Sultan Ahmed Vs DPO etc

Form No.HCJD/C-121

ORDER SHEET

LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Crl. Misc. No.54755/H/2021

Sultan Ahmad Vs District Police Officer etc.

S.No. of Order/ Date of order/ Order with signature of Judge and that of parties or counsel where Proceeding Proceeding necessary

24.09.2021 Mr. Irfan Mehmood Ranjha, Advocate, for the Petitioner.

Rana Tasawar Ali Khan, Deputy Prosecutor General, with Syed Abid Hussain/SI.

Mr. Ahmad Yar Chawli, Advocate, for Respondents No.3 to 7.

Tariq Saleem Sheikh, J. Sultan Ahmad (the “Petitioner”) states that he resides in Kot Ghazi Khurd, Tehsil Kot Momin, District Sargodha, and owned about seven acres of agricultural land. He had no male issue so he transferred it to his 13-year-old daughter Ghulam Fatima some time back. The Petitioner alleges that Respondents No. 3 to 7 eyed that land and asked him for her hand for marriage with a boy in their family which he refused. On 07.08.2021 Respondents No. 3 to 7 abducted Ghulam Fatima when she was working in the fields. He approached them time and again but they did not return her. Thereupon he moved this petition under section 491 Cr.P.C. on which Syed Abid Hussain/SI has produced the girl under the order of this Court today.

2.Mr. Ahmad Yar Chawli, Advocate, has entered appearance on behalf of Respondents No. 3 to 7 and denies the charge of abduction. He contends that the Petitioner and Respondents No. 3 to 7 are close relatives and Ghulam Fatima came to them on her own on 09.08.2021.

3.According to the report of the SHO, Police Station Mela, District Sargodha, the Petitioner got Ghulam Fatima married to Ali Raza son of Nasrullah but she was not happy with

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him. In July 2021, she left her matrimonial house and came to her paternal uncle Ghulam Akbar, stayed with him for about a month and then got admission in Dar-ul-Aman. On 09.08.2021 she left it and went to the house of Respondent No. 3, her paternal cousin.

4.This Court has interviewed Ghulam Fatima who has affirmed the police report and states that she does not want to go back to Ali Raza as he maltreats her.

5.I have heard the learned counsel at length. The Petitioner has invoked the jurisdiction of this Court under section 491 Cr.P.C. which provides:

491.Power to issue directions of the nature of a habeas corpus.– (1) Any High Court may, whenever it thinks fit, direct–

(a)that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law;

(b)that a person illegally or improperly detained in public or private custody within such limits be set at liberty;

(c)to (f) ...

(1A) ...

6.The Hon’ble Supreme Court of Pakistan considered section 491 Cr.P.C. in Muhammad Rafique v. Muhammad Ghafoor (PLD 1972 SC 6) and held that this provision mandates two things: (a) the High Court shall deal with a person within its appellate criminal jurisdiction according to law; and (b) it shall set him at liberty if he is illegally or improperly detained. According to the Black’s Law Dictionary, the word “illegal” means “forbidden by law, or unlawful”.1 On the other hand, it defines the term “improper” as “incorrect, unsuitable or irregular, fraudulent or otherwise wrongful”.2 As per Advanced Law Lexicon, “illegal” means “contrary to law or something that is against the law”3 and Black’s Law Dictionary, 10th Edition, p. 864.

ibid, p. 875.

Advanced Law Lexicon, 4th Edition, Vol.II, p. 2248.

explains that “improper” when applied to human conduct refers to “such conduct as a man of ordinary and reasonable care and prudence would not, under the circumstances, have been guilty of.”4 In Mian Muhammad Nawaz Sharif and others v. The State and others (PLD 2002 Karachi 152) a Full Bench of the Sindh High Court drew a distinction between “illegal” and “unlawful” and held: “The principal distinction between terms ‘lawful’ and ‘legal’ is that the former contemplates the substance of law, the latter the form of law. To say of an act that it is ‘lawful’ implies that it is authorized, sanctioned, or at any rate, not forbidden by law. To say that it is ‘legal’ implies that it is done or performed in accordance with the forms and usages of law, or in a technical manner. In this sense ‘illegal’ approaches the meaning of ‘invalid’. For example, a contract or will, executed without the required formalities, might be said to be invalid or illegal, but could not be described as unlawful. Further, the word ‘lawful’ more clearly implies an ethical content than does ‘legal’. The latter goes no further than to denote compliance with positive, technical, or formal rules; while the former usually imports a moral substance or ethical permissibility. A further distinction is that the word ‘legal’ is used as the synonym of ‘constructive’, while ‘lawful’ is not. Thus ‘legal fraud’ is fraud implied or inferred by law, or made out by construction. ‘Lawful fraud’ would be a contradiction of terms. Again, ‘legal’ is used as the antithesis of ‘equitable’. Thus, we speak of ‘legal assets’, ‘legal estate’, etc., but not of ‘lawful assets’ or ‘lawful estate’. But there are some connections in which the two words are used as exact equivalents. Thus, a ‘lawful’ writ, warrant, or process is the same as a ‘legal writ, warrant, or process’ ... The above distinction demonstrates precisely that ‘an unlawful act’ generally includes an illegal act but in contradistinction it, inter alia, implies an act not authorized or sanctioned by law but forbidden by law, while an illegal act is one which is done or performed not in accordance ibid, Vol.II, p. 2286.

with the forms and usages of law or in a particular manner directed by law in technical sense.”

7.In a petition under section 491 Cr.P.C. if the court finds that the person brought before it was being illegally or improperly confined or detained it may pass the following orders:

(i)If the person is a minor, the court may make over his custody to the guardian who would deal with him in accordance with law;5

(ii)If the person is a major, whether the custody is public or private, the court must set him at liberty forthwith. However, it cannot restore status quo ante against the wishes of the detenue because that would curtail his liberty6 and impinge on the fundamental right guaranteed under Article 9 of the Constitution of Pakistan, 1973.7

8.The jurisdiction of the High Court under section 491 Cr.P.C. [and the Sessions Judges and the Additional Sessions Judges under section 491(1A) Cr.P.C.] is governed by the following principles which have settled over time:

i)Writ of habeas corpus is of ancient origin and, as distinguished from other prerogative writs, it is one of right and not mere discretion.8

ii)“Detention” does not merely relate to physical confinement in a small place. Any form of restraint on liberty is actionable.9

iii)The jurisdiction under section 491 Cr.P.C. is exercised by the court to “restore” the custody of the detenue to the person where it rightfully and lawfully belongs. Before passing an order for the restoration of custody, the court must form a prima facie view that the custody from which the detenue is sought to be recovered is “illegal and improper”, and that there is real urgency in the matter.10

iv)Under the Islamic law marriage is a civil contract and a Muslim girl is competent to conclude it on attaining puberty which, in the absence of evidence to the Muhammad Rafique v. Muhammad Ghafoor (PLD 1972 SC 6).

Muhammad Rafique v. Muhammad Ghafoor (PLD 1972 SC 6); and Sardara v. Khushi Muhammad etc. (1973

SCMR 189).

Muhammad Asif Arain v. SHO Police Station Abad and 2 others (2012 PCr.LJ 1553).

Human Rights Commission of Pakistan and 2 others v. Government of Pakistan and others

(PLD 2009 SC 507).

ibid

Fizza Mai v. Shahbaz Hassan Khan and others (2019 MLD 1772).

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contrary, is presumed on the completion of the age of fifteen years.11

v)A girl who has attained puberty may contract marriage with a man of her choice and it is not necessary for her to obtain the consent of her Wali.12

vi)Marriage with a minor who is below sixteen is not invalid but the person concerned may be prosecuted for an offence under section 363 PPC and/or the Child Marriage Restraint Act, 1929.13

vii)Proceedings under section 491 Cr.P.C. are summary in nature.14 The court cannot determine legal status of the relationship between the parties.15 The court cannot determine the validity of the marriage on the touchstone of the Injunctions of Islam in the said proceedings.16

viii)A sui juris woman cannot be kept in Dar-ul-Aman against her will.17

ix)If the detenue is a sui juris girl or woman and is not willing to go with her husband or guardian, the court cannot compel her. She must be set at liberty and allowed to move freely.18 Wishes of the sui juris girl should be respected.19

x)Matter of custody of minor children can be brought before the High Court under section 491 Cr.P.C. only if they are of very tender age and have been removed from lawful custody in the recent past and there is a real urgency. Even in such cases the High Court may only regulate interim custody of the minors and leave the determination of final custody for the Guardian Judge.20 The High Court should exercise jurisdiction under section 491 Cr.P.C. for recovery of minors sparingly.21

Mst. Ghulam Sakina v. Falak Sher (PLD 1949 Lahore 75); Behram Khan v. Mst. Akhtar Begum (PLD 1952 Lahore 548); Allah Diwaya v. Mst. Kammon Mai (PLD 1957 Lahore 651); and Zafar Khan v. Muhammad Ashraf Bhatti and another (PLD 1975 Lahore 234).

Muhammad Iqbal v. The State (PLD 1983 FSC 9); Hafiz Abdul Waheed v. Mrs. Asma Jehangir and another (PLD 2004 SC 219); Zarjuma alias Jamna Bibi (PLD 2009 Lahore 546); and Muhammad Khalid v. Magistrate Ist Class and 2 others (PLD 2021 Lahore 21).

Mst. Bakhshi v. Bashir Ahmad and another (PLD 1970 SC 323); Musthaq Ahmad v. Mirza Muhammad Amin and another [PLD 1962 (W.P) Karachi 442]; and Zafar Khan v. Muhammad Ashraf Bhatti and another (PLD 1975 Lahore 234). Also see: Mauj Ali v. Syed Safdar Hussain Shah and another (1970 SCMR 437).

Zahid Pervaiz v. Khurram Islam and 2 others (2018 PCr.LJ. 613); and Fizza Mai v. Shahbaz Hassan Khan and others (2019 MLD 1772)

Malik Muhammad Shahzad v. The Superintendent, Dar-ul-Aman, Bahawalpur and another (PLD 1998 Lahore 328); Muhammad Asif Arain v. SHO Police Station Abad and 2 others (2012 PCr.LJ 1553); and Zahid Pervaiz v. Khurram Islam and 2 others (2018 PCr.LJ. 613)

Hafiz Abdul Waheed v. Mrs. Asma Jehangir and another (PLD 2004 SC 219).

Ali Muhammad v. The State and others (2013 SCMR 1484); Muhammad Asif Arain v. SHO Police Station Abad and 2 others (2012 PCr.LJ 1553); and Syed Amjad Hussain Shah v. Ali Akash alias Asima Bibi and 5 others (PLD 2021 Lahore 77).

Mst. Sahi Bibi v. Khalid Hussain and 6 others (1973 SCMR 577); and Ali Muhammad v. The State and others (2013 SCMR 1484).

Muhammad v. Mst. Maryam Bibi and another (1987 SCMR 906).

Mst. Nadia Perveen v. Mst. Almas Noreen and others (PLD 2012 SC 758). Also see: Naziha Ghazali v. The State and another (2001 SCMR 1782).

Mst. Nadia Perveen v. Mst. Almas Noreen and others (PLD 2012 SC 758).

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9.The decision of this petition turns on the question as to whether Ghulam Fatima is sui juris. Black’s Law Dictionary defines sui juris “of full age and capacity, possessing full social and civil rights; of relating to, or involving anyone of any age, male or female, not in the postestas of another, and therefore capable of owning property and enjoying private law rights”.22 In Muhammad Asif Arain v. SHO Police Station Abad and 2 others (2012 PCr.LJ 1553) the Sindh High Court held: “Sui juris is a Latin phrase that literally means ‘of one’s own laws’. In civil law the phrase sui juris indicates legal competence, the capacity to manage one’s own affairs. It also indicates an entity that is capable of suing and or being sued in a legal proceeding in its own name without the need of an ad litem.”

10.Islamic law uses the words Sabi or Saghir for minor. “Sabi means lad, youth, or boy while saghir connotes young, child, minor or major. It is the opposite of kabir which means grown-up, adult or old aged. In legal context, the term ‘majority’ means the particular age at which a person has the legal capability to undertake certain acts or when he/she will be held fully responsible for his/her acts and omissions ... According to the majority of jurists, this capacity is only attained at puberty. It means that in Islamic law a person is a minor until he or she attains puberty.”23

11.In Pakistan there is no uniform standard definition of age of majority. To this end, various laws prescribe different ages for exercising civil, political, economic, social rights or criminal liabilities. However, for our present purposes the Majority Act, 1875 (the “Majority Act”), is relevant. Section 3 thereof stipulates that every person domiciled in Pakistan shall be deemed to have attained his majority on attaining the age of 18 years but where a court has appointed or declared the guardian of the minor’s person Black’s Law Dictionary, 10th Edition, p. 1662

Sabreen, Dr. Mudasra, The Age of Criminal Responsibility and its Effect on Dispensation of Justice, (2017), Pakistan Law Review, Volume 8, 2017. Available at SSRN: https://ssrn.com/abstract=3418167

or property, or both, or where the Court of Wards has assumed superintendence of his property, he attains majority on completing his age of 21 years. These provisions are subject to section 2 of the Act which read as under:

2.Savings.– Nothing herein contained shall affect–

(a)the capacity of any person to act in the following matters (namely), marriage, dower, divorce and adoption;

(b)the religion or religious rites and usages of any class of citizens of Pakistan.

12.Here, it is important to refer to section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, which includes minority and guardianship among the matters that are to be dealt with by the Muslim Personal Law (Shariat) if both the parties are Muslim. Section 2, however, also contains a rider that the application of the said Act is “subject to the provisions of any enactment for the time being in force.” In Muhammad Sadiq v. (Mrs.) Sadiq Safoora [PLD 1963 (W.P.) Lahore 534] this Court examined the effect of this stipulation and explained:

“Now, in the present case, if the rule of decision was only the personal law of the minor, then it is clear that Mst. Aisha Bibi having attained the age of fifteen years, and there being nothing to show that she is not of ripe discretion, she would have to be regarded as major and emancipated from the authority of the natural guardian, namely, her father. However, as already observed, the application of the personal law in the matter of minority and guardianship is, as provided in section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962), subject to the provisions of "any enactment for the time being in force". We may first examine the effect of the Majority Act, 1875, according to which Mst. Aisha Bibi continues to be a minor until she attains the age of 18 years. Section 2 of the Majority Act gives the exceptions to this rule, namely, in the matter of marriage, dower, divorce, adoption, religion, religious rites and usages etc., but in the present case we are not concerned with any of these matters.”

The Court also analyzed a cornucopia of cases and concluded:

“Thus, after a consideration of the provisions of the Hanafi Law, the Majority Act, 1875, and Guardians and Wards Act, 1890, as well as the case-law referred to above, I have come to the conclusion that a Muslim father is the legal and the natural guardian of his children until they attain the age of majority under the general law of the land, namely, Majority Act, 1875,

i.e., 18 years. The mother has the right of custody or Hizanat up to the age of seven years in the case of a male child, and up to the age of puberty, i.e., 15 years, in the case of a female child. Even during this period, the right of Hizanat or custody is to be exercised under the supervision and control of the father, who is responsible for the maintenance of the children. The right of Hizanat can be lost under certain circumstances, but in the present case we are not concerned with that aspect of the matter. The father has always to be regarded as having the constructive custody of his children, although the actual or physical custody may be with the mother or some other female relative, or some other person nominated by the father.”

13.Albeit the age of puberty is sometimes considered to mean the same thing as sui juris, it is not always so. As Muhammad Sadiq’s case elucidates, there is a distinction between the two concepts. Puberty enables a person to exercise rights regarding marriage, dower, divorce and adoption provided under the Islamic law but he acquires full legal competence when he reaches the age of majority stipulated by the Majority Act. Therefore, the term “sui juris” may be loosely applied when talking of one’s capacity in respect of the aforesaid matters but it has its real application when one becomes a “full person” and the law permits him to manage his affairs in entirety. A learned Single Judge of the Sindh High Court echoed the same thought in Captain S.M. Aslam v. Mst. Rubi Akhtar (1996 CLC 1) when he held:

“...there remains no doubt that Muslims who have attained majority on account of attaining puberty but are minors according to the Majority Act, being the persons below the age of 18 years, can sue and be sued to protect their rights themselves.”

14.In the instant case, according to NADRA’s record, Ghulam Fatima’s age is 14 years while the SHO, Police Station Mela, has estimated that she is 15/16 years old. For the purpose of this petition she is a minor either way. Respondents No. 3 to 7 are her close relatives. Even if their contentions mentioned in the earlier part of this order are assumed to be correct, the custody of Ghulam Fatima with them is improper if not outrightly illegal.

15.It is trite that in all matters relating to custody of minors the courts act in loco parentis and it is their legal duty to ensure their welfare. The question as to what is in the interest of a minor depends on the facts of each case.24 The welfare of a minor is not restricted to the child’s health, education and physical, mental and psychological development; it also includes his/her spiritual and moral well being.25 According to the Halsbury’s Laws of England,26 “a husband is at common law entitled to the custody of his wife against all other persons, and the writ of habeas corpus is available to a husband for the purpose of regaining the custody of his wife if she is wrongfully detained by anyone without her consent.” In Muhammad Zakir v. Taj Muhammad and 2 others (1977 PCr.LJ 443) a Division Bench of this Court held that under Islamic law also the husband of a minor wife is her legal guardian and has a right to have her custody. In Mauj Ali v. Syed Safdar Hussain Shah and another (1970 SCMR 437) the Hon’ble Supreme Court upheld the order of the High Court allowing a minor but pubert girl to go with her husband. In the instant case, Ghulam Fatima’s husband Ali Raza has not applied for her custody and, more importantly, even she is not willing to join him. In Muhammad Zakir’s case the Court held that where a minor girl refuses to accompany her husband she cannot be compelled.

16.In Azizunnissa v. Mohammad Yasin (1980 PCr.LJ 790) the detenue, a minor girl, was with the uncle and desirous of living with him but a Division Bench of the Sindh High Court sent her with the mother. In my opinion, the said case must be followed in the one before me. Ghulam Fatima’s welfare requires that her custody should be handed over to the Petitioner, her father and natural guardian, for the time being. Order accordingly.

Nasira v. Judicial Magistrate and 5 others (PLD 2020 Lahore 489) Government of Manipur v. Thokchom Tomba Singh and others (AIR 1969 MP 23) and Nasira v. Judicial Magistrate and 5 others (PLD 2020 Lahore 489)

See: Musthaq Ahmad v. Mirza Muhammad Amin and another [PLD 1962 (W.P) Karachi 442].

17.Nothing in this order shall be construed to affect the rights and liabilities of Ali Raza and Ghulam Fatima inter se and they would be at liberty to assert them in appropriate proceedings.

18.This petition is disposed of in the above terms.

(Tariq Saleem Sheikh) Judge

Approved for reporting

Judge Naeem