1. ' Applicant abovenamed has filed the above petition for production of detenu Mst. Khadija daughter of Usman Kachhi, aged 13 years from alleged illegal, unlawful and immoral custody of the respondent No,2, on the facts and grounds mentioned in above petition.
2. ' In view of the orders of this Court detenu was produced and lodged at Darul Aman, where she continues to be lodged, even today.
3. ' Since there was difference in the age of detenu, as given in certificate produced by respondent No,2 and medical certificate of Police Surgeon, which is also on record, my learned brother Munawar Ali Khan,J., vide his order dated 17th August, 1983 directed, that medical board be appointed to examine detenu in respect of her age, in order to resolve conflicting claims of both the parties, in this connection. Unfortunately till today such fresh medical examination has not been done for one reason or the other. Consequently on 20th November, 1983, I recorded the statement of detenu in open Court and by my order of the same date, fixed the above matter for hearing without waiting for report from medical board, for the reasons given in my said order and consequently, I heard the learned counsel of parties and State counsel on 28th November, 1983, as in my opinion, the age of the detenu for purpose of offence under Zina (Enforcement of Hudood)
4. Ordinance (VII of 1979), under which case under sections 10, 11 and 16 of the said Ordinance has been registered against respondent Ko.2, will have to be taken into consideration, as per definition of 'Adult as given in the said Ordinance, Medical Board report will not mutually effect disposal of this appeal. I will deal with this question at appropriate place hereafter.
5. ' The learned Advocate for applicant in support of the above petition submitted as under: ' In view of criminal case pending against the respondent No,2, under the provisions of Zina Ordinance of 1979 and in view of the fact that detenu is below 18 years, and as such minor, her custody be given to applicant, who is real father. In support of this contention, the learned Advocate relied upon cases reported in PLD 1973 Lah. 591, 1975 P Cr. L J 732 and NLR 1979 SC 998 as well as on cases reported in 1982 P Cr. L J 133, PLD 1972 SC 6 and PLD 1974 Kar.
6. 985.
7. ' The learned Advocate appearing for the respondent No,2, on the other hand submitted, that Pakistan is Islamic State and on account of promulgation of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, which is special Act, age of the detenu is to be decided on the basis of section 2 (9) of the said Ordinance and accordingly on the basis of Civil Surgeon Certificate dated 17th July, 1983 detenu had become 'Baligh' much prior to the said certificate and was sixteen years of age and as such marriage contracted by her with respondent No,2, is legal and valid and consequently respondent No,2 is entitled to get custody of detenu and the provisions of Majority Act and eases cited by the learned Advocate for applicant do not apply to present case as in none of these Cases, effect of Zina Ordinance, 1979 was considered.
8. ' Learned A.A.-G. Appearing for the State on the other hand submitted that detenu per se is below 18 years and as such minor and hence her custody be given to applicant and not respondent No,2, against whom applicant has filed complaint of kidnapping, etc., which is still pending disposal, in view of cases cited by the learned Advocate for applicant.
9. ' I have carefully considered the above submissions made by the learned Advocates before me and have gone through the F.I.R., medical certificate and age certificate, etc. Produced before me. I have also carefully gone through various cases cited by the learned Advocates before me.
10. ' For purposes of Muslim marriage, Muslim law would apply, according to which, if a girl is pubert, she can contract a valid marriage of her own free will. In such cases the provisions of Majority Act would not be taken into consideration, in my opinion, specially in Islamic State of Pakistan. Keeping in view this conclusion of mine, I find that according to medical certificate dated 17th July, 1983 of Police Surgeon Karachi detenu was purbert/Baligh, at least a year before saici certificate and as such prima facie she could have legally contracted marriage with respondent No,2. Detenue in her statement, before me in open Court stated, that out of free will and against the wishes of her parents, she had married respondent No,2 and was happily living with him before she was apprehended and produced in above proceedings. She also expressed her desire to go with her husband respondent No,2. The contention of the learned counsel for applicant, that admittedly on the basis of even medical certificate in question, detenu is below 18 years she is minor and as such her custody be handed over to applicant, who is father of the detenu, specially as applicant has filed complaint under provisions of Hudood Ordinance, 1979, against the respondent No,2, in view of the cases cited by him, has no force in my opinion. I have carefully gone through the cases relied upon by learned Advocate for applicant, the acts of these cases are different and further effect of "Adult" as defined n Zina Hudood Ordinance, 1979 was not at all considered in those cases, or purposes of alleged kidnapping. The definition of "Adult: as given in section 2 (9) of the said Ordinance, the case for alleged kidnapping against respondent No,2, would require further inquiry at the stage of trial, which is yet to start. The second important consideration, in present edition is the welfare of the detenu, if she is minor as alleged by the applicants. In present case, on the last date of hearing in Court, while letenu was being taken out of Court room, she was beaten by her lother, in presence of applicant and Court had to intervene and warn applicant, his wife and other relatives. In view of this fact in my opinion, t would not be in the interest of the detenu to force her to go with her agents, even if she is minor, within the meaning of Majority Act, specially 'hen she has categorically stated, that she was staying out of her free will with her husband and respondent No,2.
11. ' Since detenu is Baligh/pubert and fully matured and looks about 6 years of age and is prima facie legally married to respondent No,2, I :cannot ignore her statement in open Court and disregard her wishes. [Therefore without finally deciding the question of her real age, I hold he is Baligh/pubert and it would not be in her interest to hand over custody to applicant, in view of the abovementioned incident, which happened in corridor of this Court, on the last date of hearing, as )rima facie, she had the right to marry respondent No,2, on her own, without the consent of her parents, as she is "Adult" within the meaning )f section 2 (9) of the Hudood Ordinance, on the basis of Police Surgeon 2ertificate dated 17th July, 1983.
12. ' In view of my above conclusions and findings, I set detenu Mst. Chadija d/o Usman Kachhi at liberty. She is free to go, wherever she ikes out of her own free will. Any observation made by me on merits Ind facts and pending case against the respondent No,2 are tentative and as such shall not be binding on the learned trial Court, while disposing of said pending case, against the respondent No,2. .