The parties, however, will be at liberty to establish their respective contentions before the appropriate forum. 9‑A. In Muhammad Ashiq's case it was held that according to Muslim Law the minority of a male or female terminates when he or she attains puberty, which is presumed on the completion of 15th year, according to law by which the parties are governed. Under the Majority Act, 1875, minority ceases on the completion of 18th year. Section 2 of the said Act, however, makes an exception in matters relating to marriage, dower, divorce and adoption. The precedent case is, however, not attracted to the facts of the present case. There the alleged detenu claimed to be of 18 years but her father relied on a birth certificate according to which her age was above 15 years at the time of her marriage. There was, therefore, no dispute that she had presumed to have attained puberty on the completion of I 5th year. Here the age of the girl is disputed. In Mauj All's case, the learned Single Judge of this Court came to the conclusion after perusal of material placed before him that the girl being major and having contracted marriage of her own free will in accordance with the provisions of Muhammadan Law was entitled to go with her husband. T tie Supreme Court refused to grant special leave to appeal against this order. This case was, however, distinguished in Shaukat Ali v. Altaf Hussain Qureshi (1972SCMR398) wherein it was observed that although in Mau/ All's case the alleged husband was facing prosecution under section 363/366, P. P. C. but nothing was said regarding the said prosecution on the petitioner's right to obtain custody of his alleged wife. In Shaukat Ali's case it was alleged that the petitioner therein had married a girl with her free consent but her father registered a false case against him under section 363/366, P. P. C. and the girl was being forcibly detained by her father and brother although she was his legally wedded wife. In support of this assertion Nikabnama was also produced showing that the marriage had taken place on 19th June, 1972. The learned Single Judge of this Court dismissed the application of the husband in view of the facts of the case, as well as, on his experience that such like applications were being frequently made in a mala fide manner by the paramours to obtain custody of the girls and to disregard their parents. It was also observed that such applications were in the nature of device to escape the consequences of prosecution under section 363/366, P. P. C. as the case may be. The Supreme Court refused to grant special leave to appeal against this order. It was observed: ‑ We are also inclined to agree with the view expressed by the learned Judge regarding the tendency to abuse the provisions of section 491 of the Cr. P. C. on the part of some young men in furtherance of their illicit love affairs. Courts do not function in a vacuum and trust take due note of the social and moral environments prevailing in the community for which the law is to be administered. Such being the case the High Court was justified in refusing relief if it came to the conclusion that the petition had been presented for the sake of further ing an illicit love affair and avoiding criminal prosecution in connection with the kidnapping/abduction of the woman in question. In Zafar Khan's case the alleged abductee was above 15 years as per entries in the birth register when she eloped with the alleged abductor and married him. It is in this background that it was held in the precedent case that if a minor below the age of 16 years is removed by some person from the lawful custody of his guardian such person may be guilty of an offence under section 363, Pakistan Penal Code or it may constitute an offence under the Child Marriage Restraint Act, 1929, but cannot render the marriage invalid if the minor has attained puberty. The Dictum laid down in Jahan Ara Begum's case is of no avail to the respondent. It rather goes against him. In the ‑precedent case it was held that a person produced before a Magistrate under a search warrant, if major, cannot be confined anywhere against his or her will. If offence is alleged to have been committed by somebody in relation to a minor, the Court in the interest of justice is entitled to take the minor into custody and arrange for his or her detention for temporarily isolating minor from influence of interested persons. The authorities cited by the learned counsel for the respondent are, therefore, distinguishable and not attracted to the facts of the present case.

10. Questions of law and fact somewhat pari materia with the questions of law and fact in the instant case arose in Shahida Parveen's case in which the learned Division Bench of this Court after exhaustive consideration of the relevant case‑law observed: ‑ "With utmost respect for learned Judges who decided the case of Mst. Aziz Mai, we are inclined to adopt the view taken in the cases of Muhammad Zamir, Mst. Rahila, Muhammad Anwar and Muhammad Inayat. The main reason for our so doing is that if a girl involved in a doubtful marriage is allowed to go with her alleged husband and ultimately the marriage is held to be invalid for having been contracted when the girl was not sui juris or a willing party to the marriage serious complications are likely to arise for the parties and others concerned. The investigation and trial of the criminal case registered against the alleged abductor Muhammad Rafique is yet to take place. It is not possible to say at this stage that the witnesses cited against him are false and that he had not committed the offence attributed to him. We are also unable to assume that, if tried, he would not be convicted. If during the trial or any other proceedings it is held that the appellant was not sui juris or she was forcibly abducted or her so‑called consent to the Nikah was not voluntary and, therefore, the alleged Nikah was void, the stay of the appellant with her alleged husband and/or sexual intercourse would not only be rendered illegal but also might involve serious consequences of a finding relating to Zina of one or the other type. There will also arise a question relating to the legitimacy of the off‑springs, if any. In the circum stances, out of two choices, namely, the handing over of the custody of the appellant to her alleged husband and sending her with her father the safer course is the second one in which there will be no further .. risk. In other words, all the possible complications can be avoided if the appellant is given ins custody of her father subject of course to a declaration by a Court of competent jurisdiction that, her custody be handed over to somebody else."

11. It is true that a girl above 15 years of age is deemed to be sui juris for the purposes of marriage and husband of a minor wife if her legal guardian and has a right to have her custody under Muhammadan Law. In ‑ this case, the authenticity of marriage has been challenged by the father of the girl which cannot be determined conclusively in these proceedings. The conflicting statements made by the girl herself regarding her age would obviously necessitate investigation. This issue cannot be prejudged by this Court. In the facts and circumstances of this case, in order to avoid all possible complications envisaged by Muhammad Afzal Zullah, J. in Shahida l Parveen's case sending the girl to her alleged husband is not the safer course. As regards apprehension of the girl regarding her father, suffice it to say that he has sworn on affidavit that if the custody of her daughter is given to him he will not harm and disturb her in any manner whatsoever nor he intends to marry her with an old man as alleged in her affidavit. The mother of the girl is admittedly living with the petitioner and. that also is a reassuring factor. In view of the above, I am inclined to hold that the petitioner is entitled to the custody of his daughter Mst. Shagufta Shaheen. The petitioner may approach the Superintendent of Dar‑ul‑Aman, Lahore, who will hand over, Mst. Shagufta Shaheen to him. The petitioner has expressed apprehension that the respondent party will snatch his daughter from him. He has prayed for police guard for safer transit to his residence. The S. H. O. Police Station, Lobari Gate should make necessary security arrangements if approached by the petitioner. The petition is accepted accordingly. M. Y. H. Petition accepted.