SHC accepts plea for transfer of trial of Lahore-based youth in underage marriage case

The Sindh High Court (SHC) has granted the transfer of trial application of Zaheer Ahmed, a Lahore-based youth facing criminal charges of marrying an underage girl from Karachi, and ordered transfer of trial proceedings from an additional sessions court East to a sessions judge East for smooth trial of the applicant.

Ahmed was booked by the Al-Falah police under the Sindh Child Marriages Restraint Act and prevention of trafficking of persons law along with kidnapping charges.

A counsel for the applicant, Mohammad Farooq, submitted that the presiding officer was not providing a fair trial to the applicant as enshrined in the Article 10-A of the Constitution. He argued that the trial court had made up its mind to convict the applicant by expressing its view by taking concrete steps to try the purported offenses which the applicant had never committed.

He said that as the marriage between the couple was still intact and the same had not yet been repudiated under the law, the applicant could not be saddled with the alleged offenses and the trial of the applicant would be a futile exercise, however, the presiding officer was bent upon to convict the applicant by hook or crook.

He said the trial court had failed to take into consideration the statement that girl made before a division bench of the SHC in the earlier round of litigation, whereby she denied the accusation of kidnapping or being enticed by anyone, including the applicant.

The counsel submitted that the trial court had also failed to consider the fact that the marriage was solemnised outside the Sindh province, hence the application of the Sindh Child Marriage Restraint Act, 2013 was misconceived, and the offence under the Section 363/364-of the Pakistan Penal Code was misapplied as the girl had already attained the age of puberty and marriage had already been consummated as such no case at all was made out against the applicant in terms of the law laid down by the apex court.

The counsel also referred to Mulla’s principles of Mohammadan Law wherein the Section 273 provided that the marriage brought about by another guardian was also valid unless she resorted to repudiate the marriage on attaining puberty.

He said that no evidence regarding the commission of an offense under the section 3(ii) and 4 of the Prevention of Trafficking in Persons Act 2018 was available on record and the trial court had also wrongly assumed the jurisdiction of the offence under the Anti-Rape (Investigation and Trial) Act, 2021.

He submitted that judicial proprietary demanded that the trial proceedings be transferred to another court having jurisdiction for smooth trial of the applicant and if the trial of the applicant continued with the present trial court, the applicant would be highly prejudiced.

An additional prosecutor general assisted by the complainant’s counsel supported the impugned order of the sessions court by stating that the trial court had rightly taken cognisance of the offense. The complainant’s counsel submitted that the applicant had failed to put forth any convincing reason which may justify the transfer of the subject criminal case from the court of VII additional sessions judge Karachi East to any other court.

He submitted that the girl was underage and could not perform Nikah therefore the offence had been committed under the Sindh Child Restraint Marriage Act 2013. He submitted that the action of the accused still constituted the offence and would be punishable under the 2013 law read with the Pakistan Penal Code and other enabling provisions of the law. He argued that the trial of the applicant had rightly been dealt with by the designated court under the anti-rape law, and sought dismissal of the instant transfer application.

A single bench of the high court comprising Justice Adnan-ul-Karim Memon after hearing the arguments observed that the courts should work without discrimination and bias.

The high court observed that justice should be given in such a manner that a clear image of

judiciary was maintained in the minds of litigants. Justice Memon observed that the courts should maintain high moral standards among the members of the judiciary under the Code of Criminal Procedure to have good faith in the court.

The SHC observed that justice could be achieved only when the courts dealt in the presence of both parties and the rights of the parties could not be curtailed, controlled or interfered subject to exceptions provided under the law.

The high court observed that prima facie ground raised by the counsel for the applicant was tenable based on certain reservations and in such circumstances, he simply intended to seek a fair trial in the criminal case pending adjudication, which was only possible if he reposed confidence in the trial court.

The bench observed that in the best interest of justice coupled with the stance taken by the trial court through comments, it would be appropriate for the trial court not to express its view so that the parties may have confidence.

The high court observed that judicial propriety demanded that the sessions case pending before the VII additional sessions judge be transferred to the court of sessions judge Karachi East for the smooth trial of the applicant.

The SHC, however, observed that the trial court would be at liberty to see whether the offences applied by the prosecution were applicable or attracted in the present case or otherwise in terms of the different statements made by the girl before the high court or before the concerned court as pointed out by the counsel for the applicant.

The high court observed that such exercise could only be possible if the trial court framed the charge and during framing the charge, it found that other offences were attracted, and in that case, the same shall be taken care of and if the offences are not attracted, the appropriate order shall be passed under the law after providing meaningful hearing to the parties.

The SHC observed that it was expected from the sessions judge East that the case would be disposed of within a reasonable time.