Probe ordered again to ascertain Dua’s age as family insists she is minor

Yousuf Katpar
Sunday, Jun 26, 2022

A judicial magistrate on Saturday ordered further investigation into the Dua Zehra case to determine the age of the teenage girl, who had gone missing from Karachi in April and was later found to have married a man in Punjab, in order to ascertain if she was mature enough to exercise free will and elope.

Judicial Magistrate-XXIV Aftab Ahmed Bughio directed the Sindh health secretary to decide within a short period of time — not more than seven days — an application filed by Dua’s father Mehdi Ali Kazmi seeking the forming of a medical board to determine the girl’s age.

Bughio said that if the medical board is constituted, it is required to carry out the task within the shortest possible time with an intimation to the court.

The court gave the order after hearing the arguments of human rights activist and lawyer Jibran Nasir, who represented Kazmi, and the state prosecutor, Muhammad Younis, on the admissibility of the final investigation report that sought the cancellation of the abduction and underage marriage FIR against the girl’s purported husband Zaheer Ahmed and other suspects under ‘C’ class.

Nasir argued that the case was one of further inquiry because the police submitted the report under ‘C’ class mainly relying on the determination of the alleged abductee’s age through an ossification test conducted on the directives of the Sindh High Court (SHC).

The Supreme Court’s June 23 order that the petitioner, Dua’s father, should approach the relevant forum to have his grievance with regard to his daughter’s marriage redressed has opened the door for further investigation into the matter and the ossification test to be challenged, he pointed out.

“If it is proved that at the time of leaving her parents’ house she was below 16 years of age, her consent to leave the guardianship becomes redundant, and the accused person enticing her into leaving the guardianship is to be prosecuted for kidnapping a minor from lawful custody.”

The counsel said that on June 24 the complainant had submitted an application to the health secretary challenging the ossification test of his daughter, and argued that according to the record available with the National Database & Registration Authority, she was below 14 years of age.

The prosecutor said he would have no objection if the complainant’s plea seeking further investigation into the case was allowed.

Over the course of the hearing, the magistrate observed that “apparently, we are back to the stage when the interim challan [investigation report] was filed”.

He said that the age of the girl needs to be determined to ascertain whether she was enticed to leave the house of her parents or eloped on her own, and in the latter case, if she was old enough to take that decision. Therefore, he allowed the application seeking further investigation.

The investigating officer was told to submit the supplementary report under Section 173 of the Criminal Procedure Code (CrPC) after collecting all the relevant material.

The court said that the two detained suspects — Hafiz Ghulam Mustafa, who solemnised the girl’s marriage, and Asghar Ali, one of the two witnesses of the marriage — could avail the remedy of bail.

Last week the police had filed the final charge sheet in the case, recommending the quashing of the abduction and forced marriage FIR against Dua’s alleged spouse and other suspects under ‘C’ class.

The IO said Dua and Zaheer were produced before the SHC on June 6. Before the SHC the girl recorded her statement saying that she had not been kidnapped by any person and had gone to Punjab on her own.

She said that being sui juris (of age, or independent), she married Zaheer of her own free will. The IO said the girl’s age had been determined on the directives of the SHC, and according to a medico-legal officer’s report, she was about 16 to 17 years old.

Subsequently, the court allowed Dua to decide whom she wanted to live with because she had already recorded her statement before the Lahore Model Town judicial magistrate under Section 164 of the CrPC, denying her alleged abduction and claiming to have contracted free-will marriage.

In view of the investigation carried out into the case, as well as the girl’s statement and the confirmation of her age, the IO concluded that no offence of abducting an underage person as defined under Section 364-A of the Pakistan Penal Code had been committed.

Since the alleged marriage took place in Lahore, and since every province has its own traditions and laws governing the minimum age limit to get married, he said that sections 3 and 4 of the Sindh Child Marriages Restraint Act 2013 do not also apply to the suspects.

He said the Nikah Khuwan (marriage officiator) and witness were also found to be innocent, so keeping them behind bars was against the principles of justice.

He recommended that the court order their release as well. He also requested the magistrate to accept the ‘C’ class charge sheet and quash the case. In the case of ‘C’ class, an FIR can be disposed of as being a non-cognisable offence.