ABDUL HAYEE KURESHI, C. J.-This application under section 491 Cr. P. C. Has been filed by Mohammad Anwar Shahzad, praying for an appropriate order, or, direction for the recovery and production of alleged detenu Mst. Sughra, so that the question of her illegal detention may be determined and consequential orders may be passed. The allegation further is that Mst. Sughra was being detained by respondents Muhammad Ismail and Rooldoo, who are respectively the father and maternal uncle of the alleged detenu.
2. The averments in the petition are that the petitioner was a neigh--bour of respondent Muhammad Ismail, with whom the alleged- detenu Mst. Sughra, lived. It is further alleged in the application that respondent Muhammad Ismail had agreed to get Mst. Sughra married to the petitioner, provided the petitioner, who was originally a Christian, converted himself to Islam. It is then stated that in spite of such conversion, the respondents did not fulfil the earlier promise of marriage of Mst. Sughra with the peti--tioner, so that the former left the house of the respondent and came away to the petitioner, and married him of her own free-will, and such marriage has been consummated. It is also alleged that on 3rd September, 1980, the two respondents, together with seven or, eight other persons, forcibly took away the detenu to Mehrapur from Karachi, and were detaining her unlawfully and in an illegal manner. Together with the petition, the petitioner has placed on record some documents to show that he had converted himself to Islam, and that the alleged detenu, Mst. Sughra, had sworn an affidavit before a Magistrate at Karachi to the effect that she had left the house of the respondents, because they wanted to make money by getting her married to a person against her will, and, to avoid such a marriage, she had come away to the petitioner, with whom she wanted to contract a marriage. A photostat copy of a 'Nikahnama' has also been produced by the petitioner, showing that he had married the alleged detenu on 31st August, 1980.
3. On 22nd September, 1980, we had issued a Rule for production of, the detenu in Court.
Respondent Muhammad Ismail also appeared to Court, and resisted the grant of the application.
His case is that the alleged detenu is aged about fourteen years, that she bad been abducted by the petitioner, and, in any case, the petitioner had divorced the alleged detenu, so that there was no justification underlying the handing over of the detenu to the care of the petitioner. The respondent has also produced a form maintained by the registration authorities, showing that the alleged detenu. Mst. Sughra, was born on 27th December, 1966 so that she was barely fourteen years of age. The respondent has also placed on record an affidavit of the detenu, wherein it was stated that she had been abducted by the petitioner, but ultimately restored to the care of the respondents by the Nekmards of the community.
4. During the proceedings, we had directed the Medical Superinten--dent of the Services Hospital.
Karachi, to examine the detenu in regard to her age, and also to ascertain whether she has attained puberty. The Medical Superintendent has sent a Report, stating that the age of the detenu was between fourteen and fifteen years, and. In his opinion, the detenu has attained puberty. We had also questioned the detenu early to ascertain her wishes. She stated that she had been married to the petitioner, and was not inclined to return to her parents.
5. We have heard Mr. Habibullah Sarno for the petitioner, Mr. Muhammad Ali Shaikh for respondents, and Mr. A. Sattar G. Sheikh, the Additional Advocate-General. The main contention 9f Mr. Habibullah Samo is that the alleged detenu is a pubert, who, under the Muslim Law, could contract a marriage. He has further contended that in all propriety, the petitioner should get the custody of the alleged detenu. On the other band, Mr. Muhammad Ali Sheikh has urged before us that the alleged detenu is a minor, being less than eighteen years of age, and her marriage with the petitioner was phoney, and, in any case, she has been divorced by the petitioner in writing. Mr. Muhammad Ali Sheikh has further urged that the detenu is a Muslim, whereas the petitioner still continues to be a Christian in spite of professing that he has converted to Islam.
6. There is no doubt that the alleged detenu is under eighteen years of age. Although in the main petition, the petitioner has disclosed her age to be twenty years, but we had an occasion of looking at the alleged detenu Court, and we have also got the medical opinion on the point We are definitely of the opinion that she is a minor within the meaning of the Majority Act, and her age is between fourteen and fifteen years, although she might have attained puberty. This case has given us some anxiety as while dealing with cases of this nature, we cannot overlook considerations regarding welfare of the detenu. In the present case the petition was admittedly a Christian before the marriage, although he claims to have mbraced Islam recently. This conversion, on his own showing, motivated by a desire to marry the alleged detenu. He has also stated in the application that he converted himself to Islam, because the respondents wanted him to convert himself, so that he may be able to marry the detenu. Such conversion is, therefore, not voluntary. Additionally, we are also of the view that it would be better for the detenu to have the protection of her parent. In such context, our: attention was invited to a judgment of the Supreme Court in the case of Allahdad v. Hazur Bux and others (NLR 1979 Criminal (SC) 998). The Lahore High Court had, in somewhat similar circumstances (although the husband was not a recent convert in that case), ordered that the alleged detenu who was aged between sixteen and seventeen years, be handed over to the custody of the parents. In that case also, a Nikah' between the abductee and the petitioner had taken place, but the High Court held that, in spite of the girl expressing a wish to return to her husband, such statement was neither voluntary nor free from force fraud or deceit The Supreme Court, in such circumstances did not interfere with the order of the High Court. Even in this case, we are clearly of the view that the case is not one of illegal detention, as the detenu was in the house of her parents, who have a legal right to retain her custody. There is a further factor which merits consideration and that is in regard to the petitioner having divorced the detenu. In these circumstances, we are of the view that it will be conducive to the better upkeep of the detenu if she is given in the custody of respondent Muhammad Ismail, who is her father. The desire of the B detenu to live with the petitioner appears to be a product of deceit, and, in our view, is not voluntary.
7, In the result, we dismiss this application, and direct that the detenu shall go and live with respondent Muhammad Ismail. It shall, however, be open to the petitioner to seek his remedy at an; other forum, if he is so advised.
The petition stands disposed of.