Recovery of detenu

2024 YLR 1628 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Art.199Habeas corpus petitionRecovery of detenuScopePetitioner sought recovery of his brother from the illegal confinement of Police

Police claimed that the detenu required in number of cases was arrested in a case registered under S. 392, P.P.C., being nominated through supplementary statement of the complainant and while remaining on physical remand with police had been lodged to judicial custody

Validity

If the accused was in a judicial custody in another case, granting of further physical remand by the Magistrate in case FIR under S. 392, P.P.C., was not illegal, but in order to further ascertain the contention of the petitioner that detenu was not lodged to judicial custody pursuant to order of Magistrate dated 29.12.2023 in case under Ss. 392/411, P.P.C., a report from Superintendent District Jail was requisitioned which was received to the effect that detenu was not lodged in the jail pursuant to order of Magistrate dated 29.12.2023 in FIR under Ss. 392/411, P.P.C.

Thus, High Court by virtue of order dated 20.02.2024 directed Capital City Police Officer to conduct an inquiry in the matter, register a criminal case against delinquent police officers/ officials and submit report to High Court

Said report had been submitted

Capital City Police Officer, after conducting inquiry, had found the delinquent Police Officials as responsible for committing criminal breach of duty and in compliance whereof an FIR under Art. 155(1)(c) of the Police Order, 2002, stood registered

Petitioner stated that now after granting bail to the detenu by concerned Court he had been set at liberty

As Police had also conceded the commission of criminal act by respondents, therefore, constitution petition stood disposed of.

2024 PCrLJ 2058 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss.19 & 60Constitution of Pakistan, Art.199Habeas corpus petitionRecovery of detenuMinor Christian girlPetitioner sought recovery of her daughter from the illegal confinement of respondent

Petitioner alleged that respondent abducted her 13-year old daughter with the help of his cohorts and forcibly married her; that said marriage was void as it was not performed in accordance with the mandatory procedure prescribed by the Christian Marriage Act, 1872; that daughter of petitioner was a minor, and her father's consent was not obtained as required under S.19 of the Act

Validity

Minimum age for a native Christian man to enter into a marriage is 16 years and for a woman 13 years in terms of S.60 of the Christian Marriage Act, 1872

Consent requirement under S.19 is within the age bracket of 16 to 18 and 13 to 18 years respectively

Marriage could be solemnized in the presence of a person licensed under S.9 in the presence of at least two credible witnesses without the preliminary notice required under Part III

Christian Marriage Act does not expressly prohibit the marriage of a minor if it is compliant with S.5 (persons by whom marriage is solemnized) and does not violate S.88 (non-validation of marriages within prohibited degrees)

Birth certificate of daughter of petitioner submitted by her reflected that she was more than 13 years and 04 months at the time of her marriage

On 30.6.2021, daughter of petitioner had recorded her statement under S.164, Cr.P.C. before the Magistrate, claiming that respondent did not abduct her and she married him of her own volition

Thus, her marriage was not vitiated for lack of consent under S.19 of the Christian Marriage Act

Child Marriage Restraint Act, 1929, prohibited and criminalized child marriage in Pakistan

However, the husband or other persons who helped to solemnize the marriage could be charged with the crime but the marriage itself would not be void if a girl under the age of 16 married in violation of the Child Marriage Restraint Act, 1929

In the present case, the petitioner had made only a bald statement that the marriage between respondent and her daughter was void on the ground of consanguinity and affinity but had not furnished any details

Petitioner had also not appended any document with her petition to substantiate it

Even otherwise, since respondent had controverted the petitioner's contention, a factual inquiry was required to determine the truth which could not be conducted by the High Court while exercising jurisdiction under Art.199 of the Constitution

Petition was dismissed accordingly.

2013 MLD 194 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 491Habeas corpusRecovery of detenu

Detenue, a female, had been illegally confined by the accused (respondent), who happened to be her sister's husband and he was also alleged to have committed zina-bil-jabr with her

Detenue gave statement before the court wherein she stated that accused had threatened to kill her father and brothers if she did not join him; that accused had compelled her to file a criminal application against her family members; that accused committed zina-bil-jabr with her and she did not want to go with him and instead wanted to go with her parents, and that her custody should be provided to her parents and brother

Sister of detenue confirmed in her statement before the court that her husband/accused committed zina-bil-jabr with the detenue; that detenue had been detained by the accused, and that accused threatened to kill her

Mother of detenue (applicant) also confirmed in her statement before court that detenue was detained by accused by force; that accused committed zina-bil-jabar with the detenue and issued threats of dire consequences

Said statements of detenue, sister of detenue and their mother showed that detenue had voluntarily decided to go with her parents

Detenue, sister of detenue (including her children) were allowed to go to their parents' house and police was directed to provide full and proper protection to all of them and register F.I.R. against accused and also conduct a raid on the house of accused to recover minor baby of detenue

Application was disposed of accordingly.