1. ' IMAM BUX BALOCH, J.---This application under section 491, read with section 100, Cr.P.C. Is filed by the applicant. He stated that on 26-10-2009, while the applicant along with his brother in law Lal Dino and Bakhat Ali son of Yar Muhammad Memon and Baby Shumail (Detenue) and in mates were available at his house, suddenly respondents Nos.3 to 6 armed with weapons forcibly entered into his house and on show of weapons abducted the detenue and taken away her in a car.
2. ' He further stated that on 26-10-2009 the private respondents in collusion with the respondents Nos.1 and 2 filed petition No,977/2009 re: (Mst. Shumaila v. S.H.O. PS Dari and others) wherein it is alleged that the aforesaid detenue has contracted valid marriage with accused/respondent No,3 and she is major and sui juris and the Nikahnama was also produced. He further stated that he produced educational certificate of the detenue wherein her age is about 12 years and 7 months, issued by the School Authorities and after that the petition was not pressed. He further stated that Mst. Shumaila is a minor and she is in wrongful confinement of private respondents Nos.4 to 7. He further stated that the respondents Nos.1 and 2 are helping the private respondents.
3. ' It was ordered on 8-2-2010 that SP (Investigation) Larkana shall ensure in any case detenue Mst.
4. Shumaila is recovered and produced in Court. In response of order of this Court Mst. Shumaila is produced today and her statement is recorded wherein she has stated that she is puber and she has contracted marriage with Shah Jehan son of Nusrat Hussain Isran with her freewill and she is happy with her husband. - ' Mr. Syed Abdul Rasheed Shah learned counsel for the applicant contended that Mst. Shumaila is a minor girl and she shall be medically examined and shall be sent to Darul Aman. He further contended that Mst. Shumaila is induced by the private respondents hence she is giving favourable statements to be private respondents. Lastly Mr. Shah has contended that this case falls under Child Marriage Restraint Act and therefore the same should not have been recognized by this Court.
5. ' On the other hand Mr. Azizullah Buriro learned counsel for Mst. Shumaila has contended that Mst.
6. Shumaila has attained the age of puberty. She has contracted marriage of her own freewill and the marriage is admitted by her and this case does not fall within the ambit of Child Marriage Restraint Act as Mst. Shumaila has attained the age of puberty. He has relied upon the case of Mauj Ali v.
7. Syed Safdar Hussain Shah and another 1970 SCM R 437.
8. ' Mr. Rashid Mustafa Solangi, learned counsel for respondents Nos.4 to 6 also supports the contention of Mr. Azizullah Buriro and contended that according to Muhammadan Law the puberty is the basic principle. He has relied upon the case of Muhammad Banaras v. S.H.O. And others 1994 SCM R 2134.
9. ' I have considered the submissions advanced at the bar by learned counsel for the parties and perused the relevant record and also gone though the citations relied upon by the learned counsel.
10. In the case of Mauj Ali (supra) it was held by the honourable Supreme Court as under has not impressed us. It is not disputed that Mst. Musarat has attained the age of puberty and she had married with respondent No,1 of her own freewill. Such a marriage is valid according to Muhammadan Law. It was urged that such a marriage is invalid under the Child Marriage Restraint Act and, therefore, it should not have been recognized by the High Court. This contention also has no force. Since the marriage is valid under the Muhammadan Law,. Respondent No,1 is the guardian of Mst. Musarat and the High Court was perfectly justified in allowing her to go with her husband.
11. We are satisfied that substantial justice has been done in this case. We, therefore, do not consider this as a fit case to interfere in our special jurisdiction. The petition is dismissed."
12. ' In the case of Muhammad Banaras (supra), the Lahore High Court has held as under:-- ' I have heard learned counsel for the parties at length and have perused the file carefully.
13. According to birth certificate of Mst. Mumtaz. She is aged 21 years and 8 months while according to her school leaving certificate her age is 15 years, seven months and l2 days. In the case of Nazir Ahmed, supra it was held:- "Now the provisions of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 may be analysed.
14. Subsection (2)(a) therefore defines adult as meaning a person who has attained, being a male, the age of eighteen years or being a female the age of sixteen years, or has attained puberty. Thus a male or , female of lesser age than prescribed can also be an adult if he/she has attained puberty."
15. ' According to section 251 of Muhammadan Law, the age of puberty is even taken to be 15 years and below for the purpose of puberty."
16. The principle laid down in the above authorities is that the puberty of the girl is to be considered in such-like cases. In the instant case. Mst. Shumaila stated in her statement that she has attained the age of puberty, hence she has contracted marriage of her own freewill by extending her right.
17. In such circumstances, she cannot be handed over to applicant or to be sent to Darul Aman where her life and liberty is on stake. Considering all these aspects, I hold that Mst. Shumaila is at liberty to go where she desires. Since she has given her consent to go with her husband and she is allowed accordingly. With these observations Criminal Miscellaneous Application No,242 of 2009 stands disposed of. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.