1. ' By this petition, Mst. Sughran Mai has sought quashment of proceedings against her pending in the Court of Mr. Masood Ali Shah, Judicial Magistrate Section 30, Bahawalpur, in case F. I. R. No, 85 of 1979 under sections 10 and 16 of Zina (Enforcement of Hudood) Ordinance VII of 1979.
2. The brief facts of the case are that Ghulam Mustafa father of the petitioner lodged F. I. R. No, 85 of 1979, at Police Station, Nowshera Jadid on 17-6-79 at 12-30 p. m., stating therein that he was residing in Mauza Bahawalpur Ghalwan alongwith his wife and children. One month before the F. I.
2. R., Amir Bakhsh, son of Nabi Bakhsh Rafiq son of Jan Muhammad, Manzoor son of Kalu, Mst. Maryam wife of Amir Bakhsh and Mst. Muradan wife of Bachu used to visit his house being his neighbours.
3. Mst. Sughran Mai petitioner, according to the complainant, was of 14 years and the above- mentioned persons started inducing her to marry Manzoor son of Muhammad Nawaz which fact was stated by Mst. Sughran Mai petitioner to her parents. 12/13 days before the report, the complainant alongwith his Wife, Mst. Fatima, son, Muhammad Hussain and daughter, Mst. Sughran Mai petitioner were sleeping in the courtyard of his house on separate beds. At the time of morning-prayers, when Ghulam Mustafa complainant, his wife and son woke up, Sughran Mai was not found on her bed and on search hither and thither she could not be traced. On the basis of doubt the complainant alongwith his wife and son went to one Rasul Bakhsh son of Nabi Bakhsh, a brother of Amir Bakhsh, and enquired about Mst. Sughran Mai and demanded that she should be returned. Rasul Bakhsh, after great hesitation, admitted that he got Mst. Sughran Mai abducted through Amir Bakhsh, Rafiq, Manzoor, Mst. Muradan and Mst. Maryam and further told that she was abducted in order to marry to Manzoor Daya. He further.' admitted to have committed a mistake and promised to return Mst. Sughran 'Mai but the petitioner, in spite of the promise, was, not returned by Rasul Baksh, etc.
3. After the investigation, the Police submitted a report under section 173, Cr. P. C., in the Court of the learned Magistrate, wherein only the petitioner and Manzoor Ahmad alias Manzoor Hussain son of Allah Ditta were challaned. From the charge-sheet framed by the learned Magistrate, it is clear that the petitioner was charged under section 10(2) of Ordinance VII of 1979 for having committed zina with Manzoor Hussain son of Allah Ditta, her co-accused. Similarly Manzoor co-accused was charged under sections 10(2) and 16 of the Ordinance. Both the charge-sheets were framed on 7- 10-1979. The prosecution cited Ghulam Mustafa, father of the petitioner, Mst. Fatima mother of the petitioner, Muhammad Hussain brother of the petitioner. Faiz Bakhsh and Muhammad Akram as witnesses besides two doctors and the Investigating Officers. Ghulam Mustafa has already been examined as P. W. 1 and Lady Dr. Kaniz Fatima has been examined as P. W.
2. I find from the statement made by the P. S. I. On 21-10-79 that Mst. Ghulam Fatima and Muhammad Hussain P.Ws. Were given up as unnecessary. The only remaining witnesses, namely, Faiz Bakhsh and Muhammad Akram of village Nauraja Bhutta are yet to be examined.
4. 4, Mst. Sughran Mai petitioner was arrested on 1-7-79 and was produced before the trial Court on 2-7-79 who sent her to Darul Aman with the consent of both the parties and their counsel vide order of the same date. She was produced before the Court on 10-7-79 and the Police requested for her judicial remand as, in the meanwhile, she was treated as an accused under Ordinance VII of 1979. The request of the Police was granted and consequently she was sent to Jail as an undertrial prisoner. The petitioner challenged the order of the trial Magistrate for sending her to judicial lock- up, by way of a revision before the learned Sessions Judge, Bahawalpur, who, by his detailed order, admitted the petitioner to bail but instead of handing her over either to the complainant side or the party of Manzoor Hussain, her husband, ordered that she be lodged in the Darul Aman. This order of the learned Sessions Judge dated 16-8-79 was challenged in Writ Petition No, 4572 of 1979/LHR-No, 196-79/BWP, filed by Ghulam Mustafa complainant and in Writ Petition No, 4688 of 1979/LHR-No 201-79/BWP, moved by Manzoor Hussain: Previously some other petitjons for habeas corpus were.
5. Also moved. Both the above writ petitions were dismissed by a learned Judge of this Court by order dated 17-9-79, who refused to exercise the discretionary writ jurisdiction.
5. The present petition has been moved under section 561-A, Cr. P. C., for the quashment of proceedings on the ground that the charge framed under section 10(2) of Ordinance VII of 1979 against the petitioner in view of the evidence already recorded by the trial Magistrate, especially the statement of the father of the petitioner, would be an abuse of process of the Court for the reasons-
(i) even according to the certificate produced by the complainant which was issued by the Union Council Kaich Bait, the petitioner was born on 10-8-64 and thus, at the time of her nikah she was 14 years and 10 months and according to the birth entry recorded in Union Council, Bahawalpur Ghalwan the date of birth of the petitioner was 26-12-1961 and thus, she was between 17 and 18 years of age at the time of her marriage and further, according to the medical certificate, her age was 18/19 years. According to the learned counsel, the dispute regarding the age of the petitioner will not be in issue as, according to him, a Muslim girl can validly contract marriage of her own free will and choice after she has attained puberty and, according to her statement, recorded by a Magistrate, she had been menstruating for the last four years;
(ii) the factum of marriage has been admitted by the father of the petitioner in his statement at the trial and marriage is not disputed by any one. Learned counsel has also invoked section 4 of the Ordinance and has asserted that if any adult man or a woman wilfully have intercourse without being validly married, they are said to have committed zina and. Since, in the present case, marriage was claimed by the parties, no prosecution for zina can continue as the same will not result in any punishment whatsoever.
(iii) that even if the allegations contained in the F. I. R. As well as in the evidence of the prosecution already produced and intended to be produced, are believed to be true, no offence will be made out against the petitioner and, thus, it will be nothing but a mockery of justice and an abuse of process of the Court and harassm ent to the petitioner.
6. From the side of the complainant, the questions of puberty and the marriage of a Muslim girl without the consent of her guardian have been raised. It has been argued that marriage without a guardian (wall) is void. It has been further contended that since the marriage of the petitioner with Manzoor Hussain was not in her kafoo, therefore, the same was void. These questions have arisen in view of the provisions of the Offence of Zina (Enforcemeet of Hadood) Ordinance VII of 1979 which is recently promulgated. As penal law of Islam was not previously in vogue in the country, the above- mentioned important questions will need a discussion in detail.
7. During the course of the hearing of this petition, I also summoned Mst. Sughran Mai petitioner who admitted before me that she married Manzoor Hussain (co-accused) of her own free-will after attaining puberty.
8. Before entering into discussion of most important questions of Muslim Law, I would like to refer to certain provisions of the Offence of Zina (Enforcement of Hadood) Ordinance VII of 1979 under which the petitioner is being accused of and tried.
6. "Adult' has been defined in section 2(a) as- a person who has attained, being a male, the age of eighteen years or, being a female, the age of sixteen years, or has attained puberty."
7. ' Marriage for the purpose of the Ordinance has also been defined by section 2(c)- "marriage" means marriage which is not void according to the personal law of the parties, and 'married' shall be construed accordingly." `Zina' has also been defined in section 4 as- "a man and a woman are said to commit `zina' if they wilfully have sexual intercourse without being validly married to each other." `Zina liable to hadd' has been defined in subsection (1) of section 5 asZina is zina liable to hadd if-i-
(a) it is committed by a man who is an adult and is not insane with a woman to whom he is not and does not suspect himself to be married; or (b) it is committed by a woman who is an adult and is not insane with a man to whom she is not, and does not suspect herself to be married."
8. ' The word "puberty" has not been defined in Ordinance VII of 1979 and in order to understand the age of puberty in Islam, one has to refer book to the Muslim Law on the point.
9. The parties are, admittedly, sunnis and governed by the Hanafi sect of Muslim Law. According to Imam Abu Hanifa and Muhammad, puberty is presumed to be attained at the age of 15 years both for males and females. There are conflicting reports about the view of Abu Hanifa. According to one report, he has also agreed with the view of the disciples. Imam Al-Shafei has also agreed with it.
9. This has also been held in a number of cases: See Mst. Bakhshi v. Bashir Ahmad and another (1), Muhammad Atkia Begum v. Muhammad Ibrahim Rashid Nawab (2), Yusuf v. Mt. Zainab (3), Nawab Bibi.v. Allah Ditta (4), Khair Din v. Hakim Bibi (5), Kubra Bibi v. Muhammad Shafi (6). Muslim Law also draws a line of distinction between two stages of minority, that is, a minor who is possessed of discretion and understanding (sarir) and one who is not (saghir) and different consequences will flow from these two stages of minority.
10. ' Syed Ameer Ali, in his book "Muhammadan Law", 7th Edn., p. 246, while discussing the age of discretion and the capacity to, contract marriage, has stated: "It is otherwise, however, in the case of a marriage contracted by a sarir. `It is 'valid', says the Fatawai Alamgir, 'though dependent for its operation on the consent of the guardian'."
11. ' A sarir is a youth who has not attained majority but is possessed of understanding. The Fatawai Alamgiri calls such a minor sabi-ul-aakil.
12. ' Puberty has also been defined in Hedaya (translation by Charles Hamilton) at page 529 as under : "The puberty of a boy is established by circumstances, or upon his attaining eighteen years of age,-and that of a girl, by circumstances, or upon her attaining seventeen years of age :- ' The puberty of a boy is established by his becoming subject to nocturnal emission, his impregnating a woman, or emitting in the act of coition; and if none of these be known to exist, his puberty is not established, until he have completed his eighteenth year. The puberty of a girl is established by menstruation, nocturnal emission, or pregnancy; and if none of these have taken place, her puberty is established on the completion of her seventeenth year. What is here advanced is according to Haneefa. The two disciples maintain that upon either a body or girl completing the fifteenth year they are to be declared adult; there is also one report of Haneefa to the same effect; and Shafei concurs in this opinion.-It is also reported, from Haneefa, that to establish the puberty of a boy nineteen years are required. Some, however, observe that by this is to be understood merely the completion of eighteen years and the commencement of the nineteenth; and consequently, that this report perfectly accords with the other. Some, again, affirm that
(1) PLD 1970 SC 323 (2) 36 I C 20 (P C)
(3) AIR 1923 Lah. 102 (4) AIR 1924 Lah. 183 = 73 I C 896
(5) 26 I C 421 (6) AIR 1940 Pesh. 2 this is not the sense in which the last report is to be received; for there have been other opinions reported from Haneefa on this point, different, from that first recited as above; because some authorities expressly say that (according to him) the puberty of a boy is not counted by years until he shall have completed his nineteenth year. It is to be observed that the earliest period of puberty, with respect to a boy, is twelve years, and with respect to a _girl, nine years."
13. ' Their declaration of their own puberty, at a probable season, must be credited :- ' When a boy or girl approaches the age of puberty, and they declare themselves adult, their declaration must be credited, and they become subject to all the rules affecting adults; because the attainment of puberty is a matter which can only be ascertained by their testimony; and consequently, when they notify it, their notification must be credited, in the same manner as the declaration of a woman with respect to her courses."
14. ' Baillie, in his Digest of Muhammadan Law (2nd Edn.), note at page 4, relying on Fatawa-i-Alamgiri, Volume V, page 93, has stated that-"the lowest age of puberty, according to its natural signs, is 12 in males and 9 in females: when the signs do not appear, both sexes are held to be adult when they have completed their 15th year". Tyabji, in his Muhammadan Law, at page 104, section 21 states-"With reference to the age of competence to marry, it is presumed, in the absence of evidence of attainment of puberty, that males attain puberty at the age of 15 years, and females at the age of 9 years". Author has relied on a number of authorities in this behalf. See also Munshi v.
15. Mt. Alain Bibi (1), Sibt Ahmad and another v. Amina Khatoon (2), Sadiq Ali Khan v. Jai Kishori (3), Principles of Muhammadan Law by Mulla (17th Edition), section 251, page 226.
16. ' W. H. Macnaghten, in his Principles and Precedents of Muhammadan Law, at page 266, has raised a question regarding the validity of marriage of a girl of 11 years of age of her own free-will and choice, without the consent and approbation of her mother or guardian and then has answered as follows :- "The answer to the question entirely depends on the fact of the girl's being adult or otherwise. If a girl exhibits certain signs of womanhood at the age of nine, ten, eleven or up to fourteen years old, she is, in the language of the Law denominated baligha bilulamut or adult by puberty. Should she exhibit none of those signs up to her fourteenth year, yet, on her attaining the age of fifteen years she will be deemed an adult, and in the language of the Law will be termed baligha bissin or adult by majority. Under these circumstances if the girl alluded to in the question, being eleven years of age, should have shown signs of womanhood, she will be technically denominated baligha bilulamut, and will be at liberty to contract marriage with a person either her equal or inferior in condition, without the consent of her mother or other guardian. Such marriage is available in Law; in. Other words the contract does
(1) AIR 1932 Lah. 280 (2) AIR 1929 All. 18
(3) 109 I C 387 not infringe any positive legal rule. The mother or other guardian is not authorised to prevent the match, if she enters into a contract of marriage with a person equal in point of condition; but, if he be her inferior, they have a right to come forward and cause it to be set aside. In case of any doubt existing as to whether a girl has exhibited certain signs of womanhood, she should be questioned as to the fact; and if she replies in the affirmative, she should be treated as an adult, otherwise as a minor; and, if the fact cannot be ascertained from her declaration, she should be considered as not having passed the age of minority, and in both the last mentioned cases, if, without the consent and approbation of her mother or other guardian, she should have contracted matrimony either with her equal or her inferior, the marriage is good in law; in other words, the contract does not infringe any positive legal rule: but her mother or other guardian has, at any time, a right to come forward and to cause the marriage to be set aside."
17. ' Similarly, at page 267 of the book, Mr. Macnaghten has raised another question that if a girl having attained the age of twelve or of thirteen or of fourtheen years, asserts that she has arrived at the age of puberty, in such circumstances, whether such assertion is to be credited or otherwise, and then has replied as under:- "An assertion either by a male or a female of their having attained the age of puberty, after they are twelve, or thirteen, or fourteen years old, should be credited and received as conclusive, according to the Viqaya,-"If they are adolescent and shall assert their puberty, they must be believed and treated as persons who have arrived at the period of puberty."
18. ' From the above discussion it can be safely concluded, and it is also agreed by the Hanafi jurists, that the attainment of puberty is presumed at the age of 15 years and a girl becomes a major on the happenning of two events: (i) the completion of her fifteenth year; or (ii) on her attainin the age of puberty at an earlier period. The latter portion of the above statement is given due recognition in the definition of 'adult' in Ordinance VII of 1979 but left it to be determined according to the circumstances of each particular case. In the case before me, marriage is admitted by all. At the time of her marriage, the petitioner, even according to the A prosecution, was 14-1/2 years. Her statement, before me, having attained puberty, cannot be doubted and shall be given full credit particularly when the petitioner was quite nearing the age of 15 years, as Muslim Law presumes puberty at the age of 15 years. The petitioner's general appearance also confirms her assertion of having attained puberty at the time of her marriage. Syed Ameer Ali, in his Muhammadan Law, at page 246, noted a case from Motleys' Digest, Vol. 1, page 303-Shanisunnisa v. Ashrafunnissa and others, in which it was held by the S udder Court of Calcutta that the declaration of a girl that she was adult, when there was nothing in her appearance to lead to the contrary conclusion, would be accepted to establish majority. The petitioner, being adolescent, has asserted her puberty before a Magistrate, a Sessions Judge and even before me, at a time when she was a little over 15 years of age. Her unequivocal assertion before me will also amount to ratification of her marriage even contracted at a time when she was a little less than 15 years. In these circumstances, when the petitioner has attained puberty before attaining the age of 15 or 16 years, the determination of her exact age will be an exercise in futility. Marriage of the petitioner, in these circumstances, will be valid and even if, for the sake of argument, marriage is presumed to be irregular having been contracted by a sarir, the same having been ratified by the petitioner after attaining puberty, the defect or irregularity, if any, was thus removed.
10. The next question that would be relevant to the discussion is whether a marriage contracted by a minor without the consent of the guardian is void or irregular. Right to marry a minor by the guardian is agreed by all the Muslim jurists and a minor girl who has not attained the age of puberty can be given in marriage by the guardian and in that case right of option of puberty has been given to the girl to accept or cancel the marriage after the attainment of puberty. In Fatawai Kazee Khan, Vol. I, page 57, it is stated: "If a minor boy or a minor girl should marry himself or herself without the permission of the guardian and then they attain majority, the marriage contracted by them is not valid unless they ratify the same after attaining majority." A marriage contracted by a minor who has attained discretion (sarir) is irregular and may be ratified after attaining majority.
19. Reliance can be placed on Munshi v. Mst. Alam Bibi (1). As already stated, puberty has not been defined in the Ordinance and Islam has fixed no age-limit for puberty for it varies with the countries and with races due to the climate, hereditary, physical and social conditions. Thus, in cold regions, one attains puberty at much later stage as compared to hot regions where both male and female attain it at quite an early stage. The earliest age of puberty. With respect to a boy, is 12 and, with respect to a girl, it is 9 years, as referred to in Hedaya at page 530. In the case of Munshi v. Alam Bibi cited above, it was held that under Muslim Law even a girl under 15 years is competent to enter into a marriage contract if she has attained puberty. It was further held that where there is no perpetual or absolute prohibition against the marriage and the only objection is the alleged minority of the girl who entered into the contract of marriage, the marriage, at the most, would be invalid and not void, if it is found that the, girl was not in fact competent to enter into a marriage contract owing to her not having attained puberty. Syed Ameer Ali, in his book "Muhammadan Law", Vol. II, at page 266 (17th. Edition), relying on Radd-ul-Mukhtar, Vol. II, page 515, has stated : "When a minor girl, who has no relation that can stand in the situation of a wali, contracts herself in marriage, and there is no Kazi from whom sanction may be obtained, the marriage is not void, but will take effect on her attaining majority and ratifying the contract."
20. ' See also Kita-bul-Fiqa Alal Mazahib-ul-Arba, Vol. IV, Book on Nikah, page 61.
21. ' In the present case, admittedly, the petitioner has attained puberty and her stand from the very beginning has been that she married Manzoor Hussain of her own free-will and choice. As indicated earlier, the petitioner has already ratified the marriage contract and the defect or irregularity, if any, stands cured.
11. The objection from the complainant side, .However, was that the marriage of the petitioner, even if she be considered to be of the age of puberty, was void, as marriage of a woman cannot be performed without the consent of the guardian (wali). There is no force in the argument because guardian has no authority to marry a woman who has attained the puberty,
(1) AIR 1932 Lab. 280 without her consent, and such a marriage cannot be merely held to be void because it was not liked by a guardian. According to Fatawa-iKazee Khan (at page 86), the text which forms the basis of the authority of a guardian (in the matter of marriages) is the saying of the Holy Prophet (peace be upon him)-"There is no Nikah except by (means of) a guardian" and the existence of a guardian is a condition for the validity of the marriage of minors, and of those who are the property of others (i. e. Those who are slaves) and of those who are insane. Further, at page 96, it is stated that a father has no right to give his virgin adult daughter in marriage, in spite of her (that is, without her consent). The question of guardianship only arises in case of a woman who has not yet attained the age of puberty and the Muslim Law has given power to the guardian to give ,D her in marriage only in such an event; otherwise, a guardian has no power to interfere into the right of an adult woman regarding her marriage, as she is her own guardian (wali). See also Durrul Mukhtar (Urdu translation! By Maulvi Khurram Ali), Vol. II, Chapter Babul-wali, page 25. In support of the above view, a Hadith of Allah's messenger (may peace be upon him) be quoted:- "A woman, without a husband, must not be married until she is consulted, and a virgin must not be married until her permission 'is sought."
22. (Sahih Muslim, Tirmizi, Abu Daud, Nisai and Bokhari.)
12. The next objection from the complainant side was that marriage of the petitioner with Manzoor Hussain was also void because it was a marriage in ghair kafoo ({{URDU TEXT}}-not with an equal).
23. Kafa'at has been defined in Hedaya at page 39 as, in its literal sense, 'equality'. In the language of the law it signifies the equality of a man with a woman in E several particulars, i,e,, tribe or family, religion, freedom, character, fortune and profession. In Fatawa-i-Kazee Khan, page 71, it is stated "Kafaat (or equality) is relevant (and is an element fit for consideration) in marriage, although Malik, on whom be peace, and Soofyan and a party of the Sahabis, may God have mercy upon them, have entertained a different opinion. And it is said of Kurkhy, on whom be peace, that he entertained an opinion similar to that held by the persons named above. According to him, kagat appertains to five qualities. After enumerating these qualities, it is stated (at pages 76-77):- "When a woman (that is a Mahomedan woman) gives herself in marriage to a man who is not her Koofoo, her guardians, of the class called residuary guardians (Asbat, which includes father, grandfather, and not those of the class called Zawee-al-Araham) are entitled to set aside (or annul and avoid) the marriage: and a marriage shall not be set aside on account of want of Koofooship, but (by proceedings taken) before the. Kazee; because this matter (that is, want of Koofooship) is a principle which has been deduced by Ijtihad (or analogy of the Moojtuhids, and is a matter in which they differ, see paragraph 189) and each of the contending parties has some argument in his favor and has some authority to support him, and the difference amongst the contending parties cannot therefore be settled but by the decision of a person who has authority to settle the dispute (and that person is the Kazi). In the same way as the setting aside of a marriage on account of option of puberty and the repudiation of a thing purchased on account of defect after possession (this is also a matter which must be decided before the Kazee). Therefore this setting aside of the marriage (by the Kazee at the instance of the guardian aforesaid, on account of want of Koofooship) does not amount to a divorce (because a divorce takes place by the will expressed in words of the husband, but here the Kazee pronounces a declaration of the nullity of the marriage, but the Kazee has no authority to pronounce a divorce. Be it noted that it is of some importance to know whether this nullification amounts to a divorce or not, because if it amounts to a divorce, then in the event of the husband marrying the woman again, the husband would have in his hands only two instead of three divorces and it would affect inheritance).
24. ' Then if the marriage has been set aside (by the Kazee) before carnal intercourse 'and before Khilwati-i-Suheeh, then the husband shall be released from the whole of the dower, and the Iddut is not obligatory on the woman: but if the marriage has been set aside (by the Kazee) after Khilwat-i-Suheeh, then the husband is bound to pay the whole of the dower and the maintenance during the period of the Mc/at. And if the Kazee does not set aside the marriage between the husband and the wife, then the marriage shall remain binding as regards all rights and obligations, such as the husband's authority to divorce, and to Zihar and Eela, and as to mutual inheritance)."
25. ' Dr. Tanzil-ur-Rahman, in his book "A Code of Muslim Personal Law, Vol. 1, (1978 Edn.), page 199 has defined "kafoo" as "for the purpose of marriage that person is deemed to be one's Kufoo (social equal) who has the same religion, status of freedom and similar rated lineage, profession, financial standing and character". Baillie on Muhammadan Law, page 67, has stated that "when a woman has contracted herself in marriage to a man who is not her equal, the marriage is valid according to Aboo Huneefa, as reported in the Zahir Rawayut, and also according to the latest opinions of Aboo Yoosuf and Moohummud". Marriage in kafoo may be desirable because social equality in marriage in certain respects is essential to the happiness of the spouses and tl.e parents or the marrying parties may adhere to the rules of kafa'at while entering into the marriage. But marriage in gair kafoo is not void. It may provide a ground for annulment of marriage to the guardian if the woman has contracted a marriage in ghair kafoo or to the woman herself if she was misrepresented by the husband regarding any element of his social status. According to Dr. Tanzil- ur-Rahman (at pay 199), the law about equality in marriage seems to have been based on some practical difficulties experienced in unequal marriages. It is stated by AlKasani that many jurists such as Malik, Karkhi, Hasan al-Basri, Sufyan alThawri do not accept this rule as correct and in support of their view they rely on the following precedents:
(a) Hazrat Bilal, a liberated slave, was married to an Arab girl.
(b) The Holy Prophet (peace be upon him) has said that an Arab has no precedence over a non- Arab.
(c) The Holy Prophet (peace be upon him) and his Companions did not follow this rule.
26. ' There is nothing in the Holy Qur'an or in the Radith to show that a marriage relation can only be established among the akfa. It is quite a different thing that, generally, people should seek such relations among the akfa, but Islam came to level all distinctions, whether social, tribal or racial, and therefore it does not limit the marriage relationship to akfa. The principle that tribes and families have no special value with God is clearly established in the Qur'an : "0 you men 1 We have created you of a male and a female, and made you tribes and families that you may know each other ; the most honourable of you with Allah is the one among you most careful of his duty and best in his conduct (A1-Hujrut Surah XLIX-Ayat 13). The way is opened for establishing all kinds of relationships between the faithful to whatever country or tribe they may belong by declaring that "the faithful are all brethren" (Ibid. Ayat. 10), and "the believing men and the believing women are protecting friends (aullya)' of each other" (Al-Tauba Surah IX, Ayat 71). The Holy Prophet (peace be upon him) interpreted these verses by saying "The Arab has no precedence over the non-Arab, nor the non-Arab over the Arab, nor the white man over the black one, nor the black man over the white one, except by excelling in righteousness". When speaking of contracting marriage relationships, the Holy Qur'an speaks only of certain forbidden relations:- "24. And all married women (are forbidden) unto you save those (captives whom your right hands possess. It is a decree of Allah for you. Lawful unto you are all beyond those mentioned, so that ye seek them with your wealth in honest wedlock, not debauchery. And those of whom ye seek content (by marrying them) give unto them their portions as a duty. And there is no sin for you in what ye do by ,mutual agreement after the duty (hath been done). Lo ! Allah is ever Knower, Wise."
27. (Al-Nisa Surah IV, Ayat 24).
28. ' The Holy Qur'an again goes so far as to allow marital relations with non-Muslims : "And the chaste from among the believing women and the chaste from among those who have been given the Book before you are lawful for you."
29. (Al-Ma'idah Surah V, Ayat 5.)
30. ' The Holy Prophet (peat be upon him) recommended the marriage of a lady of the tribe of Quraish of the noblest family, his aunt's daughter, Zainab, to Hazrat Zaid who was a liberated slave ; and Hazrat Bilal, a Negro, was married to the sister of Abdal-Rahman ibn Auf. There are other examples of the same kind in the yearly history of Islam. In one Hadith, it is stated that the Holy Prophet (peace be upon him) recommended a certain man, called Abu Hind, to the tribe of Bani Bayadz, to whom he stood in the relation of a, maula (a liberated slave), and followed the profession of Hajamah (the craft of the cupper), saying : "0 Bani Bayadz! Give your daughters to Abu Hind in marriage and take in marriage his daughters" (Sunon of Abu gaud 12 : 26). This Hadith cuts at the root of the limitation of marriage to ak/a ; yet the jurists have insisted on it. There is no need to discuss the ,particulars of the above-mentioned six" requirements regarding kafa'at because, in the present case, no ground has been stated either in the F. I. R. Or in the evidence nor during the arguments before me that on what account the marriage of the petitioner with Manzoor Hussain is not in kafoo. As already stated, the marriage in kafoo is not a regal requirement except in matter of religion. . It is just .a customary rule and the marriage of the petitioner with Manzoor Hussain cannot be held to void. Marriage in ghair kafoo is neither irregular nor void. The only light is given in certain, cases to the guardian to approach the Qazi to ask for the annulment of the marriage. It is doubtful whether civil Courts in Pakistan would cancel a marriage if it was contracted in ghair kafoo. In one of the cases reported as Jamait Ali Shah v. Mir Muhammad and others (1) it was held:- "Although equality in nasab (family or descent is one of the six requisites laid down by the jurists of the Hanafi schools of Muhammadan law it is amoot point of the Sunni law whether a marriage otherwise lawfully contracted by an adult woman can be or must be set aside by a Court in British India at the instance of the so-called guardians (that is of the relatives who would be guardians if the woman had been a minor) if they can prove such social inequality on the part of the bridegroom, as would injuriously affect the family credit or interest.
31. ' It was further held-"consequently, inferiority in the social status of the husband does not render such a marriage invalid ab initio nor does it justify a Court in dissolving the nuptial tie". Dr. Tanzil- ur-Rahman, in his book, at page 214 (section 57) has stated that if an adult woman gets herself contracted into marriage with an unequal, the marriage contract shall be valid. The guardian; indeed, shall have the right of objecting to it and of setting the marriage contract annulled through Court on account of patent social inquality which may occasion loss of prestige or bring disgrace to the family. Imam Abu Hunifah holds that a marriage got contracted by a mature woman with an unequal person is perfectly valid. Imam Abu Yusuf and Imam Muhammad are also of the same opinion. The author further states-"here a doubt may arise that if kafa'at is not a condition for the validity of marriage contract, how then the right of getting the marriage contract cancelled through Court shall accrue to the guardian ? The fact is that kafa'at is established on the status of the woman and the guardian, not on the right of the individual. That is why, the guardian has been given the right of raising objections on reasonable grounds". The subject of kafa'at may be left here without further going deep into the matter or discussing the various aspects in details, because there is no ground stated before me from the complainant side on the basis of which it could be said that the marriage was in ghair kafoo, except that Manzoor Hussain husband of the petitioner was not from their caste. The precise argument of the complainant's counsel was that Manzoor Hussain being from a different caste, theref're, was ghair kafoo and the marriage of the petitioner with him was avoid. Castes system is alien to Islam which stands for removal of all distinctions of caste, creed and colour. The Muslims believe in equality of mankind and there can be no claim of superiority in Islam on the basis of caste, tribe, nation or country. The Holy Qur'an proclaims that the Believers are brethren (Al-Hujrat, Surah XLIX, Ayat. Precedence, in Islam, is given to a human being solely on the basis of piety (taqva). The Holy Prophet (peace be upon him) also laid great stress on it in his message on the occasion of his last Hajj that no one has superiority over others by reason of his nation, caste or country. Caste system, in fact, belongs to Hindus who have divided the whole society into classes or castes on the basis of the nature of their profession or occupation i,e,, social inequaility. In that system, members of higher classes or caste would take pride in themselves but hate other low classes or caste and treat them as untouchable. In Hindu caste system, for example, a marriage of a Brahmin is not possible with a Shudra. It is important to note that Hindu caste system and their customs have greatly influenced the Muslims of Sub-Continent. In spite of the teachings of the Holy Qur'an and of the Holy Prophet (peace be upon him), influence of Hindu.
32. Customs and caste system is persisting in our dealings and we have not been able to completely cast off their influences and ills of a non-Muslim system. Equality in caste of the spouses is not
(1) 1916 P R371 a legal condition for the lawfulness or validity of a marriage contract in Islam. If caste or racial prejudices are allowed to intrude into the brotherhood of Islam, which the Holy Prophet preached, the whole Islamic way of life will be corrupted and it would be an attempt to promote evil influences of a system alien to Islam, As already stated above, it is otherwise accepted by all schools that kafdat (equality) is not an essential condition for the validity of marriage and, therefore, it is not possible to hold that the marriage of the petitioner with Manzoor Hussain was void on that account.
13. Another important point which will need elaboration is, whether irregula (fasid) marriage will invoke punishment of hadd or tazir for sexual intercourse by the supouses of such marriage?
33. Marriage has been defined in section 2 (2) of the Zina Ordinance as "marriage which is not void according to the personal law of the parties, and 'married' shall be construed accordingly". The Zina Ordinance has not given any definition of 'void marriage' and has left it to be determined in accordance with the Muslim Law applicable to the parties. To determine the nature of a marriage particularly the fire gular marriages is quite difficult. Anyhow, the marriages are classified by the jurists as under:- (i)
34. Sahih called valid; (ii) Batil called.Void;
(iii) Fasid called irregular or invalid.
35. ' Mulla, on Principles of Muhammadan Law, in paragraph 253 has said that- "A marriage may be valid (Sahih), or irregular (fasid), or void from the beginning (batil).
36. ' A marriage which is not valid may be either void or irregular.
37. ' A void marriage is one which is unlawful in itself, the prohibition against the marriage being perpetual and absolute. Thus, a marriage with a woman prohibited by reason of consanguinity, affinity, or fosterage, is void, the prohibition against marriage with such a woman being perpetual and absolute."
38. ' Irregular marriage has been stated by Mulla, to be a marriage which is not unlawful in itself, but unlawful "for something else", as where the prohibition is temporary or relative, or when the irregularity arises from an accidental circumstance, such as the absence of witnesses. After this, he has enumerated the instances of irregular marriages, namely-
(a) a marriage contracted without witnesses;
(b) a marriage with a fifth wife by a person having four wives; (c) a marriage with a woman undergoing iddat;
(d) a marriage prohibited by reason of difference of religion;
(e) a marriage with a woman so related to the wife that if one of them had been I male, they could not have lawfully intermarried.
39. ' Dr. Tanzil-ur-Rahman, in his book "A Code of Muslim Personal Law", at page 109 has given the classification of marriages as under:-- "In Islamic jurisprudence marriages have been termed as valid (sahih), irregular (fasid) and void (bath!). In books of Fiqh the words, fasid' . (irregular) and bath! (void) appear to have been indiscriminately used. The question of Invalid marriages has thereby become considerably confused. Marriages merely irregular have often been called void as well. Some of the examples of Fasid' (irregular) marriages cited by the jurists confusingly have been termed by some as batil
(void) marriages. A number of the books on Fiqh, however, lay down the following marriages as merely -irregular:-
(1) Marriage contracted without witnesses.
(2) Marrying two sisters by a single marriage contract.
(3) Marriage contracted with one sister after the other in spite of the knowledge of their relationship.
(4) Marriages contracted with women prohibited consanguinity, affinity and fosterage.
(5) Marriage contracted any a Muslim male a non-kitabiyyah.
(6) Marriage contracted with a Muslim woman by an infidel who is the subject of a Muslim or an alien state.
(7) Marriage contracted by a woman with a man under duress and without his consent.
40. (8), Marriage contracted with a female during her period of probation (iddat).
(9) Marriage contracted unknowingly with a woman married to someone else.
(10) Marriage contracted knowingly with a woman married to someone else.
(11) Marriage contracted With a fifth woman in spite of four subsisting marriages.
(12) Marriage contracted by a man with his wife's sister during period of probation (iddat) of his wife, who stands divorced by him.
(13) Marriage contracted with one's own thrice divorced wife.
(14) Marriage contracted collectively with women being among themselves within prohibited degrees by consanguinity or fosterage. That is, marriage contracted by a man with two women so related that if one of them be supposed to be a man marriage between them shall not be valid.
41. ' Of the marriage contracts, stated above, the following have also been termed as void:
(1) In the event of marriage with two sisters contracted one after the other, the later one.
(2) Marriage contracted with women within prohibited degrees.
(3) Marriage of an infidel contracted with a Muslim woman.
(4) Marriage contracted knowing with a woman married to someone else.
42. (5; Marriage contracted with two sisters at one and the same time in one marriage contract, in respect of both of them.
43. ' In some books of Fiqh the word 'void' has been used for the following:-
(1) Marriage with woman within the prohibited degrees.
(2) Marriage of an infidel with a Muslim woman.
(3) Marriage with a woman know to be the wife of another; and
(4) Marriage contracted by putting the man under duress."
44. ' He has, while making a distinction between irregular and void marriages, further stated- "So far as the definitions of an irregular marriage contract and a void marriage contract are concerned there is a 'marked difference between the two. An irregular marriage contract is one in which merely some condition of a valid marriage contract is missing; whereas a void marriage contract is one which is null and void ab initio. That is to say, it never got contracted. They differ in their effects and consequences as well.
45. ' In an irregular contract of marriage if cohabitation takes place the woman's dower, specified or proper, whichever is less, shall become due. In the event of divorce or death of the man the observance of the term of probation by the woman shall become incumbent. The issues that are born to them shall be legitimate. As against this, in `void marriage contracts' no dower shall become due against the man, no observance of the term of probation (iddat) shall become necessary for the woman and the issues born to them shall not be considered legitimate."
46. ' Then, the learned author has discussed the Pakistani view regarding the various kinds of marriages, at page 111. Classification of marriages has also been discussed in Iftikhar Nazir Ahmed Khan and others v. Ghulam Kibria and others (1). Evolution of the concept of fasid (irregular) marriage has been discussed in detail by Dr. M. U. A. Siddiqui, in his book "Studies in Muslim Law"
47. (Vol. I) (First Edition) and at page 69 he has stated that batil marriage is one, the existence of which is like its non-existence, and, therefore in a marriage with prohibited women, neither nasab is established, nor is iddat obligatory. Fasid marriages, according to him, mean those. Which were in- between sahih and bat!! Marriages. Then, at page 74, he has stated that "all jurists are unanimous in holding that a marriage with a woman belonging to the first category (i. e., permanently prohibited women) is batil i. e. Null and void, and does not give rise to any legal incidents of a valid marriage. A sexual cohabitation with such a woman, even under the colour of a so-called made riage, is Zina, and absolute whoredom. The woman will not be entitled to any dower, nor will an iddat be incumbent upon her. The child of such a union will be illegitimate." At page 83, while discussing the legal effects of a fasid marriage, has stated that "the legal incidents of a fasid marriage were declared to be that the husband was bound to pay dower to the woman, if he had enjoyed her, the woman had to observe iddat and the offsprings would be legitimate."
48. ' I need not quote more books on the distinction between valid, void and irregular marriages because most of the jurists of Sunni Law have already made the distinction in their works that the legal consequence and effect of an irregular marriage is, to some extent, different from a void marriage, and, therefore, in an irregular marriage, the penalty of zina cannot be inflicted because the marriage, in any case, is not void according to the tenets of Muslim Law. The definition of zina in section 4 of Ordinance VII of 1979, if considered in the light of the above discussion, particularly relating to the marriages which are neither void nor sahih, i. e. Irregular (fasid) marriages, the marriage in such cases should be considered to be a marriage under the Muslim Personal Law and party to such a marriage will not be liable to any punishment for zina because the irregular marriage will be considered to be
(1) PLD 1968 Lah. 587 not void, and, therefore, parties will be taken to be validly married to each other.
14. In section 5 of the Ordinance, the words appearing in paragraphs (a) and (b) of subsection (1), "suspect himself or herself to be married" are also most important and have been. Based on the doctrine of shubhah (doubt) which has been elaborately dealt with by the Muslim Jurists in the various works. It was in connection with the marriages about the legality of which there was any difference of opinion among the Jurists that the whole doctrine of shubhah or doubt was evolved and developed. The Sunni Jurists, in their anxiety to save as many persons as possible, from the terrible punishment of hadd, adopted the rule that if, there existed circumstance, which might have created a doubt in the mind of the accused, the Judge ought to hold that the corpus delicti of zina was not complete, and should, on that ground, acquit him. In other words, in the vast majority of cases, they insisted upon the existence of "animus delicti" in the accused. If there were found any circumstances which might have created any doubt in the mind of the accused, they would give the benefit of doubt to the accused, who would, consequenity, escape the infliction of hadd. Since this doctrine of "doubt" was evolved and developed to save a person from hadd, it is discussed by authority (ancient texts) in Chapters on punishments. See "Studies in Muslim Law" Vol. I 1st Edition by Dr. N. I% A. Siddiqui. Pages 51-52; Hedaya, Vol. II, pages 586-588; Fatawa-i-Kazee Khan, Vol. II, pages 406-407; Rudd-ul-Muhtar, Vol. III, pages 231-334.
49. ' Cases of 'doubt', which are recognized by all, are:-
(t) {{URDU TEXT}}i, e. a doubt in the act. This arises in those cases in which a man mistakes an illegal carnal conjunction for a legal one. To constitute this kind of, doubt,.It is necessary that the mistake should have operated in .The mind of the accused who is, consequently, under such a misapprehension. It is not in every case that the accused will be allowed to plead this doubt.
50. (ii){{URDU TEXT}} i. e. a doubt in the subject (woman).
51. ' Punishment is not established in case of doubt in the mahal or subject, that is, in the ownership or milk {{URDU TEXT}}and this doubt is called shubha-i-hukmea, that is to say, a doubt in which it is a matter of doubt whether, according to the sharah, the subject or mahal is lawful there is no punishment (in this case of doubt), even though he suspected the unlawfulness of the subject. This kind of error has been held to arise in certain cases which need not be enumerated at this stage.
52. ' In the case of "Doubt in the woman" the doubt arises owing to the existence of some authority which negatives the unlawfulness of the woman, like the saying of the Holy Prophet (peace be upon him) "{{URDU TEXT}}" (You and your property are for your father) and, therefore, if a person has had sexual intercourse with his son's female slave, he will not incur hadd.
53. ' Imam Abu Hanifa was of the opinion that "Doubt" is of three, and not only of the two kinds mentioned above. This third category of 'doubt', he called "{{URDU TEXT}}" (Doubt arising in the contract of marriage)'. His opinion is that a contract of marriage is a sufficient ground for shubhah; although, the illegality of such a marriage be universally admitted, and the man, entering into such a marriage, be aware of its illegality. According to him, if a man *[See Appendix at p. 408) marries a woman whom it is not lawful for him to marry, and, under colour of such a marriage, has carnal connection with her, he is not to be awarded the hadd, but, if at the time of the contracting of the marriage, he was aware of its illegality, he is to be awarded tazir, or, a lighter punishment, at the discretion of the Judge. Ameer Ali in his book, "Muhammadan Law", Vol. II, has also discussed the principle of shubhah or semblance of right at page 242 See also "A Code of Muslim Personal Law" by Dr. Tanzil-ul-Rehman, Vol. I, page 114; Durrul Mukhtar, Vol. II, pages 410-411; and ami Qanoon-e-Faujdari (translation Kitabul Ikhtiar, pages 112-114.
54. ' Thus, shubhah fi! Aqd and other doubts mentioned above are duly recognized in section 5 of Ordinance VII of 1979, on the basis of which punishment of hadd can he avoided. For more elaborate discussion on the subject, see Appendix to this judgment, which is an English translation of Rudd-ulMuhtar, Volume 111, page 231 (Chapter on Punishments) copied out by me from Aizunissa Khatoon v. Kariniunissa Khatoon (1). It may be of some help to the bar as ready reference for making further research and study on the subject as the law relating to the punishment for zina has been recently introduced.
15. Reverting back to the merits of the case, the argument of the learned counsel for the petitioner that the evidence produced so far and which is yet to be produced will not culminate in any punishment, as envisaged by the Ordinance, either under section 10 or section 16, has force. In the F.
55. I. R., no allegation of zina has been Made. Evidence of Ghulam Mustafa was rel corded on 21-10-79, other important witnesses Ghulam Eatima and Muhammad Hussain were given up as unnecessary and only Faiz Bakhsh and Muhammad Akram remain to be examined Ghulam Mustafa, in his statement before the Court, has not uttered a single word relating to the commission of zina either in his presence or in the presence of any other witness. I have gone through the statements of Muhammad Akram and Faiz Bakhsh recorded under section 161, Cr. P. C., from which it can be gathered that in their statement there is no allegation of zina against the petitioner. Muhammad Akram has, in his statement, stated that they were told by Ghulam Mustafa that his daughter was abducted and that he had shown his doubt that she was abducted by Amir Bakhsh, Rafiq, Muradan and Maryam. He also stated that he alongwith other witnesses including Ghulam Mustafa went to one Faiz Bakhsh brother of Rasul Bakhsh who admitted having got the petitioner abducted and that he promised to get her returned but later on refused. To the similar effect is the statemant of Faiz Bakhsh. From the evidence on record or that is proposed to be produced, no case of zina or abduction would be made out. From the statements of Ghulam Mustafa and other two witnesses made under section 161, Cr. P. C., the only evidence for abduction was that of the petitioner but unfortunately she did not support the prosecution and throughout her stand before the trial Magistrate, the Court of Session and before this Court, was that she was not abducted by an person and that she married Manzoor Hussain of her own free will and choice. Thus, it can be safely concluded that there is no evidence on record, so far produced and that proposed to be produced, which is likely to culminate in any conviction either of zina or of abduction under section 10 or section 16 of the Ordinance. The standard of evidence for punishment under the Zina Ordinance is very high and before awarding punishment the Court has to satisfy itself that there is some evidence by which punishment to the accused can be sustained. On the other hand, Islam, in order to save the Muslim society from the havoc of zina has not solely depended upon punishment by hadd or tazir but has introduced various preventive and reformative
(1) 1 L R 23 Cal. 130 methods. Penal punishment is used as a last measure and the intent to punish persons for zina, etc. Is not to allow zina as a frequent act so that the people be punished every day for such a heinous offence. Purpose of these measures is that zina be not committed and be a rare phenomenon. Zina has been considered to be not only a grave offence but also a great sin; the punishment of which is also to be had in world hereafter and it is so oftenly repeated by the Holy Qur'an. On the other hand, God has provided all the facilities of marriage and ordained every Muslim to marry and to shun celebacy. In some cases, Islam has allowed a man to marry more than one woman and in proof of zina the Holy Qur'an as well as the Ordinance has provided that at least four eye-witnesses are required to depose before the Court that they have seen the accused in the actual act in intercourse. Those witnesses should be of unimpeachable character and have to state that they have seen both the persons in the very act of the actual intercourse. These hard rules of evidence themselves indicate that the purpose of law is not to fix scaffold in crossings to flog people every day but to punish only those who, despite preventive methods adopted by Islam, commit zina in such a wanton way that four or more persons can see them. It is another fundamental principle of Muslim Law that in order to inflict hadd or tazir the evidence shall be proved beyond any reasonable doubt. It is, therefore, a fundamental rule of Islam that doubt cannot be the basis for punishment but proyides a ground to pardon and it is mentioned by Ibn-i- Maja, the Holy Prophet (Peace be upon him) having stated- {{URDU TEXT}} on account of doubt, as long as you have ability." and similarly, in another Hadith, the Holy Prophet (peace be upon him) said:- {{URDU TEXT}} ' In view of the above, doubt cannot take the place of definite evidence. With regard to confession in such cases, Islam has taken special care and has provided a special procedure. Since it is not a case of confession, 1 need not make a detailed discussion of the same.
16. In the present case, there is no evidence of zina liable to hadd or tazir, nor is there evidence of abduction because no witness has stated that the petitioner or Manzoor Hussain had committed zina in his presence or that any one of them saw the petitioner being forcibly abducted; neither is any possibility of any further evidence coming on the record of this case, in view of the statements of the two remaining witnesses recorded under section 161, Cr. P. C. Their evidence also, if recorded, will not be of any help to the prosecution because they too do not say anything about zina having been committed in their presence or regarding the abduction having taken place in their presence.
56. In these circumstances, the question of determination of age will not be relevant at all and even the claim of marriage, if taken by the petitioner or Manzoor Hussain, will not make them liable to any punishment under section 10 or section 16 of the Ordinance because zina cannot be presumed.
57. It needs a definite and specific kind of evidence as laid down in the Ordinance itself in accordance with the Muslim Law. Even otherwise, if nikah is admitted, the petitioner was, according to the certificate produced by the father, of the age of 14 years 10 months at the time of her alleged marriage. She was nearing the age of fifteen which is considered by all the Jurists to be the age of puberty in the absence of evidence that the lady attained puberty earlier. In this case, according to her statement made before me, already mentioned above, she was menstruating for the last four years and had married after attaining puberty.
17. It is noteworthy that the conduct of Ghulam Mustafa (P. W. 1) father of the petitioner is also not above board. In fact, he himself is responsible for providing ground to the petitioner to marry Manzoor Hussain of her own sweet choice and will. Ghulam Mustafa (P. W. 1) has admitted in his statement that he, at first, attempted to marry the petitioner to one Haji Manzoor Ahmad, a wealthy person who had been to Arabia, and whose wife had already died. The proposed husband was definitely an aged person because his daughter was already married. Second attempt was made to give the petitioner's hand to one Haider who had already a wife. It seems from the cross- examination of this witness that father was all out to marry the petitioner to a person of his own choice for his persona! End, against the consent of the petitioner. Thus, the behaviour and conduct of father of the petitioner was not just and praiseworthy. Islam enjoins on the guardians to marry their daughters after getting their consent. They are supposed to protect and safeguard the interest of their daughters. To thrust or force a marriage, without one's consent, is against the Hadith of the Holy Prophet (Peace be upon him) already quoted in para. 11 above, which says, "a virgin must not be married until her permission is sought". In these circumstances, marriage contracted by the petitioner herself, without the blessing of her father, was not liked and a spiteful prosecution was launched in order to undo a marriage, which was otherwise quite legal. It is also admitted by the father of the petitioner that the petitioner had married Manzoor Hussain against his wishes and consent. It is thus evident that prosecution against the petitioner by her father was merely to vindicate his own egoism. He was so conceited about his authority over her adult daughter that he took the marriage contracted by herself, as an injury to his pride, and launched malicious prosecution to inflict injury to his own daughter in retribution. Thus, the case against the petitioner was mala fide and cannot be allowed to continue as it will be an abuse of the process of Court.
18. Learned counsel appearing for the State has frankly admitted at the bar that there is no evidence of zina on the record and the evidence proposed to be brought on record will also not prove the case as one of zina. Similarly is the situation, according to him, with regard to the abduction. His only objection is that the quashment petition is not competent in view of the provisions of section 249-A, Cr. P. C. Section 249-A, Cr. P. C., does not limit the inherent powers of the High Court under section 561-A, Cr. P. C. Though in normal cases the High Court is always reluctant to interfere yet in cases where the challan submitted against the accused contains no allegation or accusations which if allowed to go to trial will not even remotely end up in his conviction, it has the jurisdiction, in order to prevent the abuse of the process of the Court, to quash those proceedings. In the present case, it is a fact, that whatever allegations are there against the accused, they do not disclose any offence, even if they are assumed to be true. Reliance in this respect is placed on Superintendent of Federal Investigating Agency, Lahore and another v. Akhtar Hussain Bhutta (1) as also on the case of Ghulam Muhammad v. Muzammal Khan (2) wherein it was held that "the High Court should be extremely reluctant to interfere in a case where a competent Court has, after examining the evidence adduced before it, come to the view that a prima facie case is disclosed and has framed charges or summoned the accused to appear, unless it can be said that the charge on its face or the evidence, even if believed, does not disclose any offence". In the present case, as already stated, there is no evidence on the record nor there is likelihood of any evidence coming forth to convict the petitioner of the charges against her.
58. She is only charged for committing zina with Manzoor Hussain. There is no evidence as required by the Ordinance nor is there any confession or any other circumstance which will culminate in her conviction.
19. In view of the above discussion, I quash the proceedings pending againse the petitioner in the Court of Mr. Masood Ali Shah, Judicial Magistrate Section 30, Bahawalpur, in case F. I. R. No, 35 of 1979 under sections 10 and 16 of Zina (Enforcement of Hudood) Ordinance VII of 1979.
20. Before parting with this case, it may be noted that the judgment was ready to be announced in this case on 23-1-1980. Before, however, the judgment could he announced, a new counsel (Kh. A.
59. Waheed Advocate) appeared on behalf of the complainant and requested for further arguments.
60. The request was granted in view of the complicated questions of Islamic Law involved in the case and the case was adjourned for his arguments for today, i. e., 26-1-1980. Kh. A. Waheed, Advocate for the complainant, at the outset, agreed that the petitioner had attained puberty at the time of her marriage. He has argued that the police investigated the case on the wrong lines. He further stated that no offence was made out against the petitioner from the evidence on record and it would be futile to let the case linger on in the trial Court. In fact, the learned counsel on behalf of the complainant (father of the petitioner) himself asked for the quashment of proceeding, Against the petitioner. I am sorry to note that the complainant was seriously contesting the application throughout from the beginning till 26-1-80 and was all out to get his daughter convicted. Case was already argued with great ability and labour by the original counsel on various dates. Lot of labour and valuable public time could have been saved, had the complainant been upright and straightforward in his conduct during the hearings of the case. Request, at least. On his behalf for the quashment of proceedings on 26-1-1980 was quite late as the judgment was ready to be announced on 23-1-1980. Had this request been made at the initial stages, the judgment might have consisted of a few line
(1) L D 1978 SC 193 (2) PLD 1967 SC 317 Criminal Miscellaneous No, 797/Q of 1979 APPENDIX [Vide last portion of para. 14 of judgment] RUDD-UL-MUHTAR, VOL. HI, P. 231 (Chapter on Punishments)
61. ' Text of the Durr-ul-Mukhtar, chapter on the sexual intercourse, which establishes the liability to hadd and that which does not establish such liability, on account of the existence of doubt by reason of the (hadir or) saying of the Holy Prophet (Peace be upon him)-"Remit punishment on account of doubt, as long as you have ability".
62. ' Doubt is that which resembles a thing, but which is not really in existence.
63. ' Doubt is of three kinds :-shubha-i-hukmea, and this appertains to the subject, i,e,, the mahal. The second class is shubha-i-ishtibah. The third class is called shubah-i-akd. But, correctly speaking, the third class is included in the first two classes, and I will soon enter into a discussion relating to the name.
64. ' Then, when the man who commits the act of sexual intercourse claims it, that is, claims the doubt, and adduces evidence, then his evidence shall be accepted, and the hadd shall be dropped ; and so also hadd drops by his merely claiming the doubt, except when he claims compulsion in particular, in which case it is necessary for him to adduce evidence, because he claims that somebody else did an act, and it is, therefore, necessary for him to adduce evidence.-Bahur.
65. ' Punishment is not established in case of doubt in the mahal or subject that is in the ownership or milk, and this doubt is called shubha-i-hukmea, that is to say, a doubt in which it is a matter of doubt whether, according to the Sharah, the subject or mahal is lawful ; there is no punishment (in this case of doubt), even though he suspected the unlawfulness of the subject ; as, for instance, sexual intercourse with the slave girl of his son and with the slave of his son's son, howlowsoever, although his son might be alive, on account of the tradition of the Holy Prophet "thou and thy property are for thy father."
66. ' And as, for instance, sexual intercourse with (his own) motudda, who has been divorced by kinavat or indirect expression of divorce, although the indirect expression might be the word khula` provided the word is not accompanied with property, and although he might have intended, by the use of the indirect expression, to divorce her thrice.-Nahur.--- By reason of the saying of Haziat Umar (on whom be peace :)-"all indirect expressions amount to reversible divorce."
67. ' And as, for instance, sexual intercourse by the seller of a slave girl who has been sold, the seller having sexual intercourse before surrendering her to the purchaser ; and as for instance, sexual intercourse by the husband with a slave girl whom he assigns as dower to his wife, -he having sexual intercourse before surrundering the slave girl to his wife, and so also if the man has sexual intercourse with the slave girl in the aforesaid two cases after surrendering the slave girl, when the sale and the marriage respectively will be fasid.
68. ' And as, for instance, sexual intercourse by one co-partner with a slave girl held in partnership ; and as, for instance, sexual intercourse by the master of a mukatab with a slave girl purchased by the mukatab or by the mukatab ; or by the master of a male slave who has permission from his master to enter into trade (and who purchases a slave girl) ; but who has debts which more than cover the slave's property and the value of his person.-Zailayi.
69. ' And as, for instance, sexual intercourse with a slave girl who has been obtained as booty whether after she has been brought to our country or before ; and as, for instance, sexual intercourse with a slave girl before the purification of her womb has been ascertained; and sexual intercourse by the vendor with a slave girl as to whom the purchaser has the option (of confirming the sale or annulling it) ; and sexual intercourse by the master with a slave girl who is the foster-sister of the master.
70. ' And sexual intercourse by the husband with his wife who has become unlawful to him by her apostasy, or who has become unlawful to him by her having intercourse with her husband's son, or who has become unlawful to him by his having intercourse with her mother or her daughter, because there are some of the Ayhama (or Imams) who do not render the wife unlawful to the husband in consequence of these things. Other instances might also be cited, as will occur to the man who makes a research. Therefore, the claim to restrict these cases to six is not correct.
71. ' And there is no hadd also by doubt in the act, and this doubt is called shubha-i-ishtabah, that is to say, there is doubt in the mind of the man who gets the doubt in his mind. And there is no hadd by reason of this doubt, if the man entertained doubt, as regards the lawfulness of the act. What is necessary to make the punishment cease is the claim of doubt, although he might not have (really) entertained a doubt. And even if only one of the two parties claim doubt, both shall be free from punishment, unless they both admit that they were certain of the unlawfulness of the act.-- Nahur.
72. ' As, for instance, sexual intercourse with the slave girl of one's father or mother how h ighsoever.- Shermmi.
73. ' And as, for instance, having sexual intercourse with one's own motudda who has been thrice divorced, although the three divorces might have been pronounced at once.
74. ' And as, for instance, having sexual intercourse with the slave girl of one's wife and with the slave girl of one's master, and sexual intercourse by the pledgee with a slave girl who has been pledged ; the last case is the case of doubt of the class under consideration according to the tradition reported in the book of Muhammad on punishments, and the view that this case comes under this class is preferable.-Zailayi ' And according to the Hadaya, a man who takes a loan (of a slave girl from her owner) for the purpose of pledging her is in the same category as a pledgee. And we shall presently discuss the rule regarding a slave girl who has been pledged or who has been usurped. And it is proper that a slave girl who has been made wakf upon a man is in the category of slave girl who has been pledged.-Nahur.
75. ' And as, for instance, having sexual intercourse with one's own motudda, who is observing her iddat, having been divorced in consideration of property and so also having intercourse with the wife who is observing her iddat having obtained khula in consideration of property, according to the current view.-Badava.
76. ' And as, for instance, having sexual intercourse with a motudda, she having been his oom-i-walad and having been emancipated by him.
77. ' If the man who has had sexual intercourse claims the nasab, then the nasab shall be established in the first class, i,e,, in the case of doubt in the mahal or subject, and the nasab shall not be established in the second class, i,e,, in the case of doubt in the act, in consequence of the latter being purely zina, except that nasab shall only be established in the first class in the case of the wife who had been divorced thrice, provided she give birth in less than two years and not more and if she gives birth after two years or more, then nasab shall be established only when the man claims, as is already laid down in the chapter on the establishment of nasab : and so also with greater force shall nasab be established in the case of a wife who has obtained her khuld and in the case of a wife who had been divorced for a consideration.-Nihaya.
78. ' And also except in the case of a woman who has been sent to a man to whom the woman represents that she is his wife, though, in reality, who is not his wife ; in this case also nasab shall be established by a claim.- Bahur.
79. ' And there is no punishment also in the case of shubah-ul-akd (doubt arising from the contract of marriage. (i) according to Imam Abu Hanifa. As for instance, when a man has sexual intercourse with a maharim, whom he has married ( j) But Abu Yusuf and Muhammad have held (k) that if the man was aware of the unlawfulness, he shall be subjected to hadd, (1) and upon this fatawa is given.-Khulasa.
80. ' But preference is given by all the commentators to the view of Imam Abu Hanifa, and, therefore, it is preferable to give fatawa according to this view : So it has been said by Kasim in his work called the Tusheeh.
81. ' But it has been laid down in the Kohistani (m) (i,e,, Jamai-ur-Ramuz) from the Muzmirat that fatawa is given according to the view of Abu Yusuf and Mohamed. And it is laid down in the Fath- ul-Qadir (n) that the same (that is the case called Shubha-i-akd) belongs to the (class called) shubah-i-mahal ; and in the shubah-i-mahal, nasab is established, as has been already discussed. Or, as for instance, sexual intercourse in a marriage without witnesses ; in this case there is no punishment in consequence of doubt of marriage.
82. ' And it is laid down in the Mujtuba, that if a man marries his Maharim or the munkuha of another man or the motudda of another man, and has sexual intercourse with her, knowing that it is lawful for him to have sexual intercourse with her, he shall not be subjected to hadd, but shall be subjected to tazir, and if he has sexual intercourse knowing or suspecting or having reason to believe that the intercourse is unlawful, that the some rule holds according to Abu Hanifa, but the contrary rule has been laid down by Abu Yusuf and Mohamed.
83. ' It thus appears that the classification of doubt or shubha into three divisions is according to the view of Abu Hanifa (o).
84. Commentary on the above in the Rudd-ul-Muhtar, Vol. III, p.
85. 236.
(1) And there is no punishment also in the case of doubt arising from the contract.
86. ' That is shubha-i-akd is where there is a contract in semblance and not in reality ; because doubt is, as has already been pointed out, what bears resemblance to a real contract, but is not in itself in reality a contract. Therefore, a contract, which is in reality a contract, is excluded from shubha-i- akd ; and for this reason it has been laid down in Taiarkani that "when sexual intercourse takes place by the (milk or ownership of nikah (or marriage) or by ownership of person, and unlawfulness is in consequence of something else, then this sexual intercourse does not involve liability to hadd ; as, for instance, having sexual intercourse with a wife in her menses, or impurity after child-birth, or in her fast of the fir.: kind ; or who is making ihram for pilgrimage, or with a wife with whom another man has had sexual intercourse from doubt, or sexual intercourse, with a wife with whom he has made zihar or eela, he having had sexual intercourse (with the last three) during the iddat, there is no hadd on the man. And so also if a man has sexual intercourse with his slave girl of whom he is the owner, when she is unlawful to the man on account of foisterage or musaharat ; or in consequence of the slave girl's sister being, for instance, in his marriage ; or when the slave girl is a majusi or an apostate there is no hadd on him, even if he knows of the unlawfulness.
(j) As, for instance, when a man has sexual intercourse with a maharim whom he has married.
87. "Whom he has married" means with whom he has contracted a marriage. The author of the Tanwir-ui-Absar has used the word maharim generally (without any qualification), and, therefore, the word maharim includes those women who are prohibited on account of nisab, or of reza, or of zahriat, and the author of the Tanwir-ul-Absar suggests or implies that if the man marries the mankuha of another, or marries the mutadda of another, or marries his (own) thrice divorced wife, or marries a slave girl upon a free wife, or marries a majusi woman, or marries a slave girl without the permission of her owner, or if a male slave marries without the permission of his owner, or if a man marries five women by one (and the same) contract and has intercourse, or if a man joins two sisters in a contract of marriage and has sexual intercourse with both of them, or if he has sexual intercourse after marriage with the sister whom he married subsequently if the marriages have been one after the other ; then in these cases there is no hadd. And this is by concurrence (of all three Imams) accord ing to the most approved report. The reason for the absence of hadd according to Abu Hanifa is clear the reason for the absence of hadd according to Abu Yusuf and Muhammad is this ; that, according to them, the doubt is removed only when the maharim is one regarding whose unlawfulness there is concurrence and who is permanently unlawful.-Bahur.
88. ' I say that the above is what is stated in the Fath-ul-Qadir, which goes on to say that lawyers, whose traditions and whose writings are reliable, as, for instance, Ibn-i-Manzar, have said that the man shall be subjected to hadd according to the two disciples only in case of those who are maharim and not in the case of others than these ; as, for instance, a majusi woman and a fifth wife and the mutadda (of another) ; and (Fath-ul-Qadir) goes on to say that the book called the Kafi written by Hakim lays down the same thing when the Kafi says, "if a man marries a woman that it is not lawful for him to marry, and has intercourse with her, then there is no had or punishment on him, and even if he has sexual intercourse with the certainty (of the unlawfulness), he shall not likewise be subjected to hadd, but he shall, according to the view of Abu Hamra, he subjected to tazir or pain : but his two disciples have laid down that if the man is aware of the unlawfulness, then he shall be subjected to hadd in the case of those unlawful." Thus (goes on the Fath-u1-Qadh. ) the author of the Kali at first, when describing the view of Abu Hanifa, described the woman without qualification ; he then, when explaining the views of his disciples, qualifies the woman as being a "eat-ul-Maharim (one perpetually prohibited).
(k) But Abu Yusuf and Mohamad have held.
89. ' The point of difference is, whether the maharani can he established to be a mahal or fit subject of marriage or not. According to Abu Hanifa, she is, in the sense that she is the subject or inahal of a marriage without regard to the particular man who contracts the marriage; because she fulfils the object of a marriage, which is the giving birth to offspring ; therefore, nikah of the maharim is productive of doubt. But the two disciples have negatived the proposition in this sense that the maharim is not a fit subject of marriage for this particular man, and, therefore, such a marriage is not productive of doubt. And this discussion in its entirety is to be found in the Fath-ul-Qadir and the Nahur.
(I) (But Abu Yusuf and Mohamed have held that) if the man was aware of the unlawfulness, he shall be subjected to hadd.
90. ' But if the man's mind was inclined towards (zun) lawfulness, then he shall not be subjected to hadd by all concurrence, but he shall be subjected to tazir or pain, as in laid down in the zuheerea and other books.
91. ' And it appears from the cases laid down by the learned lawyers in this place that if a man considers as halal or lawful what is made haram or unlawful by God, in the way that his mind inclines towards (zun) the lawfulness, then he does not become a kafir ; and he only becomes a kafirs when he believes what is haram to be halal.
(m) But it has been laid down in the Kohistani, etc. ' This is a qualification (istidrak) of the expression used by the author (of the Durr-ul-Mukhtar), where he says : "But preference is given by) all the commentators (to the view of Abu Hanifa)" because the Muzmir is also a commentary ; and in regard to the Muzmirat what the Kohistani says from the Muzmirat is this ; that the author of the Muzmirat says that the correct view is the first mentioned view, and that the author of the Muzmirat has laid down in a different place that if a man marries his Maharim, he shall be subjected to hadd according to the two disciples, and that fatawa is given-accordingly.
92. ' Besides this, what is stated in the generality of commentaries is settled. And similarly in the Fath- ul-Qadir, it is stated from the Khulasa that fatawa is given according to the views of the two disciples ; and the author of the Fath-ul-Qadir then assigns the reason thus : That the doubt (or subha-i-akd) requires that lawfulness should be established in some way, and that (lawfulness) is not established (in the case of marriage with the maharim), and if lawfulness had been established, then iddat would have been obligatory and nasab also : then afterwards this (objection) has been removed in the way, that out of the Mashaikhs there are some who have held that iddat and nasab are obligatory ; but if we accept absence of obligation of nasab and by reason of lawfulness being absent for an cause, then shubha does not require that lawfulness should be necessary in some shape or other ; because shubha is what resembles a thing established, and is not itself established ; and, therefore, there is no existence at all in any shape of that which has a shubha of existence. Best thou not see that Abu Hanifa has held that the man shall have pain inflicted on him of the severest nature ; but what he does not hold established is hadd. Therefore, (when there is no existence of lawfulness at all) then the connection is that of zina pure and simple, except there is shubha (arising from the form of marriage being gone through), and, therefore, the nasab shall not be established.
93. ' And the result of it is that the absence of lawfulness in any shape in the case of maharim, by reason of the connection being purely zina a, renders it necessary that there should be absence of nasab and of the iddat ; but the same does not render it necessary that there should be absence of such a shubha which extinguishes hadd and be it not hidden that in this there is giving preference to the view of Abu Hanifa (that the hadd shall be extinguished).
(n) It is laid down in the Fath-ul-Qadir.
94. ' This ought to be "it is laid down in the Nahur" for the author of the Nahur, after stating from the Fath what I have already quoted says that "that is, the fatawa being according to the two disciples) does not become reasonable except on the hypothesis that shubha-i-akd is shubha-i-ishtibah (or shubha-i-fail ; it is stated in the Derayat that that is the view of some of the Mashaikhs ; but the correct view is that the same is shuba-i-akd because it is reported by some from Mohamed that he has laid down that punishment drops from the man, because it is shubha-i-hookmia, and, therefore, nasab" shall be established ; and so also has it been laid down in the Moonya up to the end; and this is clear that it is shubha-t-mahal and in shubha-i-mahal nasab is established" ; here ends what the Nahur says. I say that in this there is fuller authority of the view of Imam Abu Hanifa; because in there it is strengthening of doubt, so that nasab would be established. And this view is supported by Kazi Rumli in the Chapter on Dower from the Aynee and Mujmai, Fatawa, that nasab is established according to Abu Hanifa, and not according to his disciples.
(o) It thus appears that the classification of doubt or shubha into three divisions is according to the view of Abu Hanifa.
95. ' If Durr-ul-Mukhtar intends to classify according to hukm (that is the effect or result, then the classes are two according to all ; at most the hukm (or effect or result) of shubha-i-akd, according to Abu Hanifa, is the same hukm or effect or result) as that of shubha-i-mahal, and according to his two disciples it has the hukm (or effect or result) of shubha-1 fail. And if Durr-ul-Mukhtar intends to classify according to muffoom (or meaning of the word "doubt"), then also the classes are two, because some of those which fall within shubha-i-akd are shubhalfad, e.g. Mutadd-i-salas (or thrice divorced), as stated in the Mohur in the chapter on establishment of nasab ; and others of those which fall within the shubha-i-akd fall within shubha-i-what ; e.g., the case given in the text.- ' Tahtawi (a commentary on Durr-ul-Mukhtar), Vol. II, p. 52 (A. a 1839).
96. "The customary dower is obligatory in the case of an invalid marriage, which is one in which a condition necessary to validate the same is wanting, e.g., witnesses".-Durr-ul-Mukhtar.
97. ' The expression, "e.g., witnesses" includes (the case of) a marriage with two sisters together, or of a sister during the iddat of another sister, of a woman who is a mutadda (one observing iddat, of a fifth wife during the iddat of the fourth wife, of a slave upon a free woman, of a kafir (infidel) with a Muslima (Muhammadan woman). So no hadd (punishment) will be inflicted on them, and the nasab (paternity) will be established, and (such women) will have to observe iddat.