Thursday, 12 September 2013

A sui juris Muslim Girl is entitled to set free

PLJ 2008 Lahore 249
[Multan Bench Multan]
Present: Muhammad Jehangir Arshad, J.
Mst. SAMINA NAWAZ--Petitioner
versus
STATION HOUSE OFFICER OF POLICE STATION KUHNA KHANEWAL DISTRICT KHANEWAL and 5 others--Respondents
W.P. No. 3763 of 2007, decided on 27.8.2007.

Constitution of Pakistan, 1973—

----Arts. 10, 14 & 15--Prayer for releasing of the petitioner from darul-aman--Fundamental right--Violation of--Jactitation of marriage--Validity of nikah--Being sui juris muslim girl is entitled to be set at free--Family suit is pending--Inquiry--Specimen signatures of petitioner--Verified from Handwriting Expert--Approach the Court of competent jurisdiction--Inquiry stands concluded--No useful purpose would be served by keeping her detained in darul-aman--Petitioner cannot be compelled to resident with her second husband or with her mother against her wishes--Held: If first nikah is found incorrect, she will be exposed to the consequences under the law and if Family Court ultimately finds her first nikah as forged or her second nikah as genuine, the trial Court apart from throwing out her suit, would also be at liberty to direct her, or for that matter any of the two under the law--C.M. was disposed of.   [P. 252] A
PLD 1984 SC 95; PLD 2004 SC 219 & PLD 1976 Lahore 670 ref.
Malik Muhammad Latif Khokhar, with Mst. Samina Naz Petitioner.
Syed Muhammad Asad Abbas & Mst. Khurshid Begum and Muhammad Azam.
Mr. Mubashir Latif Gill, AAG with Aftab Ahmad, DSP (Investigation), Muhammad Saleem, S.I. and Tahir Nasir, Constable No. 3194.
Date of hearing: 27.8.2007.
Order
C.M. NO. 1307/2007 IN W.P. NO. 3763/07
Through this C.M. prayer for release of the petitioner from darul-aman sent by this Court in terms of order dated 17.7.2007, has been made, on the ground that as the inquiry as directed through the said order stands concluded, the petitioner being sui juris muslim girl is entitled to be set at free. The prayer has been opposed by learned counsel for Mst. Khurshid Begum-Respondent No. 3 (petitioner's mother) as well as Muhammad Azam (her alleged husband), on the ground that since as a result of the inquiry conducted by the concerned DSP (Investigation), Headquarters Khanewal, petitioner's Nikah with Muhammad Azam has been found to be valid as against her alleged Nikah with Shehzad Afzal, therefore, she is not entitled to be set free or to be permitted to accompany Shehzad Afzal till the decision of the suit for jactitation of marriage filed by the petitioner titled "Mst. Samina Naz vs. Muhammad Azam" in the Court of Mr. Adnan Mehdi, Civil Judge/Judge Family Court, Multan.
2.  Before proceeding further, the narration of brief facts of the case appears essential for the proper understanding of the dispute. Mst. Samina Nawaz filed W.P. No. 3763/2007 praying that she had contracted marriage with Shehzad Afzal being sui juris muslim girl with her free will and consent and her father had died, but her mother Mst. Khurshid Begum alongwith other relatives in connivance with local police, were causing harassment to her through the concerned police, therefore, a direction was sought to be issued to the respondent police restraining them from causing illegal harassment and humilitation to her or her husband Shehzad Afzal and to act in accordance with law. On the other hand, Mst. Khurshid Begum mother of the petitioner, filed a Crl. Misc. No. 208-H/2007 alleging that as Mst. Samina Nawaz had been abducted by Shehzad Afzal and was being kept in illegal confinement, therefore, she be got recovered from illegal custody and be dealt with in accordance with law.
3.  On 17.7.2007, both the above referred matters came up before my learned brother Ijaz Ahmad Chaudhry, J. As both the parties were claiming their respective Nikahs to be valid i.e. Nikah  claimed by Mst. Samina Nawaz with Shehzad Afzal which according to her took place on 22.11.2006 and the second alleged Nikah by Mst. Khurshid Begum petitioner's mother having taken place between the petitioner and Muhammad Azam on 5.1.2007, therefore, my learned brother, directed the District Police Officer, Khanewal to get verified both the Nikahs from concerned Union Councils and also to get the specimen signatures of Mst. Samina Nawaz visible on her Nikah Nama with Muhammad Azam, verified from Handwriting Expert. In the meanwhile, however, my learned brother ordered Mst. Samina Nawaz to be lodged in darul-aman and issued a further direction that after completion of the inquiry; Mst. Samina Nawaz petitioner could move this Court for her release from darul-aman on her option. It was in the above circumstances, that this C.M. has been filed.
3.  The report submitted by D.S.P. in terms of this Court order, has been perused and indicates that petitioner's signatures obtained from the Court of learned Senior Civil Judge, Multan have been got verified from Forensic Science Laboratory Punjab, and according to the report signatures of the petitioner on Nikah Nama with Muhammad Azam carried points of similarity and this alone is sufficient to make the case open to further inquiry as to this effect the final findings can only be recorded by learned Judge Family Court before whom the above mentioned family suit is pending, as held by the Hon'ble Supreme Court of Pakistan in the case "Muhammad Azam vs. Muhammad Iqbal and others" (PLD 1984 Supreme Court 95-Shariat Bench), holding that findings recorded by Family Court are not only binding up to the apex Court but also finally determine the legality/validity of Nikah in case of dispute. The Hon'ble Supreme Court in the cited judgment also, directed the release of the parties, if behind the bars in some criminal case, so as to afford them opportunity to approach the Court of competent jurisdiction viz. Judge Family Court for obtaining a verdict about genuineness of the Nikah.
4.  The record further indicates that the alleged Nikah between the petitioner and Muhammad Azam took place on 5.1.2007, whereas, according to the petitioner her Nikah with Shehzad Afzal took place on 22.11.2006. Although, the D.S.P. on the basis of the available record has come to the tentative assessment that Nikah between the petitioner and Muhammad Azam was valid, yet the fact remains that such findings cannot be considered as conclusive and validity/legality of Nikah can only be determined by learned Judge Family Court after a proper inquiry/trial and recording of evidence. Since Mst. Samina Nawaz, petitioner has admitted her Nikah with Shehzad Afzal from the date of 22.11.2006 and has also denied her alleged Nikah with Muhammad Azam which took place on 5.1.2007 and that admittedly no Rukhsati or cohabitation between the petitioner and Muhammad Azam ever took place; and further that Mst. Samina Nawaz has already filed a suit seeking annulment of her alleged Nikah with Azam, therefore, without recording any findings or commenting upon the merits of the case, lest the same may prejudice the case of either side, this C.M. is disposed of with a direction to the learned Judge Family Court, Multan to decide the suit of the petitioner as early as possible preferably till 15.10.2007. Copy of this petition shall immediately be remitted to the learned Judge Family Court (Adnan Mehdi) for information and compliance report to the Additional Registrar of this Bench.
5.  So far as the question of release of the petitioner is concerned, since in terms of above said order of this Court, the inquiry stands concluded, therefore, no useful purpose would be served be keeping her detained in darul-aman either aginst her wishes or on the mere desire of her mother Mst. Khurshid Begum, till the decision of the family suit. Even otherwise ,keeping the petitioner in darul-aman any further would also be violation of her fundamental right of freedom and liberty provided by Articles 14 and 15 of the Constitution of the Islamic Republic of Pakistan, 1973, rather the same shall also be in violation of Article 10 of the Constitution. Admittedly, Mst. Samina Nawaz is sui juris muslim girl and as held by Hon'ble Supreme Court of Pakistan in "Hafiz Abdul Waheed vs. Mrs. Asma Jehangir and another" (P.L.D. 2004 Supreme Court 219) she has an inalienable right to decide with whom and to whom either to marry or reside and that even if her alleged Nikah with Muhammad Azam is taken as correct, even then, in the light of judgment of this Court in "Mst. Bibi Khatoon vs. Faiz and another" (PLD 1976 Lah 670), she cannot be compelled to resident with Muhammad Azam or with her mother Mst. Khurshid Begum against her wishes. In case her alleged Nikah with Shehzad Afzal is found incorrect, she will definitely be exposed to the consequences under the law and if the learned Judge Family Court ultimately finds her Nikah with Shehzad Afzal as forged or her Nikah with Muhammad Azam as genuine, the trial Court apart from throwing out her said suit, would also be at liberty to direct her, or for that matter, any of the two Muhammad Azam or Shehzad Afzal's prosecution under the law. According, this C.M., is disposed of in the light of earlier order of this Court dated 17.7.2007 mentioned above, and the petitioner is set at liberty and would be free to move wherever she may, subject to the above observations and directions. The A.S.I. (Muhammad Saleem), present in Court, shall ensure that petitioner safely reaches her destination unhindered.
5.  Before parting with this order, I would like to make it clear that whatever is observed above is purely tentative in nature and shall have no bearing on the ultimate decision of the learned Judge Family Court,  who  shall give his verdict purely on merits and in the light of the evidence produced before him by the parties. The report of the D.S.P. shall also be allowed to be produced in evidence per law, in case, any parties so intends.
(N.F.)      C.M. disposed of.

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