This is an application by one Muhammad Saghir under section 491 of the Code of Criminal Procedure, for the production of Mst. Shahnaz Parveen who was lodged in Darul Aman, Rawalpindi, and set her at liberty.
2. The facts leading to the petition are, that Mst. Shahnaz Parveen, the alleged detenu, who is about 18 years of age, is said to have been married by her parents to one Sajjad Hussain Shah against her wishes on 5th June 1971. She intended to marry one Haider Shah and, therefore, went over to live with him of her own free will on 20th June 1971. In the meantime, her husband Sajjad Hussain Shah got a case registered against aforesaid Haider Shah and one Muhammad Ghalib under sections 366 and 452 of the Pakistan Penal Code. The latter obtained interim bail from the learned Additional Sessions Judge, Rawalpindi. However, when they appeared before him on 17th September 1971, the bail was not confirmed and they were arrested. The police obtained their physical remand for a period of three days and they were produced in the Court of the Ilaqa Magistrate on 20th September 1971, whereafter, they were sent to the judicial lock-up.
3. On the same day, /. e. 20th September 1971, Mst. Shahnaz Parveen was producedin the Court of Mr. M. A. Lone, Magistrate 1st Class, Rawalpindi, presumably with a view to get her statement recorded. However, the learned Magistrate directed her to be lodged in Darul Aman for seven days.
He probably thought that since she had been recovered from the custody of the accused, she would favour them. She was ordered to be produced before the Duty Magistrate on 27th September 1971.
4. On the date fixed, Mst. Shahnaz Parveen was produced before Syed Fazal Hussain Shah, Assistant Commissioner, Rawalpindi, who sent her to the Court of Shaikh Ansar Basir, Magistrate 1st Class, Rawalpindi, for recording her statement under section 164 of the Code of Criminal Procedure. The latter recorded her statement which has been reproduced by the petitioner in para. 5 of the petition and runs thus :-- "I was married to Sajjad Hussain Shah on 5-6-71. This marriage took place against my wishes. On 20-6-71, I, of my own accord, accompanied Haider Shah to Lyallpur. I did not bring anything with me. Now I do not want to go to my husband Sajjad Hussain Shah. My parents effected my marriage forcibly. I neither wish to go to my parents nor do I intend to accompany my husband Sajjad Hussain."
After recording her statement, the learned Magistrate passed the following order :-- "In view of the statement and in the interest of law and order, she is sent to Darul Aman and be produced before Ilaqa Magistrate on 1-10-71."
Earlier to the last mentioned date, this Court had been moved by way of the present petition and, therefore, on 2nd October 1971, Mr. M. A. Lone, passed an order that the "girl shall remain in the Darul Aman till such time as the necessary orders are made by the High Court." It appears that it has been brought to his notice that this Court had been moved and that is why he passed this order. .
5. The detenu on an earlier occasion filed a complaint against her father and brother under section 107 of the Code of Criminal Procedure. She has also filed a suit for the dissolution of her marriage with Sajjad Hussain Shah. This was filed on 7th September 1971. It is pending in the Family Court at Rawalpindi.
6. A bailiff of this Court was deputed to recover Mst. Shahnaz Parveen from Darul Aman, Rawalpindi, and produce her on 4th October 1971. Pursuant to the order of this Court, Mr. Muhammad Ashraf Butt, bailiff of this Court recovered Mst. Shahnaz Parveen and produced heron 4th October 1971. On that day, besides the petitioner, Sajjad Hussain Shah, the alleged husband of Mst. Shahnaz Parveen appeared and put in an application that he should be impleaded as a party to these proceedings.
The application was allowed and he was impleaded as party. I did not record the statement of Mst.
Shahnaz Parveen on that day because I wanted to have a look at the copy of the order by which Shahnaz Parveen had been sent to Darul Aman by the Magistrate who recorded her statement under section 164 of the Code of Criminal Procedure. This and the connected orders were produced on 8th October 1971 and on that day, I proceeded to record her statement.
7. She deposed that she was not willing to marry Sajjad Hussain. The marriage was performed against her will. She refused to sign Nikahnama. Although she had studied up to the 8th Class, her thumb-impression was taken on it by force. She added that she did not wish to live with Sajjad Hussain Shah, and intended to marry Haider Shah, who was in jail in connection with this very case brought against him by her so-called husband Sajjad Hussain Shah. She indicated her desire to accompany the petitioner, who was a friend of her 'future husband' Haider Shah. She reiterated that she has filed a civil suit for the dissolution of her marriage with Sajjad Hussain Shah. She admitted that she left Sajjad Hussain Shah fifteen days after their so-called marriage. She also stated that she left his house of her own free will and joined Haider Shah on 20th September 1971.
Her statement was recorded more than three months after she deserted her husband on 27th September 1971 and then she was sent to Darul Aman in spite of her protest.
8. The sole question which arises for detemination is whether, the detention of Mst, Shahnaz Parveen in Darul Aman, Rawalpindi after her statement under section 164, Cr. P. C. had been recorded, is legal and proper. I am not concerned with the litigation pending between the parties and it will be for a competent Court. to decide, whether her marriage with Sajjad Hussain Shah took place of her free will. I have also no concern with the fate of the criminal case pending against Haider Shah and Muhammad Ghalib brought at the instance of Sajjad Hussain Shah. I shall only confine myself to the question, whether, Mst. Shahnaz Parveen could be kept in Darul Aman after her statement had been recorded,
9. There is no manner of doubt that Mst. Shahnaz Perveen was taken either by force or she went away of her own free will, with Haider Shah and as a result, Sajjad Jussain Shah got a case registered against him. There is also no manner of doubt that suit for the dissolution of marriage has already been brought by Mst. Shahnaz Parveen against her husband Sajjad Hussain Shah and is pending in the Family Court at Rawalpindi. Under the circumstances, on the relevant date, when Mst. Shahanz Praveen was produced before Mr. M. A. Lone, her position was that of a witness. All that was 'needed was that she should make a statement. Normally, therefore, her, statement should have been recorded on that very day. However, if any precaution was necessary, because she had undoubtedly come from the custody of the accused, she could have been sent to Darul Aaman for a day or two with a direction to the Superintendent of the Darul Aaman not to permit any party to meet her and then her statement should have been recorded. There does not appear to be any justification why Mr. Ansar Basir thought fit on 27th September 1971, after recording her statement, to send her to Darul Aman. Whatever she had to state had been stated by her.
Therefore to say that in vie,v of the statement made by her, she should be sent to Darul Aaman and thereafter produced before the Ilaqa Magistrate on 1st October 1971, does not stand to reason. This would undoubtedly amount to improper detention.
10. It was asserted before me on behalf of Sajjad Hussain Shah that since he was the husband of Mst. Shahnaz Parveen, she should be restored to him. The circumstances in which the parties are placed and the allegation which she has made against her husband and her parents and in view of the fact she is a major and an educated lady, I do not feel justified in giving direction that she should be restored either to her husband or to her parents. At any rate, her detention in Darul Aaman at Rawalpindi was not proper and legal. I would, therefore, while allowing the application, set Mst. Shahnaz Parveen at liberty. She may accompany anybody she likes. .