P L D 1973 Lahore 591 (PLP)

In view of section 363, P. P. C. the matter was under inves tigation and to hand over the girl to the petitioner at that stage, or even to record her statement, would amount to interference in the case. No doubt normally the husband is the lawful guardian of his wife, but in the present case it was not known if the marriage itself was valid and was with the consent of the girl. The true position in this respect will emerge during the investigation or at the trial. To record evidence or express any view on this subject will only interfere with the investigation and trial of the case. It can be argued that law is blind and the courts while following the law should not care for the consequences. The court did not feel inclined to subscribe to this view and observed : "Law itself takes into account questions of honour and accepts normal human reactions as factors that must be considered. The principles of 'grave and sudden provocation' or 'self'‑defence' etc. are based on the recognition of such reactions and in appropriate cases, law even condones murder. Sim113rly, Courts (including superior Courts), take such human reactions into account while considering the question of sentence. Even norms and social values of a society or even of a particular region are also kept in view while considering such matters. Special tendencies or values of Pathans or agricultural tribes of Punjab have been kept in view by the superior Courts in Pakistan in cases of 'Ghalrat' etc. Why should then the norms of the society in which we live, and for which we administer the law, should not, in appropriate cases, be kept in mind while calling some one's daughter (or wife) in the Courts in cases of the kind mentioned above. It is precisely for this reason that the Legislature, in its wisdom, kept the jurisdiction under section 491 Cr. P. C. discre tionary." Muhammad Nasirn Khan for Petitioner. This is an application by Shaukat Ali son of Mohammad Ali under section 491, Cr. P. C. for the recovery of Mst. Najma alias Naaman Bibi from the custody of her father Altaf Hussain respondent No. 1 and her brother Mahmoodul Hasan respon dent No.

2. The facts as unfolded during the arguments are that the petitioner enticed away Mst. Najma the alleged detenu and got his nikah performed with her. A case under section 363, P. P. C. was registered against the petitioner by the girl's father. The petitioner took her to the District Courts, Sargodha, produced her before a Magistrate and got her statement recorded under section 164, Cr. P. C. She stated therein that she had not been kidnapped or abducted by any one and had come from the house of her parents of her own accord, to live with Shauktt Ali petitioner. The girl's father also reached the Magistrate's Court and raised hue and cry. Since a case under section 363, P. P. C. had been registered against Shaukat Ali petitioner, the learned Magistrate, after considering the facts of the case, handed over the girl to her father respondent No.

1. Hence the present application.

2. It is contended that Mst. Najma is a grown‑up girl and is married to the petitioner; that she is being detained by her father and brother in unlawful custody against her will, and that her life is in great danger. I ordered that a bailiff of this Court be deputed to recover Mst. Najma detenu from the custody of the respondents and produce her in the Court. Khawaja Muhammad Ramzan bailiff was deputed for this purpose. He has reported that he went to the house of the respondents and raided the same but Mst. Najma was not found there. The mother of the detenu was also not present in the house. The respondents were however served with the notices and were also asked to produce the girl in Court. They undertook to produce her. Tae respondents appeared in Court today but did not bring Mst. Najma. Altaf Huisain respondent stated that hi: daughter Mst. Najma was not present in his house as her mother bad taken her to the house of some relatives. The learned counsel for the petitioner requested that he be ordered to produce the girl on the next date of hearing. He urged that Mst. Najma was the lawful wedded wife of the petitioner and that he (the petitioner) is apprehensive about her safety. The counsel urged further that the liberty and the safety of a citizen should be the primary concern of this Court and that the Court should be to it that Altaf Hussain respondent produces his daughter Mst. Najma in Court, whereafter she should be set at liberty to go with the petitioner.

3. I have carefully considered the contention of the learned counsel for the petitioner. In the first instance, according to the bailiff's report Mst. Najma was not found by him in the respondents' house in spite of a surprise raid. Attaf Hussain respondent has also stated before me that she had been taken away by her mother to the house of some relatives. As a result, ft cannot be said that Mst. Najma is being kept in detention by the two respondents. The petition is, therefore, liable to be dismissed on this ground alone. Moreover, a case under section 363, P. P. C. has, admittedly been registered against the petitioner in connection with the abduction of Mst. Najma, which Is under investigation. According to the F. I. R. he has abducted Mst. Najma but according to the petitioner it is she who had come over to him. This is a question of fact which would be adjudicated by the learned trial Court In due course. However, it would not be out of place to mention that of late I have noticed a growing tendency that instead of invoking the jurisdiction under section 491, Cr. P. C. in cases of execution high handedness or other genuine cases of Illegal or improper confinement, this provision is being invoked more and more for the settlement of personal disputes over the custody of women and love affairs. As far as the latter is concerned, the usual modus operandi is that a young man first abducts or entices away some one's daughter and goes through the formality of a Nikah ceremony with her. He then produces her before a Magistrate and gets her statement recorded wherein she completely exonerated him from all criminal liability. In the meanwhile a case under section 363/366, P. P. C. is usually registered against the paramour and if the parents of the girl manage to obtain her custody, the paramour seeks the intervention of this Court for fulfilment of his design. The sole purpose is to use the good offices of this Court for obtaining the custody of his beloved, to the chagrin of the girl's parents and family. It sounds very enlightened to talk of the 'liberty' of the citizen, but more often then not, calling the girl to Court and handing over to the paramour results in unspeakable misery and humiliation for her parents who are already unable to face their relatives or live in their locality. The first blow to their honour is inflicted by the abductor or the paramour by taking away their daughters (even if she herself is a willing party). Whatever is left of their honour and self‑respect is sought to be taken away through the agency of the High Court. It can be argue that law i.e blind and the Courts while following the law should not care for the consequences. I am afraid I cannot subscribe to this view. Law itself takes into account questions of honour and accepts normal human reactions as factors that must be consider ed. The principles of 'Grave and sudden provocation' or 'self- defence' etc. are based on the recognition of such reactions and in appropriate cases, law even condones murder. Similarly Courts (including superior Courts), take such human reactions into account while considering the question of sentence. Even norms and social values of a society or even of a particular region are also kept in view while considering such matters. Special tendencies of values of Pathans or agricultural tribes of Punjab have been kept in view by the superior courts in Pakistan in cases of 'Ghairat' etc. Why should then the norms of the society in which we live and for which we administer the law, should not, in appropriate cases, be kept in mind while calling some one's daughter (or wife) in the Courts in cases of the kind mentioned above. I think it is precisely for this reason that the Legislature, in its wisdom, kept the jurisdic tion under section 491, Cr. P. C. discretionary.

4. Coming now to the present case I feel that in view of the facts stated in paragraphs Nos. 1 and 2 above, this is not a fit case for exercising the jurisdiction under section 491, Cf. P. C. I do not think it shall be appropriate, in the circum stances of the present case, to order a search for Mst. Najma who is said to have been taken away by her mother to the house of some relatives to insist on her production and ultimately to hand her over to the paramour. Moreover, in view of section 363, C. P. C. the matter is under Investigation and to hand over the girl to the petitioner at this stage, or even to record her statement, would amount to interference in the case. No doubt normally the husband is the lawful guardian of his wife, but in the present case it is not yet known if the marriage itself was valid and was with the consent of Mst. Najma. The true position in this respect will emerge during the investigation or at the trial. To record evidence or express any view on this subject will only interfere with the investigation and trial of the case. I am not inclined to exercise the jurisdic tion under section 491, Cr. P. C. in the present case and the petition is accordingly dismissed.

5. The security deposited by the petitioner is ordered to b6: refunded. The original documents filed by the petitioner, namely, nikahnama, birth certificate, X‑ray report and the medical report may be returned to the petitioner. S. A. H. Petition dismissed.