1999 P Cr (PLP)

5. In the peculiar facts and circumstances of the case Mst. Amir Fatima was sent to Darul Aman, Lahore. The bailiff of this Court was directed to lodge her in Darul Aman, Lahore at State expenses and the Superintendent Darul Aman was directed to ensure that nobody from the either side was allowed to see her and that she would be produced before the Court on 2.4‑8‑1998 to obviate the chances of any threat or influence. On 24‑8‑1998, the detenue was produced and the parties also appeared and the learned counsel for the respondents produced the birth certificate of the detenue showing the date of birth to be 13‑12‑1934 which was recorded on 25‑7‑1998 and also a certificate issued by the Medical Superintendent, District Headquarters Hospital, Faisalabad showing that according to X‑Ray Report No.169 the age of Mst. Amir Fatima was 17‑1/2 years. The certificate is in two inks and there is specific mention in it that it is not for Court. The words "according the Radiologist Report No. 169 her age is" are the words added in blue ball point by some clerical staff and that age of the girl according to her own statement is mentioned as 17/18 years. A photocopy of the Nikahnama, dated 25‑4‑1998 registered in Ward NoAQ6, Union Council No.72, Tehsil Tandlianwala, is placed on the record alongwith written statement filed by respondent No.6.

6. On the other hand, learned counsel for the petitioner has produced the Nikahnama of father and the mother of the detenue, dated 2‑6‑1983 registered in Ward No.671, Union Council No.18, Tehsil Burjwala District Sahiwal and an affidavit of Nikah‑'Registrar has been produced with his seal explaining that earlier the Chak No.68/5‑L was in Union Council No. 18 and now it is in Union Council No.25 and a Tasdiq Nama of the Chairman Zakat and Ushar Committee, Lambardar, Headmaster, Imam Masjid, etc. and a birth certificate have also been produced showing the date of birth of Mst. Amir Fatima as 13‑12‑1984. In support of his arguments, learned counsel for the petitioner has relied upon PLD 1980 Lah. 7, (D.B.), PLD 1980 Lah. 14, 1990 PCr.L1 791, 1997 PCr.LJ 1437 and PLD 1998 Lah. 328.

7. Learned counsel for the respondent No.6 has stated that the detenue is 17 years old, she is pregnant and that anything may happen to her or to the child if she is not allowed to go with her husband or her custody is given to her father. In support of his arguments learned counsel for the respondents has relied upon PLD 1997 Lah. 432 (D.B.) and PLD 1997 Lah. 301.

8. The rulings referred to by the learned counsel for the parties are discussed below in sequence of their reporting. They relate to abduction cases.

9. In the case of Mst. Aziz Mai v. S.H.O. Jalal Din Pirwala PLD 1977 Lah. 432 a Division Bench of this Court allowed a girl to go with her husband for the reason that the girl had attained age of puberty when she entered marriage and she was pregnant for 7 months.

10. In the case of Muhammad Zakir v. Taj Muhammad and others 1977 PCr.LJ 443 a girl aged between 16/17 years wanted to go with the father of her deceased paramour instead of her husband, Hafeez or her mother, Mst. Barkat Jan but the Division Bench of this Court did not allow her to do so and directed that she be handed over to her mother. In this case it was also held that although the girl was about 15 years of age was competent to contract marriage under the Muslim Law yet for the purpose of the Majority Act, 1875 she was a minor and had to be given in the custody of a person who would take care of her welfare.

11. In Mst. Rahila v. The State and 2 others PLD 1978 Lah. 1281 a girl aged 14/15 years ;vas shisked away from father's house by one Shahmand, brother of Rai Ahmad Khan and subject to rape. She was recovered and her father got registered a case under section 363/366, P.P.C. She filed a writ petition to seek relief for the accused against police and the complainant. The same was dismissed with the observation that prima facie the petition had been moved with ulterior motive to frustrate lawful purpose commenced for the purpose of bringing culprits to book and was prima facie an abuse of the Court.

12. In the case of Muhammad Anwar v. Muhammad Suleman PLD 1978 Lah. 1330 the abductee was with her brother and her alleged husband wanted to take her custody for the reasons that at that time she was with her brother and it would be unfair to her if she was brought at the instance of the alleged abductor to the Court. In that case an apprehension was expressed that the detenue was pregnant and there was likelihood of the respondent causing her some physical harm. The Court observed that it was hardly a reason for the abductor seeking the custody of the detenue and that if the pregnancy was on account of rape and if in that situation she was restored to the petitioner she would be under graver danger in so far as her pregnancy was concerned.

13. In the case of Muhammad Inayat v. Ch. Muhammad Saleem and 2 others PLD 1979 Lah. 154 it was observed that if the trial Court also ultimately finds the version of the father in the F.I.R. with regard to age of the abductee was correct or that she was in fact forcibly abducted in the first instance then all her statements recorded so far, whether under section 164, Cr.P.C. or in the Court in writ petition as also her affidavits, complaints against her own parents or other inspired or otherwise proceedings which had become almost the order of the day in so far as offences under section 363/366, P.P.C. are concerned would have to be put in juxta position to the plight of an abductee who was in the hands of her abductors as a tool of further oppression and humiliation.

14. In the case of Shahida Parveen v. Muhammad Inayat and another PLD 1980 Lah. 14 a learned Single Bench of this Court where there were three different versions regarding the age of the abductee and there was also seriously controverted question of fact with regard to the documents produced to evidence Nikah and the credentials of the alleged husband were the subject‑matter of adjudication in a criminal trial it was observed that it would not have been proper to hand her over to such person's custody and because that would have foreclosed the point in issue or a determination of it and the Court could justifiably pass an order directing the handing over the custody to the father with whom the mother of the abductee was also residing. It was also observed that habeas corpus petition could not succeed on the strength of abductee's claim to be of 17 years. The learned Single Bench had dismissed the writ petition challenging the order of the learned Sessions Judge to the effect that custody of the appellant be given to her father. The abductee preferred an Intra‑Court Appeal against the said order before a Division Bench of this Court titled as Shahida Parveen v. District Judge, Sialkot and another PLD 1980 Lah. 7 where the learned counsel for the abductee had relied upon the case of Mst. Aziz Mai v. S.H.O. Police Station Jalalpur Pirwala and the Division Bench dismissed the I.‑C.A. and observed as under:‑‑ "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 Zakir, 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 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 or one or the other type. There will also arise a question relating to the legitimacy of the off‑springs, if any. In the circumstances, 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 safe 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 in custody of her father, subject, of course, to a declaration by a Court of competent jurisdiction that, her custody should be handed over to somebody else.

12. Another reason for which we will like to agree with the learned Judge in Chambers is that the question as to whether the appellant was sui juris at the time of the alleged marriage is a question of fact. As indicated earlier, there are three versions with regard to the age of the appellant. The correctness or otherwise of each version shall be determined by an ordinary Court of competent jurisdiction when witnesses and documents are produced and the witnesses are also subjected to cross‑examination. This exercise cannot and should not be undertaken by the High Court while dealing with the Constitutional writs. The learned Single Judge had, therefore, rightly refrained from going into the question of her age for the purpose of determining as to whether she was sui juris at the time of her alleged marriage."

15. In Sajjad Hussain v. Superintendent, Darul Aman, Multan and others 1990 PCr.LJ 791 the age of the female detenue was unquestionably below the age of 18 years, it was held she could not be set free to go wherever she liked and her guardian whoever he may be, is entitled to keep her in his custody till such time as she attains the age of 18 years. In the case of Abdul Waheed v. Asma Jehangir PLD 1997 Lah. 301 where the abductee was an adult and it was ruled by the larger Bench of this Court that the marriage in question contracted without consent of the Wali is not invalid. In that case there was no controversy about the age of the girl. She was a student of fourth year in Government Lahore College for Women. The bone of contention was the validity of marriage of an adult Muslim woman without the consent of her Wali.

16. Similarly the Federal Shariat Court in the case of Muhammad Imtiaz and another v. The State PLD 1981 FSC 308 while allowing an appeal against an order of convection under section 10(2) of the Zina (Enforcement of Hudood) Ordinance, 1979 and where the appellants/accused were adults and had been charged with commission of Zina and the documents recovered by the police from the house of appellant/accused was a Nikahnama which had been properly recorded and registered as required by the Muslim Family Laws Ordinance, 1961 and there was no evidence or even suggestion to the effect that the said Nikahnama was a forgery and section 23 of the Family Court Act provided that character of such a document cannot even be challenged before a Family Court it was held by the Honourable Federal Shariat Court that the two appellants were married to each other. It was also observed by their Lordships that Nikah of an adult girl was not invalid for want of permission of Wali.

17. In the case of Nabeela Anjum v. Rana Muhammad Azam and 2 others 1997 PCr.LJ 1437 (Lah.) this Court observed that the question of age being purely a question of fact shall be resolved by the Court which shall decide the validity or otherwise of the marriage and as for the custody of the minor instead of giving it to the alleged husband whose very character as husband is under scrutiny would foster abuse of the process and would encourage illicit love affairs which are prohibited by the Holy Qur'an and Sunnah and would also create problems of law and order in the society.

18. In Malik Muhammad Shahzad v. The Superintendent Darul Aman, Bahawalpur and another PLD 1998 Lah. 328 the detenue girl was certified to be 15/16 years of age by the doctor who medically examined her, the best course in such eventuality was held to be to leave the question of age and the validity of the alleged marriage to be resolved by the Court of competent jurisdiction and the order for sending the girl to the darul Aman passed by the learned Magistrate was held to be suffering from no infirmity.

19. I have given due consideration to the valuable arguments on both the sides and have respectfully gone through the precedents cited at the Bar; and also discussed above.

20. Admittedly, there is no agreement on the factum of age of Mst. Amir Fatima. The father says that she is less than 14 years. The alleged husband says that she is 18 years old. The documents produced from both the sides are not authenticated ones and need further probe by proper forums as the Nikahnama of the parents of Mst. Amir Fatima is also without the seal of the Nikah Registrar, the date of birth of Mst. Amir Fatima recorded in the record of Union Council on 25‑7‑1998, the medical certificate is Not for Court and even otherwise it is undated and written in two different inks, the statement of the detenue is that she is 17 years old and a case under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 has also been registered against the respondents.

21. In Muhammmad Saffar v. Assistant Director Social Welfare and others 1988 SCMR 2097 since the age of the detenue was held to be below the age of 18 years and the legality of her marriage was yet to be determined before the Court of law, their Lordships of the Honourable Supreme Court held the view that she cannot be allowed to go with her alleged husband. The lady was also not willing to accompany the mother. The proper course held to be was that the question of her custody should be determined by the Court of competent jurisdiction in appropriate proceedings, and not in summary jurisdiction. The fact of this case were that Muhammad Saffar filed an application claiming to be the husband of the detenue Mst, Musarat Aftab who was detained in Darul Aman under the order passed by the learned Additional District Magistrate after granting bail to the appellant Muhammad Saffar. Against the order of the learned Additional District Magistrate, petition under section 491, Cr.P.C. was filed in the High Court which was dismissed. The learned Division Bench following the law laid down in Shaukat Ali v. Altaf Hussain Qureshi 1971 SCMR 398 directed that the detenue could be allowed to go with the mother in case she wished to go but could not go with the alleged husband. The Honourable Supreme Court of Pakistan directed the detenue to remain in Darul Aman till such time that an order is passed for her custody by a Court of law or unless she complies with the order of the High Court.

22. Seeking guidance from Shaukat Ali's case 1972 SCMR 398 and Muhammad Saffar's case 1988 SCMR 2097 and the peculiar facts and circumstances of this case as narrated above, such as determination of age, validity of the marriage or otherwise, registration of a criminal case under the Hudood Ordinance and her unwillingness to go with her parents, tentatively Mst. Amir Fatima alias Mst. Ambreen is directed to remain in Darul Aman, Lahore till such time that an order is passed for her custody by a Court of law. It is also ordered that the expenses for the health, care and maternity in Darui Aman shall be borne by the parents of the detenue. The Incharge Darul Aman shall arrange for her safe production for the purpose of investigation/civil or civil trial. Order accordingly. H.B.T./M‑817/L Order accordingly.