' Mst. Nabeela Anjum daughter of Rana Muhammad Azam of Chak No,138/G.B., Tehsil Samundari District Faisalabad has filed this Constitutional petition seeking a direction that the local police may be restrained from causing undue harassment to her.
2. The facts which led to the filing of this petition are that Rana Muhammad Azam, respondent No, 1 lodged F.I.R. No, 98 of 1996, dated 20-3-1996 under section 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 against Khizar Hayat son of Khan Muhammad, Khan Muhammad son of Shah Nawaz and Umar Hayat son of Khan Muhammad, residents of Pindi Gheb, District Attock.
According to the first informant he had business dealings with the aforesaid accused persons who invariably visited him in his village. The complainant's young daughter Nabeela Anjum (about 14) who was teaching in a private school in the village, was, however, abducted by Khizar Hayat and his associates for illicit sexual relations. He tried to retrieve the daughter but failed to achieve his objective and was led to lodge this report.
3. The petitioner who happens to be the abductee of the aforesaid case haii filed this petition for the aforesaid direction contending that she being sui juris was married to Khizar Hayat on 10-3- 1996 and the case had been falsely registered.
4. The petitioner was summoned to the Court. She appeared to be of tender age and seemed to be frightened and not possessed of herself. As such it was ordered that she shall be lodged in Darul Aman.
5. During the proceedings of the case Civil Miscellaneous No,1 of 1997 was filed by respondent No,1, father of the writ petitioner that the petitioner had desired to accompany him and as such she may be discharged from Darul Aman to go to her parents. In support of his contention an affidavit sworn by him (Rana Muhammad Azam) was filed and so also application of Nabeela attested by the Lady Assistant Superintendent, Darul Aman was also appended.
6. Learned counsel for the writ petitioner, however, seriously contested this application and requested that Nabeela Anjum may be summoned to the Court.
7. On being summoned Nabeela Anjum did not refute that Civil Miscellaneous No,1 of 1997 was filed with her consent and stated that she would prefer to go with her alleged husband.
8. During the pendency of Civil Miscellaneous No,1 of 1997 another application Civil Miscellaneous No,1081 of 1997 was filed on behalf of the writ petitioner that since her age was in dispute, as such the Court may order for her medical examination for determination of age.
9. In reply to this petition it was submitted by the learned counsel for respondent No,1 that there is a certificate by the Union Council concerned wherein her birth entry has been recorded as 29-12-1981 which would clearly show that at that time of her abduction she had become 14 years, 3 months and 21 days of age, as such she was minor and no valid marriage could have taken place. Si.m.e this is a certificate issued by the Union Council concerned, this would have preference over any other certificate.
10. On the other hand, learned counsel for the petitioner has filed a school leaving certificate in which her date of birth has been shown as 15-4-1979. As such she was competent to enter into a contract of marriage and the case has thus been registered without any lawful ground. In order to support his contention learned counsel for the petitioner contends that to be more sure let us have a medical examination of the petitioner. It would surely determine the accurate age and would resolve this issue.
11. Learned counsel for respondent No,1, however, pointed out that in writ jurisdiction this exercise is neither desirable nor permissible. Since there is a factual controversy involved in this matter, the same can be resolved by leading evidence which can only be done in the trial Court. Reliance in this behalf has been placed on Shahida Parveen v. District Judge, Sialkot and another PLD 1980 Lah.
7, wherein it was held:-- "Another reason for which we will like to agree with the learned Judge in Chambers is that the question as to whether the appellant was sui juris at the time of the alleged marriage is a question of fact. As indicated earlier, there are three versions with regard to the age of the appellant. The correctness or otherwise of each version shall be determined by an ordinary Court of competent jurisdiction when witnesses and documents are produced and the witnesses are also subjected to cross-examination. This exercise cannot and should not be undertaken by the High Court while dealing with the Constitutional writs. The learned Single Judge had, therefore, rightly refrained from going into the question of her age for the purpose of determining as to whether she was sui juris at the time of her alleged marriage."
' The best course, according to the learned counsel in such an event, is to leave the question of age and validity of marriage to be decided by the competent Court and as for the custody of the petitioner, this may also be left to be permanently determined by the Court having jurisdiction in the matter: Recording of evidence in the High Court is likely to prejudice the case of either party and would create complications in the lower Court. It was further submitted by the learned counsel for the respondent-father that no Nikah ever took place and everything is fake and forged. The fact of the matter is that the accused of the F.I.R. Would visit the house of the father of the. Petitioner in connection with their business and instead of being fair and decent to him they virtually committed dacoity and had whisked away young innocent daughter of the respondent marring her future and bringing perpetual shame to her family. That was why there is no Nikahnama on the file. Nor did the petitioner ask for abashment of the F.I.R.
12. The petitioner has been put up by the abductors as a writ petitioner to achieve multiple purposes. In the first instance it was designed to ensure that she herself claims to be married and if ultimately she is released from their clutched and makes a statement before a competent Court under section 164, Cr.P.C., this step of her would be sufficient to cast doubt in her statement, secondly, to obtain their own defence in the criminal case and to create doubt in the falsity of the statement of the complainant and to secure their release in the final event.
13. Refuting these assertions it was submitted by the learned counsel for the writ petitioner that in order to be sure it is imperative at this stage to get her medically examined because the medical test is very reliable and surer test than the age recorded in the school leaving certificate as well . As in the certificate of Union Council concerned. In support of his submissions he has placed reliance on Iftikhar v. The State PLD 1972 Pesh. 27, Yousaf v. The State 1975 PCr.LJ (Karachi) 936 and Abdul Rahim v. The State 1975 PCr.LJ (Karachi) 1227.
14. Arguments have been heard and record gone through with the help and assistance of the learned.Counsel for the parties.
15. The authorities relied upon by the learned counsel for Rana Muhammad Azam, respondent No,1, the father of the writ petitioner appear to be more apt and to the point in issue. In Shahida Parveen v. District Judge, Sialkot And another PLD 1980 Lah. 7 the facts were almost similar. A girl after abduction was married to the accused. It was contended before the Court that she being sui juris had contracted marriage and she may be allowed to go along with her husband. A question arose as to whether the custody may be handed over to the father or to the husband. It was held by the learned Sessions Judge who resolved the issue in a revision petition that the custody should be handed over to the father, in the circumstances of the case, but it shall remain subject to declaration of custody by a Court of competent jurisdiction. This decision was upheld by the High Court. In appeal their Lordships of the Supreme Court thoroughly discussed the point of custody of such a girl whose age was stated to be less than 17 years. Their Lordships held:-- "In the present case, if the alleged husband of the appellant is keen for getting her custody he can file a suit for restitution of conjugal rights against her. On the other hand, if her father wanted her alleged husband to be punished for having abducted her he could proceed against him on the criminal side as already done by him. Even if the finalisation of some matter before the ordinary Court might take longer time than the one during which the Constitutional petition may be disposed of, that, by itself, is no reason for assuming Constitutional jurisdiction in cases which are not fit for that treatment. In this connection, we would also like to refer to Ghulam Muhammad v.
Fakir Muhammad and another PLD 1975 Kar.
118. Although this authority relates to a matter under section 491 of the Code of Criminal Procedure yet the observations made therein appear to hold good for a Constitutional writ as well."
' Consequently, their Lordships upheld the findings of the learned Single Judge of the High Court who had allowed the alleged abductee to accompany her father in the given situation and had not permitted her to go with her paramour or alleged husband.
17. In this case as stated earlier there is no Nikahnama on the record nor did the writ petitioner pray for the abashment of the F.I.R. The credentials of the alleged husband of the petitioner are the subject-matter of adjudication in a criminal case, as such, it would not be appropriate to hand her over to his custody because that would foreclose the point in issue for determination of age. The appropriate order in such an event which can be passed is that she may accompany her father as she had expressed in writing which was endorsed by the officials of the Darul Aman (Civil Miscellaneous No,1 of 1997) or may remain in Darul Aman till the issue of her alleged marriage is resolved by a Court of competent jurisdiction. As for her medical examination for determination of age, that may also be ordered by the learned trial Court, if so required.
16. In a similar situation their Lordships of the Supreme Court in Shaukat Ali v. Altaf Hussain Qureshi and another 1972 SCM R 398 held that if a habeas corpus petition is filed for furthering illicit love affair and avoiding criminal prosecution for kidnapping/abduction of woman, the relief under section 491, Cr.P.C. Was justifiably refused. It was further held by their Lordships as under:-- "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 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."
18. The authorities quoted by the learned counsel for the writ petitioner are absolutely irrelevant to the discussion in hand because this Court cannot undertake the exercise of recording of evidence as to the age. Moreover, in Yousaf v. The State 1975 PCr.LJ (Karachi) 936 it was held that Ossification test though a better guide to age of a person yet not an accurate estimate margin of one year on either side is possible. So, therefore, this would lead us nowhere. Likewise, in Abdul Rahim v. The State 1975 PCr.LJ (Karachi) 1227 X-Ray test has been held to be estimate of age by X-Ray, held to be more accurate. This too is an estimate of fixation of the age and cannot be held to be sure as compared to the age given by the father/parents immediately after birth, in the Union Council office. In Iftikhar v. The State PLD 1972 Pesh. 27 it is held that evidence of radiologist to be preferred to school certificate. Now, in this case the parents have come up with a certificate of Union Council's Office which is primary and substantial source of recording of age. This too would. Not help the petitioner. Besides, this question is not to be determined through Constitutional petition.
19. One very important aspect which the Courts should specifically keep in mind is that the State is being governed by the Constitution of the Islamic Republic of Pakistan, 1973 and in the presence of Article 1 wherein the name of the State is Islamic Republic of Pakistan, Article 2 which ensures that the Islam shall be the State religion and then Article 2-A that makes the Objectives Resolution as substantive part of the Constitution no interpretation which promotes immorality and advances vices is competent. Moreover, Article 31 enjoins upon the Government that "steps shall be taken to enable the Muslims of Pakistan, individually and collectively, to order their lives in accordance with the fundamental principles and basic concepts of Islam and to provide facilities whereby they may be enabled to understand the meaning of life according to the Holy Qur'an and Sunnah". Hence any interpretation which militates against the teachings of Islam cannot be accepted. Articles 227 to 230 of the Constitution also would show that what can be the purpose and policy of the State for which this country came into being. Any interpretation of law which runs counter to these substantive provisions of Constitution would tantamount to frustration of the very purpose of the framing of the Constitution of an Ideological country like Pakistan. In view of the above discussion and following the aforesaid authorities it is hereby held that the question of age being purely a question of fact shall be resolved by the Court which shall decide the validity or otherwise of the marriage. As for the custody of the minor instead of giving it to. The alleged husband whose very character as husband is under scrutiny, would foster abuse of the process and would encourage illicit love affairs which are prohibited by Qur'an and Sunnah and would also create problems of law and order in the society. As such it is ordered that the petitioner may leave Darul Aman and accompany her father to his house till the matter is finally resolved by a competent Court of law, failing that she may continue to remain in Darul Aman as ordered earlier. Since her continued detention or living in Darul Aman is not practicable, as such it is ordered that the matter, if taken to the initial Court shall be resolved expeditiously. The petition is thus disposed of.