Sajjad Hussain, respondent/complainant got registered case F.I.R. No, 229 dated 22.4.2008 under Section 365-B P.P.C. at Police Station Mumtazabad, Distt. Multan with an allegation that on 17.4.2008 his unmarried daughter Mst. Huma Bibi left for Degree College for Women, Mumtazabad to appear in Secondary School Certificate Examination, but did not return home; that he went in search of his missing daughter when Mushtaq Hussain and Muhammad Akhtar P.Ws. met him and disclosed that_ Mst. Huma Bibi alongwith Rana Muhammad Afzaal (petitioner here-in), Rana Muhammad Iqbal, Rana Muhammad Kamal and their mother, Mst. Afshan boarded a car and left towards Muzaffergarh and that the above-named accused persons took away Mst. Huma for zina.
2. On 29.4.2008, Mushtaq Ahmad A.S.I, produced Mst. Huma before the area Magistrate for her statement under Section 164 Cr.P.C. After having complied with legal formalities the area Magistrate recorded her statement, which is reproduced below in verbatim for ready reference: {{URUD TEXT}} The area Magistrate certified that the above-said statement had been made by Mst. Huma voluntarily with her free consent and will. After examination of the abductee, she was not set at liberty by the investigating officer. The available record does not show as to what were the circumstances which persuaded or prompted the investigating officer to remove the abductee from the Court of area Magistrate-to the police station despite of her statements under Sections 161 and 164 Cr.P.C. that she had not been abducted by the accused persons nominated in the F.I.R. and that she had contracted valid marriage with Muhammad Afzaal, petitioner/accused. The investigating officer also arrested Rana Muhammad Afzaal, petitioner, his brothers; namely, Rana Muhammad Iqbal, Rana Muhammad Kamal and their mother Mst. Afshan on 29.4.2008 with an observation that there was sufficient legal material against them in support of the charge of abduction and zina.
3. Muhammad Jamal, a brother of Muhammad Afzaal filed Petition No, NIL/HB of 2008 before the learned Sessions Judge, Multan with a complaint that his brothers. mother and brother's wife Mst.
Huma had been detained by the S.H O., Police Station Mumtazabad illegally. The learned Sessions Judge entertained the petition under Section 491-A Cr.P.C, and deputed a bailiff, who conducted raid, recovered the above-name detenues including the abductee from police station and produced them before the learned Sessions Judge, the same day i,e, on 29.4.2008. The record revealed, that Rana Muhammad Afzaal, Rana Muhammad Iqbal, Rana Muhammad Kamal and their mother Mst. Afshan had been arrested in the above said case by the investigating officer whereas Mst. firma abductee had been kept in the police station without any legal and factual justification. It was argued before the learned. Sessions Judge, on behalf of Mst. Huma Bibi detenue that after her statements under Sections 161 and 164 Cr.P.C. favourable to Muhammad Afzaal accused, there was no justification to confine her in the police station against her wishes. On the other hand, learned counsel for the complainant argued that in case Mukhtar Ahmad v. Ghafoor Ahmad (PLD 1990 Lah. 484) run away marriage had not been approved of. The learned Sessions Judge examined the counter claims and observed that the question of custody or liberty of the detenue was a ticklish question because her husband (Muhammad Afzaal, petitioner) was on one side while her father (Sajjad Hussain, complainant) was on the other and, therefore, it was very difficult for him to allow custody of the detenue to one and deny to the other. The learned Sessions Judge disposed of the petition under Section 491-A Cr.P.C. with a direction to Muhammad Afzaal, petitioner to file a -suit for restitution of conjugal rights against the detenue before the .Family Court, which shall resolve the question of legality of marriage. However, she was-not set at liberty and was sent to Dar-ul-Aman against her wishes.
4. Feeling dis-satisfied with registration/investigation of the criminal case and the mode and manner of disposal of the habeas petition, Muhammad Afzaal, petitioner-accused approached this Court with-a petition under Section 561-A Cr.P.C. seeking quashment of the F.I.R. The order of the learned Sessions Judge was also challenged on facts and law. The petition came up for hearing before this Court on 9.5.2008 when I set at liberty Mst. Huma with a direction to appear in person on the next date of hearing. On 19.5.2008 the learned counsel for the accused, the investigating officer and Sajjad Hussain, complainant appeared and supported their counter claims touching liberty/custody of Mst. Huma. I have heard both sides and have perused the record. Mst. Huma is pubert and sui juris aged about 22/23 yeaRs, She made her statement under Section 164 Cr.P.C. favourable to Rana Muhammad Afzaal petitioner. Before this Court she has owned her marriage with him vide Nikah Nama dated 21.4.2008. Rana Muhammad Afzaal, petitioner/accused has put forward his version in line with her statement. Unfortunately, Tasadaq- e-Zaojain supported by Nikah Nama did not find favour with the learned Sessions Judge, Multan resulting in detention of Mst. Huma in Dar-ul-Aman against her wishes. While deciding the application under. Section 491-A Cr.P.C. the learned Sessions Judge, described Rana Muhammad Afzaal as so-called husband of Mst. Huma Bibi.
5. An important legal question which requires determination by this Court is as to what is the allotted sphere of the Sessions Judge seized of an application under Section 491-A Cr.P.C. The proceedings under Section 491/491-A Cr.P.C. are summary in character. These proceedings are not intended to go beyond the summary consideration of the questions essentially relevant to the alleged detention i,e, whether a detenue is to be set at liberty and as a consequence thereof be permitted to go with the person of his or her choice or to drop the proceedings when the detention is found legal. The Court while deciding an application under Section 491/491-A Cr.P.C. is not required to go into the question of status or relationship of the parties by holding full-fledged trial of the counter claims and it should concern with free will of the detenue. In the case in hand a sui juris girl aged 22/23 years was produced before the learned Sessions Judge on the complaint of a brother of her husband. She had already certified her marriage with Rana Muhammad Afzaal, petitioner/accused through her statements under Sections 161 and 164 Cr.P.C. The only reason, which weighed with the learned Sessions Judge while disallowing the request of the petitioner, was that as per complainant's version it was a run away/love marriage without the consent of father/wali. The learned Sessions Judge attached so much importance to the contention of the complainant that despite of Tasaduq-e-Zaujain supported by Nikah Nama he termed the Petitioner as so-called husband of Mst. Huma Bibi. Although this Court is not supposed to decide the matrimonial disputes by assuming the role of Judge Family Court, but in the given circumstances particularly keeping in view the observations of the learned Sessions Judge adverse to the claim of marriage put forward by the spouses, I must say that consent and approval of Sajjad Hussain, complainant was not a condition precedent for valid marriage of his sui juris 22/23 years old daughter Mst. Huma with Rana Muhammad Afzaal, petitioner. A similar dispute arose in case Hafiz Abdul Waheed v. Mst. Asma Jehangir and another (PLD 2004 SC 219) and was resolved once for all by the apex Court as under:-- (i)"That as per judgments of the Federal Shariat Court, noted in Para No, 6 of this judgment, consent of Vali' is not required and a sui juris Muslim female can enter into a valid `Nikah7marriage of her own free will,
(ii) Statement of law contained in the judgments of the Federal Shariat Court noted in Para 6 of this judgment is binding on the High Court arid Court subordinate to the High Court.
(iii)Crl. Appeal No, 98 of 1997 is dismissed with the declaration that marriage in question in this appeal is not invalid on the ground of absence and consent Of appellant-Wali."
The judgments of the Hon'ble Federal Shariat Court, referred to above, are Muhammad Ramzan v.
The State (PLD 1984 FSC 93) and Muhammad Imtiaz and another v. The State (PLD 1981 FSC 308) whereby the Hon'ble Court has held in express terms that a sui juris Muslim girl can contract marriage of her own accord and the consent of her Wali or other relation is not required for the validity of the marriage. In Mauj Ali v. Syed Safdar Hussain Shah (1970 SCMR 437) the august Supreme Court had held that a Muslim girl attaining puberty was competent to marry of her own free will and on this ground her custody was declined to her father and the order of the High Court permitting her to go and live with the husband was maintained. The latest case law on the subject either escaped notice of the learned Sessions Judge, Multan or he chose in his wisdom to detain Mst. Huma in Dar-ul-Aman against her wishes by adopting a self styled procedure unwarranted in law. There was a complaint before the learned Sessions Judge that Mumtazabad Police had illegally detained Mst. Huma despite her statement before the area Magistrate under Section 164 Cr.P.C. that she had contracted a valid marriage with Rana Muhammad Afzaal, accused. What a pity! the learned Sessions Judge got recovered Mst Huma from illegal confinement of Mumtazabad police and then himself confined her illegally in Dar-ul-Aman. Here, I would say that out of the legal rights, the right to liberty is placed on a higher pedestal which is to be respected by all and sundry.
The Courts are the guardians of the liberties of the citizens. Even a worst criminal in the society is entitled to legal safe- guard and his legal rights could not be taken away in a slipshod manner. I am supported in my view by the case law laid down in Muhammad Akram v. The State (1998 PCr.LJ, Karachi, 1558). To the hard luck of Mst. Huma Bibi she had to suffer agony of her illegal confinement originally in the police station at the hands of the investigating officer and secondly in Dar-ul- Aman under an order of the learned Sessions Judge, Multan.
6. The learned law officer attempted to argue that the learned Sessions Judge had sent Mst. Huma to Dar-ul-Aman for her safe custody and that her stay there could not be termed as her detention.
I am not in agreement with the contention. Mst. Huma is a Muslim sui juris and pubert woman.
Being 22/23 years old she attained sufficient maturity and majority to decide the question touching her matrimonial life and future. She wanted to accompany her husband, Muhammad Afzaal, petitioner but she had been confined in Dar-ul-Aman under the orders of the learned Sessions Judge. I am of the opinion that keeping her in Dar-ul-Aman against her wishes amounts to unlawful confinement. In Mir Muhammad v. The State and four others (1995 PCr.LJ (Karachi) 2085 (DB)) a sui juris girl aged 15 years had been lodged in Dar-ul-Aman against her wishes and keeping her there had been declared as illegal and improper in the precedent case. For facility of reference the key lines of the precedent case are reproduced below: The admitted facts are that the detenue is pubert, sui juris and contracted marriage with Jan Muhammad out of her free will. This happened long before the F.I.R. was registered. It is also not in dispute that the detenue was produced before Respondent No, 3 (Magistrate) as a witness in the criminal case so that her Section 164 Cr.P.C. statement be recorded. The Respondent No, 3 could only record or refuse to record statement but not direct the detenue to be sent to Dar-ul-Aman unless there was apprehension shown by the detenue that her life would be in danger with either of the parties. The detenue admitted having married with Jan Muhammad and shown desire to be set at liberty to go with him. The detention of the detenue in Dar-ul-Aman Hyderabad is illegal and improper. We, therefore, direct the detenue to be set at liberty. She being pubert sui juris would be at liberty to go wherever she likes."
7. The learned Sessions Judge directed Muhammad Afzaal, petitioner to file a suit for restitution of conjugal rights against Mst. Huma Bibi. I have already observed in the preceding paragraphs that Mst. Huma Bibi wanted to accompany Muhammad Afzaal, petitioner as his wife. She did not refuse to perform conjugal rights at any stage of investigation of the criminal case or before the learned Sessions Judge. I could not understand as to how and on what basis the learned Sessions Judge directed the petitioner to seek a decree for restitution of conjugal rights, which had not been denied by his wife.
8. For what has been stated above, I have no doubt in my mind that the learned Sessions Judge illegally confined Mst. Huma Bibi in Dar-ul-Aman against her wishes. He also doubted genuineness of her marriage with Muhammad Afzaal, petitioner despite Tasaduq-e-Zaujain supported by Nikah Nama. Therefore, the order of detention of Mst. Huma in Dar-ul-Aman by the learned Sessions Judge is declared as null and void and without jurisdiction.
9. Mst. Huma remained present during Court proceedings. To a question, she owned her marriage with Muhammad Afzaal, petitioner and stated in express terms and in a surefooted manner that she contracted valid marriage with Muhammad Afzaal with her free consent and will When confronted with the above said claim of Mst. Huma Bibi, which she repeatedly agitated/adopted/laid before the investigating officer, the area Magistrate, the learned Sessions Judge and this Court, her father Sajjad Hussain, complainant on reconsideration opted to accept her marriage with Muhammad Afzaal and gave an undertaking that he will arrange ceremonial departure of Mst. Huma Bibi to the house of her husband Muhammad Afzaal.
10.The complainant got registered, the case against Muhammad Afzaal, petitioner, his brothers and his mother with an allegation that they had taken away Mst. Huma Bibi for zina. Mst. Huma Bibi appeared' before Mushtaq Ahmed, A.S.I./investigating officer on 29.4.2008 and made statement that she had not been abducted or taken away by any one; that she contracted a valid marriage with Muhammad Afzaal, petitioner and that her father got registered a false case of her abduction.
After recording statement of the abductee to the above effect, Mushtaq Ahmad A.S.I,. arrested Muhammad Afzaal petitioner, his brothers Iqbal and Kemal and their mother Mst. Afshan with an observation that sufficient evidence in support of the charge had been made available on the file.
Although the subject of investigation comes within the exclusive domain of police, yet investigation launched mala fidely against the facts and legal evidence is open to correction by this Court, Here, I would say that an investigating officer of the criminal case cannot be allowed to conduct investigation or to arrest accused persons on whimsical grounds arbitrarily. In the case in hand,. there was no legal and factual justification to arrest Muhammad Afzaal petitioner, his real brothers and mother particularly when the abductee had alteady dismissed the story set up in the F.I.R.
Excepting an allegation by the complainant that his daughter had been abducted, there was not an iota of legal evidence on the file. Needless to add that the allegation set up in the F.I.R. stood repudiated when the abductee made statements before the investigating officer and the area Magistrate that she had not been abducted. Keeping in view the above said state of record. I have come to the conclusion that the police transgressed its authority by registering the above said case and by arresting the accused persons obviously for some considerations extraneous to the record. This is a case of abuse of process of law on the part of the police. Further more, the complainant himself accepted the marriage of his daughter Mst. Huma Bibi with Muhammad Afzaal before this Court. In the circumstances, the investigating agency cannot be allowed to investigate the case. I, therefore, quash the F.I.R. The accused persons are behind the bars, They be set at liberty forthwith, if not required to be detained in any other case.
11.Mushtaq Ahmad, A.S.I, did not remain within his allotted sphere. He misused his official position.
He arrested the accused persons including an old lady despite the fact that there was no legal evidence against them. He disregarded the statement of star prosecution witness Mst. Huma Bibi favourable to the accused persons without assigning any reason. It was a family/matrimonial dispute and there was no legal and factual justification for the A.S.I., to take cognizance of the same and that too in a crude and brute manner. He is solely responsible for illegal confinement of Mst. Huma Bibi in the police station. After her examination before the Magistrate, she should have been allowed to go wherever she liked. The A.S.I, took her to police station again where from she was recovered by the bailiff. The A.S.I. also contributed towards detention of Mst. Huma Bibi in Dar- ul-Aman 'against her wishes. This is a case of dishonest investigation. In the circumstances, this is a fit case to exercise inherent jurisdiction to redress the grievance of the accused persons and Mst.
Huma Bibi. I, therefore, impose monetary compensation/costs of proceedings upon Mushtaq Ahmad A.S.I. to the tune of Rs, 50,000/- which on realization by the learned Sessions Judge, Milian will be paid to the arrested accused persons and Mst. Huma Bibi in equal shares under intimation to the Deputy Registrar (J) of this Court. I have awarded the compensation to the aggrieved persons as a result of tentative assessment of the material, and, therefore, it may not be treated as final amount of damages. The detenue and the accused persons may file a suit for damages against the investigating officer and in such a case the investigating officer would be entitled to claim set off for the amount paid as compensation under this order.
12.It is shocking to note that the learned Sessions Judge, Multan used language about the precedent cases offensive to accepted standards of official behavior. The learned Sessions Judge remarked about the pronouncements of the Superior Courts as under: "Next comes the pronouncement by the Superior Court of the state. Unfortunately even superior Courts are not unisons in resolution of this dispute. From the three cases cited at bar before me, in Mukhtar Ahmad case my lord Mr. Justice Sajjad Hussain Sipra found the custody, of the father of the girl who married of her own free will and intended to go with her husband she was not allowed on the principles of morality, religiosity and public policy. On the other hand my lord Mr. Justice Jahangir Arshad in a similar situation declared the right of a girl who married of her own free will to live with her husband and her detention in Dar-ul-Aman was found illegal.
However, the question before the Supreme Court in Mst. Afshan case 1998 SCMR 6 was a bit different. In that case the Honourable Lahore High Court placed on an embargo upon the girl while admitting her to bail. It was ordered that only her father could be her surety. The Apex Court did not see eye to eye-with the August Court on this point and removed the embargo and ordered release on the surety of the choice of the girl. Be that as it may this Court is too small a fry to comment or to resolve this question, presently pesting the whole nation. While so observing this Court cannot I shun its legal duty to resolve the matter before it."
There was no complicated legal issue before the learned Sessions Judge, The only concern of the learned Sessions Judge should have been to set at liberty the detenue according to her wishes. He criticized pronouncements of superior Courts unnecessarily for which there was no factual and legal justification. A sui juris girl aged 22/23 years had been detained by the investigating officer in the police station despite her statement before the area Magistrate favourable to the accused persons and in the circumstances the only course open for the learned Sessions Judge was to set her at liberty. I am unable to approve of the remarks of the learned Sessions Judge about the precedent cases. However, I leave this matter to the judgment of the Hon'ble Inspection Judge of Session Division, Multan. A copy of this judgment may be laid before his lordship for favour of information and for such action as may be deemed appropriate.