2016 P Cr.

L J Note 61

[Sindh]

Before Amer Raza Naqvi, J

Mst. SHAHIDA and another---Petitioners

Versus

PROVINCE OF SINDH through Home Secretary Sindh and 13 others---Respondents

C. P. No. S-1223 and C.M.A. No. 6873 of 2014, decided on 23rd December, 2014.

Qanun-e-Shahadat (10 of 1984)---

----Art. 3---Child, a minor witness---Documentary consent by minor---No legal value---Contention

of petitioner was that before ordering medical examination for determination of age of child,
notice was to be issued to the parties---Validity---Such notice was not necessary in the present
case as a false affidavit was sworn by the minor under duress or undue influence as it appeared
that said child was taken away/kidnapped by the petitioner---High Court observed that it was
established that person in question was a minor and any consent given by her in any document
particularly regarding her marriage had no value in the eyes of law, and an affidavit sworn by
minor in favour of petitioner could not be used in advantage to petitioner.

Jamil Ahmed Shah for Petitioner No.1.

S. Amir Ali Shah for Petitioner No.2.

Saleem Akhtar, Additional P.G.

Ms. Yasmeen Sultana, A.A.G.

ORDER

AMER RAZA NAQVI, J.---Through listed application it has been prayed that contents of affidavit
sworn by petitioner No.1 Mst. Shahida on 15.09.2014 filed in support of the petition may be
expunged. Learned counsel for petitioner No.l submitted that initially this petition was filed by
Mst. Shahida being petitioner No.1 and Wajid Ali being petitioner No.2. It was claimed in the
petition that both have married to each other and in this respect an affidavit subject matter of
this application was sworn in the Identity Branch of this Court. He further submitted that this
petition, which was a harassment petition, was disposed of on 01.10.2014. Earlier to that on
16.09.2014 notices were ordered. Learned counsel has pointed out that on both these dates it is
not mentioned in the orders that any of the petitioner was present in Court. He submits that only
order dated 01.12.2014 shows that petitioner No.1. was present in Court. He submitted that as a
matter of fact petitioner No.1 was minor and was abducted by petitioner No.2 and in order to
shield himself from the operation of law, the petition was filed and after petitioner No.1 was got
recovered with the assistance of elders, she had appeared in this Court and has also sworn
affidavit in support of present application, in which, she has stated that she has been kidnapped
by petitioner No.2.

Since there was conflicting versions of the parties the petitioner No.1 was referred to
Superintendent Civil Hospital Thatta to ascertain her age. Said hospital referred the petitioner
No.1 to Services Hospital Hyderabad as facility was not available in Thatta. The report of
Services Hospital Hyderabad has been received and according to such report the age of the
petitioner No.1 has been determined between 13 to 14 years. This determination has been
made by a Board consisting of five senior doctors and Vice Chancellor/Nominee being the
Chairman of the Board. Learned counsel for petitioner No.2 has submitted that no notice was
issued to petitioner No.2 for this examination and therefore this Court should not give any
finding. He further submits that there is no need of expunging any contents of the affidavit.

Mr. Saleem Akhtar, learned Additional Prosecutor General has submitted that although under
Article 3 of Qanun-e-Shahadat a minor is competent to give evidence but so far as consent for
marriage is concerned no minor particular in the present facts and circumstances is capable of
giving any consent. He further submitted that in the memo of petition, petitioner No.1 claimed to
be a major, whereas, it has now been proved that she is a minor. He further submitted that in
the facts and circumstances her consent contained in freewill affidavit and Nikahnama is
immaterial as that was false and furthermore her claim of being 17 years since was not correct,
therefore all these documents have no value. They were inadmissible as those were executed
under inducement, influence and duress, he, therefore, submits that listed application should be
allowed.

Text Box: - I have heard all the learned counsel. It is a fact that presence of petitioner No.1 is
not recorded in orders dated 16.09.2014 and 01.10.2014. In view of the report of the Doctors
referred above, it is prima-facie established that petitioner No.1 is minor. The contention of the
learned counsel for the petitioner No.2 that a notice should have been issued to the petitioner
No.2 before taking exercise of ascertaining the age of petitioner No.1 is not sustainable under
the law. A false affidavit was got sworn by the petitioner No.1 under duress or under influence
as it appears that she was taken away/kidnapped by petitioner No.2. In any event once it is
established that she is a minor, any consent given by her in any document particularly regarding
her marriage has no value in the eyes of law.

In view of above facts and circumstances, listed application is allowed. The affidavit sworn by
petitioner No.1 on 15.09.2014 cannot be used in advantage to petitioner No.2.

With above observation this application stands disposed of:

YN/S-6/Sindh Application allowed.