This is a petition under sections 439 anti 561-A of the Criminal Procedure Code against the order of a Magistrate Section 30, Nankana Sahib, dated 30th of May 1970, whereby he directed Mst. Balqis Akhtar alias Nasim Akhtar, the daughter of the petitioner to be detained in Durul Aman, Lahore.
2. The girl had been enticed from the house of her parents by Mst. Amkar, Sattar and Chiragh on 22nd of April 1970, while her parents were away. A report was lodged on Ist of May 19711, after the private negotiations for restoration of the girl failed. During the investigation of the case, the girl was recovered and was produced before a Magistrate on 9th of May 1970, who recorded her statement under section 164 of the Criminal Procedure Code. The leaned Magistrate after recording the statement passed an order on the same day restoring the girl to the custody of her father. In this statement she alleged that she had been abducted by Mst. Amkar, Sattar and Nazir and was confined in a place at Shahdara for 16/17 days. She further alleged that during this period Sattar was committing rape on her.
3. On 29th of May 1970, the Sub-Inspector was informed by Nasir Khan petitioner that her girl had again gone to the house of Saifur Rehman a cousin of Abdus Sattar the accused in the abduction case. The Sub-Inspector went, to the spot and asked the girl to come out who was sitting in a room after having bolted the door from inside. The girl stated that she did not want to live with her parents as she apprehended danger to her life. The parties came to grips in the presence of the Sub-- Inspector, who initiated security proceedings against them. The girl was produced before the learned Magistrate on 30th of May 1970, who-recorded her statement. She stated before the leaned Magistrate that she did not want to live with her parents as she apprehended that they will murder her and expressed her desire to live in Darul Aman. The learned Magistrate acceded to that request and ordered accordingly.
4. It appears from the report of the Sub-Inspector, a copy. Of which i$ Annexure `A' on this record, that on 9th of May 1970, the girl was fourteen years and five months old. The report shows that the birth certificate of the girl was in possession of Sub-Inspector. Before me she has stated that she is about 16/17 years of age but in view of the report of the Sub-Inspector which is based on a birth certificate it has.' to be presumed that she is below fifteen years of age.
5. I have recorded the statement of the girl and she has repeated the allegation that she apprehends danger from her parents. She is in an impressionable age and-.It appears that the influence of Abdus Sattar is still strong on her mind in spite of her stay in Darul Aman for about a fortnight.
6. The question that arises for determination is as to what orders should be passed in this case.
During her statement she was not able to give any satisfactory reason for the apprehension that she expressed about her safety. She is admittedly a minor and her father who is present in Court is her natural guardian. The learned Additional Advocate-General, who was specially summoned by me to appear in this case, submits that the girl being a minor her desire to remain in Dural Aman is immaterial and her father being a lawful guardian is entitled to her custody. The learned counsel for the. Petitioner relies on Abraham v. Mehtabo and another (I L R 16 Cal. 487). In this case a Hindu girl who was not yet fourteen had gone of her own accord to Mission House. The husband and the mother of the girl approached a Magistrate, for her custody who after making an enquiry into the matter ordered her custody to be given to the mother. The Superintendent of the Mission House moved the High Court in revision against this order. It will be of some advantage to quote the observations of their Lordships made at page 503 of the report. It was observed :--- "We are in fact asked to take this child from the charge of her mother or husband, in the custody of one or other of whom she is, and either of whom the law regards as her natural and proper guardian, and make her over to a stranger whose detention of the child, against the will of her husband or mother, would be, prima- facie, unlawful. It is, we think, very questionable whether we have the power' to do this; but, assuming that we have the power, we could only wick propriety exercise it if the proper guardian is shown to be in some way disqualified, or if, at the least, the guardian's character is so Mid and mode of life so immoral that it would not be proper to leave the child in his or her charge. Nothing of the sort is established."
The learned Counsel has also referred to the case of Reade v. Krishna (I L R 9 Mad. 391). In this case a Hindu young-man of about sixteen years of age had embraced Christianity and the father had moved the Guardian Court for the custody of the by. It was held that there was no doubt that a minor had no will of his own and that his detention against the will of the father was unlawful, unless it was proved that the minor was being treated in a cruel manner by the father.
7. In this case, the girl, perhaps under the influence of her paramour, refuses to go to her father. She has not given any satisfactory reason for the apprehension that she entertains about her safety. I would, therefore, direct that the girl be handed over to her father, who is the natural guardian and has a right to her custody.
8. A sum of Rs. 140 is to be paid to the Darul Aman authorities for the boarding and lodging of the girl. The learned counsel for the petitioner undertakes to deposit it tomorrow and produce the receipt.
9. The petition is disposed of accordingly.