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Official Citation: 2023 LHC 4435
Court / Jurisdiction: Lahore High Court
Year of Decision: 2023
Decision Date: 2023-05-31
Parties: Shahid Imran vs The State, etc
Ruling Summary: This decision was rendered by the Lahore High Court on 2023-05-31, officially reported as 2023 LHC 4435. In this matter between Shahid Imran and The State, etc, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2023LHC4435
Court Name: Lahore High Court Judge(s): Anwaarul Haq Pannun Title: Shahid Imran vs The State, etc Case No.: Crl. Misc. No.33583-B/2023 Date of Judgment:2023-05-31 Reported As: 2023 LHC 4435 Result: Order Accordingly
Judgment ORDER Through this application under Section 498 of the Criminal Procedure Code, 1898 ("the Cr.P.C"), the Petitioner Shahid Imran seeks his pre-arrest bail, after having been denied the same relief by the Court of learned Addl. Sessions Judge, Sargodha, due to his alleged involvement in a criminal case registered vide F.I.R No.116 dated 10.03.2023, offence under Sections 365-B, 376 of the Pakistan Penal Code, 1860 ("PPC"), at Police Station Midh Ranjha, District Sargodha. 2. The allegation, in nutshell, against the petitioner is that he along with his co-accused, abducted Mst. Alina Kiran, school going daughter of the complainant and thereafter committed rape with her. 3. Learned counsel for the petitioner seeks confirmation of the petitioner's bail by invoking:- (i) Article 35 of the Constitution of Islamic Republic of Pakistan,1973 ("the Constitution") i.e. the State shall protect the marriage, family, mother and the child, and Section 79 PPC i.e. nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it, as well as agitating the grounds that: (i) since contracting a marriage by a Muslim with a pubert girl under Muhammadan Law is permissible, as such, the petitioner has committed no offence, and (ii) the petitioner has been falsely implicated in this case with mala-fide by the complainant/mother of the alleged abductee being unhappy on account of her daughter's marriage with the petitioner against her wishes. 4. While opposing the above said contentions, learned Law Officers assisted by learned counsel for the complainant argued that the petitioner abducted minor victim and had also committed rape
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with her; the abductee implicated the petitioner in her statements recorded under Section 161 and 164 Cr.P.C for commission of offence, in which he has been booked. He further contends that the defence plea of the petitioner is liable to be rejected on the grounds that the alleged Nikah of the petitioner with the minor abductee is in violation of provision of the Child Marriage Restraint Act, 1929 ("the Act of 1929"), that Section 375(d) PPC describes offence of rape by a man with or without consent of victim aged under sixteen years and the medical evidence renders corroboration to the prosecution's version; the petitioner has been found involved with the commission of alleged crime. Thus, in absence of any mala fide attributable to the complainant, victim and the police, particularly when the offence falls within the prohibitory clause, the petitioner is not entitled to the extra ordinary concession of pre-arrest bail. 5. Arguments heard and record perused. 6. Generally, in international diplomatic discourse, harmony is an agreed upon idea. It underlies today's significant investments in trade/business, cultural diplomacy, conflict resolution and peace building across the borders. The States cannot set in solo flight without honoring international laws & conventions as the states all over the planet are interdependent through trade & business and mutual exchange of technology, services, sources, manpower, skill & knowledge etc. Principles proclaimed in the Charter of the United Nations have been aimed at recognition of the inherent dignity and equal & inalienable rights of all members of the human family including children, which rights are the foundation of freedom, justice & peace in the world. It is the obligation of States under the Charter of the United Nations to promote universal respect for and observance & protection of human rights & freedoms, particularly those of children. 7. Under the Domestic and International Laws, the minors, being the most vulnerable class of individuals, have always been dealt with distinctly for substantial and valid reasons while enacting provisions of law to cater and safeguard their interests. Since an adult having acquired majority is presumed to be capable of understanding the consequences of his actions and is held accountable for the same, whereas such presumption inherently cannot be attached to the actions of a minor and the test of sufficient maturity coupled with the capability of understanding the consequences of his act, is deemed to be a test for holding him/her accountable. Thus, the law giving bodies world over have always been taking measures by way of different pieces of legislation in this regard. 8. For further elaboration, a reference of certain laws, presently in field in Pakistan, may be beneficial to advance the discussion in a purposeful manner. Sections 82 PPC & 83 PPC respectively prescribe that nothing is an offence which is done by a child under seven years of age and by a child above seven years & under twelve years of age having not attained sufficient maturity of understanding to judge the nature and consequences of his acts. Noticeably Section 359 PPC states that "kidnapping a person from lawful guardianship" is one of two kinds of kidnapping. Furthermore, Section 361 PPC, states that kidnapping a minor from legal guardianship is an offence and is punishable under Section 363 PPC. Similarly, the provisions of Section 364-A PPC and 366-A PPC prescribe punishment for kidnapping or abduction of any person under the age of fourteen years and for inducing any minor girl under the age of eighteen years respectively. Moreover, Section 369 PPC distinctly prescribes punishment for kidnaping or abduction of any child under the age of ten years. Protection of Women (Criminal Laws Amendment) Act, 2006 introduced Section 375 PPC prescribing punishment for committing rape with a woman, with or without her consent, under sixteen years of age. Criminal Law (Second Amendment) Act, 2016 brought in action Section 377-A PPC & 377-B PPC respectively defining sexual abuse of a person aged less than eighteen years and punishment thereof. Even under Article 3 of the Qanun-e- Shahadat Order,1984, a person of tender age, in case of his appearance as a witness, is to be distinctly dealt with to adjudge his competency. More-so Section 497 (1) Cr.P.C envisages that the
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Court may direct any person under the age of sixteen years to be released on bail. For social re- integration of juveniles, the Juvenile Justice System Act, 2018 ("the JJSA"), was enacted which defines child a person who has not attained the age of eighteen years. Even Article 44 of The Limitation Act, 1908 (IX of 1908) provides that a ward after attaining age of majority may, within three years, file a suit seeking setting aside of a transfer of property given field by his guardian. Certain other enactments have been enforced in Pakistan specifying age of majority for a minor/child as of eighteen years e.g. Section 2 (b) of the National Commission on The Rights of Child Act, 2017, Section 1 (d) of the Islamabad Capital Territory Child Protection Act, 2018 and Section 2 (g) of aforementioned Zainab Alert, Recovery and Response Act, 2020. Moreover Section 10 of the National Database and Registration Authority Ordinance, 2000 also prescribes entitlement of one for issuance of CNIC after attaining age of eighteen years. To the likes of famous maxim "meliorem conditioionem suam facere potest minor, deteriorem nequaquam" (A minor can improve or make his condition better, but in no way worse. As a rule minor cannot enter into any contract except for necessaries, nor do anything prejudicial to their interests, as they are not considered free agents acting for themselves.)", Section 11 of the Contract Act states that only a person having attained age of majority is competent to enter into a contract. Moreover, even in Civil matters, Order XXXII of the Code of Civil Procedure, 1908 ("the CPC") ensures detailed safe process that a suit on behalf of minor must be instituted through next friend and there must be appointed a guardian at litem to defend a suit instituted against a minor. 9. The United Nations Convention on the Rights of Child ("the UNCRC") was adopted by the United Nations General Assembly in 1989, which came into force on 02.09.1990. Reference of Article 1 of the UNCRC on the rights of child would not be out of context, which says that a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier. A convention of United Nations becomes legally binding to a particular State when that State rectifies it. Recognition of international standards of child rights by Pakistan has been identified in case titled "Shahbaz Ahmad Vs. The State and others" (2021 P.Cr.L.J 1100) as that Pakistan has ratified core international human rights treaties/ conventions that cover diverse areas, including the rights of children. It has also been held by my learned brother Tariq Saleem Sheikh, J, in the judgment supra that "Pakistan has ratified core international human rights treaties/conventions that cover diverse areas, including civil and political rights, the rights of children, women and persons with disabilities. On 5 July 2011 she ratified CRPD. The general rule is that the provisions of a treaty are not automatically incorporated into municipal law and a country's legislature must enact law to implement them. In Pakistan, even where such legislation has not been passed, the courts are required to interpret and apply every statute, as far as its language admits, in accordance with the principle of comity of nations and established rules of international law. Reliance is placed on The Hanover Fire Insurance Company v. Messrs Muralidhar Banechand (PLD 1958 SC 138), Al-Jehad Trust through Habibul Wahab Al-Khairi, Advocate, and 9 others v. Federation of Pakistan through Secretary, Ministry of Kashmir Affairs, Islamabad and 3 others (1999 SCMR 1379) and Human Rights Case No.29388-K of 2013 (PLD 2014 SC 305)". Pakistan, being a party/rectifying state to the UNCRC, has honored obligation to comply with its provisions by enacting certain laws like Zainab Alert, Recovery and Response Act, 2020, preamble whereof states that it is borne out of the necessity to make provisions for protection of missing and abducted children under the age of 18 years, which the State must ensure in light of various conventions that Pakistan is party to, with specific reference to the "United Nations Convention on the Rights of the Child". In addition thereto, Article 25-A has also been introduced in the Constitution. The UNCRC followed by chain of enactments discussed above have consistently set
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forth age of majority as eighteen years, which constantly & consistently flow of legislative intent has to be given due consideration. 10. Much prior to partition of India and the legislation referred hereinabove by the International Community, the then assembly comprising over the Legislators representing diverse communities, while adopting a progressive outlook blended with a future vision, passed the law which is commonly known as "The Child Marriage Restraint Act, 1929" (the Act of 1929), irrespective of their religions, without madling with the personal law of any community and to eradicate a common social evil of child marriage in vogue in different communities. Vide the Act of 1929, a bar had been placed to restrain the child marriage having also been made punishable under Sections 4 to 6 thereof. Unfortunately, despite a lapse of long time, the practice of child marriage has not fully abated. The intent of the Act of has duly been encapsulated in its preamble i.e. to place a restraint against the solemnization of child marriage. Under clauses (a), (b) and (d) of Section 2 of the Act of 1929, as substituted by the Punjab Child Marriage Restraint (amendment) Act 2015 (XII of 2015), the words 'child', 'child marriage' and 'minor' have respectively been defined as that "Child means a person who, if a male, is under eighteen years of age, and if a female, is under sixteen years of age", "Child marriage means a marriage to which either of the contracting parties is a child" and "minor means a person of either sex who is under eighteen years of age." 11. While elaborating the penal provisions under Sections 4 to 6 of the Act of 1929 through the cases reported as "Mst. Tahira Bibi Vs. SHO, etc."(PLD 2020 Lahore 811), "Mst. Shahida Parveen and another Vs. Union Council Jaswal through Chairman and Secretary and 6 others" (PLD 2021 Lahore 783) and "Muhammad Safeer Vs. Additional Sessions Judge (West) Islamabad and others" (PLD 2018 Islamabad 385), it has consistently been held that THREE kinds of persons i.e. firstly a male above 18 years of age who contracts child marriage, secondly person who performs, conducts or directs any child marriage and thirdly where a minor contracts a child marriage, any person having charge of the minor, whether as parent or guardian or in any other capacity lawful or unlawful, who does any act to promote the child marriage or permit it to be solemnized or negligently fails to prevent it from being solemnized. Under the codified law in field, i.e. The Child Marriage Restraint Act, 1929, sixteen years of age for a girl is considered to be a threshold for entering into a marital bond. 12. Under uncodified Muslim law, which is mainly based upon the opinions of Muslim scholars, the competence of a girl to enter into a contact of marriage is dependent on attainment of puberty. Puberty is presumed at the age of fifteen years. According to "Fatawa Alamgiri", Page-93 of Vol-V, the lowest age of puberty as per their natural signs is 12 years in males and 9 years in females and if signs do not appear, both sexes are held to be adult on the completion of their age of 15 years. After copying out from Fatawa Alamgiri and Hedaya, the deduced principle is that a girl even having not attained puberty, but possessing discretion and sufficient understanding can enter into a contract of marriage, however; for its operation it will be dependent on the consent of the guardian, if there is one, but in the absence of any guardian it will take effect on her attaining of majority and ratifying the marriage contract. According to Paragraph-24 of Muhammadan Law, "When a marriage of a minor is contracted by any guardian other than the father or father's father, the minor has the option to repudiate the marriage on attaining the puberty, technically which is called the "option of puberty" (Khyar-ul-bulugh). After attaining puberty, right of repudiation of the marriage, in case of a female is lost if she had been informed of the marriage and she fails to repudiate the marriage without reasonable delay. In case titled "Farooq Omar Bhoja Vs. Federation of Pakistan through Ministry of Law and Justice of Pakistan through Secretary, Islamabad" (PLD 2022 Federal Shariat Court 1), the Hon'ble Federal Shariat Court of Pakistan, after examining various practical aspects along with their implications, has observed that:-
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"Although majority of Muslim jurists are of the view that the Nikah of a minor girl is permissible, there are some jurists having opposing opinion also like Imam Ibn-e-Shabarma who was a Muslim jurists contemporary of Imam Abu Hanifa in Iraq along with him Qazi Abu Bakar Al-Ism also had opposing opinion. There are a few more in addition to them who have this opposing opinion, i.e., Nikah of a minor girl is not permissible in Islam which means both point of views do exist among Muslim jurists. (Reference: Al-Mughni Ibn-e-Qudaima, Volume-7, Page-487, Majmooa-i-Qawaneen-e-Islam, Volume No.1, Pages-214 and 215 by Dr. Tanzeel-ur-Rehman). Dr. Tanzeel-urRehman (late) has dedicated a complete section of his book Majmooa-i-Qawaneen- e-Islam on this topic, although the whole section is very pertinent to this topic; however, the relevant portion of this section is reproduced hereinbelow for bringing clarity to the issue:- 9. Setting a threshold of minimum age at 16 years for a girl by law will generally help the girls to get at least basic education. The importance of education is self-explanatory. The need of education is equally important for everybody irrespective of gender. That is why Islam has made the acquisition of education as mandatory for every Muslim. As mentioned in Hadith, it includes males and females both: Acquisition of knowledge is mandatory upon every Muslim." The use of such language by the Prophet (SAWS) accentuates the farziat of education in a Muslim society, and for every Muslim in all and any circumstances. Hence, education is one of the fundamental factors for personality development of every and any human person. It has also been held by this Court in the case of "Mst. Tahira Bibi Vs. Station House Officer and others" (PLD 2020 Lahore 811) that "Due to child marriage, possibility/ chances/likelihood of infringement of fundamental rights of a child which have duly been guaranteed by the Constitution are enhanced---Right of life is not a mere right to exist or live, it also encompasses the idea of leading a meaningful and dignified life---Offering of an opportunity to get education by State is also a fundamental right of a minor, denial whereof may amount to denial to excel and progress in life." According to The Dissolution of Muslim Marriages Act, 1939, in case of non- consummation of marriage, the right of a female to repudiate it subsists till attaining the age of eighteen years, however, in the case of a male, this right continues until he has ratified the marriage either expressly or impliedly, by making payment of dower or by cohabitation." It may be observed that the option of puberty is a recognition of the difference of resultant implications between minority and majority. On attaining the majority being a sign of maturity, enables the individual to decide about the future of his/her marriage, contracted for him/her by father or guardian. Needless to observe that marriage being a civil contract concomitantly gives rise to serious consequences, not only to the parties to the marriage but also for the future generations including their relation with the society at large. The Hon'ble Federal Shariat Court, while considering the scope of consent of entering into the marriage and purposes thereof, in the case of "Muhammad Aslam Vs. the State" (2012 P. Cr. L J 11) has held that "Awareness about marriage encompasses more serious matters than mere carnal knowledge (relating to physical feelings and desires of body). Therefore, Islam places conjugal consent over high pedestal of morality rather than carnality. Consequently, consenting adult is a person who has come of age enough, and therefore, responsible enough, to decide and understand consequences of marriage." 13. To advance the discussion, a close reading of Section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, appears to be necessary having close nexus with the point in issue, for convenience and ready reference, is reproduced hereunder: 2. Application of the Muslim Personal Law:- Notwithstanding any custom or usage, in all questions regarding succession (whether testate or intestate), special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, legitimacy or bastardy, family relations, wills, legacies, gifts, religious usages or institutions, including waqfs, trusts and trust
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properties, the rule of decision, subject to the provisions of any enactment for the time being in force, shall be the Muslim Personal Law (Shariat) in case where the parties are Muslims. [Emphasis supplied] The bare reading of the above provision clearly manifests that application of Muslim Personal Law in relation to subjects mentioned in it, marriage etc. is subject to provision of enactments for the time being in force in Pakistan. It may not be out of place to mention that the Enforcement of Shari'ah Act, 1991 ("Act of 1991") was got enacted, to use it as a tool with a subjective approach to perpetuate the dictatorial designs under the influence of political heavy weight. Section 3 of Act of 1991 envisages that the Shari'ah i.e. the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah, shall be the supreme law of Pakistan and Section 4 thereof requires that the laws be interpreted in the light of Shari'ah. Reliance can be placed upon case titled "Mst. Mumtaz Bibi Vs. Qasim and others" (PLD 2022 Islamabad 228). 14. Although Pakistan predominantly consists of Muslim population, yet they stand divided in different sects. Without being prejudice to the discussion made hereinabove in paragraph No.12 of this order, it is a matter of common observation and practice that different school of thoughts of Muslims/sects of Islam are not in agreement with regard to age of majority of a minor/child. Even consequent upon the Enforcement of Act of 1991, because of sharp difference of opinion amongst the sects, as stated above, no substantial and considerable legislation could have been made. Therefore, as per mandate of Section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 and the binding effect of ratio of Bhoja's case referred supra, it would be more advisable to get the provisions of the Act of 1929, strictly implemented being only piece of statutory legislation, to avoid professing effect of divided sectarian opinions likely to bring further divide in the society. Even otherwise, it would be quite pragmatic to prefer and rely upon enacted/codified laws and statutory provisions over the incompatible viewpoints of different sects in compliance with Article 4 of the Constitution. It is our heartfelt pride that the legislation in the shape of the Act of 1929 stressing on the age of minority was enacted in this region when it was being ruled by the colonial masters prior to awakening of rest of the world at large in the matter through the UNCRC. 15. Under Article 203-D(1) of the Constitution, the Federal Shariat Court has the jurisdiction to, either of its own motion or on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government, examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam, as laid down in the Holy Quran and Sunnah of the Holy Prophet, hereinafter referred to as the Injunctions of Islam. More-over under Article 203-GG of the Constitution, such decision of the Federal Shariat Court shall be binding on a High Court and on all Courts subordinate to a High Court. The vires of Sections 4,5& 6 of the Act of 1929 were challenged before the Hon'ble Federal Shariat Court for seeking a declaration regarding the provisions to be un-Islamic. However, the Hon'ble Court inter-alia had unambiguously and authoritatively ruled that "in Islamic law, there is a well-developed concept of Sad-uz-Zaraey based on Quran and Sunnah, according to this principle it is also a duty of the State to control, curtail or curb any act in a society, which may lead to harmful consequences to society at large or to any of its segments, no matter how minor it is. According to this principle of Sad-uz-Zaraey, therefore, such enactment like the "impugned sections" of a law are not against Quran and Sunnah." The Hon'ble Federal Shariat Court in its judgment, while upholding the provisions of Sections 4,5& 6 of the Act of 1929, has sanctified the state's authority to legislate any law on the strength of the principle of Sad-uz- Zaraey and thus it stands settled that the provisions of Sections 4,5& 6 of the Act of 1929 are not un-Islamic. 16. Apart from the discussion made hereinabove, this Court is tempted to observe that while dealing with variety of litigation, as part of the Bench, it has been found that despite the Union Council under Section 9 the Act of 1929, is under a legal obligation to file a formal complaint
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against the persons liable to be punished, as discussed above, violating the provisions of the Act of 1929 before the Court to create deterrence in the society in general against such abuse of child marriage, yet the glaring shortfall, lapses, negligence and misconduct of state officials can palpably be found in existence somewhere behind the commission of almost all the offences. It may also be pointed out that in most of the cases, after abduction of the minor girls, the delinquents hurriedly maneuver Nikahnamas to use it as a shelter by pleading it the marriage conducted in violation of the Act of 1929, for saving their skin from the punishment of the offence, which they have committed. In many cases, despite acknowledging marriage contracted in violation of the provisions of the Act…
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