2006 PLP 65 (YLR)

MUHAMMAD JEHANGIR ARSHAD, J.

This case was partly heard in the early hours of the day and was kept pending till 10-45 a.m. when it was called for the next time Syed Asif Raza Gillani, Advocate did not appear and Muhammad Hashim petitioner's father appeared and informed that his counsel had left the Court premises on account of ailment of his son.

2. Earlier Mst. Husina and Ghulam Nazak filed Writ Petition No.773 of 2005 which was heard by my learned brother Ijaz Ahmad Chaudhry, J. and was disposed of on 7-3-2005 with the direction that the Investigating Officer, present in Court, would obtain the thumb-impression of Mst. Husina Bibi by producing her before the Illaqa Magistrate and send the same to the Finger Print Bureau along with Nikahnama produced by the complainant. On receipt of the report of Finger Print Bureau the investigation of the case would further be carried out and in the meanwhile the Investigating Officer could also verify Nikahnama produced by the complainant after checking the record of the Union Council and recording the statements of the witnesses. As regards the release of the petitioner from Darul Amaan it was directed that she would be lodged in Darul Amaan, D.G. Khan till the completion of investigation and would only be released if as a result of the report of the Finger Print Bureau it was proved that she was not earlier married.

3. Through this constitutional petition Mst. Husina Bibi has again prayed that she being a sui juris has contracted marriage with Ghulam Nazak with her free-will and consent and the criminal case F.I.R. No.18 of 2005 dated 15-11-2004 under section 16 of the Offence of Zina (Enforcement of Hadood) Ordinance VII of 1979 at Police Station, Shaher Sultan District Muzaffargarh was mala fide with the object of pressurizing her for disconnecting her relations with her legally husband as the said marriage was not approved by her parents.

4. My learned brother Ijaz Ahmad Chaudhry, J. on 21-9-2005 directed that the notice be issued to respondents Nos.1 and 3 to appear in person and also to respondent No.2 for arranging production of the petitioner in the Court.

5. In compliance with the above said order Mst. Husina Bibi petitioner has been produced today. Muhammad Hashim petitioner's father/complainant of the said case is also present. Allah Dawyia, S.-I. submits that pursuant to the Court order dated 7-3-2005 the thumb-impressions of the petitioner were obtained and the same were sent for verification to the Finger Print Bureau and the report of the Finger Print Bureau was received but the same was objected to by the District Police Officer, Muzaffargarh on the ground that the thumb-impression mark Exh.P.A./1 and sent to the Finger Print Bureau was in fact the thumb-impression of Imtiaz Ahmad and not Mst. Husina Bibi. Therefore, the thumb impressions of Mst. Husina Bibi obtained earlier were sent for verification on 16-7-2005 but the result of the report is yet awaited.

6. I am afraid how in this state of affairs Mst. Husina Bibi can be kept in Darul Amaan for an indefinite period which is not only violative of fundamental rights under Art.10 of the Constitution but also militates against the right of marriage protected by Constitution under Art.35. Again through order dated 7-3-2005 the Investigating Officer was also directed to verify the Nikahnama produced by the complainant by checking the record of the Union Council and recording the statement of the witnesses. The police officer, present in Court submits that on 7-7-2005 Allah Bakhsh, S.-I. had appeared in the Court. Allah Bakhsh, S.-I. having since transferred the investigation of the case was entrusted to him. He, however, admits that the perusal of the police file shows that no such effort was made by Allah Bakhsh, S.-I. All the facts and circumstances lead me to conclude that this is a fit case where Intizar Hussain claiming Mst. Husina Bibi his legally wedded wife be directed to approach the Family Court in terms of law declared by Honourable Supreme Court of Pakistan in PLD 1984 SC 95 and get a finding about the validity/genuineness of his Nikah. It has been held in the said judgment by the Honourable Supreme Court that the findings of the Family Court in such-like cases are not only final and conclusive but binding even up to Supreme Court. I am, therefore, satisfied that despite lapse of seven months from the decision of this Court in earlier Writ Petition No.773 of 2005 on 7-3-2005 for one reason or the other the matter is being kept pending. Even the District Police Officer, Muzaffargarh did not care to take action against the person responsible for sending the thumb-impression of a wrong person and for the act of public servant petitioner who being sui juris cannot suffer and be detained in Darul Amaan indefinitely against her wishes. Prima facie petitioner claims herself as the wife of Ghulam Nazak even otherwise as declared by Honourable Supreme Court of Pakistan in Abdul Waheed Roperi v. Aasima Jehangir 2004 SC 219 it is the exclusive right of a sui juris Muslim girl to. decide with whom to marry and she cannot be compelled to disassociate her relations with her husband and for the simple reason that her marriage is not approved by her parents.

7. The upshot of the above discussion is that this petition is allowed. The petitioner being a sui juris Muslim girl is directed to be released from Darul Amaan. She may accompany her husband, namely, Ghulam Nazak. However, the investigation of the case shall proceed on its merits and in the meanwhile Intizar Hussain may, if so advised, approach the Court of competent jurisdiction. It has been informed by the learned counsel for the petitioner that suit for jactitation of marriage filed by Mst. Husina Bibi is pending before the Judge Family Court, Muzaffargarh and Intizar Hussain has already entered appearance in the said suit. As pointed out above in such-like cases finding of the Judge Family Court is conclusive and is binding on all the Courts. This petition is accordingly disposed of, however, the findings of the Judge Family Court shall decide the fate of criminal case. The A.S.-I. shall ensure that no person shall cause illegal harassment or interfere in the matrimonial life of the petitioner. N.H.Q./H-91/L Petition allowed.