' Heard.
2. Instant petition under section 491, Cr.P.C. Seeks direction in the nature of "habeas corpus" for setting at liberty Mst. Rabia Bano, who, allegedly is being detained in Dar-ul-Aman at Bahawalpur unlawfully pursuant to an order dated 6-11-1997 passed by respondent No,2.
3. Petitioner claims to have contracted Nikah with Mst. Rabia Bano without the consent of her father/relatives. Annoyed over this act, a case under section 11 of Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 was got registered by father of Mst. Rabia Bano as she is stated to be of tender-age. In wake thereof, Mst. Rabia Bano was produced before Illaqa Magistrate on 6-11- 1997 and her statement under section 164, Cr.P.C. Was taken down/recorded. Describing herself to be "sui juris" she stated that her Nikah with the petitioner was solemnized with her consent and free-will. Learned Magistrate, however, found her to be minor of less than 16 years of age and consequently sent her to Dar-ul-Aman instead of allowing her to go with the petitioner or wherever she liked.
4. Reiterating the plea raised in paragraph No,7 of the petition, learned counsel representing the petitioner has endeavoured to argue that a woman, who,is major, pubert and entered into matrimonial bond in accordance with law and is not accused of any case, cannot be kept in Dar- ul-Aman under the orders of a Magistrate, before whom, detenue was produced for recording her statement envisaged by section 164, Cr.P.C. And wherein she had expressed her desire to go with her husband, the petitioner. It has, therefore, been impressed that order dated 6-11-1997 is not only against the wishes of detenue but also unjust, void and without lawful authority. As a sequence, detention of Mst. Rabia Bano in Dar-ul-Aman has been termed to be illegal. Reliance has been placed upon Mr. Muhammad v. The State and 4 others 1995 PCr.LJ 2085, Muhammad Nazir v. S.H.O.
P.S. Shahpur and 3 others (sic) 1437 in support of the submissions.
5. Undoubtedly, Mst. Rabia Bano was certified to be of 15/16 years of age by the doctor, who, medically examined her on 29-10-1997.
6. In such eventuality, best course, is to leave the questions of age and validity of marriage to be resolved by the Court of competent jurisdiction, of course, by appraisal, in its true perspective of evidence, data and material adduced in support of divergent claims. I am fortified in this behalf by illuminating observations made in Shahida Parveen v. District Judge, Sialkot and another PLD 1980 Lah. 7; Nabeela Anjum v. Rana Muhammad Azam and 2 others 1997 PCr.LJ 1437, which further enjoin that exercise of recording evidence cannot and should not be undertaken while dealing with Constitutional Petitions.
7. Question of custody was resolved, in a similar case Shahida Parveen v. District Judge Sialkot and another PLD 1980 Lah. 7 by observing:-- "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 finalization 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.
Faqir 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."
8. In a similar situation, it was held in Shaukat Ali v. Altaf Hussain Qureshi and another 1972 SCM R 398:-- "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 women in question."
9. All these aspects came into consideration and stand elaborately discussed in Nabeela Anjum v.
Rana Muhammad Azam and 2 others 1997 PCr.LJ 1437, which, concluded as under:-- "One very important aspect which the Courts should specifically keep it mind is that the State is being governed by the Constitution of the Islamic Republic of Pakistan, 1973 and in the presence of Article I 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 2A 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 Dar-ulAman 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 Dar-ul-Aman as ordered earlier. Since her continued detention or living in Dar-ul-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."
10. Order, sought to be impeached and set at naught, was seemingly passed in consonance with the guiding principles expounded in plethora of authorities and galaxy of rulings on the point and does not appear to suffer from any infirmity. Lodging of the detenue in Dau-ul-Aman, pursuant thereto cannot be taken to be wrongful confinement or illegal detention so as to entail or attract of the provisions of section 491, Cr.P.C., which thus, cannot come into play and pressed into service.
11. Petition is patently misconceived. Same, concomitantly, merits rejection and is hereby turned down.
Petition rejected.