This order will dispose of three petitions under section 561-A, Cr. P. C. They are Criminal Miscellaneous Nos. 7888, 7743 and 7774 of 1970. As common question of law is involved, therefore, they are being disposed of by one order.
2. The facts as disclosed in these petitions are 3s follows :- Criminal Miscellaneous No. 7888 of 1970 The police registered a case under section 363, P. P. C. In respect of the kidnapping of Mst. Hamida Begum a minor girl aged about 15 -- years, at the instance of her father Muhammad Alam on 26th March 1970. It is mentioned in the F. I. R., a copy of which is an annexure to the petition, that Mst.
Hussaina Bibi, a sister of wife of Muhammad Alam complainant is married to one Muhammad Hu3sain. There is no issue from this wed-lock. About 2 -- years before the registration of the case Mst. Hussaina Bibi took Mst. Hamida Begum to her house where she stayed for about two years.
One Rehmat son of Karman was on visiting terms with aforesaid Muhammad Hussain. Therefore, he had also friendly relations with Muhammad Alam. Muhammad Hussain asked for the hand of elder sister of Mst. Hamida Begum but Muhammad Alam refused this request. Therefore, both of them fell out as a result of which Muhammad Alam took away Mst. Hamida Begum, his daughter to his own house. Rehmat aforesaid who is the main accused in the case tried to effect a compromise and in that connection he and his co-accused visited the house of Muhammad Alam about 8 days before the registration of the case (on or about 18th March 1970). When they departed from the house of Muhammad Alam, Rehmat aforesaid asked Mst. Hamida Begum to accompany them for some distance so as to show the path to them; and on that pretext, it is alleged in the F. I. R., she was kidnapped by these persons. Muhammad Alam searched for his daughter and the kidnappers for several days. Having failed in that attempt, he lodged the F. I. R.
With the police alleging therein that his daughter Mst. Hamida Begum who at the time of kidnapping was a minor, aged about 15 -- years had been enticed and taken away by Rehmat and his co-accused. The police after due investigation challaned Rehmat aforesaid and his co- accused in the Court of Assistant Commissioner, Gujrat, to stand a trial under section 363, P. P. C.
It appears that during the investigation of the case the minor was made to appear before a Magistrate where she stated that she had been kidnapped by Rehmat and that she was raped by him in a rented house at Gujranwala and further that afterwards he went through nikah ceremony with her consent. She, however, desired that she wanted to go with her parents. On this, it appears, she was allowed to go with her father. These facts are taken from Criminal Miscellaneous No. 5370 of 1970 which was filed by Reham Din on 30th July 1970. The contents of this petition show that according to the petitioner Mst. Hamidan Begum was then being kept by her father and friends in illegal confinement. Therefore, he prayed for an order under section 491, Cr. P. C Mst. Hamida Begum, when produced in the High Court, stated that she wanted to go with her husband i.e. Aforesaid Rehmat alias Reham Din. She also stated that her father had detained her against her wishes. Under cross-examination, she denied that she left the house of her parents under any coercion or inducement. She also disowned her statement about her abduction made before the Magistrate. Id the end, in answer to a Court question, she stated that she wanted to live with Reham Din (Rehmat accused) as his wife. On this statement the Court directed that Mst. Hamida Begum "is set at liberty and permitted to go where ever she likes".
In this petition (Criminal Miscellaneous 7888 of 1970, (under section 561-A, Cr. P. C.) Mst. Alfat Bibi and Ramzan, two of the co-accused of aforementioned Rehmat alias Reham Din have prayed that the criminal proceedings pending before the Assistant Commissioner, Gujrat against them under section 363, P. P. C. Be quashed.
Criminal Miscellaneous Nos. 7743 and 7774 of 1970
3. One Mst. Bakht Bano lodged an F. I. R. Under sec--tion 363/366, P. P. C.) with the police on 21st November 1969 that her son Muhammad Hussain had gone to Karachi to earn his livelihood. During his absence, his daughter Mst. Raj Begum a minor of 151 years was living with her (the complainant) who is her paternal grandmother. Mst. Raj Begum was then a student of VII Class. Muhammad Masood, the main accused in the case was on friendly terms with the family of the minor. On 13th November 1969, aforesaid Muhammad Masood, his wife (also named Mst. Raj Begum) and his sister Mst. Zohra, came to the house of Mst. Bakht Bano, the complainant, and enticed and took away Mst. Raj Begum, the minor, on the pretext of going to a marriage party at another place. After sometime, Raj Begum the wife of Muhammad Masood returned to the village. On inquiry by the complainant, she replied that Mst. Raj Begum, the minor, was with Muhammad Masood in the city.
It appears from the various petitions that Muhammad Masood is a School Teacher. The complainant went to Muhammad Masood and asked her to release the minor whereupon he first promised to co-operate but subsequently pushed out the complainant with the threat that she should mind her business otherwise he would deal with her severely. It is after this that the complainant obtained the copy of the birth entry of Mst. Raj Begum and on 20 November 1969, sent some respectables to Muhammad Masood so that he may return the minor but he refused to do so. There-- upon the report was lodgedwith the police as noted earlier on 21st November 1969.
It appears from the various connected proceedings that Mst. Raj Begum was produced or appeared before a Magistrate whereupon she expressed the desire that she should be lodged in Darul-Aman, Rawalpindi.This request having been acceded to, Muhammad Masood moved this Court under section 491, Cr. P. C. (Criminal Miscellaneous No. 232-H of 1970). It is averred in that petition that on 15th November 1969 I e about two days after the alleged kidnapping/abductionth Muhammad Masood went through a nikah ceremony with Mst. Raj Begum after obtaining a permission from the Union Committee for contractinga second marriage. (The copy of the nikahnama was filed as an annexure with that petition). A bailiff of the Court recovered the minor from Darul-Aman, Rawalpindi and produced her in Court on 19-1-1970. In her statement recorder on the same day the minor claimed that she was married to Muhammad Masood on 15th November 1969 and that after marriage she went to live with him and it was on 2nd December 1969, that her father and grandmother (the complainant) came to their house and advised that marriage should be performed in the village and on that pretext she was taken away from her husband. Thereafter, according to her statement, the father and the grandmother wanted her to marry another boy but she refused and on this she applied to the Magistrate for being sent to Darul-Aman. She expressed the desire that she wanted to live with her husband i.e. Muhammad Masood. It was considered necessary that a notice of the petition under section 491, Cr. P. Bealso given to the father of the girl, therefore, the case was adjourned. In the meanwhile because of various questions law and fact involved, it was considered proper that the minor be confined in Darul-Aman, Rawalpindi. The bailiff of the Court was authorised to get her admitted in due course. I alleged that when she was in the custody of the bailiff, she appeared. On this a case was registered against Muhammad Masood. After several months i.e. On 7-10-1970 Mst. Raj Beg was again produced in this Co t. Her statement was recorded wherein she stated that she was married to Muhammad Masood and she identified her signatures on nikahnama. She admitted that Muhammad Hussain who was present Court, was her father but stated that he did not behave like a father and that she wanted to live with her husband. On the learned Judge of this Court passed the following order:-- Mst. Raj Begum being sui juris and the marriage he been performed in accordance with Shariat, Muhammad Masood is entitled to the custody. Mst. Raj Begum has been recovered from Darul- Aman, Rawalpindi) is hereby set at liberty. She may live with her husband as desired by her.
In the meanwhile, two challans were submitted. One in the Court of a Magistrate at Rawalpindi against Muhammad Masood and some others on the basis of the original F. I. R. Lodged by Mst.
Bakht Bano, and the other in the Court of a Magistrate at Lahore on the basis of a report by this Court in respect of disappearance of Mst. Raj Begum from the custody of the bailiff on 19-1-1970.
Muhammad Masood and one other have filed Criminal Miscellaneous 7774 of 1970 under section 561-A, Cr. P. C. With the prayer that the case pending against them at Rawalpindi under section 363/366, P. P. C. Be quashed. Muhammad Masood has also filed another Petition No. 7743 of 1970, under section 561-A, Cr. P. C with the prayer that the case pending against him in the Court of Magistrate at Lahore, under section 363/366, P. P. C. Be quashed.
4. Both the learned counsel appearing in support of the petitions, apart from raising a common ground of law have urged certain points which relate to the facts of the relevant cases and appreciation of the evidence, which has not yet been led.
5. I will presently deal with the common point of law involved. With regard to the other questions relating to facts and merits of these criminal cases, it will be unfair to the parties to give any findings without giving them the opportunity of examining their witnesses, which of course includes the further opportunity of cross-examination, when permitted by law. It is not the intention of the law that in exercise of power under section 561-A, Cr. P. C. The normal course of trial in subordinate Courts established by law should be diverted. If the allegations made against the accused persons are kept in mind, the tests A laid down by the Supreme Court from time to time do not permit any interference at' this stage by the High Court under section 561-A, Cr. P. C. Some of the rulings of the Supreme Court are M. S. Khawaja v. State (PLD 1965 SC 287), Ghulam Muhammad v. Muzammal Khan and others (P L -D 1967 SC 317), Gian Chand v. State (968 P Cr. L J 764) and Faqir Hussain, Deputy Postmaster-General v. State (1968 P Cr. L J 1402.).
6. The law point urged in support of these petitions is that in view of the admission of marriage by the abductees in these cases they, being above 15 years of age, are lawfully married under the Muslim Law to the main accused person in each case; therefore, the accused have not omitted the offence of kidnap--ping or abduction. And in these circumstances if the prosecutions are allowed to proceed it will amount to only mock trial because ultimately the accused will be acquitted.
Reliance has been placed on Mst. Bakhshi v. Bashir Ahmad and another (PLD 1970 SC 323), Muhammad Ahmad v. Mirza Muhammad Amin and another (PLD 1962 Kar. 442) and an unreported judgment of this Court in Muhammad Aslam v. Ghulam Muhammad Tasleem (Criminal Miscellaneous No. 7055-H/70, decided on 16-12-1969).
7. It has to be noticed straightaway that whoever takes or entices any minor female under sixteen years of age out of the lawful guardian of such minor without the consent of such guardian, he commits the offence of kidnapping which is punish--able under section 363, P. P. C. Similarly, if anybody induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person, he shall be punished under section 366-A, P. P. C. When a person kidnaps or abducts any woman with intent that she may be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse he commits an offence under section 366. P. P. C. When kidnapping or abduction with intent secretly and wrongfully to confine a person is proved, the offence committed is a/s 365, P. P. C. While the wrongfully concealing or keeping in confinement a kidnapped or abducted woman constitutes an offence under section 368, P. P. C. Accord--ing to the allegations made in the two cases none of the minor girls was married on the day she is alleged to have been kidnapped. Subject to existence of the relevant intention and or knowledge, it is very difficult at this stage to hold that no offence was committed in these cases.
It may be mentioned that with regard to the case instituted against Muhammad Masood, at the instance of the High Court, about the disappearance of Mst. Raj Begum, from the custody of the bailiff of this Court, it cannot be said at this stage that if she was taken away by the accused from that custody; either the taking away was justified simply because he claimed to be the husband or that the custody of the bailiff was not lawful. It is also premature to observe in that behalf that if an offence under section 363, P. P. C. Was not committed qua the custody of the bailiff of this Court, no other offence at all was committed.
8. It may also be mentioned that if a male above 18 years of age contracts marriage with a female under 16 years of age, he commits an offence punishable under section 4 of the Child Marriage Restraint Act (XIX of 1929).
It may be stated here that these are only few of the numerous cases which are filed in the High Court for seeking relief either of quashment or bail in similar circumstances.
The controversy in these cases is whether or not before the alleged marriage in each case the accused persons were guilty of any offence or not. The rulings cited by the learned counsel arose out of applications of habeas corpus moved under sec--tion 491, Cr. P. C. Or under writ jurisdiction of the High Court. In all these cases the question involved was, whether after the registration of a case under section 363, and/or 366, P. P. C., if the alleged abductee conceded the claim of the abductor with regard to marriage (after she had attained the age of 15 years) will that circumstance entitle the husband accused person to the custody of the minor abductee. The answer in each case of course was that in such circumstances the abductee, who was willing to go with the person whom she claimed to be her husband, shall not be forced to live with anybody else including her father. The ratio decidendi in these cases is the concept of Muhammadan Law that a female, when she attains the age of 15 years is presumed to have attained the age of puberty and if she contracts a marriage after attaining this age, that marriage cannot be held to be unlawful for purposes of custody of a female minor. The judgments in those cases were given during the pendency of the criminal cases against the concerned accused persons. It is pertinent to note that in none of those cases it was held that by virtue of the fact that the alleged abductee was allowed to go with the claimed husband, the pro--ceedings pending in criminal Court, had become infructuous. On the contrary, it was specifically observed by their Lordships of the Supreme Court in the case of Mst. Bakhshi that the remarks made in .The judgment by them or by the High Court, while deciding the petition under section 491, Cr. P. C. "shall have no effect on the criminal case for kidnapping started on the F. I. R. " The underlying reason is too obvious to be stated. If it is held otherwise, i.e. If the statement of the abductee of 15 years of age exhonerating the accused on the basis of her marriage after kidnapping/abduction, is allowed to be used for quashment of prosecution under section 363/366, P. P. C. It may mean a general license for kidnapping girls approaching their 15th year of age. In other words, it will mean an indirect amendment in at least half a dozen punishing provisions in the penal law of Pakistan and also in other laws.
Their Lordships of .The Supreme Court in the case of Mst. Bakhshi, cited above, made another observation which goes to the very root of the argument raised by the learned counsels On page 325 of the report it was observed that "it is true that the Child Marriage Restraint Act of 1929 does not permit the marriage of a girl below the age of 16 years but if any girl below the age of 16 years marries in violation of that law, the marriage itself does not become invalid on that score, although the adult husband contracting the marriage or the persons who have solemnised the marriage may be held criminally liable". This shows that even if the marriage is proved it does not absolve the so-called husband (and others) of the offence committed by him qua his alleged wife and the marriage, For example the consent to marriage (which may or may not be valid under Muslim Law) in these circumstances does not absolve C the kidnapper of an offence under section 363, P. P. C.
The consent, as to marriage of an abductee also, would be open to so many factual and legal questions involving mental and physical faculties. Their Lordships in the cited cases, if I may say so with respect, did not give final verdict on the validity or otherwise of the marriage involved in each case.
Moreover, it is to be noticed that the consent of a minor female in matter of her abduction is no defence in a prosecution for offence under section 366, P. P. G'. In a case of abduction and rape Tasawar Hussain and other v. The State (1968 P Cr. L J 1743) the High Court had held that the consent of a minor female abductee does not absolve the offender of an offence under section 366, P. P. C. The convicts sought special leave to appeal against the judgment of the High Court.
Their Lordships of the Supreme Court while refusing to grant leave observed that in view of the finding that the abductee was less than 16 years of age, the plea of consent of the abductee was of no avail to them. (See Tasawar Hussain and another v. State, Criminal Petition for Special Leave to Appeal No. 238 of 1968), decided on 17-10-1968).
9. Considering the circumstances of these cases and after having carefully noticed the effect of the rulings cited by the learned counsel, I have come to the conclusion that the fact, that the alleged abductees have been allowed to go with their abductor in collateral proceedings in the nature of habeas corpus, cannot and does not prove that the accused persons have not committee any offence either qua the kidnapping and/or abduction of, and qua the marriage with, the female minors.
10. I, therefore, find no merit in these petitions and the same are dismissed.