1973 P Cr (PLP)

It is abundantly clear from her statement that her assertion that she did not thumb-mark the nikahnama has not been challenged by the petitioner.

7. In spite of what had been stated by the detenu and reproduced above, Mr. Muhammad Hanif Niazi, counsel for the petitioner; contended that he had to argue the matter at length and, at his request; the case adjourned to 1st August 1972. The detenu was sent to Darul Aman, wherefrom, she was directed to be produced on the date of hearing.

8. Mr. Niazi, basing his reliance on Verse 15 of Sura-un-Nisa' (a woman), Chapter IV, Section 3 of 'the Holy Quran, which is to the effect that a woman, guilty of indecency can be confined to he house until her death, contended that section 491 of the Code of Criminal Procedure, was in direct conflict with the aforesaid provisions of the Holy Quran and in view of the Provisions of Article 29 of the Interim Constitution of the Islamic Republic of Pakistan, was repugnant to the Holy Quran and Sunnah and thus was of no legal effect, in the case of a married woman. He also contended that the aforesaid provisions of law should be interpreted so as not to be inconsistent with or be against the basic concept of Islam as provided by Article 30 of the Constitution. As a question had arisen, as to whether, the principles of policy contained in the Constitution were justiciable and the Courts could, without the intervention of the Advisory Council of Islamic Ideology or the Legislature, declares section 491 of the Code of Criminal Procedure, to be repugnant to the basic concepts of Islam, I decided to adjourn the case. The learned Advocate General was directed to appear either personally or through one of his Officers to help me in resolving the aforesaid question.

9. Mr. Dilawar Mahmood, learned Additional Advocate ?General was heard. His contention is to the effect that a Muslim woman, who was sui juris, could not be handed over against her will like a chattel. She has to be set at liberty. With regard to the principles of policy contained in the Constitution, he rightly pointed out, that the same were not justiciable.

10. Sub-Article (2) of Article 28 of the Constitution reads: - "The validity of an action or of a law, shall not be called in question on the ground that it is not in accordance with the Principles of Policy, and no action shall lie against the State, any organ or authority of the State or any person on such ground." Sub-Article (3) of the said Article reads: - "The National Assembly, a Provincial Assembly, the. Presi?dent or a Governor, may refer to the Advisory Council of Islamic Ideology for advice any question as to whether a pro?posed law is or is not repugnant to the teachings and require?ments of Islam as set out in the Holy Quran and Sunnah." Article 29 of the Constitution is to the effect: - "No law shall be repugnant to the teaching and requirements of Islam as set out in the Holy Quran and Sunnah', and all existing laws shall be brought in conformity with the Holy Quran and Sunnah." It is, therefore, for the Advisory Council of Islamic Ideology to determine, whether any changes in section 491 of the Code of Criminal Procedure is indicated. 10-A. The interpretation of section 491 of the Code of Criminal Procedure came up for decision in the case of Muhammad Rafique v. Muhammad Ghafoor (P L D 1972 S C 6). The facts of the case were that Muhammad Rafique, who claimed to' be the husband of a real sister of the detenu Mst. Surraya Begum, was alleged that the said lady was residing with him for the last about five years, had been abducted therefrom and was being improperly detained by the respondent at Kahna against her will with a view to marry her. He requested for her being set at liberty. During the course of the proceedings, the parents of the detenu appeared. Their statements were recorded. They deposed that Mst. Surraya Begum was the legally wedded wife of Muhammad Ghafoor respondent. It is on account of the said 'statements of the parents of the detenu, that the petition was dismissed. The matter went up to the Supreme Court and the following guide lines were indicated by their Lordships for the decision of such applications, while allowing Muhammad Rafique's appeal: - "If a 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. The Court may "set at liberty", but cannot restore status quo ante against the wishes of the person brought before it. Such a course will lead to curtailment of liberty for which there is no warrant under section 491 nor can such an order be sustained under section 561-A of the Code as it cannot be said that allowing a person freedom of movement is an abuse of the process of the Court."

11. It was also observed by their Lordships: - "It escaped the notice of the learned Judge that even a decree for restitution of conjugal rights passed by a competent Court is not executed by handing over the custody of the wife to the husband." It was also held that even a civil Court cannot arrest a wife, who refuses to go over to her husband notwithstanding that a. decree for restitution of conjugal rights had been passed in favour of the husband.

12. Applying the above-mentioned principles to the instant case and taking into consideration the Principles of Policy contained in the Constitution, I am of the view that it is not for me to decide, whether section 491 of the Code of Criminal Procedure is repugnant to the Principles of Policy.

13. The application is not by the husband. In view of the statement of Mst. Arshad Begum, that she is not the wife of Abdul. Karim and she does not wish to live with her parents and she has never been abducted, I have no alternative but to dismiss the application, which was dismissed by a short order and the detenu was set at liberty. Petition dismissed.