1. JAVID IQBAL, J.--Leave to appeal in this case was granted against two orders passed by a learned Single Judge of the Lahore High Court, Lahore, dated 31st May, 1986 and 30th June, 1986.
2. The background is that Mst. Maryam Bibi respondent had moved an application under section 491, Cr.P.C. Before the Lahore High Court, Lahore (Criminal Miscellaneous No. 199-H of 1986) praying that Mst. Nur Safia detenu may be ordered to be recovered from the illegal custody of Mian Muhammad Tufail, Inspector, S. H .0. , Police Station Pindi Bhattian, Chaudhry Imtiaz Ahmad, A.S.I., Police Station Pindi Bhattian, and Bashir Ahmad resident of village Machhu Nikka, Police Station Pindi Bhattian, and be produced in that Court so that she could be set at liberty. The alleged detenu namely Mst.
3. Nur Safia was produced before the Learned Single Judge of that Court on 31st May, 1986. The learned Single Judge ordered her statement to be recorded as she was aged 20 years and sui juris.
4. She made the following statement: ---- "My parents are alive. I have been brought up by them. They are present outside the Court. I had not been abducted by any body nor have I got registered any case against any body. I have appeared before this Court today from Darul Amman. Before that I was confined in P.S. Pindi Bhattian. I was kept there against my will. I was not produced before any Court at Ferozewala nor did I make any statement before any Court. The police had subjected me to torture and obtained my thumb impressions and then produced me before a Court at Sheikhupura where my statement was recorded. The said statement was recorded through police coercion. After my statement had been recorded the police delivered my custody to my parents. I do not want to accompany my parents but want to accompany my Khala Mst. Bhaki. I had informed the Magistrate about it. Mst.
5. Bhaki was not present on that date. That statement was recorded on 13-5-1986. The police have misbehaved with me during investigation. I want to accompany Mst. Maryam Bibi petitioner who is Phuphi of my father as also Mst. Bhaki my Khala. I do not want to accompany my parents because they want to give me in marriage to a person of evil repute. I am unmarried."
6. Briefly the facts are that Muhammad appellant before us is real father of Mst. Nur Safia aged about 20 years. She was stated to be married to Bashir Ahmad on 2nd September, 1985, but the Rukhsatf did not take place. After a few days the present appellant on 21st September, 1985 got a case registered at Police Station Pindi Bhattian under section 16 of Ordinance VII of 1979 about the abduction of Mst. Nur Safia. It was stated in the F.I.R. That on 14th September, 1985 Dost Muhammad sent his wife Mst. Bhaki and his daughter Mst. Sughrato the house of the appellant to take Mst. Nur Safia to a graveyard to offer Fateha on the grave of a relative. Mst. Maryam Bibi respondent also accompanied them. Mst. Nur Safia did not come back to the house and after a futile search an F.I.R.
7. Was lodged by the appellant at the aforesaid police station. Eventually Mst. Nur Safia was secured on 13May, 1986. She was produced before a Magistrate where her statement was recorded under section 164, Cr.P.C. In that statement she involvedall the persons named in the aforesaid F.I.R.
8. Including Mst. Maryam Bibi respondent as her abductors. She also stated that during the period she remained in the custody of these accused persons, Haq Nawaz, her Khala Mst. Bhaki's son had been committing Zina with her. After the recording of this statement the Magistrate allowed her to go with the appellant. Later on Mst. Nur Safia got another statement recorded in which she alleged that her parents wanted to marry her with a person not of her choice whereas she wanted to marry her cousin Haq Nawaz. She also filed a suit for jectitation of marriage against Bashir Ahmad aforementioned. Eventually on 13th September, 1986 Mst. Maryam Bibi respondent filed Criminal Miscellaneous No. 199-H of 1986 for the recovery of Mst. Nur Safia from illegal custody of the S. H.O. , A.S.I. Of Police Station Pindi Bhattian and Bashir Ahmad contending that she was being illegally detained by the said persons after she was forcibly abducted from the house of her aunt. Mst. Nur Safia in the meantime also filed a complaint under section 452/506,P.P.C. In the Court of the Magistrate Sargodha against the present appellant, Bashir Ahmad and others. In this complaint too her statement was recorded in which she had inter alia stated that she would like to marry Haq Nawaz. In Criminal Miscellaneous No. 199-H of 1986 a bailiff was deputed by the learned Single Judge of the Lahore High Court, Lahore and with the assistance of the police Mst. Nur Safia was recovered. After keeping her in Darul Amman for a few days her statement was recorded which has been reproduced above and as per her wishes she was allowed to go with Mst. Maryam Bibi respondent and Mst. Bhaki as these ladies were closely related to her. In the subsequent petition under section 561-A, Cr.Pk.C. Namely Criminal Miscellaneous No. 403-M of 1986 it was pleaded on behalf of the present appellant before the same learned Single Judge that it could not be brought to his notice that Mst. Maryam Bibi respondent as well as Mst. Bhaki were accused persons in the F.
9. I. R. Got registered by the appellant at Police Station Pindi Bhattian about the abduction of Mst. Nur Safia. It was also contended that the earlier statement of Mst. Nur Safla, dated 13th May, 1986 made before a Magistrate at Ferozewala was also not brought to the notice of the learned Single Judge in which she had implicated them in her abduction. However, in the habeas corpus petition filed by Mst. Maryam Bibi respondent, the accused party managed to get recorded a statement of Mst. Nur Safla favourable to Mst. Maryam Bibi respondent in order to spoil the case got registered against her and others by the appellant. It was in this background that it was prayed that the order passed by the learned Single Judge on 31st May, 1986 be recalled and that the custody of Mst. Nur Safla be restored to the appellant. Learned Single Judge dismissed this petition for the reasons that the order, dated 31st May, 1986 was passed on the basis of the statement made by Mst. Nur Safia and that in order to ensure that she had made a statement without any pressure or extraneous influence she was lodged in Darul Amman for a few days before appearing in the Court and thatth the learned Single Judge on being satisfied that she was making the statement voluntarily, her statement was recorded. It was also held that since she was sui juris, due regard was paid to her wishes and, therefore, she was allowed to go with her close family relatives namely Mst. Maryam Bibi respondent and Mst. Bhaki.
10. Before us it was contended by the learned counsel for the appellant that by allowing the petition under section 491, Cr. P. C . And permitting Mst. Nur Safia to go with the respondent Mst. Maryam Bibi. The learned Single Judge did not care to enquire into the matter as to whether the said application had been made bona fide, As a result the learned Single Judge had handed over the custody of Mst. Nur Safia to Mst. Maryam Bibi respondent who is one of the accused persons in the case registered at the instance of the appellant under section 10/16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. It was submitted that in the earlier statement recorded under section 164, Cr.P. C. By a Magistrate, Mst. Nur Safia had clearly implicated Mst Maryam Bibi (respondent) as one of the accused persons of her abduction in the case registered against them.
11. It was likewise argued that the habeas corpus petition was filed by Mst. Maryam Bibi respondent with no other object except to create a defence and also to further the illicit love affair between Mst. Nur Safia and Haq Nawaz son of her Khala, Mst. Bhaki. In this connection reliance was placed on Shaukat A.I v. Altaf Hussain Qureshi 1972 SCMR 398.
12. We have carefully considered the arguments of the learned counsel but do not find any force in them. Firstly, the matter which was before learned Single Judge was a habeas corpus petition in respect of the recovery of Mst. Nur Safia and her production before the Court. When Mst. Nur Safia was produced before the learned Single Judge it was evident and an admitted fact that she was sui juris. Nevertheless the learned Single Judge ordered that she be kept in Darul Amman for a few days before her statement was to be recorded. When her statement was recorded she stated that she had been confined in the Police Station Pindi Bhattian and s kept there against her will. The police subjected her to torture and had misbehaved with her during investigation. She did not want to accompany her parents but wanted to go with her Khala Mst. Bhaki. Since Mst. Bhaki was not present on that date she wanted to accompany Mst. Maryam Bibi respondent who was the Phuphi of her father, but she did not want to accompany her parents i.e. Present appellant because according to her they wanted to give her in marriage to a person of evil repute, She stated that she was unmarried and it was also pointed out that her earlier statement before the Magistrate implicating Mst. Maryam Bibi (respondent) and others in her abduction was recorded under coercion of the police and the appellant. Since this was the position, in our considered opinion the girl being sui juris, her statement having been recorded voluntarily, the learned Single Judge was justified to pay regard to her wishes and to let her go with her close female relatives i.e, Mst.
13. Maryam Bibi (respondent) and Mst. Bhaki. The facts of the cited authority, namely, 1972 SCMR 398 are distinguishable. In that case the habeas corpus petition had been moved in a male fide manner by the paramour to obtain custody of the girl and disgrace her parents. But in the present case the learned Single Judge has allowed her to go with Mst. Maryam Bibi (respondent) who happens to be a very close female relative of Mst. Nur Safia, being Phuphi of her father, namely the present appellant. In that view of the matter, the aforesaid orders passed by the learned Single Judge do not call for any interference. The result is that this appeal is dismissed. The order of this Court to the effect that Mst. Nur Safia be lodged in Darul Amman pending disposal of the appeal is hereby recalled and she is permitted to go and live with Mst Maryam Bibi respondent according to her choice.