16 سال سے کم عمر لڑکی کی شادی باطل نہ ہے اور نہ ایسا ازدواجی تعلق زنا (Rape) کے زمرے میں آتا ہے۔ بیان زیر دفعہ 164 ض ف قلمبند کرنیکا طریقہ کار۔ ~ Pakistan Family Law Case Laws

Legal age to enter into matrimonial tie.

Consequences of marrying a girl who has not yet attained the minimum age provided by the law to enter into a matrimonial contract. In this regard, suffice it to say that it is a consistent view of Constitutional Courts of our Country that if a person marries an underage girl, the relevant law providing punishment for such an act is the Child Marriage Restraint Act, 1929.

The sexual offence mentioned in Section 375 PPC cannot be equated with the consensual consummation of marriage with a legally wedded girl, who has attained puberty, though she has not attained the minimum age provided under the Act of 1929. To do so would amount to declaring such marriage null and void. Regarding the validity of such marriage, it is worth noting that marriage is a significant institution in Islam and its validity or illegality can only be adjudged in the light of injunctions of Islam. The Act of 1929 only provides punishment for marrying a girl under 16 years of age but does not declare such marriage void. When confronted with this proposition, learned counsel for the petitioner has controverted the validity of this enactment. I am not in agreement with his stance because to declare a law or provision of law against the injunctions of Islam is the sole domain of the Federal Shariat Court established under Article 203-C of the Constitution.

It would not be out of place to discuss that during investigation resort is being made to Section 164 of the Cr.P.C. by the Investigating Officer, generally when statement of a witness or confession of an accused is to be recorded before the Magistrate. The statement of the witness must be recorded like a statement recorded from a witness in court. Before recording the statement, an oath is administered. The procedure of recording the statement of a witness is entirely different from the procedure of recording the statement/confession of an accused. Only before and after recording a confession of an accused, various precautionary measures including giving of reflection time to the accused have been prescribed. This rigorous exercise needs not to be followed for recording the statement of a witness under Section 164 of the Cr.P.C. Section 364 of the Cr.P.C. is of general application as it only applies to the statement of an accused recorded during any proceeding. The confession of an accused is recorded under Section 164 read with Section 364 of the Cr.P.C. Every court is bound to comply with all the precautionary measures provided under Section 364 Cr.P.C. whenever statement of an accused is recorded.(Syed Naeem Ali Adv 03006762054) But in the case of recording the statement of a witness, Section 364 Cr.P.C. has no relevance.

Provision of S.164 CrPC is self-explanatory and only provides an opportunity of cross examining a witness, who is getting her/his statement recorded under Section 164 Cr.P.C., to the accused against whom such statement was made. Right to cross examine a witness during trial proceedings is provided under Article 132(2) of the Q.S. but sub-section (1-A) of Section 164 Cr.P.C. is a special provision enacted to provide an opportunity to the accused only to confront the witness who makes the statement against such accused before a Magistrate prior to the commencement of trial. Allowing the petitioner to cross examine Mst. Yasmeen would mean that Magistrate had considered and declared Mst. Yasmeen as ‘a hostile witness’ and allowed the petitioner to put questions to her under Article 150 of the Q.S. which was based upon wrong assumption of law because these were not the trial proceedings during the course of which a witness could be declared hostile and party producing such witness could be allowed to put questions to such a witness. Thus, act of learned Magistrate to allow petitioner to cross examine the alleged victim Mst. Yasmeen was not warranted by the law.

Provision of 164 CrPC makes it profusely clear that such memorandum is to be recorded only at the end of a confessional statement of an accused and there is no legal requirement to provide such memorandum at the end of the statement of a witness recorded under Section 164 Cr.P.C.

In the view of above discussion, I have no hesitation to hold that the practice of allowing the persons other than the accused, to cross examine a witness after her/his statement under Section 164 Cr.P.C. is recorded, and providing a memorandum as envisaged under Section 164(3) of the Cr.P.C. at the end of statement of a witness, is not in accordance with the law.

Competence of a witness of tender age to depose.