KARACHI: A sessions court has ruled that a nikah khawan (marriage registrar) should not merely accept oral entries regarding the age of a bride and groom as he should verify an authentic official documentary proof of their age.

Additional District and Sessions Judge (East) Ilyas made this observation in a detailed order that dismissed the bail application of cleric Hafiz Ghulam Mustafa, who is facing trial for allegedly solemnising marriage of teenage Dua Zehra with Zaheer Ahmed.

Hafiz Mustafa, who is currently in judicial custody, had moved an application seeking his release from prison arguing that alleged abductee, Dua Zehra, had herself left her parents’ house and went to Lahore and contracted Nikah with Zaheer.

Defence counsel Aftab Bano argued that “abductee Dua Zehra had attained the age of puberty and can contract marriage with free will.”

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However, the counsel said there was no eyewitness of their purported free-will marriage alleged to have been solemnised by her client Hafiz Mustafa to which Asghar Ali also allegedly signed as a witness.

However, the judge noted that as regards registration of Nikah, all Nikah Registrar or other persons who solemnise marriages are under legal obligation to scrutinise credentials at the time of Nikah.

“Mere submission of oral entries for the purpose of age should not be accepted unless any proof of age from parties to marriage preferable which should be in shape of some authentic document either issued by the National Database and Registration Authority in the form of National Identity Card/B-Form or School Leaving Certificate, Medical Certificate based on ossification test issued by the competent authority and Birth Certificate validly issued by the Union Council etc, is produced” the judge ruled in the order.

The court noted that in the present case it transpired that the applicant Hafiz Mustafa did not verify the necessary documents and, therefore, the witness of the Nikah, namely Asghar Ali, had also no credibility.

The judge observed that an offence committed under Section 364-A (kidnapping or abducting a person under the age of 14) of the Pakistan Penal Code is not bailable and falls within the prohibitory clause of Section 497 of the Criminal Procedure Code.

“The heinous offence is of moral turpitude which can destroy the entire psychology of a victim by putting her and her family to public shame. It is a stigma with which the family has to face with and is the most hatred crime. Such kind of gruesome offence is not against the individual only but it is also against the good conscience of the society,” it said.

The judge concluded that the applicant was not entitled for concession of bail at this stage, hence bail application stand dismissed.

Meanwhile, Another sessions court on Thursday issued notices to the additional inspector general (investigation) and SSP-East (investigation) on a ‘second’ application seeking replacement of the investigating officer of the Dua Zehra abduction case.

Additional District and Sessions Judge (East) Muhammad Mehboob Awan also asked the police high-ups to appear on July 16 along with detailed reports/comments in this regard.

Syed Ali Mehdi Kazmi, Dua’s father, had moved an application under Section 22-A and B of the criminal procedure code (CrPC) against the Addl.IG (investigation) and SSP for allegedly not entertaining his requests to change DSP Shoukat Ali Shahani as the IO of the case.

His counsel, Jibran Nasir, submitted that suspect Zaheer Ahmed had kidnapped his client’s daughter from their Karachi home on April 16 and took to Lahore, adding that a medical board had declared Dua Zehra’s age between 15 and 16 years, close to 15.

He submitted that the first IO of the case, Inspector Saad Ahmed Thaheem, being satisfied with Nadra documents and passport about Dua’s age to be 14 years, had filed an interim charge sheet in court adding Section 3(i) of the Prevention of Trafficking in Person Act, 2018 read with Sections 3 and 4 of the Sindh Child Marriage Restraint Act, 2013.

IO Thaheem had also shown Zaheer, Shabbir Ahmed, cleric Hafiz Ghulam Mustafa and eyewitness of such marriage Asghar Ali as absconders, and prudently decided not to take any statement of the abductee recorded on face value.

The counsel said that the first IO, ‘after sincere efforts’, arrested the Nikah Khwan and witness, adding that he had also applied to a magistrate at Karachi for ordering an ossification test of Dua to determine her actual age, but the court declined the request.

Advocate Nasir alleged that the incumbent IO Shahani deliberately failed to appear before the Karachi’s relevant judicial magistrate on June 9 to seek remand of 10 detained relatives of the groom who were arrested on June 3 for allegedly facilitating Zaheer. Subsequently, the IO left the court with no objection but to discharge them from the case under Section 63 of the CrPC against personal bonds.

He pointed out that despite prime suspect Zaheer had provided his cell number to the IO, he ‘deliberately’ failed to obtain the call data record (CDR) to confirm his whereabouts during the period of Dua’s alleged kidnapping.

The applicant said despite the medical board had conducted fresh ‘age estimation test’ of Dua, the IO Shahani deliberately filed an investigation report recommending disposal of the case in “C” class by relying upon ‘tentative assessment’ of age of Dua.

He added that despite knowing the fact that Dua was under 16 years, the IO miserably failed to make any efforts to recover the abductee so far, adding that he also failed to arrest second witness of the underage marriage Shabbir Ahmed.

Therefore, the applicant pleaded to the court to order transfer of the case investigation from IO Shahani to an impartial and competent officer not below the rank of SP.

Published in Dawn, July 15th, 2022