This order shall dispose of the habeas corpus petition in hand (Criminal Miscellaneous No, 273/H of 1984) as well as another such petition, namely, Criminal Miscellaneous No, 274/H of 1984.
2. Out of the said two petitions, Criminal Miscellaneous No, 273/H of 1984 was registered on the basis of application, dated 29th May, 1984 addressed by Mt. Fahmida Perveen, hereinafter referred to as the petitioner, to the Honourable Chief Justice of this Court. In that application, hereinafter referred to as the petition, which came up before me on 4th June, 1984 it was stated that she was being detained by the respondents therein, namely, Muhammad Ibrahim and Azam, residents of Pind Sheikhwan, Police Station Muridke, District Sheikhupura, and that they were compelling her to contract marriage with Azam. It was also pointed out by her that earlier a Bailiff of this Court had visited the respondents' house on 21st May, 1984 alongwith the police of Muridke to recover her but the Thanedar. Namely, Yasin concealed her in a side-room with the result that she could not be recovered. It was, therefore, prayed by her that she be recovered and handed over to Waheed Ahmad or her mother or sent to Dar-ul-Aman, Lahore. The said Waheed Ahmad is Hafiz Waheed Ahmad who has made the connected habeas corpus petition, namely, Criminal Miscellaneous No, 274/H of 1984. In view of her allegations against the police of Muridke, it was directed by me that the petitioner be recovered by the Bailiff of this Court with the help of the police of Lahore. In this connection, a D. 0, letter was addressed to Mr. Ahmad Nasim, Senior Superintendent of Police, Lahore. Accordingly, the Bailiff visited the respondents' house alongwith the police party deputed by the Senior Superintendent of Police and recovered the petitioner. She was produced before me on 6th June, 1984.
3. Strangely enough. Hafiz Waheed Ahmad also filed Criminal Miscellaneous No, 274/H of 1984 on 4th June, 1984 when the petition of Mst. Fahmida Perveen was placed before me.
4. Both the petitions were heard together on 6th June, 1984. It was stated by the respondents and the parents of the petitioner that the petitioner was legally-wedded wife of Azam respondent. The respondents produced a copy of nikhanama to support their plea. On this, it was stated by the petitioner that she was forcibly given in marriage with Azam. Hafiz Waheed Abmad said that he was betrothed to the petitioner but her parents subsequently changed their mind and arranged her marriage with Azam against her wishes. When questioned by me the petitioner declined to go with her parents or with Azam. She preferred to stay in Dar-u1-Aman for sometime to think over the whole matter. It was, therefore, directed by me that she be lodged in Dar-ul-Aman and produced again on 13th June, 1984.
5. On 13th June, 1984 when the petitioner was brought before me Pir, S. A. Rashid, Advocate, got power-of-attorney signed by her in the Court room and appeared as her counsel. Muhammad Shafique is father of the petitioner and Mst. Rashida Bibi is her mother. They appeared alongwith Mr. Jamil Ahmad, Advocate. Hafiz Waheed Ahmad was assisted by Syed Nazar Abbas Zaidi, Advocate, and Mr. Iftikhar Ahmad Virji, Advocate, while Mr. Muhammad Nasrullah Waraich, Advocate, appeared as the respondents' counsel as on the earlier date. Pir S. A. Rashid and Mr. Jamil Ahmad, Advocates, were not ready to argue the matter and, therefore, it was adjourned to 16th June, 1984 at their request. The petitioner was again sent to Dar-ul-Aman. On 16th June, 1984 when the case came up before me, I recorded the statements of the petitioner and her parents. I also examined the respondents and Hafiz Waheed Ahmad. Master Muhammad Ali is one of the respondents in the habeas corpus petition filed by Hafiz Waheed Ahmad. The statement of Master Muhammad Ali too was recorded. Arguments of the parties' counsel were also heard.
6. It was stated by the petitioner that she was forcibly married to Azam respondent, who is the son of her paternal-aunt. She declined to go with her parents or with Azam saying that she apprehended danger at their hands. She also did not like to go to any other relative and opted to stay at Dar-ul-Aman for the time being. As for Hafiz Waheed Ahmad, she said that he was her sympathiser, but was not related to her. Admittedly, Hafiz Waheed Ahmad is Awan by caste while the petitioner belongs to a tailor family. The petitioner said that she has read upto Middle Standrad.
She denied having sent the aforementioned application to the Honourable Chief Justice, which constitutes the basis of her habeas corpus petition (Criminal Miscellaneous No, 273/H of 1984). That application is Exh. A. And the writing accompanying the application is Exh. B. This disclosure, which came to me as surprise, was made by the petitioner for the first time on 16th June, 1984 and not on any earlier occasion. According to the parents of the petitioner, Hafiz Waheed Ahmad used to visit their house to teach Holy Quran to the petitioner when he developed illicit relations with her and put her on his own way. It was stated by them that the petitioner had willingly contracted marriage with Azam. It was denied by them that they would do any harm to the petitioner if she went to their house. Similar statements regarding the'marriage of the petitioner with Azam respondent were made by the respondents. They also stated that they will not trouble the petitioner if she lived at their house. Azam respondent said that he and the petitioner lived together as husband and wife.
Master Muhammad Ali also stated that the petitioner was validly married to Azam respondent.
Hafiz Waheed Ahmad stated that be was betrothed to the petitioner. It was denied by him that he used to visit the house of the parents of the petitioner to teach her Holy Quran. He, however, admitted that he visited their house to teach the brother of the petitioner. It was denied by him that he had developed illicit relations with the petitioner by exploiting the said visits,
7. It was contended by learned counsel for the petitioner that as the petitioner was not willing to go with her parents or Azam respondent, to whom she was married, she may be allowed to stay in Dar-ul-Aman as desired by her. It was apprehended by him that if the petitioner was given to her parents, they would kill her. Learned counsel for Hafiz Waheed Ahmad shared the arguments addressed by learned counsel for the petitioner. They, however, did not cite any authority for the proposition that the petitioner could be lodged in Dar-ul-Aman for an indefinite period. On the other hand, it was urged by learned counsel for the respondents that as she was the legally wedded wife of Azam respondent she may be directed to accompany him and live with.
Alternatively, it was pleaded by him that she may be handed over to her parents. It was submitted by learned counsel for her parents that she may be allowed to go with them.
8. No doubt the respondents have placed on record a copy of nikahnama showing that the petitioner was married to Azam respondent yet it is not possible for me, in these proceedings, to determine whether or not she had consented to that marriage. The petitioner is not willing to go with Azam. I am also not inclined to compel her to do so because if the marriage is ultimately found to be void and illegal it will give rise to serious complications. The question of legitimacy of their offspring's, if any, would also arise.
9. Hafiz Waheed Ahmad is a Hafiz-i-Quran. He is a cleanshaven, smart and spectacled young man.
He told me that he is a student and is aged 23 years. I regret to say that the said Hafiz-i-Quran is the paramour of the petitioner. It was claimed by him that he had been betrothed to the petitioner.
The petitioner, however, did not support him. According to her, he is her sympathiser. Before filing Criminal Miscellaneous No, 274/H of 1984, Hafiz Waheed Ahmad submitted Criminal Miscellaneous No, 237/H of 1984 and Criminal Miscellaneous 257/H of 1984. He withdrew Criminal Miscellaneous No, 237/H of 1984 while Criminal Miscellaneous No, 257/H of 1984 was dismissed by my learned brother Riaz Ahmad, J., inter alias for the following reasons :- "I am not convinced about the bona fides of this petition. I may further observe that this Court is not meant for personal vendetta and for aiding paramours."
There are number of authorities on the point that a girl should not be allowed to go with her paramour. Some of these authorities are the cases A Shaukat Ali v. Altaf Husain Qureshi and another , Fateh Sher v. Sarong BdThir Ahmad v. Muhammad Hasan Bhatti and 6 others . In the case of Shaukat Ali, the Supreme Court observed as follows :- "We are also inclined to agree with the views expressed by the learned Judge regarding the tendency to abuse the provisions of section 491 of the Cr. P. C. On the part of some young men in furtherance of their illicit love affairs. Courts do not function in a vacuum and must take due note of the social and moral environments prevailing in the community for which the law is to be administered. Such being the case the High Court was justified in refusing relief if it came to the conclusion that the petition had been presented for the sake of furthering an illicit love affair and avoiding criminal prosecution in connection with the kidnapping/abduction of the woman in question."
I would, therefore, not like to send the petitioner with her paramour, namely, Hafiz Waheed Ahmad.
The petitioner too did not say that she wanted to go with him.
10. The petitioner is a young girl of tender age. According to her, she is 18 years old. She is not a highly educated lady. She did not disclose. Any source of her income. She will be unable to maintain herself if she is left to herself. It was also not prayed by her that she be set at liberty so that she may go freely anywhere she likes. Therefore, no order to the above effect is passed.
11. The petitioner desires to stay in Dar-ul-Aman for the present. This means that she wants to remain there for an indefinite period. A indicated above, she have had sufficient stay at Dar-ul- Aman to make up her mind. I feel that stay in Dar-ul-Aman, of persons like the petitioner before me, serves as a stopgap arrangement. It cannot be approved of as their permanent abode. My belief is that further stay of the petitioner in Darul-Aman would not serve any useful purpose.
Instead, it is likely to create more problems for the petitioner and others concerned besides prolonging their agony. On the other hand, if the petitioner goes with her parents she, in1 2 3 consultation with them and with their blessings, would be able to sort out her matrimonial dispute with Azam respondent, one way or the other. If she will not agree to live with him, her parents may prevail upon Azam to divorce her or assist the petitioner in seekipg dissolution of marriage by filing a suit. No progress in this behalf would be made if she continues to live in Dar-ul-Aman. Nobody in Dar-ul-Aman would be as much helpful Ito her as her parents.
12. Hafiz Waheed Ahmad, the paramour of the petitioner, is badly after her. She too appears to have a liking for him. It seems that it was in view of the aforesaid observations of my learned brother Riaz Ahmad, J. And the case law on the subject that the petitioner did not say that she wanted to go with Hafiz Waheed Ahmad. Both of them, however, want that she should continue living in Dar-ul- Aman. This course suits them for the reason that they believe that during her stay in Dar-ul-Aman.
Hafiz Waheed Ahmad will be able to keep undesirable liaison with her indirectly (through the employees of Dar-ul-Aman, if not directly. And I am extremely reluctant to agree to any arrangement which will advance the illicit love-affair between the petitioner and Hafiz Waheed Ahmad. I have already received a complaint from the father of the petitioner to the effect that Hafiz Waheed Ahmad and his two counsel alongwith another lawyer had gone to Dar-ul-Aman and that the lawyers' intervention had influenced the attitude of the petitioner towards her parents. I had accorded permission to the petitioner's parents to see her in Dar-ul-Aman but no such permission was granted to Hafiz Waheed Ahmad or his counsel. Tions levelled in the said complaint are as follows :- The precise allega- {{URDU TEXT}} The Lady Superintendent of Dar-ul-Aman has also reported that the three lawyers had gone to Dar-ul-Aman to get some papers signed by the petitioner but she (Lady Superintendent) did not allow to do so. I have asked the Registrar of this Court to look into the other aspects of the complaint also.
13. It was after the making of the above complaint that Pir S. A. Rashid, Advocate, appeared as a counsel for the petitioner. As indicated above, he got the power-of-attorney signed by her in my court-room on 13th June, 1984. Pir S. A. Rashid told me that somebody had asked him to assist her as a counsel. That somebody can be well-guessed when it is kept in mind that the petitioner expresses lack of confidence not only in her parents and in-laws but also in all other relatives and described Hafiz Waheed Ahmad as her well-wisher. On 16th June, 1984, before I recorded the statements of the petitioner and others, Pir S. A. Rashid had a meeting with the petitioner stating that he wanted to have instructions from her. The meeting was permitted by me. After the meeting, which took place in the office of my Private Secretary, he got some paper signed by the petitioner, in my court room and within my view. On inquiry, he told me that the petitioner bad given her power-of-attorney to enable him to file an appeal if my decision happened to be against her.
Earlier too, with my permission, he had a meeting with her on 13th June, 1984, in the office of my Private Secretary, saying that he would like to persuade her to go her parent's house for some days.
Thereafter, he informed me that she was not willing to go there and wanted to stay on in Dar-ul- Aman.
14. It may be pointed out here that in Shahida Perveen v. Muhammad lnayat and another , Mr. Justice Shafiur Rahman did not like to send a married girl to Dar-ul-Aman for a long time and maintained an order by which she was directed to go with her father. Relevant observations made in the cited case read as follows :- "The question in the circumstances requiring determination would be only whether the decision given by the Sessions Judge in the revision petition is lacking in lawful authority or is in accordance with law. The Magistrate had ordered that she should be kept in Dar-ul-Aman. She cannot be kept there for the entire period of litigation or trial of the case which may ultimately even go to appeal.
Therefore a more determinative order had to be passed with regard to the custody. It is apparent4 from the material on the record as well as from what the petitioner states that she is below 18 and, therefore, not a major. In the matter of custody the Court would, therefore, be justified in passing an order and not leaving her alone to look after herself. As the credentials of her husband are the subject-matter of adjudication in a criminal trial, it would not have been proper to hand her over to his custody because that would have foreclosed the point in issue or a determination of it. In the circumstances the Court could justifiably pass an order directing the handing over of the custody to the father with whom the mother of the petitioner is also residing." (underlining is by me)
This verdict was upheld by a Division Bench consisting of Mr. Justice Muhammad Afzal Zullah and myself. The judgment of the Division Bench has been reported as Shah Ida Par veen v. District Judge, Sialkot and another .
15. In view of what has gone above, I am not inclined to send they petitioner to Dar-ul-Aman for an indefinite period.
16. The impression gained by me during the present proceeding is that the parents of the petitioner, especially her mother, has lot of love and affection for her. In her application to the Honourable Chief Justice, one of the options given by the petitioner was that she may be handed over to her mother. No explanation is forthcoming as to why she has disowned that application, which had set in motion the machinery of law, and that too at the fag end of the proceedings. My feeling is that either the said application was made by the petitioner, or by or at the instance of Hafiz Waheed Ahmad. Whosoever is the maker of the application, it is amply clear that in her/his estimate the mother of the petitioner has a soft corner for her and, therefore, if the petitioner is allowed to go with her mother she would be in safe hands. Her parents are animated with a keen desire to promote her welfare, one way or the other. I do not think that they would take her life if she is sent with them. If they had to kill her they would have done so before her marriage with Azam respondent when, according to them, Hafiz Waheed Ahmad had developed illicit relations with the petitioner by exploiting his visits to the house of her parents. It was stated by her parents that Hafiz Waheed Ahmad visited their house to teach Holy Quran to the petitioner. These visits were admitted by Hafiz Waheed Ahmad also, although according to him he gave lessons not to the petitioner but to her brother. I am sure that when the petitioner settles down at the house of her parents they will be able to get over the F unfortunate situation reflected in these proceedings. I, therefore, direct the petitioner to go with her mother.
17. Criminal Miscellaneous No, 273/H of 1984 and Criminal Miscellaneous No, 274/H of 1984 are disposed of accordingly with no order as to costs.
18. Before parting with this case I would like to place on record my appreciation of the valuable assistance rendered by Mr. Ahmad Nasim, Senior Superintendent of Police, Lahore, and the police party constituted by him to recover the petitioner. The result achieved by them speaks of their honest efforts and professional skill. I also commend the excellent performance of the Bailiff of this Court, namely, Sh. Muhammad Ishaq, an Assistant of the Staff Branch, in connection with the recovery of the petitioner and the other proceedings held in this Court. Copies of this judgment shall be sent to the Inspector-General of Police, Punjab, Lahore ; the Senior Superintendent of Police, Lahore and the Registrar of this Court for information and record. Needless to say that the above remarks will be communicated to the members of the police party and the Bailiff also. 1972 SCMR 398 PLD 1971 Lah. 128 1975 P Cr. L J 1444 PLD 1980 Lah. 14* 5 1 2 3 4