LMS-004 P

IN THE HIGH COURT OF LORELLO

WRIT PETITION TUF/2023/OCT/19

Zelina Shah

Vs

Inam Shah & Others

Memorial For Petitioner

Table of Contents
List of Abbreviations..............................................................................................................................3
List of sources........................................................................................................................................6
STATEMENT OF JURISDICTION...............................................................................................................7
Summary of Arguments.........................................................................................................................8
Detailed arguments.............................................................................................................................10
Prayer/ Relief Sought...........................................................................................................................21
List of Abbreviations

 Code Of Criminal Procedure

CrP.C

 Code Of Civil Procedure

CPC

 Pakistan Penal Code

PPC

 CONSTITUTION

Cons

 Supreme Court

SC

 The International Convention on Civil and Political Rights

ICCPR

 All-Pakistan Legal Decisions

 PLD

 Supreme Court Monthly Review

SCMR

 Civil Law Cases

CLC

 Pakistan Criminal Law Journal

PCrLJ

 Pakistan Tax Decisions

PTD

 Pakistan Labour Cases

PLC

 Corporate Law Decisions

CLD

 Monthly Law Digest

 MLD

 Yearly Law Reporter

YLR

 Pakistan Law Journal

PLJ

 National Law Reporter

NLR

 Karachi Law Reports

KLR

 Karachi

Khi

 Lahore

Lhr
List of sources

PLD 2020 Peshawar 25 ;

PLD 2019 Supreme Court 218.

Fatawa-i-Kazi Khan, Vol I, p.93;

PLD 1976 Lah. 516;

1983 [Link] 55

PLD 1950 Lah. 203 ref.

PLD 1976 Lahore 516

1983 PCr.I.J 55

P L D 1995 Federal Shariat Court 1

Hakim Ali V. the State 2013 YLR 2169

Zaman Shah V. the State 2015 MLD 795

PLD 1996 SC 1

PLD 2000 Lah. 425].

[2001 YLR 2454].
STATEMENT OF JURISDICTION

1. The Hon'ble High court of Lorello has the jurisdiction to hear the matter because CATA h

as been merged with their respective province, according to the 25th amendment and now Is

the part of Celkaria and the court holds the authority to exercise its jurisdiction and it concern

s the enforcement of fundamental rights

Article 246 of the constitution states that the tribal areas have been merged with their

respective provinces1.

1
Article 246
Summary of Arguments

1. Issue 1: Whether the citizen of CATA could file a writ petition in any

High Court of Celkaria?

Yes , the high court does hold the jurisdiction to hear the matter under Article 199

and Article 246 because CATA after the 25th amendment is the part of province of Celkaria .

The court may exercise its writ jurisdiction of Article 199 of constitution. The writ petiti

on filed is against the jirga members and the father of the petitioner , she is the citizen of the s

tate , as the actions of the Jirga members and the respondent were illegal and were not in ac

cordance to the constitution of Pakistan and their actions were in fact a breach the law of the

land and fundamental rights.

2. Issue 2: Would the second marriage be deemed as a legal marriage despite Zelina's Ni

kah al the age of 11?

Yes the marriage of Zalina would be deemed as legal marriage despite her nikkah at the age o

f 11 because she had attained the age of puberty and was above 16 years of age. Where as the

legal age for a girl to get married is 16 years according to the child Marraige restraint act 192

9.
3. Issue 3: Would the miscarriage suffered by Zelina amount to Qatl?

Yes the miscarriage suffered by Zelina would amount to Qatl as per provisions of section 319

of the penal code the defendants are liable of qatl. Zelina was forced to travel for 21 hours co

ntinuously under stress and duress effecting her health and the safety of the unborn child.

Issue 4

Yes international human rights law applies to the situation of missing persons in celkaria.

Celkaria ratified the international convention on civil and political rights on June 23 rd 2010.

along with 174 other countries of the world. Article 9 of ICCPR gives right to liberty and

freedom of a person. Celkaria has also signed the Vienna convention on consular relations

1963.
Detailed arguments

Issue 1

1. Definition of “JURISDICTION”

Jurisdiction is a legal principle that determines the authority of a court to hear and decide part

icular cases. In this context, Article 1, Article 192 and Article 199 that the jurisdiction of the

high court may be extended to to take up cases that meet the criteria and the enforce

ment of fundamental rights. Article 247 being repealed therefore allows the citizens of CATA

to have access to free and fair trial.

2. Conditions to have the jurisdiction to hear the matter

High court to have the jurisdiction to hear the matter under Article 1, and Article 199 the ma

tter should meet the following criteria.

1. Within the territorial limits of the high court

2. Enforcement of fundamental rights

3. CATA being the part of Celkaria

3. Explanation
In the instant matter, it is respectfully submitted that the court holds jurisdiction the requisite j

urisdiction to entertain the present case under the ambit of Article 199 of the Constitution of

Celkaria . The crux lies in the presence of both the territorial limits and the enforcement of fu

ndamental rights, prerequisites mandated by the aforementioned constitutional provision. The

subject matter under consideration pertain to issues of pronounced fundamental rights or sign

ificance, thereby precluding the application of the court's exceptional jurisdiction as standing

by Article 199. Furthermore Article 247 after the 25th amendment stands repealed and allo

ws every citizen the access of justice. Also there is evident transgression or infringement of th

e fundamental rights enshrined within Chapter I of Part II of the Constitution of Celkaria . Co

nsequently, it is urged that the present

petition does fall within the purview of Article 199.

Relevant case laws;

"Perusal of record reveals that the Twenty-fifth Constitutional Amendment was brought by A

ct No. XXXVII of 2018 (hereinafter referred to as 'amending Act') which was assented by the

President of Pakistan on 31st May, 2018. Section 8 of the amending Act had the effect of mer

ging the areas falling in erstwhile FATA into the Province of Khyber Pakhtunkhwa, while Sec

tion 9 of the amending Act provided for omitting Article 247 from the Constitution of Islamic

Republic of Pakistan, 1973 (hereinafter referred to as 'Constitution')2.

The Worthy Commissioner Malakand Division at Said Sharif, Swat has heard the appeal in ex

ercise of the powers vested in him under Para-36 of the Regulation.

2
PLD 2020 Peshawar 25
The Regulation was promulgated by the President of Pakistan on 28th May, 2018 in exercise

of the powers vested in him by sub Article 5 of Article 247 of the Constitution.

With the repeal of the said Article, without providing for any saving clause, all the Regulation

s promulgated by the President of Pakistan under sub Article 5 of Article 247 of the Constituti

on or by the Governor under sub Article 4 of Article 247 of the Constitution or before the ena

ctment of the Constitution, seized to exist.

Hon'ble Supreme Court of

Pakistan has held in the judgment that with repeal of Article 247 of the Constitution vide the

Constitutional Amendment Act, same legal regime had become applicable in the areas merge

d in the province of Khyber Pakhtunkhwa, which had already been prevalent in rest of the pr

ovince. Relevant part of observation of the august Court is reproduced hereunder for ready re

ference; It is manifest from the above principles that classification is only permissible under t

he law where the same has been made on a rational and reasonable basis and although no sing

ular standard of reasonableness can be deduced for such classification, it must be such that ca

n be justified on an intelligible differentia identifying why the 4 classification/distinction has

been made and there must be a rational nexus to the object sought to be achieved by the classi

fication. After the 25th Amendment, all the residents of the Province of KPK are similarlv pla

ced, there is no rational basis on which the people of FATA can be distinguished from the peo

ple of the rest of the province of KPK and thus the application of the FATA3

the provincial laws is absolutely uniustified, grossly discriminatory and in contravention of t

he fundamental right to equal protection. Whether they be residents of FATA on one hand or o

3
The PLD 2019 Supreme Court 218
f Peshawar or Mardan, etc. on the other, they cannot be discriminated against and any classifi

cation between them despite being residents of the same province, with no obvious or reasona

bly deducible distinction between them, will be arbitrary and against the recognized principle

s of natural justice and the rule of law. Thus, with the merger of FATA in the Province of KPK,

by applving the ratio of Azizullah Memon's case. it becomes expedient to ensure that all the

residents of the Province of KPK (including the people of the erstwhile FATA) do not face an

y discrimination of the basis of their residential location and are accorded equal protection of

the law, and their right to fair trial, access to courts and due process are secured.

Issue 2

1. Legal Marriage

Marriage is a social contract that involves offer and acceptance from both the parties. Legally

according to the provisions of child marriage restraint act 1939 the legal age for a girl to Marr

y is 16 years and the legal age for a boy to marry is 18 years. Both Zelina and Haziq were mat

ure to marry and be husband and wife.

2. Free consent

The law and Islam allows the girl to marry according to her choice and to marry the guy of he

r choice. Islam gives free will to the girl to such an extent that if she is not satisfied with the f

acial features of the boy she holds the power to refuse marrying that boy

4. Attaining Puberty
Zelina was young and had not attained puberty at the time of her first nikkah giving her a rig

ht to repudiate the marriage before the consummation of marriage. Making it valid accordin

g to shariah as well as according to law

Case laws

Fatawa-i-Kazi Khan, Vol I, p.93; PLD 1976 Lah. 516; 1983 [Link] 55 and PLD 1950 La

h. 203 ref.

Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)45---

(c) Muhammadan Law Sec 2736

It was held in the case reported as PLD 1976 Lahore 516 that "if a minor girl enters into a sec

ond marriage on attaining puberty, it would be sufficient proof of her having repudiated the e

arlier marriage and the subsequent marriage would be valid".7

It was held in the case reported as that a decree of Court was not necessary for imparting val

idity to the exercise of the option of puberty8.

4
----S. 10(2)---Appraisal of evidence---Female accused was about 15/16 years of age when she contracted a second marriage
with her co-accused which had clearly established that she had attained puberty in those very days and her second marriage t
antamounted to repudiation of her first marriage---Female accused had, thus, validly exercised her right of option of puberty
and she and her cc-accused being properly married husband and wife had committed no offence under Offence of Zina (Enfo
rcement of Hudood) Ordinance, 1979--- Accused were acquitted.
5
PirMohammed Vs State of Madhya Paredesh 1960 AMP 24
6
---- Dissolution of marriage---Option of puberty---No judicial pronouncement necessary---No judicial approval is necessar
y for having exercised the right of option of puberty by a wife and the first marriage stands dissolved on her contracting seco
nd marriage after attaining puberty---Essence of the matter is the actual repudiation of marriage by the woman immediately o
n attaining puberty.
7
PLD 1976 Lahore 516
8
1983 PCr.I.J 55
The court come to the conclusion that no offence was committed where a girl had married an

other guy upon attaining puberty while previously being married as a minor. by both the appe

llants Said Mahmood and Mst. Almas under the provisions of Hudood Laws and they were pr

operly married husband and wife.9

Issue 3

Definition:

“Qatl” means depriving someone of their life. Either it be an unborn child or a man who has

matured to be a grown up. Depriving one from his life amounts to depriving ig the entire

humanity of life.

(1) statement of facts : the facts of the case state that Zelina was taking despite her free will

and was made to travel all the way to CATA from Lorello while being pregnant and scared for

her life and the life of her child.

The question before the court was whether the death of a 28 weeks old unborn child satisfies

the provisions of section 338(b) PPC?

The court held that facts of the instant case do not attract section 338 (b) because as per

developed medical jurisprudence the heartbeat develops in the fetus at 2 months. Further, the

child becomes mature after six months of conception. Moreover, at times ladies do give birth

to a child even after seven months of pregnancy give birth to healthy babies who do survive

as well. Therefore, in the view of the above, it is ascertained that a 6 months old fetus in the

9
P L D 1995 Federal Shariat Court 1
womb of his/her mother falls within the definition of "child". The analogy was drawn from

article 128 of the Qanun-e-Shahadat Order, 1984 which provides that any person who is born

after six lunar months of a valid marriage or within 2 years of its dissolution, shall be

considered as a legitimate child. Also, the court relied on the Islamic concept on the subject

that Almighty blows the soul into the fetus after 120 days of conception.

Honor of the Father

The facts of the case state that her father was a tribal lord meaning he held influence and was

looked upto the people of his tribe. The father feared that people knowing about the marriage

and pregnancy would effect his honor adversely so he acted in a negligent and wicked way

which ultimately resulted in the miscarriage of the child.

Qatl e Khata:

According to the provisions of the section 318 which states that:

Whoever, without any intention to cause the death of, or cause harm to, a person causes death

of such person, either by mistake of act or by mistake of fact, is said to commit qatlikhata.

Hadith.

The Prophet Muhammad (PBUH) is reported to have said:

“Verily the creation of any one of you takes place when he is assembled in

his mother‟s womb; for forty days he is as a drop of fluid, then it becomes a

clot for a similar period. Thereafter, it is a lump looking like it has been

chewed for a similar period. Then an angel is sent to him, who breathes ruh

(spirit) into him. This Angel is commanded to write four decrees: that he

writes down his provision (rizq), his life span, his deeds, and whether he

will be among the wretched or the blessed”.

The Qur‟ān says „whosoever have spared the life of a soul, it is as

though he has spared the life of all people. Whosoever has killed a soul, it

is as though he has murdered all of mankind.‟

Abdullah bin Masud,Bukhari and Muslim,Book of Imam An-Nawawi's 40

Hadith,Hadith # 4.

45 Q 5:32. Other verses having same meaning are 6:151 and 17:33

Article 227 of the Constitution of 1973 requires that no law shall be enacted
repugnant to Quran and Sunnah. Therefore, it is important to understand the status

of the fetus in Islam. Islam has termed human beings of biological and intellectual

nature (Quran, 32:6,9).

Case laws

Hakim Ali V. the State 2013 YLR 2169

Zaman Shah V. the State 2015 MLD 795

This section deals with qatl committed inadvertence without any intent or malice but out of

Khata. The scope of qatl-i-khata is limited to causing death of a person either by mistake of

act or by mistake of fact which could be termed as murder by mistake without there being

any intention of committing murder at all10.

Provision of section 318 would be attracted in case of a deliberate act on the part of accused

person to do one thing but because of a mistake of act or of fact the end result of such an act

was different from that intended by the accused person.11

There is lack of intention, but at the same time if the element of causing death by mistake of

act or fact is missing, the killing of a person despite being not as such intentional or

premeditated would be wilful12.

Issue 4

10
PLD 1996 SC 1
11
[PLD 2000 Lah. 425]
12
[2001 YLR 2454]
Yes international human rights law applies to the situation of missing persons in celkaria.

Celkaria ratified the international convention on civil and political rights on June 23 rd 2010.

along with 174 other countries of the world. Article 9 of ICCPR gives right to liberty and

freedom of a person. Celkaria has also signed the Vienna convention on consular relations

1963.

The government of celkaria has infused the articles 9 and 10 of the constitution follwong the

Iccpr. Making sure that the people are not deprived of the right of liberty. Liberty means that

a person a person is free as to his will.

Article 9 of iccpr states that

1. Everyone has the right to liberty and security of person. No one shall be subjected to

arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds

and in accordance with such procedure as are established by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest

and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge

or other officer authorized by law to exercise judicial power and shall be entitled to trial
within a reasonable time or to release. It shall not be the general rule that persons awaiting

trial shall be detained in custody, but release may be subject to guarantees to appear for trial,

at any other stage of the judicial proceedings, and, should occasion arise, for execution of the

judgement.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take

proceedings before a court, in order that that court may decide without delay on the

lawfulness of his detention and order his release if the detention is not lawful.

5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable

right to compensation.

Article 9 of the constitution states

Security of person

No person shall be deprived of life or liberty save in accordance with the law.

The point here to be noted is that the word “person” is used here and not citizen.

Safeguards as to arrest and detention

Article 10 of the constitution states

(1)

No person who is arrested shall be detained in custody without being

informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to

consult and be defended by a legal practitioner of his choice.

(2)

Every person who is arrested and detained in custody shall be produced

before a magistrate within a period of twenty-four hours of such arrest, excluding the time

necessary for the journey from the place of arrest to the court of the nearest magistrate, and

no such person shall be detained in custody beyond the said period with out the authority of a

magistrate.

The state of Celkaria is a signatorty to Veinna convention on consular relation 1936 hence

it shows that the state is interested in applying the international laws which protect the status

of a missing person.
Prayer/ Relief Sought

1. In light of the facts stated, arguments advanced and authorities cited, the plaintiff respectfu

lly submit before the Honorable Court that it should exercise its jurisdiction to ensure Justice

and protection of fundamental rights.

2. It is prayed that the second Nikkah shall be held legal.

3. In light of the facts stated, arguments advanced and authorities cited, the plaintiff respectful

ly submit before the Honorable Court that it should punish the defendant for murder of the u

nborn child to ensure the safety of the family of a women and her child.

RESPECTFULLY SUBMITTED,

COUNSEL(s) For Petitioner