Summary: (a) Constitution of Pakistan, 1973----Art. 175F(1)(c)---Criminal Procedure Code (V of 1898)----S. 491---Leave to appeal against dismissal of habeas corpus petition for recovery of alleged detenue/daughter---Scope---Petitioner/father sought recovery of his daughter on the plea that she was a Christian minor and had been taken into unlawful custody by respondent, who claimed to be her husband---Courts below dismissed the petition on the basis of the girl’s voluntary statement under S.164, Cr.P.C. and her assertion that she had contracted marriage of her free will---Federal Constitutional Court held that where the alleged detenue had repeatedly appeared before competent fora and unequivocally stated that no abduction had taken place and that she had married voluntarily, her custody with the person claiming to be her husband could not, in summary proceedings under S.491, Cr.P.C., be termed illegal or unlawful---Question whether Nikahnama was forged, or whether investigation required transfer, pertained to criminal process and could not by itself justify habeas corpus relief---Leave was refused and petition was dismissed. (b) Muslim Personal Law---Marriage between Muslim male and Christian female---Validity---Petitioner contended that his Christian daughter could not lawfully marry a Muslim male---Held, contention was misconceived and contrary to settled principles of Islamic law---A Muslim male may validly contract marriage with a Christian woman, being from Ahl al-Kitab---Such principle stood recognized in earlier Supreme Court authorities and classical juristic exposition---Court held that objection to marriage merely on the basis of difference of religion was without substance. Cited Cases: Mrs. Marina Jatoi v. Nuruddin K. Jatoi and others PLD 1967 SC 580. Mst. Zainab Bibi and others v. Mst. Bilqis Bibi and others PLD 1981 SC 56. (c) Constitution of Pakistan, 1973----Art. 189---Federal Constitutional Court---Precedential value of judgments of Supreme Court of Pakistan after establishment of Federal Constitutional Court---Held, judgments of the former Supreme Court of Pakistan do not bind the Federal Constitutional Court as a matter of absolute precedent under the restructured constitutional hierarchy, but continue to carry great persuasive value where they are based on sound reasoning, are consistent with constitutional text and structure, and do not offend fundamental rights or evolved constitutional values---Doctrine of stare decisis was not abrogated but recalibrated in light of constitutional supremacy---Departure from earlier Supreme Court precedent must be express, reasoned and principled, and may be justified where such precedent is manifestly inconsistent with the Constitution, undermines fundamental rights, reflects judicial overreach, becomes incompatible with evolved constitutional values and democratic norms, or where any other compelling reason advances the cause of justice. (d) Muslim Family Laws Ordinance (VIII of 1961)----S.1(2)---Marriage---Conversion to Islam---Effect---Though marriage of a Muslim male with a Christian female is permissible in principle, solemnization and registration under the Muslim Family Laws Ordinance is confined to Muslim citizens---Respondent’s stance was that the girl had embraced Islam before marriage---Affidavit appended with Nikahnama and subsequent certificate issued by a religious institution were produced to show conversion---Held, faith is a personal matter; once a person openly professes adherence to Islam, ordinarily no roving inquiry into the sincerity or motive of conversion is warranted in such proceedings---No specific ritual is indispensable beyond declaration and profession of belief---Where girl herself acknowledged correctness of Nikahnama and declared conversion, Court would not undertake deeper inquiry into genuineness of conversion in summary jurisdiction---Marriage was, prima facie, validly solemnized under the Ordinance. Cited Cases: Mst. Zarina and another v. The State PLD 1988 FSC 105. Tariq Masih v. The State 2004 PCr.LJ 622. (e) Child Marriage Restraint Act, 1929---Child marriage---Effect on validity of marriage---Petitioner asserted that alleged detenue was about twelve years of age and, therefore, incapable of contracting valid marriage---Held, the Act of 1929 restrains and criminalizes solemnization of child marriage, but does not expressly render such marriage void or voidable---In absence of explicit statutory language invalidating the marriage, its legal status remains unaffected---Where legislature intends to override settled personal law, it must do so in clear and unequivocal terms; such intention cannot be inferred from silence---Therefore, even assuming minority, marriage would not automatically become void merely because it was contracted in contravention of the Act of 1929. Cited Cases: Mushtaq Ahmad v. Mirza Muhammad Amin and another PLD 1962 W.P. Karachi 442. Mst. Bakhshi v. Bashir Ahmad and another PLD 1970 SC 323. Mauj Ali v. Syed Safdar Hussain Shah and another 1970 SCMR 437. Nasreen Bibi v. Station House Officer and others 2024 PCr.LJ 2058. Muhammad Khalid v. Magistrate 1st Class and others PLD 2021 Lahore 21. Muhammad Azam v. The State and another 2018 PCr.LJ Note 175. Muhammad Safeer v. Additional Sessions Judge (West) Islamabad PLD 2018 Islamabad 385. Allah Nawaz v. Station House Officer PLD 2013 Lahore 243. Allah Bakhsh v. Safdar and others 2006 YLR 2936. Ghulam Qadir v. The Judge Family Court, Murree 1988 CLC 113. Ghulam Hussain v. Nawaz Ali and another 1975 PCr.LJ 1049. (f) Evidence---Age of alleged detenue---Delayed birth documents---Probative value---Petitioner relied on birth certificate and child registration certificate to show that his daughter was born on 07.10.2012---Held, both documents had been procured many years after the alleged date of birth and no satisfactory explanation for such inordinate delay was furnished---Delayed registration of birth, unless supported by independent and reliable material, is susceptible to manipulation and its evidentiary value is diminished---Further, inconsistency in petitioner’s own stance regarding age in the F.I.R., close birth dates shown for the alleged detenue and her next sibling, entry of a different date of birth in the Nikahnama, and the girl’s own denial of minority materially weakened petitioner’s case---In such circumstances, delayed documents could not be treated as sole basis for holding that the girl was minor, particularly when she appeared physically before the Court and seemed to be of more advanced age. (g) Criminal Procedure Code (V of 1898)----S.164---Statement of alleged detenue---Evidentiary significance in habeas corpus proceedings---Girl had recorded statement before Magistrate that nobody abducted her, no zina was committed, and that she had married respondent of her own free will; she had also made a similar statement in proceedings under Ss.22-A & 22-B, Cr.P.C.---Held, such consistent voluntary statements before judicial fora carried significant value in determining whether custody was illegal---Where marriage was acknowledged and free will asserted, summary court was justified in declining to infer unlawful detention. (h) Criminal Procedure Code (V of 1898)----S.491---Summary nature of proceedings---Limitations---Question whether Nikahnama was forged or unregistered, and whether offences were made out in investigation, could not properly be adjudicated in proceedings of interim and summary nature under S.491, Cr.P.C.---Such issues were to be pursued before competent criminal court or through appropriate investigative remedies---Habeas corpus jurisdiction is not designed to conclusively determine complex factual controversies touching upon validity of marriage documents. (i) Res judicata---Constitutional petition for recovery of daughter---Earlier writ petition on same cause having attained finality---Effect---Petitioner had earlier filed writ petition for recovery of same daughter from same alleged custody on same foundational ground, which was dismissed by High Court after considering her statement under S.164, Cr.P.C. and holding that her custody with husband was not illegal or unlawful---Said finding was not challenged before higher forum and, therefore, attained finality---Held, subsequent proceedings on same issue were barred by principle of res judicata, and petitioner could not re-agitate the same question through another round of litigation. Cited Case: Pir Bakhsh v. The Chairman, Allotment Committee PLD 1987 SC 145. (j) Constitutional law---Fundamental rights---Reliance on High Court judgment concerning discriminatory definition of “child”---Relevance---Petitioner relied upon PLD 2025 Lah. 1---Held, said judgment had no application to the controversy in hand, as that case concerned challenge to discriminatory definition of “child” prescribing different minimum ages for males and females with reference to provincial legislation, whereas present case concerned legality of custody and alleged invalidity of marriage in the factual setting of Punjab law. Disposition: Leave to appeal was refused and the petition was dismissed; however, observations made in the judgment were not to prejudice or impede criminal proceedings, if any, before the competent criminal court in accordance with law. ------ "The Child Marriage Restraint Act, 1929 merely criminalizes the solemnization of a child marriage but does not expressly declare such a marriage to be void or voidable. The binding force of judicial precedent is not derived from institutional seniority but from the constitutional hierarchy itself. Since, the supremacy of constitutional adjudication now vests in this Court, therefore, all courts, including the Supreme Court of Pakistan, are bound by its pronouncements. However, this Court would ordinarily respect and follow the earlier constitutional jurisprudence evolved by the Supreme Court of Pakistan, unless it is established that the same is manifestly erroneous, inconsistent with the constitutional text or scheme, or incompatible with fundamental rights and contemporary constitutional values. "

Summary: Constitution of Pakistan, 1973--- ----Arts. 8, 10A, 175F, 199, 202A & Third Schedule---Income Tax Ordinance, 2001, S. 109-A---Constitution (Twenty-Sixth Amendment) Act, 2024---Constitution (Twenty-Seventh Amendment) Act, 2025---Challenge to vires of statutory provision---Jurisdiction of Constitutional Bench vis-à-vis Regular Bench under erstwhile Art. 202A---Dominant object theory---Ad-interim order suspending operation of law---Maintainability of challenge thereto---Petitioner, after availing 2018 Amnesty Scheme and declaring ownership of foreign company, was issued notice under S.109-A, Income Tax Ordinance, 2001---He challenged both vires of said provision and the notice issued thereunder before Sindh High Court, which initially granted ad-interim restraint against passing of any final adverse order---Later, Constitutional Bench of High Court recalled said interim order on ground that courts ought not suspend operation of law, particularly in revenue matters---Before Federal Constitutional Court, principal question was whether Constitutional Bench, under erstwhile Art. 202A, possessed jurisdiction to entertain matter whose dominant relief was declaration that impugned law was ultra vires---Held, challenge to vires of statute, in substance, sought relief under Art.199(1)(a)(ii), namely declaration that law was “without lawful authority” and “of no legal effect”, and not merely a direction under Art.199(1)(a)(i) or enforcement of fundamental rights simpliciter---Under pre-27th Amendment regime, such matter did not fall within exclusive jurisdiction of Constitutional Bench---Only forum competent to grant final relief could competently grant interim relief; therefore, Constitutional Bench lacked jurisdiction from the outset and its order recalling the earlier ad-interim order was without jurisdiction---Court further held that ad-interim order which had effect of suspending operation of law could validly be brought in challenge before this Court, as until law is finally declared ultra vires it must ordinarily continue to operate---However, in view of subsequent constitutional amendment, exclusive writ jurisdiction now vests in Constitutional Benches and similar matters would henceforth lie before such Benches---Matter was remanded to Sindh High Court for fresh decision by competent Bench in accordance with law. Kh. Muhammad Fazil v. Mumtaz Munnawar Khan Niazi (deceased) through legal heirs (2024 SCMR 1059); Attock Cement case (2024 SHC 1302); Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416); Rahim Shah v. Chief Election Commissioner (PLD 1973 SC 24); Federation of Pakistan v. Aitzaz Ahsan (PLD 1989 SC 61); Marbury v. Madison (5 U.S. 137 (1803)) rel. (a) Constitution of Pakistan, 1973---Art. 202A (as it stood before Twenty-Seventh Amendment)---Jurisdiction of Constitutional Benches of High Courts---Scope--- Under erstwhile Art.202A, Constitutional Benches were not vested with entire writ jurisdiction under Art.199 but only with limited classes of matters specified therein---Therefore, question whether matter was to be heard by Constitutional Bench or Regular Bench had to be determined by reference to true nature of relief claimed. (b) Constitutional jurisdiction---Dominant object theory---Application--- For determining proper forum under former Art.202A, Court must examine pleadings, prayer clause and ultimate effect of relief sought so as to ascertain dominant or substantive relief, while treating merely consequential relief as ancillary---Such exercise is judicial in nature and not dependent upon drafting alone. (c) Challenge to vires of statute---Nature of relief--- Where petitioner assails validity of statutory provision and seeks declaration that same is contrary to Constitution, dominant relief is one under Art.199(1)(a)(ii), namely that impugned law is “without lawful authority” and “of no legal effect”---Such relief is, in substance, in nature of certiorari / declaratory judicial review, even if consequential directions are also sought. (d) High Courts---Power of judicial review---Inherent constitutional authority--- Power of High Court to strike down law ultra vires Constitution is inherent in constitutional scheme and flows from its role as guardian of Constitution, read with judicial oath and constitutional supremacy---Such authority is not negated merely because relief of declaration is not textually set out in identical terms in every clause of Art.199. (e) Interim relief---Competence of forum--- Interim relief may only be granted by forum competent to render final decision on lis---Consequently, where Constitutional Bench lacked jurisdiction to decide vires challenge under former Art.202A, it also lacked competence to pass or recall interim orders in relation thereto. (f) Ad-interim order suspending operation of law---Propriety and challenge thereto--- As a general constitutional principle, until a law is finally declared ultra vires, it should ordinarily continue to operate in normal course---An interim order having effect of suspending operation of law, especially in revenue matters, is therefore open to challenge before this Court and cannot be shielded merely because it is ad-interim in form. (g) Twenty-Seventh Constitutional Amendment---Effect--- After enactment of Constitution (Twenty-Seventh Amendment) Act, 2025, exclusive writ jurisdiction under Art.199 now lies with Constitutional Benches of High Courts, and Regular Benches no longer possess such jurisdiction---Accordingly, a case of like nature would now fall to be heard by Constitutional Bench. (h) Remand---When warranted--- Where impugned order has been passed by a Bench lacking jurisdiction, proper course is to set aside such order and remit matter for fresh adjudication by competent Bench in accordance with law. Petition allowed; impugned order set aside; matter remanded for decision by competent Bench of Sindh High Court in accordance with law.