1. ' ABDUL LATIF U. QURESHI, J.--- This is an application for issuance of direction in the nature of a habeas corpus for setting at liberty one Mst. Sakina daughter of Gul Sher and wife of Jan Muhammad Dal. It would be advantageous to give the facts in brief for better appreciation of the contentions raised by the learned counsel.
2. ' Mst. Sakina who hereinafter shall be called as a detenue, is the daughter of one Gul Sher Khokhar and she being major and pubert, married to Jan Muhammad the brother of the applicant herein on 20-7-1994, and such Nikahnama (Annexure "A") is on record. After their marriage, both detenue and Jan Muhammad lived a happy life. Gul Sher the father of detenue being a greedy person had been making demands of money from his son-in-law Jan Muhammad, which to certain extent were acceded to but when his demands became innumerable, Jan Muhammad refused to accede to such demands which annoyed Gul Sher and he tried to influence his daughter Salcina to seek divorce from Jan Muhammad. On her refusal to do so, Gul Sher threatened to implicate Jan Muhammad, Sakina and other relations in false cases. Because of such threats, the detenue appeared before Mukhtiarkar and F.C.M., Kunri and swore an affidavit (Annexure "B") giving the details of her marriage with Jan Muhammad, and the threatened actions proposed to be taken by her father. She also published an article in daily Ibrat, dated 2-12-1994 (Annexure "C") with her photograph making reference to the affidavit sworn by her before the Magistrate and the threatened action by her father of implicating her husband and others in false cases.
3. ' This act of detenue annoyed her father Gul Sher who managed to file a false case being Crime No,104/1994 under section 366-A, 147, 148, 149, P.P.C. At Police Station Digri, alleging therein that her daughter was kidnapped by Jan Muhammad and 4 others. Copy of the F.I.R. (Annexure "D") is on record. Police arrested Jan Muhammad as also detenue from their house and on 5-1-1995 produced detenue before the Medical Superintendent, Taluka Hospital, Digri for her medical examination and determination of her age. The detenue was medically examined by the Women Medical Officer who certified her age to be 16 years and further that no signs of violence were noticed on her person. Medical Certificate (Annexure "E") is on record. The detenue was kept at Police Station Digri where her husband and other relations had no access but as against that her father was permitted to meet her and pursuade her to give statement against Jan Muhammad but she did not succumb to such pressure. On 10-1-1995 the detenue was produced by Digri Police before the Judicial Magistrate at KO- Ghulam Muhammad for her 164, Cr.P.C. Statement although she was never made a witness in the case. Instead of recording her statement the respondent No,3 on the request of A.S.I. Muhammad Yousuf Bhatti remanded the detenue to Darul Aman, Hyderabad in the custody of respondent No,2. On 17-1-1995 the detenue was again produced before the respondent No,3 for recording her 164, Cr.P.C. Statement but on this date on an application moved by her father through an Advocate and on the basis of a managed School Leaving Certificate indicating the detenue to be minor, requested for her being referred to a Medical Board for examination and determination of age. The respondent No,3 acceded to such request and directed the constitution of a Medical Board for ascertaining the age of detenue and again remanded detenue to Darul Aman till 25-1-1995. The medical report dated 24-1-1995 was received giving the age of detenue as "about 15 years" and till this date she is still in Darul Aman under the orders of the Judicial Magistrate (respondent No,3). Through this petition which is filed by the brother of detenue's husband Jan Muhammad, who was arrested by police in the criminal case by Gul Sher, it is sought that the detenue be brought before the Court to be dealt with according to law and to set her at liberty in view of the facts and circumstances of the case.
4. ' Mr. Ghulam Moinuddin Baloch, Advocate moved an application on behalf of detenue's father to be joined as a party as according to him some facts were distorted by the petitioner. Having heard him in support of his application, we allowed the application and then at his request heard him first. It has been contended by Mr. Baloach that no habeas corpus petition can be filed for furthering illicit love affair and avoid criminal prosecution for kidnapping/abduction of woman. He referred to the case of Shoukat Ali v. Altaf Hussain Qureshi and another 1972 SCM R 398 where the Supreme Court observed that the relief under section 491, Cr.P.C. Was justifiably refused by the High Court as the Courts do not function in vacuum and must take due note of social and moral environments prevailing in the community, such as tendency on part of some young men to abuse provisions of section 491 in furtherance of their illicit love affair. He also referred to the case of Muhammad Safdar v. Assistant Director, Social Welfare and others 1988 SCM R 2097. In the said case there was a contest between her parents and the alleged husband, the detenue being under 18 years of age but willing to go with her alleged husband and refusing to go with her mother when both were present in Court. The High Court dismissed an application under 491, Cr.P.C. By the husband. In appeal before the Supreme Court it was observed that the legality of marriage of detenue with alleged husband was yet to be determined by Court of competent jurisdiction and the detenue ordered to be remanded in Darul Aman and the question of her custody was directed to be decided by Court of competent jurisdiction in appropriate proceedings and not in summary proceedings.
5. ' Mr. Baloach's contention is that because the detenue is certified by Medical Board to be 15 years of age and she being minor, her custody may not be given to her husband but she be kept in Darul Aman till the question of her custody is decided by a competent Court having jurisdiction.
6. ' Mr. Roshan Issani learned counsel for the petitioner has distinguished before us the two authorities referred by the counsel for the father of the detenue. In the case reported in 1972 SCM R 398, learned counsel points out that the detenue was not before the Court and there were two statements given by her which were contradictory in nature. In the instant case there are no similar circumstances but the detenue in this case has constantly taken a stand of being major, pubert and having married Jan Muhammad of her own accord. Learned counsel also distinguished the case reported in 1988 SCMR 2093 referred by the counsel for detenue's father and it has been argued that in the said case the girl and the boy were charged for an offence under section 294, Cr.P.C. And the facts of the reported judgment are thus distinguishable.
7. ' The learned counsel reiterated the facts as given by him in the petition and argued that a woman who is major, pubert and married in accordance with the Muslim Law and who is not accused in a case, cannot be kept in Darul Aman under the orders of a Magistrate who could not try the case under section 366-A of P.P.C. Etc., but before whom the detenue was produced only for recording her 164, Cr.P.C. Statement. Learned counsel also referred to the statement of the detenue recorded by this Court on 25-1-1995 wherein she had shown a desire to be set at liberty and to go with her husband. Learned counsel referred to the case of Mauj Ali v. Syed Safdar Hussain Shah and another 1970 SCM R 437, wherein the Supreme Court of Pakistan held that the order of the High Court allowing the girl to go with her husband with whom she contracted a marriage of her free will and the marriage was valid according to Muhammadan Law, was justified. It may be observed that in the said case the girl had attained puberty under the Muhammadan Law. It was also observed that the High Court rightly held the contention that marriage was invalid under Child Marriage Restraint Act, 1929, as having no force. Learned counsel then referred the case of Muhammad Nazeer v. The S.H.O., Police Station Shahpur and others 1973 SCM R 351 in which case a father had made first information report alleging abduction of her daughter by some named persons. The lower Court without recording girl's statement whether she was major or minor, handed over her custody to police for further investigation. It was held that the girl not being an accused could not be handed over to police custody. Her statement was recorded before the Supreme Court and on her statement that she was major and married to Muhammad Nazeer and wished to go with him, set the girl at liberty and allowed to go with Muhammad Nazeer. Reliance was then placed on the case of Muhammad Ashiq v. Superintendent of Darul Aman, Lahore 1973 PCr.LJ 79, where it was observed in a habeas corpus petition that the allegedly abducted girl attaining the age of 15 years and stating to have married the alleged abductor could not be ordered by a Magistrate to be detained in Darul Aman against her wishes. It was also observed that the girl being over 15 years of age could legally contract marriage and was entitled to go with her husband. Reference was also made to the case of Mst. Musarrat Fatima v. District Magistrate, Hyderabad 1986 PCr.LJ 2436 where the order of the District Magistrate detaining an adult petitioner who was sui juris was quashed and it was observed that as she having embraced Islam and married and wanted to go back with her husband, could not be kept in Darul Aman. The petitioner was in the circumstances set at liberty.
8. ' We have considered all aspects of the case and have also gone through the case-law referred by the learned counsel. The admitted facts are that the detenue is pubert, sui juris and contracted marriage with Jan Muhammad out of her free will. This happened long before the F.I.R. Was registered. There is force in the contention of petitioner's learned counsel that because detenue's husband Jan Muhammad could no more meet the desires of detenue's father Gul Sher, a false case was filed to involve detenue's husband and others so that they could give up their claim over the detenue. It is also not in dispute that the detenue was produced before respondent No,3 as a witness in the criminal case so that her 164, Cr.P.C. Statement be recorded. The respondent No,3 could only record or refuse to record statement but not direct the detenue be sent to Darul Aman unless there was an apprehension shown by the detenue that her life would be in danger with either of the parties. Twice she was produced before the Magistrate (respondent No,3) but each time her statement was not recorded but on the contrary a Medical Board was constituted by the respondent No,3 who examined the detenue and have certified her to be pubert and 15 years of age. The case-law referred by learned counsel appearing for detenue's father is distinguishable on facts and does not cover the case in hand. In her statement recorded by this Court on 25-1-1995 the detenue admitted having married Jan Muhammad and shown a desire to be set at liberty to go with him. The detention of the detenue in Darul Aman, Hyderabad, is illegal and improper. We, therefore, allow this petition and direct the detenue to be set at liberty. She being pubert and sui juris would be at liberty to go wherever she likes.