Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: AKBAR ALI VS Respondent: MUHAMMAD LATIFHonorable Justice MUHAMMAD YAQUB ALI
1969 S C M R 87
1969 S C M R 87
Present: Hamoodur Rahman and Muhammad Yaqub Ali, JJ
AKBAR ALI‑‑Petitioner
versus
MUHAMMAD LATIF‑Respondent
Criminal Petition for Special Leave to Appeal No. 277 of 1968, decided on 21st October 1968.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 28th August 1968, in Criminal Miscellaneous No. 4442‑H of 1968).
Magistrate, duty of
---‑Magistrate recording bayan filmukhtari of girl stating that she "is a major and may exercise her right of free will" and relying for purpose on her own affidavit but making no inquiry about age ‑Affidavit relied upon, held, not competent.
Raja Muhammad Anwar, Senior Advocate Supreme Court instructed by M. B. Khizar Tamimi, Senior Attorney for Petitioner.
Nemo for Respondent.
Date‑of hearing : 21st October 1968.
ORDER
MUHAMMAD YAQUBE ALI, J.‑‑High Court has on a writ of habeas corpus restored Mst. Najma, aged about 14 years, to her parents on the view that even if it were assumed that she has been lawfully married to the petitioner though no nikahnama was produced the right of custody vests in the mother.
In canvassing the petition for leave to appeal learned counsel contended that Mst. Najma was 18 years and that she had married the petitioner of her own free will. He relied for this purpose on the order made by a Magistrate in Karachi on 5‑8‑1968 that "Appellant is a major and may exercise her right of free will". No inquiry about the age of Mst. Najma was made by the Magistrate and in describing her as a major he acted on the affidavit filed by her along with a Miscellaneous Petition No. 310/68 which on its face was legally not competent.
Mst. Najma was produced in the High Court by the father of the petitioner and the learned Judge estimated her age to be below 14 years. To the same effect is the statement made on oath by her father. The petitioner filed the birth certificate of one Mst. Najma dated 18‑5‑1952 and maintained that it related to Mst. Najma, but in the absence of any reliable evidence that Mst. Najma was formally given the name Naziran, the learned Judge rightly discarded the certificate.
We see no reason to grant leave to appeal from the order of the High Court and dismiss the petition.
Appeal dismissed.