The applicant Allah Jurio has filed this Revision Application under section 435/439, Cr. P. C. Calling in question the order dated 15-2-197,9, whereby the Additional District Magistrate, Hyderabad had directed Mst. Fatima, whom the applicant claims to be his wife, to be sent to Darul- Aman Karachi, till further orders.
2. Mst. Fatima is Baroach by-taste. She is the daughter of respondent No. 1 Muhammad Baroach, who is a primary teacher. She is aged about 18 years and is literate. Respondent No. 3 Doulat is brother of Muhammad. Mir Muhammad is son of Doulat and nephew of Muhammad and cousin of Mst. Fatima. They all are said to be residing in Quarter No. D/3 Peons Colony, Thandi Sarak, Hyderabad, Sind.
3. On 27-10-19-13, Mst. Fatima was married to Muhammad. The marriage was attended by members of both the families. The Nikahnamah shows that the nikah was performed by the Khatteb of Muhammadi Masjid, Peon Colony, Hyderabad, Sind.
4. On 8-11-1978, the applicant Allah Jurio who is Hajano by caste and is illiterate, is resident of village Tando Saeed Khan, District Hyderabad, had abducted Mst. Fatima and took her to Digri, District Tharparkar, where on 16-11-1978, he got her affidavit sworn before the Mukhtiarkar and F. C.
M., Digri. One Ghulam Hussain Leghari, resident of village Jam Leghari, Taluka Mirpurkhas; had identified Ghulam Hussain and had signed the- affidavit.
5. In her affidavit, Mst. Fatima had stated that due to the high handed--ness of her father, she had left her house of her own accord and had gone to the applicant Allah Jurio, who was working, as their 'hari' (farmer) and had terms with them. No mention of her earlier marriage with Mr. Muhammad was made in the affidavit.
6. Mst. Fatima was then brought to Mirpurkhas, where her second nikah with the applicant was performed on 16-11-1978. Photostat copy of the nikahnama is filed as Annexure 'A'. It is strange that the Nikahnama shows that the marriage bad already been registered on 14-11-1978, before the nikah was, performed by the Pesh Imam of Makrani Masjid, Gharibabad at Mirpurkhas. Mst. Fatima was shown, to be virgin. Her marriage with Mir Muhammad was concealed.
7. In the meantime, respondent No. 3 Doulat Khan, father of Mir Muhammad, husband . Of Mst.
Fatima bad reported the matter to the Martial Law Authorities, as Well as, the police of P. S. Tandojam. Consequently the police recovered Mst. Fatima from, the applicant on 20-11:1978.
8. On 21-11-1978 Mst. Fatima was. Produced before the Mukhtiarkar and F. C. M. Hyderabad, where her 164, Cr. C. C. Was recorded; wherein, she had stated that due to some domestic matters, her father, brothers and others had quarrelled with her, therefore, .Without telling any one, she had left her house and went to reside with her relative's near 'Rani Bagh' Hyderabad. She made no mention about her going away with the applicant and getting married with him. She further stated that when she learnt that her parents bad reported the matter to the police, on the previous day, she had voluntarily appeared before the police and herself requested, W be produced before a Court for recording of her statement. Finally, she stated that since she was afraid of being beaten by her parents, therefore, she should be pro--tected. She expressed her willingness to go with her, father respondent No. 1 She concluded the statement, by saying, that no one else had incited or abducted her. After recording of her statement, she went and lived with her father.
9. That on 7-12-1978 Mst. Fatima filed a Civil Suit No. 506/78 in the Court of 1st Senior Civil Judge, Hyderabad, against the applicant, who is the defendant. She had asserted in the plaint that she was, by force, taken away, at gun point, by the applicant, and his accomplices, to some unknown place, where a Mullah was brought and she was forced to sign certain papers, including the Nikahnama. She was, under such compelling circumstances forcibly married with the appellant, in spite of the fact; that she had informed them that she was already married to Mir Muhammad. In the plaint she had prayed that her marriage with the applicant, being null and void, be declared as such, and the applicant be restrained from claiming her as his wife. The suit is pending in the Court.
Mst. Fatima herself had verified the con--tents of the plaint and had signed it. Earlier, she had also sworn a separate affidavit, on 17-12-1978, before a Magistrate at Matiari, narrating the same facts.
10. On 12-2-1979, the applicant filed a direct complaint under section 552, Cr. P. C. Which came up for hearing before the Additional District Magistrate Hyderabad; After recording his statement, the A. D. M. Issued a search warrant and directed the. C. I. A. Police for the production of. Mst. Fatima from the house of respondent No. 3 Doulat, her father-in---law, where she was staying with her husband Mir Muhammad. When she was produced, the counsel of the parties were heard, and she was sent to Darul Aman, Karachi, till further orders, by the short order dated 15-2-1979. The applicant has now approached this Court, by this revision application, setting aside the said order.
11. Before filing this application, the applicant had also approached the High Court by way of a Criminal Miscellaneous Application No. 145/79 under section 491, Cr. P. C., for issuing directions of the nature of Habeas Corpus, on the ground that Mst. Fatima was illegally or improperly detained and she be set at liberty. Mr. Muhammad Ali, learned counsel for the applicant, states that the application was dismissed.
12. The respondents, on the other hand, have filed another application under section 561-A of Cr. P.
C. For quashment of the proceedings, pending in the Court of the A. D. M., Hyderabad, being an abuse of the process of the Court. This judgment will dispose of both the Revision Application, filed by the applicant, as well as the quashment application, filed by the respondents.
13. I have heard Mr. Muhammad Ali Shaikh for the applicant, Pir Ali Shah for the respondents, Mr. M. I.
Memon for the State; who has not supported the Revision Application.
14. The main argument of Mr. Muhammad Ali is that the order of sending Mst. Fatima to. Darul Aman by the A. D. M. Is illegal, and should be set aside. In support of his arguments, he has relied upon :--
(i) 1970 P Cr. L J 1102 (2)
(ii) PLD 1972 SC 6.
(iii) 1973 SCMR 189, 351, 577 I have perused all these cases, which relate to applications under section 491, Cr. P. C. For issuing directions of the nature of a habeas corpus, where, persons were illegally or improperly detained.
None of the cases support the con--tention of the applicant, particularly when Mst. Fatima was allegedly abducted and after her recovery, she had made a statement under section 164, Cr. P. C., as well as, had sworn the affidavit and had herself filed the Civil Suit, against the applicant, wherein, she had consistently contended, that she was forcibly taken away by the applicant and was fraudulently married with him against her will. From these statements, criminal offences, of abduction, concealment or keeping Mst. Fatima in wrongful confinement and rape, are indicated, which are being investigated and Courts concerned would deal with them according to law.
15. It is important to note that at no stage, the applicant had disclosed anywhere, either before Magistrate, where he had produced Mst. Fatima, or the Mullah, at the time of Nikah or the A. D. M. Or even in the High Court, that Mst. Fatima was already married and was the legally wedded wife of Mir Muhammad. This is the case of nikah over a nikah, which is not permissible under the Sharial Laws. It would amount to encouraging "zina", which the Courts of law, seized with the matter, should strictly disallow.
16. In this case, there was been wilful suppression of the material facts, which had completely altered the merits of the case, to the prejudice of the respondents. At the time of recovery on the search warrant, she was staying with her husband Mir 'Muhammad and was residing in the house of her father-in-law, Doulat Respondent No. 3. It is obvious that section 552, Cr: P. C. Had no application in this case. Section 552, Cr. P. C. Reads as under "Upon complaint made to a District Magistrate on oath of the abduc--tion or unlawful detention of a woman, or of a female child under the age of sixteen years, for any unlawful purpose, he may make an order for the immediate restoration of such woman to her .Liberty or of such female child to her husband, parent, guardian or other person, having the lawful charge of such child, and may compel compliance with such order; using such force as may be necessary: From the facts narrated above, it is clear' that Mst. Fatima was admittedly living with her husband in the house of her father-in-law. It cannot be said that she was either abducted by her own husband Mir Muhammad, or that she was unlawfully detained by him or her own father and or her father-in---law, and she was unlawfully detained by them. The A. D. M. Had misread the section 552, Cr. P. C. The manner in which the complaint under section 552, Cr. P. C. Was entertained is in clear violation of the-law, and has resulted in serious miscarriage of justice. The proceedings on the complaint under section 552, Cr. P. C. Are a clear abuse of the process of the Court and are accordingly quashed; including the order of sending of Mst. Fatima toy Darul Aman, at Karachi.
17. It is evident that the applicant, had intentionally furnished incorrect information with mala fide intentions and had wilfully suppressed the impor--tant material facts, in this application, about the marriage of Mst. Fatima with Mir Muhammad, and her living with him, lawfully in the house of her father-in-law.
18. On perusal of the complaint under section 552, Cr. P. C. Filed by the applicant, in the Court of the A. D. M. It is clear that before that Court also he had suppressed this material fact, which had persuaded the A.D.M. To issue search warrant and got the woman recovered from the lawful custody of her-husband, when she was living is the house of her father-in-law. Let notice be issued to the applicant, through the trial Court, with the assistance of P.S., Tandojam, to show cause, why action, for supressing the facts from this Court, as well as, the Court of the A. D. M., Hyderabad, be not taken against him.
19. The R & P of the case, of Allah Jurio v. Muhammad and others under section 552, Cr. P. C. Be called immediately from the Court of the A. D. M., Hyderabad. Mst. Fatima has been produced from Darul Aman and is present in the Court. She is allowed to go with her father Muhammad respondent No. 1.