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Petitioner: BACHINOO VS Respondent: ABDUL HAKIM
Court Name: Lahore High Court Judge(s): Karam Elahi Chauhan Title: BACHINOO vs ABDUL HAKIM Case No.: Criminal Miscellaneous No. 166-H of 1975 Date of Judgment:- Reported As: 1975 P Cr. L J 732 Result: Order accordingly
JUDGMENT
JUDGMENT 2. The case then came up before me on 21-3-1975 when---(thanks to the assistance rendered by the I. G.)--the girl and the respondent appeared. They filed no written statements. However, I recorded the statement of the girl Mst. Zarina, her mother Mst. Bachinoo petitioner and the respondent A. S. I. Abdul Hakim and closed the case when all of them stated that they did not want to produce any further evidence. The parties tendered certain documents which were placed on the record and were also marked or exhibited at their instance. The statement of the girl is that she became major (in her own words started menstruating)-six years ago (which would mean somewhere in 1969)- that she used to visit the house of the A. S. I. Who was their neighbour; that there was an open scandal in general in the locality that she was carrying on with the A. S. I. That as a reaction to this accusation she left the house of her parents and went to Bahawalpur; that Abdul Hakim A. S. I. Belongs to Bahawalpur and his house is in Police Lines, Bahawalpur ; that she was brought back by her relations but she again left her parents; that she was taken over by Abdul Hakim on 26-2-1975 from a Court in Lahore and he took her to Dhoka Mandi in district Sheikhupura where he married her on 11-3-1975--(which corresponds to the date of the drafting of the present writ petition wherein an ancillary prayer also was that the girl should be got medically examined); that she embraced Islam in Badshahi Mosque, Lahore at the hands of a Maulvi whose name and whereabouts she did not know by representing that she was 18 years of age and-(by misrepresenting)-that her parents were dead though they were alive. She stated that she did not disclose her difficulty to the Maulvi Sahib at that time; that now she was the (second) wife of that Abdul Hakim A. S. I. And was not in any unlawful custody and would like to go and live with her husband. The A. S. I. Respondent supported the girl in material particulars and claimed that she
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was his (second) wife. His statement shows, leaving aside the controversial matters for the present, that the girl was with him from 26-2-1975 up to 11-3-1975 when he had no relationship with her, because, the alleged marriage is said to be of 11-3-1975. The statement of the mother mainly was that they were Christians; that Mst. Zarina never embraced Islam; that she was a minor; that the aforesaid conversion and marriage are neither bona fide nor valid in- the eye of law and are just a camouflage to procure shelter for the earlier abduction/kidnapping committed by the A. S. I. She has prayed that the girl may be handed over to her as her natural mother. 3. The first point to be prima facie seen in these proceedings under section 491 of the Cr. P. C. Is as to what is the age of the girl. I have before me Exh. P/1 which is a certified copy of the birth entry of Mst. Zarina. According to that birth entry which was made on 19-9-1960 Mst. Zarina was born on 17- 9-1960. In that entry the name of the mother of Mst. Zarina is written as Bachinoo and the family is described as Christians. It is admitted by the girl in her statement that Kehroo was the father of her mother. The name of the father of the mother of the girl as given in Exh. P/1 is Kehroo. This shows that the birth entry Exh. P/1 apparently pertains to Mst. Zarina. There is no evidence before me that this entry pertains to any girl other than Mst Zarina (detenu) the daughter of the petitioner. Baptism certificate Exh. P/2 also gives the same date of birth of that girl and there the name of the father of the girl is duly shows as Makhan. Accepting all this evidence I have no hesitation in tentatively holding that Mst. Zarina was prima facie born on 17-9-1960 and her age in, proceedings before me shall be calculated on that basis. As against this the girl has produced Exh. D/2 which is a certificate dated 20-3-1975 of Dr. Qamar-uz-Zaman of Lahore (not produced) wherein it is written that the age of Mst. Zarina on that date according to X-Ray assessment was in about 18 and below 20 years. This certificate apparently is quite vague and indefinite. The doctor who gave this certificate has not been produced. It does not contain the details or chief characteristics, signs or any particular indications on which the report was based. All it says is that X-Ray of right shoulder, elbow and wrist-joints revealed the result hereinbefore men--tioned. It does not state what characteristics the photos of the aforesaid parts of the body indicated The copy of the relevant X- Ray has not beer filed. This report is of a date subsequent to the admission of this petition (18-3- 1975) and before production of the girl in Court (21-3-1975). For all these reasons I think it will be safe for the present to proceed on the positive entry of birth in the records of the Lahore Municipal Committee which was made long before the present dispute arose and the Baptism certificate which, in the circumstances of the case tentatively appears to be authentic and definite. I hold accordingly. It will be appreciated that the view expressed here is only tentative and in view of the order which I am proposing to pass in this case it is not to be considered as conclusive between the parties who will be at liberty to formally establish their stands before the trial Court as will be pointed out in the later part of this judgment. 4. The next point argued by the learned counsel for the petitioner was that Mst. Zarina neither could nor she did voluntarily and honestly embrace Islam on 27-12-1974 as has been claimed by her in her own state--ment. He submitted that the main evidence in the case in support of the girl having embraced Islam is "sanad" Exh. D/3 of Syed Mohammad Abdul Qadir Azad, Mufti/Khatib, Badshahi Mosque, Lahore (hereinafter called the Maulvi or Maulvi Sahib)-who appeared in Court and made his state--ment. The learned counsel argued that the sanad purports to be on form bearning No. 594 in book No. 3 marked as Exh. PW2/1 maintained by the aforesaid Maulvi. The learned counsel referred to the statement of the Maulvi Sahib and pointed out that he had deposed that the original sanad Exh. D/3 bears both his seal and signatures. He stated that it was on 27-12-1974 when the girl embraced Islam at his hands. The girl, according to Maulvi Sahib affixed her thumb- impression on Exh. D/3 in his presence. He further stated that the girl came to him all alone not accompanied by anybody. According to him it was on a Friday at about 1-00 p.m. When he was present in his Hujra at the main gate of the Badshahi Mosque near the Mazar of Allama Iqbal when
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the girl appeared in his Hujra and ex--pressed a desire to embrace Islam. He enquired her name and filled in the form bearing No. 594 Exh. D/3 details of which have been mentioned earlier. The learned counsel then referred to the deposition of the petitioner him--self Mst. Bachinoo, mother of the girl, who stated that on the date when it is alleged that the girl embraced Islam she was in her house with her mother because of certain function at that place and that the plea of her daughter having embraced Islam on 27-12-1974 is all incorrect. The learned counsel took me through the original book containing the record of con--version of Islam. It contains forms in duplicate of each serial number. It consists of serial numbers 401 to 600. It shows that when a person embraces Islam the original sanad is issued to the convert while its office copy, which is actually a carbon copy, is retained in the book. The book number and sanad number are printed on both the original and the carbon copy. Learned counsel with reference to various entries of the book argued that it was being maintaned in a most irregular and haphazard manner by the Maulvi Sahib. In a good number of forms (carbon copies) the dates are missing. He submitted that in various office copies of the forms the signatures and thumb-impressions of the converts are not affixed. The learned counsel referred to the deposition of the Maulvi Sahib wherein he had himself counted as many as 20 forms-(carbon copies)-in this respect as for example forms Nos. 406, 408, 417, 418, 463, 476, 483, 489, 490, 499, 517, 523, 527, 528, 529, 539, 559, 567, 577 and 589. About the nature of this register the statement of the Maulvi Sahib was also referred which reads as follows:-- "The register remains in my custody. The register however is not kept in any safe custody under any seal or lank. We it open and readily available. As a matter of fact we can give forms to everybody who needs them. Whenever I go out of Lahore I give the register to anybody I like with authority to fill it in. However, the signatures on the form are appended by me on return even though the transaction may have taken place in my absence. The register sometimes is handed over to the Maulvi/Imam of the Badshahi Mosque and sometimes to Naib Raees Tableegh. Even if any person embraces Islam at their hands they do not append their signatures. The signatures are always mine." On the basis of that it was argued that the book was not being kept or maintained in any regular manner and that it was not safe to straightaway accept the entries contained in any Sanad or in its carbon copy tit the face value. With this prefix learned counsel for the petitioner made a comparison of document Exh. D/3 wits its counter part i.e. Corresponding sanad-(carbon copy)-in the book and pointed out--- (a) that the carbon copy does not contain the date though tire main Sanad does contain the date as 27-12-1974. (b) that the carbon copy in the book does not contain the thumb-im--pression of the girl though some thumb-impression does exist on Exh. D/3 ; (c) that though the date in Exh. D/3 which, as already stated is form No. 594-(of book No. 3)-is 27- 12-1974 and in ordinary course of business forms prior thereto and bearing earlier serial numbers must be of prior dates but according to the learned counsel enough-- (proceeding in backward order)-form No. 593 is dated 5-1-1975, form No. 592 is dated 24-1-1975, form No. 591 is dated 24-1- 1975, forms Nos. 587, 588, 589 and 590 are dated 17-1-1975 and form No. 586 is undated. Similarly forms No. 584 and 585 are dated 10-1-1975, form No. 583 is dated 9-1-1975, forms Nos. 582 and 481 are dated 3-1-1974, forma Nos. 580 and 579 are dated 3-1-1975 and form No. 578 is dated Z7-12- 1974. The learned counsel argued that it was strange enough that form No. 594 which is one in dispute is said to be dated 27-12-1974 though it comes after various from of subsequent dates of December, 1974 and January 1975. He argued that the Maulvi Sahib was duly confronted in his deposition with aspect of the matter but his explanation was that at that time the carbon was placed on that page and for this reason the Sanad at the page where the carbon was placed was prepared and it was not noticed that pages of forms No. 579 to 593 were blank at that time
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Learned counsel for the petitioner argued that this was a very curious --explanation and should not be accepted especially another for No. 578 does exist at some far earlier place containing this verydate namely, 27-12-1974. According to the apparent tenor of the various, forms, learned counsel submitted, that form bearing No. 594 Exh. D/3 comes somewhere after 24-1-1975 which is the date of form-- No. 592 and before form No. 595 which is dated 29-1-1975. However the form aforesaid, it was emphasised, was issued without a date but later on therein the date 27-12-1974 was filled in, but whosoever filled in this date, however, did not or could not enter the same in the carbon copy, because, in the very context it could not fit in at that place. Learned counsel argued that to him it appeared that the Maulvi Sahib in this way was responsible for providing the aforesaid document, namely, Exh. D/3 to whomsoever he provided it and was thus instrumental to the preparation of a fictitious and wrong ins--trument in this respect. The learned counsel commented that the Maulvi Sahib probably did not realise that somebody may get the office copy (the book) produced in Court and expose its myth in that behalf. Learned counsel also made a bleak reference to a statement of the girl which she made before an official of the Darulaman (con--tained in police file which was seen and returned) wherein she had stated that she procured the Sanad for embracing Islam from Maulvi Sahib (rather) on 6-2-1975, which statement, according to the learned counsel exploded the falsity of the plea of conversion on 27-12-1974. Coupled with this is the fact, the learned counsel argued, that when on 3-4-1975, in the early hours of the day, an order was passed to summon the Maulvi Sahib alongwith the register in Court Abdul Hakim A.S.I., rushed to see the Maulvi Sahib in Badshahi Mosque before even the process of this Court reached there and tried to persuade him to see his counsel-(this was so deposed by the Maulvi Sahib in his statement). He argued that if A. S. I. Abdul Hakim was so innocent then there was no need on his part to have behaved like that. He argued that Abdul Hakim and the Maulvi Sahib probably wanted to set right their record to such an extent as might have been possible but when the relations of the girl also followed the A. S. I. And reached the Badshahi Mosque they found the A. S. I. Already closeted with the Maulvi Sahib. This chase of the relatives of the girl, according to the learned counsel, frustrated the designs of the A. S. I. And the Maulvi Sahib with the result that the Maulvi Sahib ran away from his Hujra and concealed himself till 6-45 p.m. In vain, because, when he came back he found a Process-Server of this Court present outside his Hujra to serve him; (d) that the girl has mentioned that she went to the Badshshi Mosque all alone to embrace Islam. Learned counsel argued that this statement could not be accepted at its face value. He argued that if the background of the atmosphere in the locality where she lived is kept in view it will be appreciated that she was being accused of carrying on a scandalous affair with the respondent and it was highly impro--bable that she would not take the assistance of any person to go to Badashshi Mosque. The learned counsel emphasised that the respondent denied all responsibility regarding her embracing Islam, because, he deposed that he did not accompany her anywhere at that time. In these circumstances it was submitted by the learned counsel that the plea that she went all alone to the Badshshi Mosque on 27-12-1974 was not worthy of acceptance, just as it is not accept--able that the girl could go to Bahawalpur or appear before various Magistrates here and there very often. He submitted that it cannot be imagined that there would be no villain behind all these scenes and affairs; (e) learned counsel submitted that it may be noticed that earlier she was recovered by his relatives from Bahawalpur somewhere on 14-1-1974 or near about that period. On 6-2-1975 she appeared before Ch. Abdul Majid, M. I. C., Lahore, wherein she deposed that she had embraced Islam one month prior thereto and that she may be sent to Darulaman. See Annex. `D' to the writ petition. This document was referred to by the learned counsel for the petitioner for pointing out that instead of favouring the girl and the A. S. I. It goes against them, because, in that document the plea taken was that she had embraced Islam a month ago which would go back to 6-1-1975 and
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not 27-12-1974. This approach, he argued, also supported the view expressed by him that Sanad Exh. D/3 though dated 27-12-1974 (but undated in carbon copy) was issued and prepared much later, probably with a fictitious back date and event Learned counsel for the petitioner pointed out that the girl according to an F. I. R. Which was lodged by the petitioner on 7-2-1975 was allegedly abducted by Abdul Hakim A. S. I. On 13-1-1975 at about 4-311 p.m. The Sanad of embracing of Islam, according to the learned counsel, seemed to have been fabricated thereafter or somewhere near about that date and as such the story of conversion on 2.7-12-1974 which, on the facts and in the circumstances of the case, does not, as argued by him, fit in the context should not be believed. 5. This was about the factum of conversion. Coming to the validity and bona fide aspect of the alleged conversion, learned counsel for the petitioner argued that in matters of conversion from one religion to another in cases of present type the essential point for consideration, as laid down by their Lordships of the Privy Council in Skinner v. Orde (14 M I A 309) is that the conversion should be bona fide and not merely a colourable one with the object of eluding the personal law to which a person is subject. In that case a Christian husband married to a Christian woman, wanted to legalise his marriage with a native Christian woman so it was pleaded that by mere oral declarations they had embraced Islam. Their Lordships of the Privy Council held that conversion was not a genuine or bona fide one and was actuated with the desire to enjoy the privilege of polygamy conferred by the Muslim Law and the marriage was held invalid. In Skinner v. Skinner (25 I A 34) they, however, left open the question whether a bona fide change of religion made honestly with the assent of both the spouses-(who were involved in that case)--and without intention of fraud, will have the effect of altering the rights incidental to marriage. Learned counsel for the petitioner submitted that in the instant case also the alleged conversion was not a bona fide transaction and due to the points earlier raised by him it should be held as a camouflage and a put up affair. He further argued that to convert to Islam a person must be major baligh but as the girl was not a major but was a minor, therefore, even otherwise she could not have converted to Islam. Learned counsel, carrying the argument further, submit--ted that according to sections 4, 5 and 60 of the Christian Marriage Act XV of 1872 such a marriage with a minor Christian girl was invalid. These sections read as follows :- "4. Marriages to be solemnized according to Act.-Every marriage between persons, one or both of whom is (or are) a Christian or Christians, shall be solemnized in accordance with the provisions of the next following section ; and any such marriage solemnized otherwise than in accordance with such provisions shall be void. 5. Persons by whom marriages may be solemnized.-Marriages may be solemnized in Pakistan- (1) by any person who has received episcopal ordination, provided that the marriage be solemnized according to the rules, rites, ceremonies and customs of the Church of which he is a Minister ; (2) by any Clergyman of the Church of Scotland, provided that such marriage be solemnized according to the rules, rites, ceremonies and customs of the Church of Scotland ; (3) by any Minister of Religion licensed under this Act to solemnize; marriages ; (4) by, or in the presence of, a Marriage Registrar appointed under this Act ; (5) by any person licensed under this Act to grant certificates of marriage between Native Christians. 60. On what conditions marriages of Native Christians may be certified.---Every marriage between Native Christians applying for a certificate shall, without the preliminary notice required under Part III, be certified under this Part, if the following conditions be fulfilled, and not otherwise- (1) the age of the man intending to be married shall exceed sixteen years, and the age of the woman intending to be married shall exceed thirteen years ; (2) neither of the persons intending to be mart-fed shall have a wife or husband still living ;
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(3) in the presence of a person licensed under section 9 and of at least two credible witnesses other than such person, each of the parties shall say to the other--- I call upon these persons here present to witness that I, A, B, in the presence of Almighty God, and in the name of our Lord Jesus Christ, do take the, C. D., to be my lawful wedded wife (or husband) or words to the like effect: Provided that no marriage shall be certified under this Part when either of the parties intending to be married has not completed his or her eighteenth year, unless such consent as is mentioned in section 19 has been given to the intended marriage, or unless it appears that there is no person living authorized to give such consent." Learned counsel argued that whether judged from the point of view of section 4 or section 60, the girl, who according to him was a (minor) Christian at the relevant time, could not have been married to the respondent. He further submitted that the respondent had been getting the statements of the girl recorded at various places before various Magistrates to whom the background of the case was never disclosed and who seriously made no effort to find out the real age of the girl and before whom the girl made tutored statements. These statements he submitted were procured to create defence by the respondent to show that it was all the girl's own doing through and through and that he was quite innocent in all matters in all respects and at all stages, even though he took away the girl on 26-2-1975 from the Court of a Magistrate when he had no right or authority to do so. Learned counsel in this respect also referred to Mrs. Marina Jatoi v. Nuruddin K. Jatoi and another (PLD 1967 SC 580) where at page 592 Muhammad Yaqub A.I, J. (with whom, according to the learned counsel, the other noble Lords did not differ on this particular point) observed that, "the above examination of the relevant provisions of the British Marriage Act, 1849, the Pakistan Divorce Act, 1869 and the Pakistan Christian Marriage Act brings out that a marriage between a Muslim male and a Christian female though permitted by Islam can be performed in Pakistan under Act XV of 1812 and to that extent the application of personal law stands excluded by statute". Reference was also made to the following passage in the "Outlines of Muhammadan Law" by Asaf A. A. Fyzee (Third) (1964 Edn.) where at page 172 the learned author writes as follows:--- "In this branch of Jurisprudence, where men and women often try to twist and mould the rules of law to suit their own selfish ends, the words of Blagden, J. Must always be kept in view: `British India as a whole, is neither governed by Hindu, Mahomedan, Sikh, Parsi, Christian, Jewish or any other law, except a law imposed by Great Britain under which Hindus, Mahomedans, Sikhs, Parsis and others enjoy equal rights and the utmost possible freedom of religious observance, consistent in every case with the rights of other people. I have to decide this case according to the law as it is, and there seems, in principle, no adequate ground for holding that in this case Mahomedan Law is applicable to a non-Mahomedan.-Robaba Khanum v. Khodadad Bomanji Irani (1946) 48 Bom. L R 864, 869.' After quoting the above case the learned author states "these principles enunciated by an English Judge in a British Indian Court would apply equally in India and Pakistan". The learned counsel further submitted with reference to Mst. Alfat Bibi and another v. The State (PLD 1972 Lah. 121) that the minor girl having been removed, enticed or taken away from the custody of her lawful guardians without their consent, the offences under section 363/366, P. P. C. Etc. Were complete and any subsequent "events" or "retention" or "manipulations" by the respondent A. S. I. Could not take him out of the clutches of law. The marriage, he argued, was also a hoax and a mere paper transaction, where the age of the girl and the address of A. S. I. Are wrongly given, various columns of "Nikah Nama" Exh. D/5 were deliberately left blank and the document was prepared to cover the offences of kidnapping/abduction etc. After stealing knowledge of the preparation of this petition and all this game or drama was allegedly played in Mandi Faizabad
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(Dhota Mandi) in Teksil Nankana Sahib District Sheikhupura even though the A. S. I. Resided in Lahore. He submitted that it was doubtful whether the A. S. I. Was in Dhoka Mandi on the relevant date because, he left charge of his post in Lahore only on 13-3-1975-(and on 11-3-1975, the alleged date of marriage, he is supposed to be in Lahore). The Nikah Nama, like the Sanad of conversion, it was argued, was a back-dated document. 6. As against all that was argued by the learned counsel for the petitioner his counter-part Ch. Muhammad Anwar Buttar, learned counsel for the A. S. I. And…
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