' This is a petition under Article 9 of the Provisional Constitution Order, 1981, whereby Mst. Sharman, mother of Mst. Jewan Bibi the alleged detenu, requests the Court to declare that the order dated 30th May, 981 passed by the learned District Magistrate respondent No, 2 directing that the detenu be sent to Darui Aman, Multan, till the disputed claim for her custody could be got settled by the contesting parties from a competent Civil Court, was illegal and without lawful authority.
2. The facts giving rise to this writ petition in brief are that on 4th May, 1981 Mst. Aziman respondent No, 3, maternal grandmother of the alleged detenu, submitted an application under section 552, Cr. P. C. Before the learned District Magistrate alleging that Mst. Jewan (a minor, was being illegally and improperly detained by Allah Wasaya and others and that her life and honour was in danger.
Thereupon respondent No, 2 issued warrants under section 552, Cr. P. C. For the recovery and production of Mst. Jewan before him on 25th May, 1981. On the day of hearing 1. e. 25th May, 1981 it was observed by respondent No, 2 that the warrants issued for the production of Mst. Jewan had not been executed by the Police. On that date, it was pointed out by the counsel for respondent No, 3 Mst. Azman that Ghulam Farid Allah Wasaya and others (the respondents of petition under section 552, Cr. P. C.) were present outside the Court alongwith the police officer responsible for the execution of warrants issued under section 552, Cr. P. C. On this the learned District Magistrate directed the learned counsel for Mst. Azman to identify the persons, who on being identified were brought into the Court by the Naib-Court. On being asked Ghulam Farid one of the respondents in a case under section 552, Cr. P. C. Stated that Mst. Jewan was his real daughter and that he had made preparation for her marriage. The learned District Magistrate respondent No, 2 directed Ghulam Farid and others to produce Mst. Jewan in the Court in compliance with the warrants already issued. The S. H.
0. Concerned was also brought before the Court.
' On the next date of hearing i. e. 30th May, 1981 Mst. Jewan was produced before respondent No, 2 by the Police and Ghulam Farid in compliance with the order of respondent dated 25th May, 1981.
Responden No, 2 recorded the statement of the alleged detenu and she stated as follows :- "I have been recovered by the Police from the house of my parent ior to that I was abducted by Mst.
Azman (respondent No, writ petition). Nawaz and others and I was recovered Police from the house of Nawaz one month before. I a ng detained by my parents against my wishes and I want and p of the by the not bei live with.
' After recording Magistrate for t (Annexure 'A') disputed claim for her custody could be got settled by a competent civil Court. It should be noted that the learned District Magistrate did not fix any period for the detention of Mst. Jewan in Darul Aman.
3. Learned counsel for the petitioner has submitted that the impugned order, dated 30th May, 1981 passed by respondent No, 2 was illegal and without lawful authority inasmuch as the learned District Magistrate while acting under section 552, Cr. P. C. Was not legally competent or authorized to send the alleged detenu to Darul Aman. He further submits that respondent No, 2 while passing the impugned order had lost sight of the fact that Mst. Azman, the maternal grandmother, who had moved the petition under section 552, Cr. P. C. Was one of the accused persons in a case under section 11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, registered at Police Station Kot Chhuttha with regard to the abduction of Mst. Jewan. It is further submitted that the learned District Magistrate did not take into consderaation the statement of the alleged abductee made before him wherein she had stated that Mst. Aziman, Nawaz and others had abducted her and that she was recovered from the house of Nawaz by the Police one month before the occurrence.
' He further submits that the birth entry referred to by respondent No,
2. In fact, did not concern the detenu as there is nothing to indicate that the alleged detenu was, in fact, the daughter of one Pehlwan and was not the daughter of Ghulam Farid, as admttied by her.
4. Learned counsel for respondent No, 3 on the other hand submits that since Mst. Jewan was a female child, in the circumstances of the case, respondent No, 2 was competent to send her to Darul Aman till the disputed claim for her custody could be settled by a competent Court.
He argued that respondent No, 2 ordered the detention of Mst. Jewan in Darul Aman in much the same way as the High Court passes an order for the interim custody of a detenu in habeas corpus proceedings.
5. This argument of the learned counsel cannot be accepted for the reasons that under rules 3 and 9 of Chapter 4-F of the High Court Rules and Orders Vol. V, when rule nisi in habeas corpus proceedings is issued the custody of the person/detenu stands under the control of the High Court.
This power enables the High Court to make suitable order for the custody of the detenu pending the hearing of petition under section 491, Cr. P. C. There is thus no parallel between the provisions of rules 3 and 9 of the habeas corpus rules made by this High Court and the powers of the District Magistrate under section 552, Cr. P. C. The rules made by the High Court have got statutory force and the High Court has thus all full powers to make suitable arrangements for the interim custody of a person brought before it pending the decision of the rule. No such power is however, available with the Distric Magistrate to detain a person in Darul Aman. Section 552, Cr. P. C. Reads as follows:- - "Upon complaint made to a District Magistrate on oath of the abduction of a woman, or of a female child under the age of sixteen years, for any unlawful purpose, he may make an order for the immediate restoration of such woman to her liberty or of such female child to her husband, parent, guardian or other person having the lawful charge of such child, and may compel compliance with such order, using such force as may be necessary."
The reading of section 552, Cr. P. C. Would show that the District Magistrate is required to immediately restore the woman to her liberty or such female minor child to the custody of her lawful guardian and that he is not authorized to keep the detenu in Darul Aman or in any other place against her wishes. She can only be restored to her husband, parent, guardian or any other person having the lawful charge of such child. I am of the considered view that Darul Aman, at least, does not come within the category of other person having the lawful charge of such child.
' Mst. Jewan, the alleged detenu, on 15th June, 1981 made the following statement in this Court :- "I was sent to Darul Aman by the order of the learned District Magistrate without my consent. I do not want to remain in Darul Aman any more. I want to go with my real father Ghulam Farid.
Questions suggested by the learned A. A.-G.
"It is incorrect to suggest that I am daughter, of one Pehlwan and not Ghulam Farid. It is also incorrect to suggest that after Pehlwan Mst. Sharman contracted a second marriage with Ghulam Farid. It is correct to suggest that Ghulam Farid wants to give my hand in marriage to one Ghulam Hussain and in lieu of that Ghulam Farid is to contract marriage with the sister of the said Ghulam Hussain. Mst. Aziman Mai is my real maternal grandmother. My nikah with Ghulam Hussain, was performed with my consent.
I have considered this aspect of the matter very carefully and am of the view that a minor may be restored to a person having the lawful charge of such child or to the lawful guardian without rather against her/his consent, wisdom behind being that those persons are legally authorised to keep a minor with them immaterial of the consent. But at the same time if the lawful guardian or person having the lawful charge of a minor exceeds limits by keeping or detaining the minor within four walls, certainly he would not be allowed to do so because if he is allowed to confine a minor against his/her consent in a particular place it would tantamount to laying down a dangerous rule, i. e. As if being minor is a curse or an offence. I am of the considered view that even if a lawful guardian confines a minor except otherwise expressly provided by law, he may prima facie be guilty of an offence punishable under section 342 of Pakistan Penal Code.
' I have been shocked to find an unfortunate aspect of the matter that the alleged detenu was got recovered in compliance with warrants under section 552, Cr. P. C. And sent to Dar-ul-Aman when all arrangements for her Rukhasati had been made on the basis of a disputed birth entry, the particulars of which apparently, did not tally with these of the detenu. It was done without applying mind to the statement of the detenu herself and to the fact that a Case for the abduction of the al1e8ed detenu had already been registered against Mst. Aziman the applicant of petition under sction 552, Cr. P. C.
For the foregoing reasons, I am of the considered opinion that the order dated 30th May, 1981 passed by respondent No, 2 whereby he sent Mst. Jiwan Mai to Darul Aman (where she has been kept for about one month) against her wishes till the disputed claim for custody could be settled by a competent Court was illegal, without lawful authority and the same is hereby set aside and this restores status quo, ante, i. e. Mst. Jewan Mai the alleged detenu would be free to live with her parents (as stated by her) from where she was recovered and brought in compliance with the warrants issued under section 552, Cr. P. C. Mst. Jewan Mai the alleged detenu is present in the Court. The impugned order directing her detention in Darul Aman having been declared illegal and without lawful authority has been set aside. Mst. Jewan Mai in her statement before learned District Magistrate had categorically stated that she wants to live with her parents and in this Court she reiterated the same, she is permitted to go with her parents from whose house she was recovered and brought before the learned District Magistrate in compliance with the warrrants under section 552, Cr. P. C. Issued by respondent No, 2.
' Before parting with the judgment I would like to point out that had the trend of the order dated 30th May, 1981 and his parawise comments not created an impression of bona fides on the part of learned Distric Magistrate I would have taken much serious view of the matter, however, the learned District Magistrate is expected to be careful in future while dealing with the liberty of human beings.
' Copy of the judgment be sent to learned District Magistrate, Dera Ghazi Khan.