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Criminal Miscellaneous No. 415-H of 1972, decided on 10th August 1972.

----S. 491-Vires of statutes--Contention that under Quranic provisions a woman guilty of indecency can be confined to her house and as such S. 491 is in direct conflict with provisions of Holy Quran and therefore of no legal effect in view of Arts. 29 & 30 of Constitution of Pakistan (1972)-Held, Advisory Council of Islamic Ideology and not Courts have to determine, whether any change in section is indicated or if section is repugnant to principles of policy-Constitution of Pakistan (1972), Arts. 29 & 30.

Muhammad Rafique v. Muhammad Ghafoor P L D 1972 S C 6 rel.

M. Hanif Khan Niazi for Petitioner.

Syed Munir Hussain for Respondents.

Mian Dilawar Mahmood, A.-A. G. for the State.

This is a petition under section 491 of the Code of Criminal Procedure, by one Muhammad Khan, requesting the issuance of a direction in the nature of habeas corpus for the production of his daughter Mat. Arshad Bibi (Irahad Bibi), allegedly being detained in illegal custody by the respondents and her being set at liberty.

2. The petition was dismissed for the reasons to be recorded later.

3. The facts, out of which the petition has arisen are, that Muhammad, father of Mst. Arshad Bibi (Irshad Bibi). claimed that Bhai Khan respondent No. 2, who is his brother, had been asking him for the hand of Mst. Arshad Bibi (Irshad Bibi) for his son Alam Khan respondent No. 1. He refused. He got his daughter married to one Abdul Karim son of Azim Khan on 28th January 1972. The nikah was entered in the Register of Marriages. However, it seems, though it is not clear from the petition itself, that Mst Arshad Bibi (Irshad Bibi). kept on living with her parents, in Bahawalpur District, when during her father's absence, she was abducted by the respondents, who are also alleged to have taken away Rs.. 2.500 in cash and gold, valued of about the same amount. The petitioner, the father of the detenu, lodged a report at police station, Hasilpur in Bahawalpur District, and also made representations to the various police officers, but it seems, to no effect. The petitioner thus alleged, that the reason, dents were keeping his daughter in wrongful confinement against her wishes and she was being subjected to atrocities,

4. A bailiff was deputed by my learned brother Muhammad Afzal Cheema, J. on 19th July 1972, to recover the detenu from the custody of respondents Nos. 1 and 2, with a notice to them to appear in Court. In consequence, Sheikh Muhammad Latif, as is evident from his report dated 24th July 1972, raided the house of the aforesaid respondents, situated in Chak No. 569/G. B. Neither the respondents nor the detenu were there. The bailiff was informed that the respondents had taken away the detenu to Mianwali District. However, Muhammad Yaqoob Khan lambardar undertook to inform them of the date of hearing and also to persuade them to produce the detenu before the Court.

5. Alsm Khan and Bhai Khan respondents appeared-before my learned brother, along with Mst. Arshad Bibi (Irshad Bibi). The petitioner vas also present. Mst. Arshad Bibi (Irahad Bibi) who appeared to the Court to be about 21 years of age, denied her nikah with Abdul Karim, who is a son of her father's sister. She was not prepared to go with her father. However, since the n1kah-deed revealed that the detenu was married to Abdul Karim on 28th January 1972, a direction was given that she should be lodged in Darul Aman till 31st July 1972, at the expense of the petitioner and in the meantime, her parents might be permitted to see her "as and when they wish to do so."

6. On 31st July 1972, the detenu was produced before me. E recorded her statement. She gave her age as 21 years. She deposed that her parents resided in Hasilpur, District Bahawalpur. However sheadded that she was not happy in her home, as she was not treated well by her parents and, therefore, of her own accord, she went over to Chak No. 569/G. B., situated 'in Lyallpur District to the house of her paternal uncle Bhai Khan respondent No. 2. She denied her marriage with Abdul Karim. She stated that she had seen nikahnama marked 'A' shown to her. It did not bear her thumb-impression. She reiterated that she was not the wife of Abdul Karim. She did not wish to return to her parents and wanted to live with her paternal uncle. She was not cross examined by the counsel for the petitioner, although, in an answer to the cross-examination by the counsel for the respondents Nos. 1 and 2, she stated: --

"I have never lived with Abdul Karim as his wife. I was never abducted by the respondents."

It is abundantly clear from her statement that her assertion that she did not thumb-mark the nikahnama has not been challenged by the petitioner.

7. In spite of what had been stated by the detenu and reproduced above, Mr. Muhammad Hanif Niazi, counsel for the petitioner; contended that he had to argue the matter at length and, at his request; the case adjourned to 1st August 1972. The detenu was sent to Darul Aman, wherefrom, she was directed to be produced on the date of hearing.

8. Mr. Niazi, basing his reliance on Verse 15 of Sura-un-Nisa' (a woman), Chapter IV, Section 3 of 'the Holy Quran, which is to the effect that a woman, guilty of indecency can be confined to he house until her death, contended that section 491 of the Code of Criminal Procedure, was in direct conflict with the aforesaid provisions of the Holy Quran and in view of the Provisions of Article 29 of the Interim Constitution of the Islamic Republic of Pakistan, was repugnant to the Holy Quran and Sunnah and thus was of no legal effect, in the case of a married woman. He also contended that the aforesaid provisions of law should be interpreted so as not to be inconsistent with or be against the basic concept of Islam as provided by Article 30 of the Constitution. As a question had arisen, as to whether, the principles of policy contained in the Constitution were justiciable and the Courts could, without the intervention of the Advisory Council of Islamic Ideology or the Legislature, declares section 491 of the Code of Criminal Procedure, to be repugnant to the basic concepts of Islam, I decided to adjourn the case. The learned Advocate General was directed to appear either personally or through one of his Officers to help me in resolving the aforesaid question.

9. Mr. Dilawar Mahmood, learned Additional Advocate General was heard. His contention is to the effect that a Muslim woman, who was sui juris, could not be handed over against her will like a chattel. She has to be set at liberty. With regard to the principles of policy contained in the Constitution, he rightly pointed out, that the same were not justiciable.

10. Sub-Article (2) of Article 28 of the Constitution reads: -

"The validity of an action or of a law, shall not be called in question on the ground that it is not in accordance with the Principles of Policy, and no action shall lie against the State, any organ or authority of the State or any person on such ground."

Sub-Article (3) of the said Article reads: -

"The National Assembly, a Provincial Assembly, the. Presi dent or a Governor, may refer to the Advisory Council of Islamic Ideology for advice any question as to whether a pro posed law is or is not repugnant to the teachings and require ments of Islam as set out in the Holy Quran and Sunnah."

Article 29 of the Constitution is to the effect: -

"No law shall be repugnant to the teaching and requirements of Islam as set out in the

Holy Quran and Sunnah', and all existing laws shall be brought in conformity with the Holy Quran and Sunnah."

It is, therefore, for the Advisory Council of Islamic Ideology to determine, whether any changes in section 491 of the Code of Criminal Procedure is indicated.

10-A. The interpretation of section 491 of the Code of Criminal Procedure came up for decision in the case of Muhammad Rafique v. Muhammad Ghafoor (P L D 1972 S C 6). The facts of the case were that Muhammad Rafique, who claimed to' be the husband of a real sister of the detenu Mst. Surraya Begum, was alleged that the said lady was residing with him for the last about five years, had been abducted therefrom and was being improperly detained by the respondent at Kahna against her will with a view to marry her. He requested for her being set at liberty. During the course of the proceedings, the parents of the detenu appeared. Their statements were recorded. They deposed that Mst. Surraya Begum was the legally wedded wife of Muhammad Ghafoor respondent. It is on account of the said 'statements of the parents of the detenu, that the petition was dismissed. The matter went up to the Supreme Court and the following guide lines were indicated by their Lordships for the decision of such applications, while allowing Muhammad Rafique's appeal: -

"If a person is a minor, the Court may make over his custody to the guardian which will be dealing with him in accordance with law, but if the person is major, the only jurisdiction which the Court can exercise is to set him at liberty whether illegally or improperly detained in public or private custody or not. The Court may "set at liberty", but cannot restore status quo ante against the wishes of the person brought before it. Such a course will lead to curtailment of liberty for which there is no warrant under section 491 nor can such an order be sustained under section 561-A of the Code as it cannot be said that allowing a person freedom of movement is an abuse of the process of the Court."

11. It was also observed by their Lordships: -

"It escaped the notice of the learned Judge that even a decree for restitution of conjugal rights passed by a competent Court is not executed by handing over the custody of the wife to the husband."

It was also held that even a civil Court cannot arrest a wife, who refuses to go over to her husband notwithstanding that a. decree for restitution of conjugal rights had been passed in favour of the husband.

12. Applying the above-mentioned principles to the instant case and taking into consideration the Principles of Policy contained in the Constitution, I am of the view that it is not for me to decide, whether section 491 of the Code of Criminal Procedure is repugnant to the Principles of Policy.

13. The application is not by the husband. In view of the statement of Mst. Arshad Begum, that she is not the wife of Abdul. Karim and she does not wish to live with her parents and she has never been abducted, I have no alternative but to dismiss the application, which was dismissed by a short order and the detenu was set at liberty.

Petition dismissed.

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