' FAZAL-E-MIRAN CHAUHAN, J.---Through this writ petition, the petitioner is seeking declaration to the effect that respondent No.1 be directed to produce the petitioner from the Dar-ulAman while setting her at liberty.
2. The brief facts giving rise to the present petition are that Allah Ditta alias Shafique son of Ghulam Hussain previous husband of the petitioner divorced the petitioner on 2-8-2004, whereafter, the petitioner's parents tried to give her hand to some other person in lieu of huge amount for which she was not ready and refused to concede to their illegal designs and thereafter the petitioner contracted marriage with Muhammad Iqbal on 5-1-2005 with her own accord, free will and volition.
This decision of the petitioner annoyed the parents and they in connivance with the previous husband got registered case F.I.R. No.49 of 2005 dated 28-2-2005 with P.S. Saddar Mailsi District Vehari. The petitioner filed suit for jactitation of marriage against the said Allah Ditta alias Shafique and also filed Writ Petition No.1152 of 2005 for quashment of the aforesaid F.I.R. In which on 6-6- 2005 the following order passed by Mr. Justice Javaid Sarfraz:-- "The petitioner seeks quashment of F.I.R. No. 49 of 2005 dated 28-2-2005 under section 16 of Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and sections 109, 148 and 149, P.P.C., registered at Police Station Saddar, Mailsi, District Vehari. Learned counsel for the State under instructions submits that the challan has been submitted before the learned trial Court on 2-6- 2005. Accordingly, the petitioner shall avail the remedy available to her be-lore the learned trial Court. If co, it shall be decided within two weeks. Meanwhile the petitioner shall be lodged at Dar- ul-Arnan. And shall appear before the learned trial Court as and when directed to her. With the above direction, this petition is disposed of."
3. Being aggrieved of the above mentioned order, the petitioner filed I.C.A. No.118 of 2005, which was disposed of on 13-6-2005 by a D.B. Of this Court with the direction to the S.H.O. To record the statement of the appellant No.1 in Dar-ulAman and also to bring on record any document she wishes to produce.
4. It is contended that both orders were not complied with by the local police with the result the petitioner filed Criminal Original No.209 of 2005 in the I.C.A. Wherein the S.H.O. And Investigating Officer were summoned and they in order to avoid the consequences of noncompliance of the orders hurriedly recorded the statement of the petitioner in Dar-ulAman but refused to accept the documents from the petitioner which were most important for concluding the aforesaid criminal case. The Investigating Officer after completing investigation of the case concluded that as per secret and open sources of investigation the petitioner is neither abductee nor accused of any complaint and declared the case to be false. Learned counsel for the petitioner contends that retention of the petitioner in Dar-ulAman is illegal and amounts to curtail her civil rights of liberty guaranteed under the Constitution of Islamic Republic of Pakistan. He further argued that the petitioner never applied to be lodged in Dar-ul-Aman nor she consented the order passed by the learned Single Judge of this Court. In case reported as Mst. Nazeen v. Judicial Magisrate, Larkana and others (1999 MLD Karachi 1250), the petitioner cannot be kept in Dar-ul-Aman against her wishes. Relying on Mi,;,iammad Nawaz alias Mian v. Azhar and 11 others (1999 PCr.LJ 418) and Mir Muhammad v. The State and others (1995 PCr.LJ 2085), it is argued that the detention in Dar-ul- Aman against the wishes of the petitioner is illegal and she cannot be kept indefinitely in Dar-ul- Aman.
' The petitioner, who is adult, major and sui juris had contracted marriage of her free will and volition. She has also filed suit for jactitation of marriage refuting claim of her previous husband, who had divorced her since long. The petitioner did not wish to stay in Dar-ul-Aman any more and her detention would be without her consent. Such detention for the purpose of preventing the petitioner from indulging in immorality amounts to preventive detention. The order of indefinite detention the petitioner in Dar-ul-Aman on the basis of vague apprehension founded upon nothing except the fact of her being a female particularly by a Court charged with the duty to enforce fundamental rights of citizens, was not justifiable and prayed that she be released from the custody forthwith.
5. I have heard learned counsel for the petitioner as well as learned A.A.-G. Appearing on behalf of the State. Admittedly the petitioner is adult, major, sui juris and had contracted marriage with Muhammad Iqbal of her free-will and consent after she was divorced her previous husband namely Allah Ditta alias Shafique. As per her contention a false case was registered against her by her parents in connivance with her previous husband denying the divorce, she filed a suit for jactitation of marriage and also filed writ petition seeking quashment of the F.I.R. In the said writ petition the learned Single Judge in Chamber observed that two persons are claiming the petitioner to be their legal wedded wife. In such eventuality it would be in the interest of justice and morality that the petitioner be lodged in Dar-ul-Aman so that she can be restrained from leading immoral life if she is not divorcee from her previous husband. The petitioner filed I.C.A. Challenging the order of the learned Single Judge which was disposed by holding that the order of the learned Single Judge is not illegal or without jurisdiction. However, while disposing of the I.C.A. By the learned Division Bench directed the S.H.O. To record the statement of the petitioner and receive all the documents she wanted to tender in her defence. S.H.O., despite the direction of this Court did not record the statement of the petitioner in Dar-ulAman. The petitioner filed contempt application for non-compliance of the order passed by this Court. S.H.O./Investigating Officer in order to avoid penal consequences of the contempt application got recorded the statement of the petitioner.
After recording the statement of the petitioner, he came to the conclusion that in the light of petitioner's statement she being adult, major and sui juris had contracted marriage with her second husband Muhammad Iqbal and there is nothing wrong with the said marriage and recommended for cancellation of the F.I.R.
6. The petitioner moved this petition seeking declaration that her detention in Dar-ul-Aman is not consented by her. She has requested to be set at liberty enabling her to pursue the civil and criminal proceedings initiated by her or against her pending in the trial Court. Even otherwise, it has been held by superior Courts that adult, major women who are capable to take decision cannot be forced to lodge in Dar-ul-Aman to curtail their rights of liberty.
7. The petitioner, present in Court, categorically stated that she is not willing to stay in Dar-ul-Aman and requested that she may be set at liberty to look after her matrimonial and other affairs of normal life.
8. In this view of the matter, this writ petition is allowed. Petitioner cannot be kept in Dar-ul-Aman for indefinite period against her wishes as a preventive detention particularly when she claims to be the legal wedded wife of Muhammad Iqbal. Petitioner is set at liberty, enabling her to lead a normal life of a free person. No order as to costs.