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Criminal Petition for Special Leave to Appeal No. 210 of 1985, decided on 23rd June, 1985.
(Against the Judgment/Order of High Court in Criminal Miscellaneous No. 125‑H of 1985, dated 7th April, 1985).
‑‑‑Art. 185(3)‑‑Criminal Procedure Code (V of 1898), S. 491‑‑Muslix Family Laws Ordinance (VIII of 1961), S. 6(5)‑‑Leave to appeal grant of‑‑Petitioner's case falling under S. 6(5) of Ordinance (VIII of 1961)‑Petitioner claimed return of his first cousin as his wedded‑wife and produced Nikahnama‑‑Age of girl disputed‑‑Mother of girl not producing girl before Court‑‑Petitioner making allegations against mother‑‑Best course for petitioner to file suit for restitution of conjugal rights on basis of Nikahnama before Family Court who would be in better position to decide matter after ascertaining true facts‑‑Petition for leave to appeal dismissed.
Iqbal Ahmad Malik, Advocate Supreme Court and Muhammad Aslam Cnaudhry, Advocate‑on‑Record for Petitioner.
Respondent in person.
Date of hearing: 23rd June, 1985.
‑Facts giving rise to this petition are that Mst. Rabid Bibi (respondent herein) filed an application before the High Court praying that her daughter Mst. Hamida Bibi who was being kept in an illegal custody by Muhammad Afzal petitioner should be set at liberty. The girl was produced by the petitioner before the High Court. He also produced a Nikahnama showing that she had been married to him. The application was, however, allowed by the High Court by a short order which reads as follows:‑‑
"Mst. Hamida Bibi's age is disputed. M. Afzal Basra has conceded that section 6(5) of the Muslim Family Laws Ordinance is attracted to the facts of this case. Under these circumstances Mst. Hamida Bibi is directed to go with her mother."
2. Through the present petition the petitioner seeks leave to appeal against the above--said order.
3. The petition came up for hearing before this Court on 3‑6-1985 We directed that bailable warrants be issued against Mst. Rabia Bibi and Mst. Hamida Bibi so that we should be able to ascertain the fact, ourselves. She, however, failed to appear herself nor did she produce Mst. Hamida Bibi.
4. On 15‑6‑1985, we issued non‑bailable warrants against Mat. Rabid Bibi requiring her to produce Mst. Hamida Bibi.
5. Mat. Rabia Bibi appeared in the Court today but stated that the girl is no longer with her as she had sent her to live with her maternal grandfather, but she has also run away from there and is no longer seeable.
6. On questioning her further we have come to the conclusion that he is not telling the truth and she has wilfully, not produced Mst. Hamida Bibi. We however, do not wish to take any action against her.
7. As for Muhammad Afzal petitioner, his father and that of Mst. Hamida Bibi were brothers. In other words he is the first cousin of Mst. Hamida Bibi. He stated further that he was married earlier but had divorced his wife in order to marry Mst. Hamida Bibi, who was, herself very keen to marry him, but Mst. Rabia Bibi mother of Mst. Hamida Bibi who wishes to give her hand to another person in return of money, has been successful in obtaining her custody by virtue of the impugned order of the High Court in which no finding has been given that she was being confined by Muhammad Afzal petitioner, against her will. There may be substance in what he has stated but in view of the fact that Mst. Hamida Bibi is not present before us, and we feel that the best course for Muhammad Afzal is to file a suit for restitution of conjugal rights against Mst, Hamida Bibi on the basis of the Nikahnama. He may also implead her mother Mat. Rabia Bibi and her other relatives, as defendants. We are of the view that the learned Judge, Family Court shall be in a better position to decide the matter because he would be able, amongst other things, to record the statement of Mst. Hamida Bibi in order to ascertain the true facts of the case.
With the above observations the petition is dismissed.
M.I. Petition dismissed.
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