1. AJMAL MIAN, J.--This is a petition under section 491, Cr. P. C. Filed by one Haji Manak son of Allah Wadhayo Shar for a direction that the detenu be set at liberty. It may be observed that the petitioner has claimed himself to be the adopted father of Mst. Zohra her previous name was Sht.
2. Ladhi.
3. The brief facts leading to the filing of the above application are that Mst. Zohra/Sht. Ladhi was married to Newandram son of Lalu for a number of years. Her husband lodged F. I. R. On 26th May, 1981 at 8-15 p. m. To the effect that on 26th May, 1981 at sunset time he and his wife were present in his house when suddenly accused Nabo s/o Bano, Gulo son of Pado, Eiddan son of Khush Hal and an unknown Malik resident of Deh Nabi Shah, Siddique son of Yaqoob Punjal resident of Deb Nabishah, Hote s/o Peero Malik resident of Deb Giderharo entered into his house with lathis and hatchets and that as his wife was sitting on the cot they grappled her and picked her up. Upon this she raised cries and so he. Upon the above F. I. R. Mst. Zohra/Sht. Ladhi was produced before the Magistrate and F. C. M., Rohri for recording her statement under section 164, Cr. P. C. -in which she stated that m fact she was married to Newand for about 7 years back and that her age was 23 years. She further stated that about 10-12 days back she had left her husband's house and went to Amrote Sharib where she embraced Islam on her own free will because she wanted to become Muslim. She further stated that she was not instigated, nor induced nor harassed for converting and that she did not want to go back to her parents because they were Hindus. After recording the above statement the learned Magistrate and F. C. M., Rohri ordered that Mst. Zohra/Sht. Ladhi be kept in Darul Aman for her safe custody till further orders of the said Court or by any other competent Court. The petitioner has impugned the above order in the present application. The above application was admitted to regular hearing at Circuit Bench at Sukkur on 9-7-1981 and Rule Nisi was issued, However our learned brother Zaffar Hussain Mirza, J. By order dated 20th July, 1981 in the presence of the Advocates of the parties including the previous husband of Mst. Zohra i.e. Newand, ordered the hearing of the above application at Karachi by this Bench on 26th July, 1961 as no Division Bench was working at the Circuit. When the above case was taken up by us on 26th July, 1981 Newand was present. He requested for an adjournment on the ground that his Advocate had not arrived at Karachi from Sukkur. The learned counsel for the petitioner had opposed the above request inter alia, on the ground that Newahd had already obtained adjournments previously as well. However we after inquiring from Newand as to when he would be able to bring his Advocate, fixed the above case for today at his request at 9-30 a. m. The case was called out several times in the morning but neither Newand nor his Advocate appear--ed. We kept the matter aside and we again took the case at 11-30 a. m. But even .Now neither Newand nor his Advocate is present. Nor there is any request on his behalf. We, therefore, have proceeded with the above application. We have recorded the statement of Mst. Zohra/Sht. Ladhi who has deposed before us that she had contacted Haji Manak for getting herself converted into a Muslim and from there she went to Dargah Amrote Sharif where she embraced Islam on her own free will and that thereafter she got married to one Bano. She has further deposed that the learned Magistrate and F. C. M., Rohri forcibly against her wishes sent her to Darul Aman at Sukkur.
3. Since the criminal case is pending in which the question as to whether Mst. Zohra/Sht. Ladhi has voluntarily embraced Islam or not or whether she was abducted as alleged in the F. I. R, whether she got married to Bano and what was her age when she was allegedly abducted, would be in issue, we therefore, have refrained ourselves from expressing any opinion on the above questions as it is not required. The question in issue before us is as to whether the learned Magistrate and F.
4. C. M., Rohri was competent under the law to send Mat. Zohra/Sht. Ladhi to Darul Aman against her wishes. Mr. M. I. Memon the learned Additional Advocate-General who has appeared for the State has candidly submitted that there is no provision under Criminal Procedure Code or under any other law authorising the learned Magistrate and F. C. M., Rohri send Mst. Zohra/Sht. Ladhi, whose position was at the most of a material witness in an abduction case, to send her to Darul Aman at Sukkur against her wishes. We are inclined to accept the above contention of the learned A.A.-G: Mr. M.I. Menton. In this view of the matter the order of the learn--ed Magistrate and F. C. M., Rohri is clearly without lawful authority. We accordingly declare the same as such and order that Mst.
5. Zebra/Sht. Ladhi shall be set at liberty without any further delay unless required under some other law.