' This miscellaneous application is addressed against an order of S. D. M. Dadyal, recorded on 11th June, 1984, in exercise of powers under section 100, Cr. P. C.
2. Muhammad Riaz, non-petitioner, moved an application before the S. D. M. Dadyal, under section 100, Cr. P. C. By inviting his attention to the illegal detention of Yasmin Akhtar daughter of the petitioner. It was alleged that Muhammad Riaz and Yasmin Akhtar were engaged a year ago. The marriage was yet to take place. Muhammad Rehman, Muhammad Suleman and Mst. Jannat Bibi who lived together, were attributed illegal detention of Yasmin Akhtar in their house by restraining her movement outside the premises. The alleged detenu was threatened with dire consequences in case she objected to yield to the desire of the petitioner. It was alleged that the life of Mst.
Yasmin Akhtar was in danger, as such issuance of search warrant in exercise of powers under section 100, Cr. P. C. Was expeditious. The petition was appended with an affidavit. The Magistrate was moved on 3rd June, when the statement of Muhammad Riaz was recorded in preliminary inquiry. The facts alleged in the petition were reiterated in his statement. The Magistrate not feeling satisfied with the material brought before him, adjourned the case to 6th of June, for further proof.
Due to absence of the Presiding Officer on 6th from the Headquarters, the case was adjourned to the next day when on recording statement of one Muhammad Latif, search warrant was issued and Yasmin Akhtar was produced before the Magistrate. Her statement was recorded and in the light of her statement, she was allowed to go with Ch. Sajawal resident of Dadyal city. On 9th June, two applications were moved, one by Muhammad Riaz for cancellation of `Sapuidare of Ch. Sajawal and keeping the girl in the `Sapurdari' of some third person as well taking steps for `Nikah' ceremony and the other by Ch. Sajawal for cancellation of his `Spurdari'. Both the petitions were considered together and ultimately Yasmin Akhtar was allowed to go with one Kh. Fazal of Dadyal.
3. Mst. Jannat Bibi, in her petition before Court, ascribed the proceedings before the subordinate Court as illegal, maid fide and without juris diction. She listed detailed story reflecting background of illicit relation of Muhammad Niaz and Yasmin khtar resulting in manoeurability in the manner of recovery of the girl from her lawful custody and aiding in elopement of her daughter with Muhammad Riaz. The statements of Yasmin Akhtar and Muhammad Riaz were recorded in this Court on the fast date. Both of them denied the allegations of Mst. Jannat Bibi, petitioner.
4. The record reflects that Mst. Jannat Bibi is a most miserable woman who soon after her marriage, was deserted by her husband, on which she was compelled to seek protection of her mother and brothers (Muhammad Rehman and Muhammad Suleman) who were magnanimous enough to meet her maintenance allowance, Yasmin Akhtar was born in the house of her brothers and she was brought up there. This suggests that Yasmin Akhtar whose age was seriously disputed by her mother, was recoverd from the house where she was born and brought up, by her mother and maternal uncles. In order to appreciate the point involved in the petition, it is pertinent to reproduce her statement made in this Court.--;, {{URDU TEXT}} It is clear from her statement that she was recovered by the Police, on the order of the Court, from her permanent residence where she resided along-with her mother and maternal-uncles, Her statement contained no attribution of confinement, cruelty and threats or apprehension of danger to her life, as narrated in the application before the Magistrate. She also denied her contribution and will in moving the Court. She disclosed that the application was moved by Muhammad Riaz at his own and she was recovered by the Police from her house when she alongwith her mother was present there and her maternal-uncles were away. Thus, it is evident from her statement made before this Court that there was no apparent reason for the Magistrate to believe that she was kept under such circumstances that the alleged confinement amounted to an offence. The S. H.
0. Who recovered the girl from her house, was also not shown to have supported the alleged confinement, amounting to an offence. His report appearing at page 11 of the file of the subordinate Court, disclosed that Yasmin Akhtar was recovered in compliance with the order of the Court from the house of Muhammad Suleman. The report or recovery memo was silent as to whether the girl was found in confinement or illegal detention, as ascribed in the search warrant.
5. If appears that the S. D. M. Was impressed by an averment of engagement of Muhammad Riaz and Yasmin Akhtar and realizing the interest of Muhammad Riaz, perhaps, felt satisfied to take the requisite action. The fact of engagement is also not found correct as in the application and his statement before Magistrate. Muhammad Riaz described the period of engagement as one year earlier. In his statement before this Court, he described the period of said engagement as 8/10 months. Yasmin Akhtar. On the other hand, in her statement before the Magistrate, disclosed that she was engaged 6 months earlier Likewise, in that Court she said that the engagement took place 6-7 months before. When asked to explain the presence of persons on the eve of engagement, it was stated that the engagement ceremony took place in the house but none of the villagers or her relatives participated in the ceremony. Thus, the claim of engagement appears to be a concoction and a pretext for seeking assistance of the Court.
6. Section 100, Cr. P. C. Enjoins upon taking action by Magistrate 1st Class or S D. M. When he was possessed with reasons to believe that the confinement amounted to an offence. The enacting part of this section lists a condition precedent to the effect that before issuing a search warrant, it was necessary for the Magistrate to have sufficient material before him to make him believe that a person was in confinement and that the circumstances leading to such confinement constituted an offence. The words, "reason to believe ' were introduced by legislature with a positive object and it was always believed that the Magistrates possessed with reasons to believe, would always exercise discretion in a judicial fashion. In order to achieve the intended object of this provision of law, it was essential to exercise the discretion by adhering to well-accepted norm of judicial discretion. Applying the principle to the present case, when it came to the notice of the Magistrate that his jurisdiction was invoked to issue search warrant for recovery of a young unmarried girl, from the house of mother where she was born and brought up and lived permanently, it was incumbent upon him to ask for convincing proof in addition to calling for mother of the girl and recording her statement before issuance of search warrant. This was more so, as the parties being Muslims and belonging to a class of society which always strongly opposed disposal of unmarried young girl in ceremonial and undesirable fashion as in the present case, to apply his mind to the proposition in hand, before taking the action. The departure from the aforesaid principle, obviously, leads to an inference that the proceedings initiated by the S. D. M. Were ill-conceived and bad in law.
7. The concluding part of section 100, Cr. P. C. Lays down that a person, if found, shall immediately be taken to a Magistrate who shall make such orders as in the circumstances of the case, seem proper. The use of language in the concluding part of this section reflects that the legislature vested discretion in the Magistrate to dispose of a person produced before him in an appropriate manner. In other words, the disposal of the person was to be made in a just and equitable manner, keeping in view the interest of justice, and public policy. The legislature deliberately avoided to use the worms "that such person shall be set free or allowed to go to a place or with a person of his choice". This was avoided in order to keep the scope and horizon as jurisdiction wide and free so as to achieve the ends of justice. In the present case, as discussed earlier, Yasmin Akhtar who was brought before the Magistrate, when found unmarried young girl, was to be sent back with her mother as the mother exclusively was entitled to her custody. Instead of doing so, the Magistrate, of his own, acquired medical evidence in support of age of the girl to go, firstly, alongwith Ch. Sajawal and subsequently with Kh. Fazal who were not shown related to her within prohibited degrees.
Yasmin Akhtar was admittedly Carpenter by caste whereas Co. Sajawal, a Jat and Kh. Fazal, a Kashmir' by caste. The action of the Magistrate was neither supported by law nor it was morally good on his part to allow a unmarried young girl to go along with persons who were not related to her within prohibited degree. The concluding part of section MO, Cr. P. C. Is, therefore, not again, seen complied with by the Magistrate.
8. It is also noticed that all interim order and statements of witnesses and Yasmin Akhtar were recorded by the clerk of Court. The statement of Muhammad Riaz was recorded on 3rd June, whereas it was shown attested by the Magistrate on 4th June, 'Spurdnama' of Ch. Sajawal present at page 9 of the file of the Magistrate was dated 7th March, and attested by the Magistrate on 7th March, whereas the girl was sent on `Supurdare of Ch. Sajawal on 7th June. These facts are listed just to highlight the manner in which the proceedings were taken before the Magistrate.
9. It is a settled rule of law that jurisdiction of the Court is invoked to seek redress within the framework of rapt and remedy provided by such law. The power of the Court is seldom allowed to be used as a lover for an aid and assistance to accomplish, otherwise, no illegal object. In the present case, Muhammad Riaz, in order to avoid the liability of abduction and elopement of Yasmin Akhtar, manoeuvred to seek assistance of the Court in removing her from the lawful custody of her mother and thereafter having free hand in achieving their union. In my well- considered view, they aid of the Court to accomplish such a desire was nothing but an abuse of process of law. The impugned order is, therefore, found illegal and without jurisdiction.
10. Muhammad Riaz alleged his `Nikah' with Yasmin Akhtar contracted after the removal of girl from the custody of her mother. The contention was neither supported by Yasmin Akhtar, in her statement before this Court nor by any other independent evidence. At this stage, therefore. The claim of Nikah' cannot be accepted. It appears that such a claim is made just to frustrate the prayer of mother for restoration of custody of her unmarried daughter. It is already noticed that Ch. Sajawal, Kh. Fazal and Muhammad Riaz are not shown related to Mst. Yasmin Akhtar, so as to allow her to live with either of them. It is true that Mst. Yasmin Akhtar declined to go back her mother and expressed her desire to go along with Muhammad Riaz but desire cannot be complied with unless she was shown entitled to live with Muhammad Riaz in a legal fashion. In presence of the refusal of Yasmin Akhtar to go with her mother, the next choice for the Court was to leave her in the custody of a person related to her within the prohibited degrees. The two maternal uncles who were available for!" giving custody of the girl were refused to go with them as well. There is no "Darul Aman' in District Mirpur where she should be sent for the period till her status was determined in a competent Court of law, The other place suitable to the case is civil prison. Sending Yasmin Akhtar to civil prison, Mirpur would also not serve the purpose as there is no guarantee of security of her chastity in the civil prison. In the circumstances, it is only conducive and close to the interest of justice to send her back with her mother with whom she spent the past in complete comfort and safety. The learned Additional Advocate-General present in the Court, is directed to arrange police for providing protection to Mst. Jannat Bibi, petitioner and Yasmin Akhtar upto their desired destiny.
The petition is disposed of accordingly.