' This is a petition under Article 9 of the Provisional Constitution Order, 1981. The petitioner states that she had been married to Muhammad Ismail about two and a half years ago. On her relations became strained with her husband she filed a suit for dissolution of marriage which is pending in the Court of Judge Family Court, Multan. Muhammad Ismail respondent No,4 got a case registered against the petitioner under Articles 10, 11 and 16 of the offence of Zina (Enforcement of Hadd)
Ordinance, 1979 and section 380, P.P.C. Alleging that Ghulam Shabbir and 2 others had taken away his wife Mst. Jamila Bibi petitioner. Mst. Zohra mother of the petitioner submitted an application to the District Magistrate, D.G. Khan on 13-6-1984 under section 552, Cr.P.C. For the recovery and restoration of the petitioner to her. The learned District Magistrate, D.G. Khan recorded the statement of the petitioner on 1-10-1984 Annexure 'B'. In the said statement she stated that she was living in Darul Aman for the last 3 months and that she wanted to accompany Mauls Dad father of her brother-in-law. The District Magistrate got the petitioner medically examined in respect of her age and declared that she was sui juris. Vide impugned order, dated 1-10-1984 the District Magistrate sent the petitioner to Darul Aman as he did not feel inclined to let her go with Maula Dad. The operative part of the order is as under:-- "I do not feel inclined to let her go with Maula Dad respondent. Since she is not willing to go to her parents also, there is no alternative left for me but to send her to Darul Aman till further orders both .For affording necessary medical help in the conclusion of her pregnancy which is in late stages and also for saving her and others concerned from an immoral act which has been taken cognizance of, by police and they have even challaned her and Ghulam Farid for this under provisions of Enforcement of Hadd (Zina Ordinance), 1979. In arriving at this decision, I have benefited from the principle embodied in Lahore High Court decision reported in PLD 1971 Lah.
128."
2. Learned counsel states that since then she is in Darul Aman and has also given birth to a child aged less than a month. He further contends that since she was sui juris she could not have been sent to Darul Aman against her wishes and should have been set at liberty to pursue her cases. It is also stated that the case relied upon by the learned District Magistrate was not relevant to the facts of the present case because the petitioner was not going to live with her paramour and Mauls Dad, with whom she wanted to live is an old man.
3. Learned Assistant Advocate-General submits that in the circumstances of the case he is not in a position to defend the impugned order and has no objection to allow this petition and setting the petitioner at liberty.
4. In the circumstances discussed above, the petition succeeds and order of the District Magistrate is set aside being without lawful authority and of no legal affect. The petitioner is set at liberty, she may g where she likes.