' One Nawab Khan, father-in-law of Mst. Munk Akhtar is alleged to have lodged F. I. R. No, 50 on 7-2- 1979 at Police Station Gulberg, Lahore, under section 366, P. P. C. For the abduction of her daughter- in-law by three persons including Muhammad Raees, who is employed in the Army at Kharian. The 'girl was 24/25 years old and was married with Sardar Khan. She was recovered by the police and produced before Mr. Nasrullah Khan Cheema, Magistrate section 30, Lahore, who recorded her statement under section 164, Cr. P. C. Before him the girl stated that 20/25 days before, her father had forcibly, against her wishes, given her in marriage to Sardar Khan. Both Sardar Khan and her father treated her with cruelty. Consequently she left the house as she apprehended danger to her life at the hands of her father and alleged husband. A week before she left the house and came to the house of Muhammad Rais to whom she was earlier engaged, since she appre. Hended loss of her life at the hands of her father and husband. She was neither abducted by anybody nor any body had committed sexual intercourse with her. After recording her statement the Magistrate passed the following order :- "Certified that I had explained to Mst. Munir Akhtar that she is not bound to make this statement and that if she makes, the same may be used as evidence against her. I believe that she made this statement voluntarily which was taken in my presence and hearing and which was read over to Munir Akhtar who admitted it to be correct. It contains a full and true account of her statement. The girl has opted to go with Muhammad Raees and I allow her to go with her parents or with Muhammad Raees according to her wishes because she is a major. Incidently both the parties are present outside the Court and the I/o tells me that there is chance for breach of peace if the girl is allowed to go all alone with the man of her choice. Accordingly, I have directed the I/O to conduct the girl safely to the place where she wants to go."
2. Her father Muhammad Ali filed revision petition which came up for hearing before Mr. Muhammad Azim Khan Niazi, Additional Sessions Judge, Lahore, who passed the impugned order dated 27th February 1979, whereby he made the observatioar"the police will be at liberty to recover the abduct= and to produce her before the A. C. (ilaqa), who will pass fresh order on the application of Subedar Muhammad Ali the father of the abductee". In para. 5 of his order he further remarked. "It is true that a woman who is sui is is a master of her own will but according to positive injunction of the Holy Quran under certain circumstances a husband can even go to the extent of giving a beating to his wife, who persists in her rebellious conduct. Admittedly, Mst. Munir Akhtar is living with Muhammad Rais who is not her legally wedded husband. In view of injunction of the Holy Qur'an the liberty granted to her by the learned Magistrate is illegal",
3. Fateh Khan has filed the present writ petition challenging the order of the learned Additional Sessions Judge alleging that the confinement of Mst. Munir Akhtar in Darul Aman in pursuance of the order passed by the learned Additional Sessions Judge is illegal and without lawful authority on several grounds. The statement of the girl was recorded under section 164, Cr. P. C. And the order was rightly passed by the Magistrate as the girl was sui furls. The learned Additional Sessions Judge passed the order without hearing Mst. Munir Akhtar violating the maxim audi alteram partem. Mst. Munir Akhtar has filed suit for a declaration to the effect that she was not the legally wedded wife of Sardar Khan and that he be restrained from calling or keeping her in his house as wife or in the alternative prayed that suit may be treated as suit for dissolution of man iage.
According to the petitioner after the order of the Magistrate Mst. Munir Akhtar started residing with her relatives, who are respectable persons, residing at Lahore.
4. Muhammad Ali, father of the girl has filed written statement raising certain preliminary objections, namely, that the petitioner has no locus stanch to file the writ petition as he is not related to the detenu ; that the girl was taken to Raees Khan brother of Mansab Khan and Mst.
Feroze Begum co-accused, named in the F. I. R. And as such the petitioner has not come with clean hands to this Court and is not entitled to invoke the extraordinary jurisdiction of this Court. There is hardly any substance in the preliminary objections raised, for, the girl is said to have been put in Darul Aman against her wishes depriving her of liberty in pursuance of an order passed by the learned Additional Sessions Judge. Any person can approach this Court where the liberty of an individual is involved due to an illegal and unjust order which obviously reflects an abuse of the process of the Court. Copy of the F. I. R. Has not been placed on the record. Fateh Khan, according to Muhammad All respondent No, 3 (father of the girl) is not related to Mst. Bhag. Bhari, mother of Mst. Munir Akhtar ; he is enemy of the answering respondent because hand of his daughter Safdar Begum was refused by the brother of Mst. Bhag Bhari, the petitioner, Raees Khan and co-accused have connived to humiliate the family, and that under Muhammadan Law husband of Mst. Munir Akhtar is entitled to put restriction on her movement in view of her rebellious conduct. It is strange that neither the father-in-law of Mst. Munir Akhtar nor her husband Sardar Khan have applied to be impleaded as party to the writ petition although they are the aggrieved persons and not the father of the girl, who claims to have already married her to Sardar Khan.
5. The sole question for determination in this case is whether-a girl, who is married against her wishes and is sui furls and has filed suit for dissolution of marriage, can be forcibly confined by her husband. Case under section 366, P. P. C. Was registered on 7th February 1979 against Races Khan, Mansab Khan and Mst. Feroze Begum at Police Station Gulberg. The prosecutrix is a witness in the case and the police has rightly produced her before a Magistrate for getting her statement recorded under section 164, Cr. P. C. Since the girl has made a statement which does not implicate anybody in the crime of abduction or rape the Magistrate had passed the legal order to allow her to go wherever she liked. The question of custody of the girl could not be decided in these proceedings, for, if there is any grievance that the girl is married and is not living with her husband, the remedy in such a case for the husband would be to file a suit for restitution of conjugal rights before the Family Court. Had the girl been an accused person, in such circumstances she could either be sent to Jail or allowed bail. This is not the situation in the instant case. The learned Additional Sessions Judge has referred to Islamic injunctions. Ordinance VII of 1979 was enforced to modify the existing law relating to zina so as to bring it in conformity with the injunctions of Islam as set out in the Holy Qur'an and Sunnah was enforced by the President of Pakistan on tenth day of February 1979. It is not retroactiv B in nature, and as such the prosecution in this case had to be under section 366, P. P. C. There cannot be any objection if the police wants to investigate the case or prosecute the offenders under section 366, P. P. C.
6. Mr. Ahmad Tariq Rahim learned counsel for the petitioner relied on Muhammad Rafique v., Muhammad Ghafoor (1), Sardara v. Khushi Muhammad etc. (2) and Muhammad Nawaz v. Rab Nawaz and another (3) in support of his contention that a sui juris girl, who has filed suit for dissolution of her marriage, by no law can be forced to live with a person against her wishes on the basis of nikah, validity of which has already been challenged in the family Court. The last cited judgment of the August Supreme Court is on all fours applicable to the facts of this case.
7. Learned counsel for respondent No, 3 relied on Feteh Sher v. Sarang (4), Ramzan v. Ch. Muhammad Aslam, Magistrate I Class, Sahiwal and others (5), Imdad Hussain v. Noor Hassan and others (6) and Mst. Sahi Bi v. Khalid Hussain etc. (7) in support of his submission that the jurisdicion under section 491, Cr. P. C. Should not be allowed to be revoked by a paramour of the girl so that she may not live in adultery. There is no bar of anyone moving application under section 491, Cr. P.
C. For the illegal detention of a person. Only information of an illegal detention is enough if it is received by a Judge of this Court in writing and an action can be taken on such an application on judicial side for the production and release of a person detained in illegal custody. There is no quarrel with this proposition, for, the Courts cannot be used as an instrument in aid of adultery. The Single Bench judgment of Muhammad Afzal Cheema, J. In Fateh Sher v. Sarang has been considered by the Supreme Court in Sardara v. Khushi Muhammad. It was held that the Court may set major detenu wife at liberty but cannot restore status quo ante against wishes of detenu.
Petitioner if real husband should approach civil Court for restitution of conjugal rights. The Supreme Court has clearly laid down the principle which is not in conformity with Fateh Sher v. Sarang and in fact in the subsequent judgment Muhammad Nawaz v. Rab Nawaz and another Muhammad Afzal Cheema, J. Was a party to the judgment and his Lordship subscribed to the contrary view, I. e. a wife who has filed a suit for dissolution of marriage and is sui juris cannot be compelled to live with her husband. In Fateh Sher v. Sarang Muhammad Afzal Cheema, J. Considered some verses of Surah
(1) PLD 1972 SC 6 (2) 1973 SCMR 189
(3) PLD 1976 SC 298 (4) PLD 1971 Lah. 128
(5) PLD 1972 Lab. 809 (6) PLD 1974 Kar. 485
(7) 1973 SCMR 577 An-Nisa but he has not taken note of other verses, namely, verse 15, which is reproduced as under :- {{URDU TEXT}} ' This clearly ordains that as for those of your women who are guilty of lewdness, call to witness four of you against them. And if they testify (to the truth of the allegation) then confine them to the houses until death take them or (until) Allah appoint for them a way (through new legislation).
Verse 130 of this Surah reads as follows : {{URDU TEXT}} ' But if they separate, Allah will compensate each one of his abundance. Allah is ever All- Embraching, All-knowing.
' Verse 231 of Surah Al-Baqarah is again relevant and is reproduced as under : {{URDU TEXT}} ' Retain them not to their hurt so that ye transgress (the limits). He who death that hath wronged his soul. Make not the revelations of Allah a laughing stock (by your behaviour).
' In view of the above Qur'anic injunctions and the law laid down by the Supreme Court the order of the Additional Sessions Judge is based on unsound and illegal approach and cruel form of human problem, which likely to create great resentment in female population of this country agains introduction of Islamic Code. The order is thus without lawful authority and is set aside. I would, however, make it clear that in case the girl no goes and lives with Raees Ahmad and she commits adultery she is obviously liable to be dealt with according to Islamic Law of the land.
8. Since the matter is of great public importance learned counsel for the parties pray that a reference be made to the Shariat Bench for pronouncement of judgment on an important question namely :- "Can an unwilling woman, who is sui juris be confined on the mere allegation of fornication by her husband without any proof, especially when she is married against her wishes and has filed a suit for dissolution of marriage."
' This question needs examination by the Shariat Bench of this Court, for the girl may have to face some hazards which are likely to affect her liberty by detaining her in Darul Aman in the circumstances of the case which may arise during investigation or trial of the case which is registered under section 366, P. P. C., but it is for the parties, if so advised, to approach the Shariat Bench as provided in Article 203-B of the Constitution of the Islamic Republic of Pakistan, 1973. Since an important question of law is involved, the parties shall bear their own costs.