Legal Principle & Question Decided

Ruling Summary: This decision was rendered by the Sindh High Court, officially reported as 2025 SHC 2739. In this matter between Const. P. 224/2025 (S.B.) Sindh High Court, Bench at Sukkur - Ali Sher Kaloo (Petitioner) and the Respondent, 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.

Full Judgment Text & Judicial Ruling

COURT: Sindh High Court CASE NO: Const. P. 224/2025 (S.B.) Sindh High Court, Bench at Sukkur CITATION: 2025 SHC SUK 2739 PARTIES: Ali Sher Kaloo (Petitioner) ORDER DATE: 17-OCT-25 BENCH: Hon'ble Mr. Justice Khalid Hussain Shahani(Author) A.F.R: Yes ------------------------------------------------------------ Page 1 of 24

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR Const. Petition No. S-224 of 2025

Applicant : Ali Sher Kaloo S/o Rabban Khan, Kaloo Through Mr. Illahi Bux Jamali, Advocate

Respondent Nos.5 & 6 : Through Mr. Mushtaque Ahmed Shah, Advocate

The State : Through Mr. Khalil Ahmed Matilo, DPG and Mr. Ahmed Ali Shahani, Asst. A.G a/w Inspector Raja Naveed (SHO P.S Naushahro Feroze) and ASI Bashir Ahmed

Date of hearing : 29.09.2025 Date of Order : 17.10.2025

O R D E R

KHALID HUSSAIN SHAHANI, J. – The present Constitutional Petition has been instituted by Ali Sher Kaloo, the father of the alleged detenue, under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, read with Section 561-A of the Code of Criminal Procedure, 1898, being aggrieved and dissatisfied with the impugned order passed by the learned In-charge Sessions Judge Nausha hro Feroz e. The petitioner seeks appropriate relief for the recovery and restoration of the detenue, Mst. Reshma, aged about 15 years from the alleged illegal custody of respondent No.5, effected through and with the connivance of the official respondents. 2. The facts of the case disclose a deeply troubling sequence of events concerning the alleged illegal confinement and coercion of Mst. Reshma, a minor girl, whose recovery is sought by the petitioner. The record reveals that respondent No. 5 had previously in stituted an application under Section 491, Cr.P.C, asserting that the detainee was his legally wedded wife. However, during those proceedings, Mst. Reshma unequivocally denied any knowledge of respondent No.5 or the

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existence of a marital relationship, whereupon the said application was dismissed on 23.06.2025, with specific directions for her to remain under protective custody at her father’s residence. 3. Despite that judicial determination, on 18 .07.2025 at about 02:00 P.M, the Station House Officer, Polic e Station Naushahro Feroze, accompanied by subordinate personnel and private respondents, forcibly entered the petitioner’s house while armed with deadly weapons. They allegedly assaulted the family members, causing injuries to Mst. Hafeezaan, and unlawful ly apprehended and removed the minor detainee, confining her at the police station. During this unlawful detention, the SHO reportedly subjected her to pressure and intimidation, seeking to compel her to acknowledge respondent No. 5 as her husband. 4. It fur ther transpires that on the following day, 19 .07.2025, respondent No. 5, with the active connivance and facilitation of the police, forcibly produced the detainee before the learned Sessions Judge, Naushahro Feroze. Owing to her nervous and distressed condition, and under the alleged influence of those present, an order was passed directing that she be sent with respondent No.5. The petitioner contends that the said order was obtained through coercion and manipulation, overlooking her minority and her earlie r consistent denials before the court. Given her age, vulnerability, and vacillating statements, it is urged that the detainee was in need of parental protection and not exposure to a stranger who may have enticed or unlawfully influenced her into a purpor ted marriage while she remained a minor and legally incapable of contracting one.

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5. The record of proceedings reveals that, following the institution of the present petition, this Court, through a detailed order dated 19.09.2025, examined the respective contentions of the parties and identified the central question for adjudication, namely, the legality of the actions undertaken by the Station House Officer, Police Station Naushahro Feroze, in forcibly entering the petitioner’s residence, assaulting female occupants including Mst. Hafeezaan, and unlawfully removing Mst. Reshma, a minor, from her lawful guardianship before producing her in Court. The Court noted that Mst. Reshma had earlier denied the existence of any marital bond with respondent No.5, Jawad Hussain, in proceedings under Section 491, Cr.P.C, culminating in an order dated 23.06.2025, whereby she was set at liberty to reside with her father under protective custody. However, she was subsequently produced before the Incharge Sessions Judge, Naushahro Feroze, on 19.07.2025, where, in apparent contradiction, she claimed to have contracted marriage with respondent No.5 and expressed a desire to live with him. Observing that Section 552 Cr.P.C authorizes a Sessions Judge to order immediate restoration of liberty only upon a complaint made on oath alleging abduction or unlawful detention, this Court found it necessary to ascertain the legal authority or jurisdictional foundation under which the Incharge Sessions Judge recorded the detainee’s subsequent statement when no complaint, FIR, or formal proceedings under Section 552 Cr.P.C were pending. Consequently, notices were issued to the then Incharge Sessions Judge, Naushahro Feroze, requiring an explanation as to the statutory basis of his action, while the SHO, P.S. Naushahro Feroze, was directed to appear in person and justify the

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unauthorized entry, infliction of injuries, and unlawful removal of the minor detainee, as well as to explain why criminal proceedings for abuse of power should not be initiated against him. 6. At the subsequent hearing on 25.09.2025, the Court recorded the presence of the learned counsel for all parties, the petitioner, the SHO, P.S. Naushahro Feroze, and the alleged detainee Mst. Reshma, along with Jawad H ussain (respondent No.5). The Court also received written comments from the District and Sessions Judge and the 2nd Additional Sessions Judge, Naushahro Feroze, accompanied by the SHO’s report dated 25.07.2025. These documents collectively disclosed that ASI Bashir Ahmed Buriro had taken a leading role in producing the detainee before the Sessions Court. In light of these revelations and the specific allegations that ASI Buriro had forcibly entered the petitioner’s home, removed the minor girl, and presente d her before the learned Sessions Judge, Naushahro Feroze, this Court directed that a show cause notice be issued to him, calling for a comprehensive explanation of the legal authority and compelling circumstances under which he acted. The SHO was further instructed to ensure the personal attendance of ASI Buriro and the presence of the detainee at the next hearing. The report later filed by ASI Bashir Ahmed Buriro was found to be unsatisfactory and legally untenable, raising serious concerns about the commission of procedural illegality and abuse of power. 7. Learned counsel for the petitioner, Mr. Illahi Bux Jamali , submitted that the events in question constitute a gross violation of the fundamental rights guaranteed under Articles 4, 9, 10, and 14 of the Constitution of the Islamic Republic of Pakistan, 1973. The forcible

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intrusion by police officers into the peti tioner’s private residence without a warrant or judicial authorization, the assault on wom an, and the unlawful detention of a minor girl amount s to a flagrant misuse of state authority. Counsel contended that no complaint under Section 552 Cr.P.C., no FIR, and no judicial order existed to justify the police action, rendering it entirely without jurisdiction and contrary to due process. The counsel emphasized that Mst. Reshma’s status had already been judicially determined through the order dated 23.06.2025, in which she was declared free to reside with her fath er after denying marriage with respondent No.5. The subsequent production before the Incharge Sessions Judge on 19.07.2025, without any new proceedings or complaint, was therefore illegal, void, and without lawful authority. The sudden reversal in the detainee’s statement, given under nervous and coercive circumstances, could not constitute a valid expression of consent, particularly when she was underage and lacked legal capacity to contract marriage o r to make binding declarations about her marital status. Counsel argued that the Incharge Sessions Judge exceeded his jurisdiction by recording the statement in the absence of any complaint or proceeding under Section 552 Cr.P.C, as a court of law cannot act suo motu in matrimonial matters without formal invocation of jurisdiction. Accordingly, the petitioner seeks (i) the immediate recovery of the minor detainee from unlawful custody, (ii) criminal proceedings against the delinquent police officials for ab use of power and violation of fundamental rights, and (iii) judicial protection of the detainee’s person and liberty in accordance with law and the Constitution.

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8. Conversely, learned counsel for respondents No.5 and 6, Mr. Mushtaq Ahmed Shah, argued that respondent No.5, Jawad Hussain, is the lawfully wedded husband of Mst. Reshma, producing a Nikahnama as proof of a valid marriage contracted under Islamic law and the Family Laws of Pakistan. He contended that the detainee’s appearance before the learned Sessions Judge was voluntary, as she had reportedly approached the police station of her own accord, complaining that her parents were forcibly confining her and attempting to arrange another marriage against her will. Her statement before the Sessions Jud ge, acknowledging the marriage and expr essing her desire to live with respondent No.5, was said to represent her free and independent will, untainted by coercion. Counsel submitted that the earlier denial of marriage on 23.06.2025 was made under pressure f rom her father and family, and that the later statement reflected her genuine consent and emotional pref erence. He further argued that r espondent No.5 was entitled under Section 491 Cr.P.C. and general matrimonial principles to seek recovery of his wife if unlawfully detained by her parents. The actions of the police, he asserted, were undertaken in good faith and in execution of lawful judicial directions, rather than in abuse of power. Counsel maintained that the detainee, being of marriageable age under Islamic law, had the legal and religious capacity to make her own choice of husband, and her marriage could not be invalidated merely on allegations of minority or family disapproval. Accordingly, respondent No.5 seeks dismissal of the present petition, af firmation of the validity of the marriage, and restoration of custody of his lawful wife, consistent with the principles of Islamic jurisprudence and Pakistani family law.

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9. Having carefully examined the facts, evidence, and competing legal contentions adva nced by both parties, this Court is confronted with a controversy that lies at the delicate intersection of individual liberty, parental guardianship, the State’s obligation to protect minors, and the constitutional limits of police authority. The present constitutional petition, instituted by Ali Sher Kaloo, seeks the recovery of his minor daughter, Mst. Reshma, from alleged unlawful custody. The case thus raises grave concerns regarding the conduct of police officials, the propriety of judicial proceeding s, and the enforcement of fundamental rights guaranteed under the Constitution. 10. The constitutional foundation governing this matter emanates from Article 199 of the Constitution, which empowers the High Court to issue prerogative writs for the enforcement of fundamental rights when no other adequate remedy is available under ordinary law. This extraordinary jurisdiction is remedial, supervisory, and preventive, designed to uphold the rule of law and provide judicial redress where executive or administrative excess threatens the rights of citizens. The jurisdiction under Article 199 has repeatedly been recognized by superior courts as a constitutional bulwark against executive overreach and arbitrary exercise of power, ensuring that no individual, particular ly one vulnerable due to age or gender, remains unprotected from unlawful State action. 11. In the present case, the forcible entry of police officials into the petitioner’s home without lawful authority or judicial sanction, the assault upon female family me mbers, and the unlawful arrest and removal of a minor girl constitute acts falling squarely within the

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purview of constitutional violation and abuse of police power. Such actions strike at the heart of Articles 4, 9, and 14 of the Constitution, which respe ctively guarantee the right to be dealt with in accordance with law, the security of person, and the inviolability of human dignity. Consequently, this Court is not merely exercising statutory jurisdiction but fulfilling a constitutional duty to ensure tha t the forces of law enforcement themselves remain subject to law, and that the liberty and dignity of citizens, especially minors, are preserved against the misuse of public authority. 12. The legal principles governing the protection of minors from abduction and unlawful detention have been consistently established through judicial precedents spanning several decades. In the landmark case of Mahiuddin Ahmed v. Nabin Muhammad & others (PLD 1964 Dacca 225), the central ratio decidendi was that in criminal prose cutions under Sections 363 and 366 of the Pakistan Penal Code, which deal respectively with kidnapping from lawful guardianship and abduction for illicit or unlawful purposes, the age of the girl is a fact of fundamental and determinative importance, and it is the duty of the Magistrate to conduct a proper judicial inquiry to ascertain her age through reliable evidence before dismissing or deciding such a case. The Court held that reliance solely on the girl’s verbal statement asserting that she was “major” (of legal age), without administering oath or requiring corroboration through medical, documentary, or testimonial evidence, constitutes a serious procedural irregularity and miscarriage of justice. The Magistrate’s duty is not discharged by mere acceptan ce of self -serving or unverified statements; rather, he must afford both parties a fair and

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adequate opportunity to establish or contest the age. In essence, the High Court affirmed that a judicial determination of age cannot rest upon assumption or declar ation but must be supported by proper inquiry, since the age element forms an essential ingredient of the offence under both Sections 363 and 366 PPC. The Dacca High Court held that the Magistrate failed to perform his legal duty by dismissing the complain t summarily on the girl’s verbal assertion that she was major, without conducting any inquiry or allowing evidence regarding her age. Such conduct was held to be unsatisfactory and contrary to law. 13. In the case of Abdul Hamid v. The State (PLD 1962 (W.P.) Karachi 886) the ratio decidendi of this case lies in the interpretation of the words “takes” and “entices” as used in section 361 of the Pakistan Penal Code (PPC), which defines kidnapping from lawful guardianship, and their application to the offence of abduction under Section 366 PPC. The Court laid down that the mental attitude or consent of the minor girl is irrelevant in cases of “taking”. The decisive legal test is whether the accused caused the minor to go out of the lawful custody or the keeping of her guardian, regardless of whether the minor went willingly or even requested to be taken. The word “take” means to cause to go, escort, or get into possession, while “entice” implies inducement or persuasion by exciting hope or desire. Therefore, even w hen a minor girl voluntarily accompanies a man without persuasion or inducement, the man is still said to have taken her within the meaning of Section 361 PPC if she is removed from lawful guardianship without the guardian’s consent. The Court emphasized that a minor cannot, by her own will, confer legality upon an act of taking her away, as the law treats the guardian’s consent

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as decisive. Hence, once the minor is removed from her lawful guardian’s keeping, the offence of kidnapping is complete, and if th e intent or result involves the likelihood of illicit intercourse, the case falls squarely within Section 366 PPC. The High Court upheld the conviction of the appellant, Abdul Hamid, under Section 366 PPC, finding that he had taken a 14 -year-old girl, Mst. Rubab, out of her parents’ lawful guardianship to Korangi, where they remained together for three days and illicit intercourse occurred. The Court rejected the defence argument that the girl had gone voluntarily and that the appellant had not persuaded or enticed her. It held that her willingness did not absolve him, since the offence of kidnapping is complete the moment a minor is taken out of lawful guardianship, even at her own request. However, the Court considered the offence to be technical in nature , observing that there was no element of force or abduction in the violent sense, and that the act was completed merely by the technical breach of guardianship. Therefore, while maintaining the conviction under Section 366 PPC, the Court reduced the senten ce from five years’ rigorous imprisonment to twelve months’ rigorous imprisonment, considering the circumstances of the case. The legal principle emerged from that case is that the consent or willingness of a minor is legally irrelevant in determining culpability under Section 361 PPC, and any person who removes a minor from the custody of her lawful guardian, even at her own request, commits kidnapping. Where such removal results in, or is likely to lead to, illicit intercourse, conviction under Section 36 6 PPC is proper, though the offence may be treated as technical for purposes of sentencing.

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14. In the identical case of Khalandar Saheb (A I R 1955 Andhra 59) the legal principles emanated were that: the consent, willingness, or mental attitude of a minor i s irrelevant in cases of kidnapping from lawful guardianship; the offence is complete once the minor is removed from her guardian’s keeping without consent; the word “keeping” must be construed broadly, guardianship persists even if the minor is temporarily away from the guardian’s physical presence; the term “seduced” under section 366 IPC bears a broad moral and legal meaning, encompassing any act or inducement leading to illicit intercourse, not merely the first lapse of chastity; the aggravated offence under Section 366 consists of kidnapping combined with the intent or likelihood of illicit intercourse, making it an enhanced and more serious form of the basic offence under Section 361. 15. In the case of Fozia Petrik v. The State (2009 MLD 1350 Quetta), the ratio decidendi of the case on the issue of age and minority rests on the Court’s reaffirmation of the principle that the consent or willingness of a minor female is legally immaterial in determining liability for kidnapping under Section 361 of the Pak istan Penal Code (PPC). The Baluchistan High Court held that when a female is under sixteen years of age, she is deemed a minor within the meaning of Section 361 PPC; therefore, any act of taking or removing her from the lawful custody of her guardian without consent constitutes kidnapping, irrespective of her purported consent or voluntary conduct. The Court further clarified that the determining criterion is the age of the abductee, not her apparent maturity or physical development. Even if a girl has attained puberty or appears mature, the legal test for minority under the PPC is

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chronological age, not physiological maturity. The Court explicitly referred to the medical and radiological evidence, which fixed the victim’s age at approximately 15 years, and held that she remained a minor in law. Hence, the accused could not rely on her alleged willingness to accompany him or her claim of marriage to evade criminal liability. In addition, the Court emphasized that where the accused asserts the existence of a marital relationship with the abducted minor, the burden of proving the legality of such a marriage lies upon the accused himself. Without credible evidence of a lawful nikah, such as production of a nikah khawan or marriage witnesses, the plea of valid marriage fails and cannot neutralize the offence of kidnapping or zina. The Court underscored that no marriage can legalize illicit cohabitation with a girl who is legally a minor, as she lacks capacity to contract a valid marriage in law. 16. In the case of Abdul Khaliq v. The State (1986 SCMR 35) the binding legal principle declared by Shariat Appellate Bench was that the definition of “kidnapping” under Section 361 PPC is incorporated by reference into Section 11 of the Hudood Ordinance, and that any female under sixteen years of age is legally incapable of giving consent to her removal or to sexual intercourse. This rule creates an absolute presumption of incapacity that cannot be rebutted by claims of voluntary participation. 17. In the case of Alfat Bibi & another v. The State (PLD 1972 Lahore 121) Lahore High C ourt laid down a definitive legal principle that the consent of a minor female under sixteen years of age is wholly immaterial in prosecutions under Sections 363 or 366 of the Pakistan

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Penal Code (PP C). The Court clarified that when a girl below sixteen years is taken or enticed out of the lawful guardianship of her parents or guardians, the act constitutes kidnapping within the meaning of Section 363 PPC, regardless of her apparent consent or subsequ ent marriage to the kidnapper. Similarly, the Court emphasized that even in abduction cases under Section 366 PPC, the consent of a minor female abductee is no defence. The accused cannot claim immunity on the basis of a later marriage or the girl’s statement exonerating him. Such an approach, the Court reasoned, would effectively amount to granting “a general license for kidnapping girls approaching their fifteenth year,” undermining both penal and social safeguards prote cting minors. It was held that even where a girl above fifteen years marries her abductor, the marriage does not absolve the accused of criminal liability. The validity of the marriage may be a question of personal law, but it cannot extinguish the penal offence. The Court warned that accep ting post -abduction marriage or consent as a defence would result in an “indirect indictment” of multiple punitive provisions, including those under the Penal Code and the Child Marriage Restraint Act, 1929, which criminalizes the marriage of a girl below sixteen. In short, the ratio decidendi in the case was that any consent or marriage after kidnapping or abduction of a female under sixteen is legally inconsequential and cannot bar prosecution or quash proceedings under Sections 363 or 366 PPC, as the off ences are complete upon the act of removal from lawful guardianship. The Lahore High Court dismissed all petitions seeking quashment of proceedings under Section 561 -A Cr.P.C. filed by the accused persons. It held that: the High Court’s inherent powers und er

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Section 561 -A Cr.P.C. cannot be used to bypass the normal course of criminal trial or to determine disputed factual issues such as consent or marriage at a pre-trial stage; the alleged marriages and statements of the minor abductees, who were around fif teen years old, could not exonerate the accused from liability under Sections 363 and 366 PPC, since the alleged consent was legally ineffective. The Court further observed that even if the marriage was valid under Muslim law, the husband and his accomplices could still be held criminally liable under penal law for kidnapping or abduction of a minor. Lahore High Court further observed that the fact that a High Court, in collateral habeas corpus proceedings under Section 491 Cr.P.C., had allowed the abductee to reside with…

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