1. WAHEEDUDDIN AHMAD, J.-This appeal by special leave is directed against the order of a learned Single Judge of the Lahore High Court in Criminal Miscellaneous No. 426/H of 1972, dated the 24th July 1972. By this order, the custody of Mst. Fatima Bibi was handed over to the Investigating Officer.
2. Mst. Khatiba alias Fatima Bibi was betrothed to the brother of the appellant Muhammad Saeed son of Muhammad Amir more than two years back but the father of the girl, Yara son of Ahmad wanted to resile from his promise. The girl who is a major and more than 16 years of age, came to the brother of the appellant and after swearing an affidavit before the Magistrate at Lyallpur on the 15th May 1972, she contracted a valid marriage on the same date and since then has been living happily with her husband at Cantonment Kharian, where her husband is serving in Pakistan Army as Sepoy. Later on, the father of the girl lodged F. I. R. Under sections 363 and 366, P. P. C. At Police Station, Shahpur, District Sargodha alleging that five persons, namely, Muhammad Saeed, Muhammad Amir, Shah Wali and two others had abducted his daughter Mst. Shahzadan. The Ilaqa Police examined the medical certificate in which the girl was declared as 17/18 years of age, and they took no action and the investigation remained pending up to the 3rd July 1972.
3. On the 20th July 1972, two persons, namely, Muhammad Amir and Shah Wali were taken to the police station and were detained without telling them that there had been registered a case against them. Respondent No. 2 kept them illegally and improperly for 8 days and did not produce them before the Ilaqa Magistrate. The detenus were also given beatings and humiliated. They were asked to produce the girl Mst. Fatima Bibi. Thereupon, the appellant being a son of Muhammad Amir detenu filed a habeas corpus Application No. 426/11 of 1972 in the Lahore High Court. The Lahore High Court directed the bailiff of the Court to produce the above-mentioned detenus. On the 24th July 1972, the A. S. I. Produced the First Information Report regarding the detention of two detenus. On this. The learned Single Judge in Chamber verbally ordered the appellant party to produce the girl. In compliance with his order, the girl was produced there and then. The learned Single Judge, by his order dated the 24th July 1972, directed the A. S. I. To take into custody the girl, namely, Mst. Fatima wife of Muhammad Saeed. Ms: Fatima, who is a major and married, raised hue and cry but of no avail. The two detenus were also given back to the Ilaqa Magistrate without recording their statements. The appellant's submission is that the said order of the learned Single Judge is illegal and without jurisdiction and ultra vires.
4. Special leave was granted in this case to consider the question whether the learned Single Judge had jurisdiction to order the handing over the custody of the girl to the police in s matter in which she was not a party.
5. Mr. Hassan Ahmad Kanwar, learned counsel for the appellant, has contended that no case has been registered against Mst. Fatima and the learned Single Judge had no jurisdiction either under section 491 of the Criminal Procedure Code or under section 561-A of the said Code to hand over the custody of Mst. Fatima to Police Inspector. He further contended that the girl is married and major and should not have been handed over to A. S.I. According to the learned counsel, the learned Single Judge had no suo motu powers to make any such direction. The contention of the learned counsel is not without force.
6. Notice was issued to the Advocate-General, Punjab. He has also supported the case of the appellant that the order in question is illegal and without jurisdiction.
7. After hearing the learned counsel for the parties, we are satisfied that the learned Single Judge could not hand over the custody of the girl to A. S. I. Ilaqa as no case has been registered against her. The case was registered against Muhammad Amir and Shah Wali. In such circumstance, no order could be passed against Mst. Fatima Bibi. It is strange that the learned Single Judge did not record the statement of the girl to find out whether she is major or minor and handed over the custody of the girl to the Ilaqa Police for further investigation. This procedure is not warranted by any provision of the Criminal Procedure Code or any other law. The girl has appeared before us.
8. Her statement has been recorded. She is major and is married to Muhammad Saeed. She wants to go with her hus--band. In these circumstances, the appeal is allowed and Mst. Fatima Bibi is set at liberty to go with her, husband.