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Petitioner: RAMZAN VS Respondent: Ch. MUHAMMAD ASLAM, MAGISTRATE I CLASS, SAHIWAL AND 3 JUDGMENT
Court Name: Lahore High Court Judge(s): Muhammad Afzal Zullah, Ataullah Sajjad Title:RAMZAN vs Ch. MUHAMMAD ASLAM, MAGISTRATE I CLASS, SAHIWAL AND 3
JUDGMENT
Reported As: PLD 1972 Lahore 809 Result: Petition dismissed Judgment JUDGMENT MUHAMMAD AFZAL ZULLAH, J.-Writ Petition No. 669 of 1971 and the reference made by me in Criminal Miscellaneous No. 242/11 of 1971 (numbered as Criminal Miscellaneous No. 347/11 of 1971) arise out of the same subject-matter; there--fore, they are being disposed of together by this judgment. 2. One Naseer Ahmad (hereinafter described as the paramour) moved a petition in this Court under section 491, Cr. P. C., on 14-4-1971 with the prayer that Mst. Gullan (hereinafter described as the detenu) be recovered from the custody of Fazil, Gahra, Yara and Sardara respondents therein. The detenu was described as a minor and a relation of the paramour. The facts; that she was married to a person named Shahadat and that Fazil afore--mentioned is the real maternal uncle of the detenu, and further that Fazil is the father of the husband of the detenu (which have now almost been admitted), were not disclosed in the petition. The paramour, in the petition, tried to make out a simple case that the detenu being his relative was forcibly abducted by the afore-- mentioned four persons. Another impression was created in the petition that the respondents therein used to traffic in women. A further allegation was also made that the detenu might be murdered and that she might be forced to illicit intercourse. My learned brother Muhammad Munir Farooqi, J., had some doubts about the bona fides of the petitioner (paramour) which was expressed in the order, dated 14-4-1971, in the following words:- "The petitioner seems to have lodged no report with the police about it and also admitted that her father and mother are alive but they are not prepared to move in the matter, I am, therefore, not
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satisfied about his bona fides in making this petition. Let him deposit a sum of Rs. 300.00 as costs in advance before a bailiff can be deputed to recover the girl." As the deposit was made, therefore his Lordship passed an order on 15-4-1971 directing that a bailiff of this Court be deputed to recover the alleged detenu. 3. The matter came up before me on 19-4-1971. The parties were absent. Only Mr. Aman Ullah Butt, the bailiff of this Court, was present. I read the report submitted by the bailiff wherein it was mentioned that when the bailiff accompanied by the police party reached village Ara Tola and entered the premises of the respondents "they fell upon the petitioner". About 100 persons collected there. The bailiff and the police party were forced to leave the premises. The bailiff and his party were not allowed to sit in the jeep. He then asked those people to come to the dera of the Lambardar. On the way to that dera, fire was opened on this party as a result of which one constable, Muhammad Hussain, was hit and he fell down. "The Sub---Inspector ran away from the spot", and in spite of the bailiff's repeated requests did not fire in self-defence. The bailiff also could not resist and ran away. The petitioner party persuaded the bailiff and party and brought them back. The bailiff on coming back to the spot saw that the respondents were dragging away the A. S. 1. And one Gulla an uncle of the petitioner towards their dera. He asked the S. I. And the Constable to fire to save the A. S. I. And Gulla but they did not care. The bailiff then accompanied by the remaining police force came back on a private lorry which was standing there. Subsequently, according to the bailiff he learnt in the Police Lines, Sahiwal, that the respondents had murdered the A. S. I. And Gulla and thus a case was registered under section 302, P. P. C., against them. In these circumstances, the bailiff could not execute the order issued by this Court. He attached with his report the list of the names of 18 persons, which he learnt subsequently and who, according to him, defied the orders of this Court. (Paraphrasing is mine), In the afore--mentioned list, the names of all the respondents in the original habeas corpus petition and three sons of Fazil including Shahadat, the husband of the detenu are mentioned at serial Nos. 1 to 7. The report and the list have now been made a part of this file. Although the bailiff had not been able to recover the detenu, yet he informed the Court that he had received a telephonic message from the D. S. P., Sahiwal, that the detenu having been recovered was with the police. On this, I directed that "as and when the detenu is free from police investigation, the officer-in--charge of the investigation shall produce her in this Court for further orders." 4. On 20-4-1971, the paramour appeared in Court. Ghulam Ahmad, S. H. O., Harrappa Police Station produced the detenu and stated that she had been recovered from the kotha of Yara son of Ahmad and that her statement under section 161, Cr. P. C., had already been recorded during the investigation of the murder case. The police did not need her presence any more. He also stated that the police had a neutral attitude in so far as the custody of the detenu was concerned. As murders bad already been committed in connection with the alleged detention and recovery of the detenu, I thought it fit to examine the question as to where should the detenu reside or with whom she should be sent from the Court. On my questions, she explained that her father was alive and that she was married to the paramour. This marriage, she admitted, was without any documentary proof. She objected to her being sent to the father because, as she put it, she did not know "the affiliations of her father." She, however, volunteered that she preferred to go with Naseer petitioner (paramour). On this, I examined him. He admitted that he had not mentioned in the petition and his affidavit that the detenu was his wife. He further stated that she is the daughter of the sister of his father. It may be noticed here that in the order dated 14-4-1971 (motion hearing), my learned brother Muhammad Munir Farooqi, J., had noticed that Naseer had described the detenu as her cousin and not as his wife. He asserted before me that the detenu was his wife and explained that he had deliberately omit--ted to mention this fact in the petition and the affidavit because he was "under the apprehension that it will not be accepted". With regard to the absence
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of any documentary proof, he further explained that the father of the detenu having promised to give her hand to him refused to do so and then he married her with the consent of her mother Mst. Nooran. After this, I examined Mr. Aman Ullah Butt, the bailiff of this Court.He did not want to add anything to the report already submitted by him. On my question as to whether the petitioner, while in his company, at any stage asserted that the detenu was his wife, he answered in the negative. On the same day, I passed the following order:-- "The order passed by my learned brother M. M. Farooqi, J., on 14th April and the statements recorded today by me read as part of this order. After carefully going through the statements made by the detenu, the petitioner and the bailiff and after having perused the order of M. M. Farooqi, J., dated 14th April, the petition and the affidavit attached therewith, it is almost impossible at this stage, with this material, to give a finding that the detenu is the wife of the petitioner. The indications, in so far as the material before this Court is concerned, are that the petitioner moved the petition only on the basis that she is his relation in that she is the daughter of his paternal aunt. It is also important to note that in the petition the petitioner described the detenu as minor. This statement may have been made in the petition with a motive. Be that as it may the fact remains that from the material on this file no sufficient justification is made out for handing over the custody of the detenu to the petitioner. As there is some doubt about their marriage, there--fore, if she is handed over to the petitioner this, in my view, is likely to encourage immorality and may lead to some more serious offences. It is, therefore, necessary and proper that till the time that the petitioner is able to establish, through proper course according to law, his marriage with the detenu, she should be directed to be banded over to her father. This order shall, of course, be subject to the decree of the civil Court as and when the petitioner is able to obtain one in respect of the alleged marriage. The Sub-Inspector is directed to hand over the detenu to her father against proper receipt. (He has taken along the detenu). (2) It needs to be mentioned that while passing the above order I have kept in view the rulings of the Supreme Court and of this Court in the cases of Muhammad Siddique v. Fateh Muhammad and another 1908 SCMR 1093 and Fateh Sher v. Sarang 1970 Law Notes 261, to the effect that under sec--tion 491, Cr. P. C. It is not always essential to act on the desire of the detenu. (3) My order passed yesterday that the report of the bailiff and the list of names attached thereto be kept in a sealed cover with the Deputy Registrar shall be complied forthwith." 5. The office, on the receipt of a telephonic message front the P. D. S. P., Sahiwal, placed this matter again before me on 26-4-1971. The message was that the father of the detenu was absconding in the murder case; therefore, she could not be handed over to him. On that day Mian Abdus Sattar Najam, Advocate, appeared on behalf of Yara the father of the detenu, who along with his wife was also present in Court. The paramour and the State were also represented. On my questions, the father stated that he was willing to receive Mst. Gullan and that he would protect her. He categorically stated that she was never married to Naseer and that, in fact, she was married to Shahadat son of Fazil about three years before the incident and that the said marriage with Shahadat was entered in the records of the Nikah--Khwan. Mst. Nooran, the mother of the detenu, when examined specifically contradicted the earlier statement of Naseer, the paramour, that he had married the detenu with her consent. She also stated that her daughter was lawfully married to Shahadat and there was no question of a second marriage. On this, I passed the following order:- "A telephonic message purporting to be from P. D. S. P., Sahiwal, was received in the office to the effect that the father of Mst. Gullan, the detenu, was absconding; therefore she could not be handed over to him. Yara the father of the detenu, who is identified by Mr. Abdus Sattar Najam, has appeared in Curt and has stated that he is willing to receive back his daughter and that he will protect her. It appears that another person with the name of Yara is an accused in the murder
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case nom, being investigated by the police. The P. D. S. P. Was probably under some misapprehension. I, therefore, direct that the order passed by me on 20th April 1971 be implemented." 6. As the case is not very old, I have a recollection that on this date i.e., 26-4-1971, on the appearance of the father and the mother before me, I did entertain a doubt that the police did not want the detenu to go with the father because that might spoil their case against the accused in the murder case in which two deceased belonged to the police force. I also then thought of the possibility (only) that the position taken by the paramour and the detenu, after the production of the detenu by the police in this Court, that they were married, was an afterthought and might be at the instance of the police. But I did not give any concrete expression to these thoughts and gave the benefit of doubt of some misapprehension on the part of the P. D. S. P. And thus directed the police to implement my order, dated 20-4-1971, because obviously no question arose for my reviewing the same. I may also mention here that on 26-4-1971, on my direction, the detenu had gone with the police to be handed over to her father and she had not, by that time, raised any protest against my direction; even though in her statement made earlier she had desired to go with the paramour. These circumstances, I have noticed in view of my present confirmed opinion that the complications that have arisen in this case subsequent to my order, dated 26-4-1971, can be traced back to the unhelpful rather adverse attitude of the police in this habeas corpus matter. 7. Prima facie the petition stood disposed of by the High Court by my order, dated 20-4-1971, and in any case by the order dated 26-4-1971. However, the office of the High Court received a letter, dated 6-5-1971, from the Additional Deputy Commis--sioner (G), Magistrate Section 30, Sahiwal seeking guidance in connection with the custody of the detenu. The circumstances leading up to this reference are another interesting side episode in this case. On 26-4-1971, I directed that my order dated 20-4-1971 be implemented, meaning thereby that the detenu be handed over to her father. It appears from the Annexures to the letter of the A. D. C. (G) and the averments made in this writ: petition, that the police instead of taking the detenu forthwith to the house of Yara delayed the matter till 1-5-1971, when the same Sub-Inspector, i.e., Ghulam Ahmad, who had appeared before me, purported to deliver the custody of the detenu to the father near the District Courts premises at Sahiwal. She refused to go with her father whereupon there was a scuffle between both of them. The police of `A'-Division, Sahiwal was active enough to intervene and arrest both of them under section 107/151, Cr. P. C. It is also interesting to note that a Press photographer was also ready at hand to take a photo-snap of the detenu and also the picture of the aforementioned scuffle. They were published in a newspaper subsequently which is an Annexure to this petition. After arrest, the detenu was lodged in the judicial lock-up and she refused to be released on bail except on a surety bond submitted by Naseer, her paramour. This conduct on her part, at this stage, is diametrically opposed to her conduct in this Court on 20-4-1971, when I directed that she be handed over to her father. She had accompanied the Sub-Inspector from this Court without raising any protest. A difficulty having arisen for the local Magistracy, the detenu, was examined in the judicial lock-up by a learned Magistrate, according to whose report, "She stated that she had not yet been handed over to her father. The thanedar had tried to do that but she had refused. She was not prepared to go to her father. It was only Nasir whom she recognized for her company". As has been put in the letter of the A. D. C. (G), "at this stage the contending parties expended hectic efforts to secure the custody of Mst. Gullan. Yara, the father of Mst. Gullan, desired to get her back to the perental fold, while her paramour Naseer wanted to secure her". It is pertinent to note that the father of the detenu, through his counsel, urged before the learned Magistrate dealing with the subject (as noted in his report, Hated 3-5-1971) that "Mst. Gullan had not yet been given to her father. The local police had some malicious modus operandi and wanted that "Mst. Gullan be not taken away by Yara------.It was the contention of Mr. Lodhi that the police wanted Mst. Gullan
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under its thumb for some ulterior motive in connection with the said murder case . . . . . . . Today Khawaja Zia Ullah Naik, Mr. Habib Ahmad Khan Lodhi and Sub-Inspector Ghulam Ahmad are present before me. As indicated Sub-Inspector Ghulam Ahmad and Khawaja Zia-Ullah Naik claim to have delivered Mst. Gullan to her father, in compliance with the order of the High Court but the same is challenged by Mr. Habib Lodhi. Mr. Lodhi says that whatever receipt was said to have been obtained by the Sub-Inspector, was simply fictitious and Mst. Gullan had not been properly handed over to her father Yara and consequently no compliance of the order of the High Court bad yet been effected." As noted earlier, the position taken by Yara's counsel with regard to the complaint against the police as to the non-delivery of the custody, appears to have been unwittingly supported by the detenu when she was later on examined by the Magistrate. The detenu was still in the judicial lock-up when the A. D. C. (G), in the aforesaid letter, requested this Court "that a rule of guidance in this case may kindly be issued". 8. The letter of the A. D. C. (G) and a fresh petition under section 491, Cr. P. C. (numbered as Crl. Misc. No. 336/H of 1971), filed by Ramzan, a real brother of the paramour. Came up r before me on 25-5- 1971. In my order passed on that day, I noted that "I finally disposed of Criminal Miscellaneous No. 242/H of 1971, by my order dated 26th April 1971". The letter of the A. D. C. (G) was also noticed. Mr. Muhammad Abdul Wahid, the learned counsel for Ramzan, tried to argue the petition on the basis of provisions of Article 98 of the constitution and "also sought relief as a constitutional remedy." He then amended the petition so as to make it one under Article 98 of the Constitution and I directed that the same being a D. B. Matter be placed before another Bench. I also directed that the question raised by the A. D. C. (G) in his letter be also placed before the larger Bench which was to hear the writ petition. Yara, the father of the detenu, was present on this date with his counsel Mian Abdus Sattar Najam. He wanted to be impleaded as a respondent. Mr. Wahid had no objection to impleading him as a respondent and I noted it so in my order. 9. The matter having been placed before two other Division Benches, ultimately the learned Chief Justice constituted this special Bench to dispose of the same. 10. We heard the learned counsel for the parties and have also recorded a detailed statement of the detenu. Briefly stated, according to her statement, on the day that the bailiff went to recover her, she was confined by her uncle Yara (a respondent in the first petition) in his haveli. Before she was confined by Yara, she was in the house of Fazil her father-in-law, and had remained there for about 26 days. In the later part of the statement, she explained that she was detained in the haveli of Yara on the very day that the bailiff visited their village "earlier than his arrival, at about dupehr time". She admitted that she was married to Shahadat, the son of aforesaid Fazil but it was under coercion. She also admitted that she lived in the house of Shahadat, her husband, for 11 years. She then left that place of her own accord "about eight months ago". She went to the house of Naseer because she did not like her husband and also because her parents had, prior to her marriage with Shahadat, promised her hand to Naseer. With regard to her return to her husband's house, she explained, "After I left the house of my husband, I was caught by Fazal, my father-in-law, Shadadat, my husband and some others at Railway Station Panjwana, when I and Naseer wanted to board a train from that station". She also claimed that she was married to Naseer about four years ago "according to Shariat", but she admitted that there was no document in that behalf. This assertion of the detenu is directly contradicted by Ramzan, the writ petitioner who is a real brother of Naseer, in the petition as well as in the affidavit. According to him, although the detenu was betrothed to Naseer but the marriage "could not be solemnized due to various reasons". She also admitted that she had not filed any suit for dissolution of marriage against Shahadat during the time that she remained with Naseer. From her statement, it further appeared that Fazil, her father-in-law, and Shahadat, her husband, are in jail in connection with the murder case. I have already noted that the brothers of Fazil and his sons are also involved in the same case. When asked if she was set at
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liberty, whether she would like to go with her father, she answered in the negative and initially wanted to go with one Kulla, who was present in the Court. He is a brother of one Gulla who was one of the three persons who lost their lives. Kulla obviously is a partisan of Naseer, her paramour. She, however, admitted that Ramzan, the writ petitioner in this case, "is the elder brother of Naseer, to whom I went leaving the house of Shahadat" and expressed her final desire that "she would like to go to Naseer". She also admitted that she knew that Naseer is the complainant in the murder case in which Gulla was killed. 11. During the arguments, learned counsel for the petitioner mainly relied on two concepts of law: one from the Muslim Jurisprudence, and the other from the Western Jurisprudence. The first being, that a Muslim wife has a right to seek liberty from her husband who is either cruel to her or is detested by her. The second being, that a sui juris person in the Western society has an unlimited immutable right to liberty, and whenever such a question of liberty of a detenu, who is confined against his/her desire comes before a Court of law, it has no jurisdiction to refuse to set her at liberty. Reliance was placed on: (1) Hedaya, trans--lation by Charles Hamilton; (2) Muslim Law, by Verma; (3) 'Muhammadan Law by Tayabji; (4) Baillie's Digest of Muhammadan Law; and (5) Sura- e-Nisa from the Holy Qur'an. The learned Additional Advocate-General supported the learned counsel for the petitioner and further elaborated the points noted above, by making reference to Muslim Law by K. P. Suksena; Halsbury's Laws of England; R. v. Jackson (1891 All E R 61); American Jurisprudence; Amir Bakhsh v. Meharali and others (PLD 1962 Kar. 725) Mishqat Sharif, Translation by James Rabson, Pak Edition; Sura-e-Nisa from the Holy Quran, particularly as translated by Maulvi Muhammad Ali and Allama Yousaf Ali; and Muhammadan Law by Amir Ali, the latest Edition, revised by Raja Said Akbar. 12. Learned counsel for Yara, the father of the detenu has, on the other hand, contended that a Muslim wife has the liberty of movement subject to the provisions of the law relating to her obligations towards her husband. He has relied on some judgments of this Court and the Supreme Court. They are: Nura v. The State (PLD 1960 Lah. 53); Mst. Khurshid Jan v. Fazal Dad (PLD 1964 Lah. 558); The State v. Ashfaq Ahmad Sheikh (PLD 1967 Lah. 1231); Muhammad Saddique v. Fateh Muhammad and another (1968 P Cr. L J 1758) and Fateh Sher v. Sarang (PLD 1971 Lah. 128.). 13. Before discussing the questions of law involved in this case, it is necessary to state as to what are the facts which appear to have been established by now. They are: (a) it is not disputed before us that the detenu is sui juris. (b) The detenu was married to Shahadat son of Fazil. The date of nikah, according to the copy of the Nikahnama produced on the file, is 14-8-1967. She lived in the house of Shahadat for about two years as his wife. This marriage, in law, subsists till today and has not been dissolved by any legal process. (c) The detenu eloped with Naseer, her paramour. There is no legal marriage between them. The detenu was retrieved by her husband, father-in-law and others, when she was found in the company of her paramour, and in the act of running away. She was brought to the house of her husband. She stayed there for some days, when her paramour made an application in this Court under section 491, Cr. P. C., for her recovery from the house of her husband without, of course, impleading him as a respondent and without disclosing that she was the wife of Shahadat and that he had no other connection with her except that he was her relation. (d) Till the day of the arrival of the bailiff in the village, the detenu was living in the house of her husband and there is absolutely nothing on this file not even in her statement, to prove that she was being subjected to cruelty by her husband and his brothers and father living in the same house, or that she was forcibly confined within a circumscribed space. She has, however, expressed her dislike for her husband.
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(e) On the day of the arrival of the bailiff in the village, the detenu was taken by Yara (her maternal uncle) to his own haveli and shortly before the occurrence she was forcibly confined in that haveli by him; and after the occurrence she was released from that confinement by the police officer and was produced in this Court by him. (f) This Court (in the application filed by the paramour) ordered that the detenu should be handed over to her father. The order was passed on 20th April 1971, and the police failed to implement it till I-5-1971, on which date an attempt was made to hand her over to the father in the…
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