' Mst. Shazia Siddique is daughter of Muhammad Siddique, petitioner. Her age is 14-1/2 years. She is a student of Girls Inter College Khuiratta, studying in IX-Class. On February 28 last, she left home for her college. On her way to the College, she was abducted by the respondents. The report was made to the police. Some of the accused who were ascribed the allegation of connivance and abetment, secured their release on bail pre-arrest. The police failed to recover the girl as, according to the petitioner, the opposite-party enjoyed sufficient influence. In the circumstances, it was felt advised to move a habeas corpus petition under section 491, Cr.P.C. Process was issued and S.P. Kotli was directed to produce the alleged detenu in the Court.
2. Mst. Shazia Siddique appeared in the Court alongwith Ch. Muhammad Taj, Advocate Mirpur. She submitted an application wherein it was stated that she was major and literate, as such was well aware of her welfare and interest. She denied having been kept in illegal confinement. She further stated that she married Muhammad Zaeem of her own free choice.
3. It is undenied that Shazia Siddique is a student of IX-Class. According to the date of birth entered in the School register, she was of the age of about 15 years. The allegation of her abduction was accompanied by the allegation of commission of Zina and illegal detention by the culprits.
4. The object of the provisions of section 491, Cr.P.C. Is to secure liberty and presence of alleged detenu. Thus, the law provided various positions of illegal detention and empowered the Court to direct production of a detenu to deal-with him in accordance with law and to set him free if found so entitled.
5. Ordinarily, the provisions can be invoked in either of the cases listed under section 491, Cr.P.C. In present case, the abductee should have been recovered by the police in due course of its investigation. The police failed to do so for reasons unknown. Be that as it may, the fact remains that the girl has appeared in the Court. Therefore, she has to be dealt with in accordance with law.
6. According to the School certificate and affidavit of father of the girl, she is minor and unmarried.
Prima facie, the School certificate containing the age of the minor has to be accepted as a proof of age of the girl. Therefore, besides the affidavit of the father of the minor, the School certificate provides ample proof to hold that she is minor.
7. Restore her to the custody of her parents. During the arguments, a proposal was put forward to allow the parties to reach an agreement, to avoid multiplicity of litigation and to put an end to the grievances occurred due to alleged abduction of the girl. Keeping in view the respective claims of the parties and the age of the girl, it is permissible to accept the suggestion and to dispose of the petition in the light of the agreed position of the parties.
8. Raja Sikandar Khan is closely related to both the parties. He is a respectable of the locality. It is agreed between the parties that till the parties reach a definite compromise, the girl should stay in the house of Sikandar Khan. The petitioner, the girl and the respondents have assented to this.
9. In identical situation in Mst. Bachino's case 1975 P Cr.L.J. 732, Mr. Justice K.E. Chauhan, disposed of a habeas corpus matter relating to a minor girl in the following manner:-- "The present, however, is an application under section 491 of the Criminal Procedure Code, in which I think I should not hold any detailed enquiry or record any positive or conclusive finding, because these proceedings are generally of a summary character and also because an F.I.R. Against the respondent stands duly registered in which chalfan has been recommended and the case may go for trial before a Court of law which will be a proper forum to attend to all these matters in detail in accordance with the usual procedure. For the present I think I can safely proceed on the tentative view that the girl is a minor (according to my view still below 15 years of age) and it will not be just, proper and fair or in her own interest or welfare morally or otherwise, on the type of evidence brought on the present record, to let her remain with the respondent A.S.I., in this case, because, in case after trial the respondent is found guilty for an offence under section 363, etc. Or if the conversion and marriage are held to be illegal, invalid, colourable and fake then the damage and harm which may take place on account of the girl having remained with the respondent would be irreparable. On the other hand, if the ward remains with her parents who, according to her tentative age for the present accepted by me, are obviously her legal guardians and in whose custody or hands even otherwise no harm can come to their own daughter, the interest of justice and all concerned will be served if the girl is handed over to them after imposing certain terms and conditions in the welfare of the ward. On my part I was prepared to act on the principle contained in section 25 of the Guardians and Wards Act VIII of 1890 and to hand over the ward to the mother in the interest and welfare of the ward and her morals till the respondent. A.S.I. Established in a proper Court of law his right to have her custody but in view of the joint wishes of all concerned, exercising my powers under subsection (1) of section 491, Cr. P.C., I direct that the girl should not be handed over to Abdul Hakim, A.S.I. Respondent but should remain in Darulaman for a period of six months, during which time, I hope that the criminal case will be finalised one way or the other."
The proposition under consideration is almost very close to the proposition and facts in the aforecited case. However, the difference is that in the case cited, the girl was sent to Darulaman by virtue of consent of the parties. In present case, both the parties have agreed that the girl should stay in the house of Sikandar Khan Raja till such time they reach a compromise or otherwise the criminal case is decided in dur, course of time. Therefore, it is ordered that Shazia Siddique shall live in the house of Raja Sikandar Khan till the parties reach an agreement and effect compromise or till the decision of the criminal proceedings registered against the accused. The petition is disposed of accordingly.