' IJAZ AHMAD CHAUDHRY, J.- Dr. Abdul Hafeez Kardar has submitted his written reply and the same is placed on record Dr. Muhammad Asif is also present in the Court as Shamile Raj had stated before this Court that she had got removed her chest from Dr. Muhammad Asif while Dr. Muhammad Asif present in Court submits that in fact two years prior to this date Shamile Raj had visited his clinic and stated that she was feeling pain in her chest and I told Shamile Raj from where she had got removed her Chest she stated that from some other doctor about eight years ago but Shamile Raj'in an open Court insists that Dr. Muhammad Asif present in Court had removed her chest. In this view of the matter, Khalid Mahmood, Inspector Police Station, Jhang Bazar, Faisalabad is directed to register a case under section 336, P.P.C. Against the said doctors, who had removed her chest and uterus. He will be the complainant of that case and Khawar Saleem, Insepctor/Incharge investigation will hold the investigation and the doctor, who had removed the chest of Shamile Raj and other parts of her body, will be dealt with in accordance with law.
2. At this stage, Syed Zahid Hussain Bukhari, Advocate, who has been engaged now, submits that writ petition, which has been filed by the petitioners, he wants to withdraw it. I do not allow him because I had taken notice of these facts so the said request is rejected. He further submits that this Court has no authority under the law to act as an inquiry office or investigating officer but he has conceded that it is no marriage in the eyes of law.
3. As far as, case F.I.R. No,379/07 is concerned, S.H.O. Present in Court submits that in that case accused persons are on interim bail till 5-6-2007. At this stage, Khawar Saleem, Inspector submits that at the time of arrest of Shamile Raj, he had recovered Rs,3,90,000 along with three rings, one chain, one nose pin and two identity cards from Shamile Raj and he has returned all these articles to Shamile Raj in an open Court in presence of learned counsel for the parties. I must say that this is good thing on the part of Inspector and thanks God that some honest police officers are there in Police Department.
4. As far as, notice given to the petitioners to show cause that why a case under section 377, P.P.C.
Be not registered against them, is concerned, not only myself but learned Additional A-G. Also concedes that no such case can be registered so that notice is withdrawn.
5. So far as reply to show-cause notice under section 193, Cr.P.C. Is concerned, learned counsel for the petitioners submits that before arguing the case on merits, his clients tender unconditional apology for making false affidavits and statements before this Court. He further submits that in view of the unconditional apology charge under section 193, P.P.C. Should not be framed against accused/ladies.
6. Learned Additional A-G. Submits that punishment provided under section 193, P.P.C. And even all the offences are for the purpose of reformation of the society. He further submits that if pardon is granted in cases where the crimes are being committed, then, the crimes cannot be controlled in the society. Learned Additional A-G. Further submits that this is an unprecedental case and boldness shown by both of them requires deterrent punishment to set an example for whole Of the society. Further submits that sufficient material has been placed on record by the petitioners themselves and on the face of it, provisions of section 193, P.P.C. Are attracted. While explaining this position, he submits that copy of writ petition, affidavits of both the ladies accused attached with the wr.It petition, Nikahnama where Shamile Raj has shown herself to be a male person and then the report of medical board from Servioes Hospital, Lahore about the sex of Shamile Raj and her admission before this Court that on 8-5-2007 Shamile Raj stated before this Court that she was born as boy but on 22-5-2007 after medical examination she stated that in fact she was born as girl and she made a wrong statement before this Court due to the fact that her friends were sitting in the Court and she was feeling embarrassed. All this shows and proves that intentionally false statements were made not only in the writ petition but also orally before this Court. He submits that as both of them have tendered unconditional apology so it can be said a mitigating circumstances for lesser punishment.
' At this stage, learned counsel for the petitioner has filed written reply to show- cause notices issued under sections 193 and 377, P.P.C.
7. I have heard learned counsel for the parties. Brief facts of the case are that Shamile Raj and Mst.
Shahzina Tariq filed writ petition before this Court stating therein that they being a sui juris have entered into marriage according to their own free-will but respondents/police officers are harassing them. On this, I had asked learned Additional A-G. And learned A.P-G. To summon respondent No,4 i.e, S.H.O. P S. Jhang Bazar, Faisalabad for 4-5-2007. On 4-5-2007 not only respondent NO.4 appeared before this Court but respondent No,5 father of Shahzina Tariq also appeared along with his counsel Miss Gulzar Butt, Advocate, who in an open Court submitted that Shamile Raj was born as a girl and still she was a girl. I was astonished to hear this fact from Miss Gulzar Butt, Advocate so I asked respondent No,4 to produce both the petitioners before this Court on 8-5-2007 because in spite of the fact that they were to be present but they were not present, however, both of them appeared before this Court on 8-5-2007 and I asked Shamile Raj, who was present along with his counsel Mr. Zubair Afzal Rana, Advocate whether he was born as a girl or a boy, his reply was that he was born as boy and not as girl so a dispute had arisen because on the one hand father of Shahzina Tariq, who is closely related to Shamile Raj, submitted before, this Court that Shamile Raj was born as girl and not as boy thereafter, I directed M.S. Services Hospital, Lahore to constitute a board of doctors to examine Shamile Raj about her sex and to submit his report and the said report is on the file, which is, dated 8-5-2007 which indicates that Shamile Raj was a girl and still she is a girl so matter, was adjourned to 9-5-2007. On 9-5-2007 both the petitioners were not present although I had orally directed them to appear this Court so my opinion was that intentionally they did not appear and I directed respondent No,4 to arrest both of them and to produce them before this Court and I had also directed S.H.O. Concerned to get the service effected on Dr. Abdul Hafeez Kardar and ultimately on 16-5-2007 respondent No,4 produced operations noties of Shamile Raj, which are palced on record. He also submitted on the said date that he had tried his level best to arrest both Shamile Raj and Shahzina Tariq but he failed to arrest them and ultimately, matter was adjourned to 22-5-2007, but in the meanwhile on 18-5-2007, Criminal Miscellaneous No, 1081/2007 was submitted by father of Shahzina Tariq that there is every apprehension that both of them may not leave the country so a notice was issued to Deputy Attorney General for Pakistan for the said date and he was ordered to inform the relevant authorities that their names should be mentioned in the exit control list. On 22-5-2007 both Shamile Raj and Shahzina Tariq were produced, they were sent to judicial lock-up i.e, Shamile Raj was sent to Central Jail, Kot Lakhpat while Shahzina Tariq was sent to district Jail, Faisalabad. On that date I had asked Shamile Raj that when he/she appeared before M.S Services Hospital, Lahore he/she himself/herseif told that she was born as girl and why she made a wrong statement before this Court, she stated that as her friends were sitting in the Court and she was feeling embarrassed.
I had issued notice to both of them under section 193, P.P.C. And under section 377, P.P.C. But today I withdraw one. Notice given under section 377, P.P.C. As no case is made out under the said offence against both the ladies/accused. On 22-5-2007 a show-cause notice was also given to Dr. Abdul Hafeez Kardar that under what law he is authorized' to do operation of this nature and he was directed to file his reply. He has submitted his reply.
8. The first contention which was raised by learned counsel for the petitioner was that he wanted to withdraw the writ petition filed on behalf of the petitioner, This request was made in my considered opinion in order to save both the ladies accused from the clutches of law as on many dates of hearing the case was adjourned but this request was never made. This is 3rd learned counsel, who is appearing on behalf of petitioners. I have also gone through the reply submitted by both the petitioners in which details have been given and ultimately, pardon has been sought in writing from this Court. In my considered opinion, writ petition, affidavits of both of them, Nikahnama filed by them and all other documents signed by them show that they intentionally made false statements during proceedings of the Court. The un-conditional apology, which has been made orally but in writing word pardon has been raise, can only be taken as a mitigating circumstances in favour of the petitioners and the sentence, which is provided under section 193, P.P.C., is seven years with fine. In this view of the matter, J while taking lenient view, convict both of them to undergo three years' R.I. Each with a fine of Rs, 10,000 (ten thousand) each and in default thereof they will have to undergo one month's S.I. Shamile Raj will be sent to Central Jail, Kot Lakhpat and Shahzina Tariq will be sent to District Jail, Faisalabad in female wards. With these observations, the petition, in which the notice under section 193, P.P.C. Was issued, is disposed of.
9. Now, as far as question of marriage, whether it is void or illegal is concerned, the learned counsel for the petitioner conceded that according to injunctions of Islam, the marriage between two girls is illegal. The learned Additional A-G. Also supports this proposition. The marriage between the said girls is declared to be unlawful and against the Injunctions of Islam. As far as, the question of the penal consequence of said marriage is concerned, I think the request of learned counsel for the petitioners in this regard that Shamile Raj should be examined by Psychiatrist and learned Additional A-G. Has no objection to it. In this view of the matter, I direct Medical Superintendent, Jinah Hospital, Lahore to constitute a board of doctors under the Chairmanship of Dr. Saad Malik, who can take Shamile Raj to competent doctors, who would examine Shamile Raj and if need be any treatment that can also be given to her and then to submit his report before this Court on or before 22-6-2007 Khalid Mahmood Inspector present in Court will take Shamile Raj to M.S. Jinnah Hospital, Lahore and will inform him about the order of this Court and in this regard Khalid Mahmood, Inspector shall take strict security measurers and after examination she will be sent to Central Jail, Kot Lakhpat. At this stage, learned Additional A-G. Submits that Khalid Mahmood, Inspector had to come from Faisalabad so I have asked learned Additional A-G. To convey the order of this Court to S.S.P. Operation, Lahore to get the needful done as mentioned above. Both the petitioners are not required to appear before this Court oh 22-6r2007. In case the Honourable Supreme Court of Pakistan suspends their sentence, then, they will appear before the Court on every date of hearing.