1. ' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan read with section 491, Cr.P.C. Has been moved by Muhammad Qasim son of Muhammad Hashim the brother of Mst.
2. Shahida Khatoon the detenue for issuance of rule nisi through S.S.P., District Nawabshah to secure the said detenue from illegal custody of respondents Nos.1 to 4 and produce her before this Court and to allow her to go according to her statement made before this Court.
3. ' The said Mst. Shahida Khatoon, the detenue, has been produced before this Court and her statement has been recorded. Mst. Shahida Khatoon in her statement has deposed that she has been residing with her husband Haji Muhammad Saleh who has wrongfully confined her and was not permitting her to meet her brothers, mother and father and stated that she wanted separation from her husband and would join her mother and brothers. In cross- .)carination she denied to have signed the Nikahnama. The respondent-husband has produced the Nikahnama as Exh.2 in support of his contention that Mst. Shahida Khatoon was his legally-wedded wife.
4. ' I have heard Mr. M. Nishat Warsi, learned counsel for the petitioner, who has placed reliance upon 1994 SCMR 1083 and 1983 PCr.LJ 204. Mr. Hidayatullah Ghulamali, learned counsel for the respondents, has argued that the said detenue Mst. Shahida Khatoon was legally-wedded wife of respondent No,1 and was given in Nikah by her father to him, therefore, she could not be said to be in wrongful confinement.
5. ' Mst. Shahida in her statement before this Court has deposed on oath that she has been wrongfully confined by her husband and was not even permitting her to meet her mother, brothers and father and wanted separation from her husband. Mst. Shahida Khatoon is sui juris and has supported the statement made in the petition. In Muhammad Rafique v. Muhammad Ghafoor PLD 1972 SC 6 case it was observed at page 8:-- "The High Court has two-fold jurisdiction under this section: (i) to deal with a person within its appellate criminal jurisdiction according to law; and (ii) to set him at liberty if he is illegally or improperly detained. The question which falls for determination, however, is that if the Court finds that the person brought before it was not being illegally or improperly confined or detained what order can be passed regarding the custody of that person.
6. ' If the person is a minor, the Court may take over his custody to the guardian which will be dealing with him in accordance with law, but if the person is major, the only jurisdiction which the Court can exercise is to set him at liberty whether illegally or improperly detained in public or private custody or not. The Court may set at liberty, but cannot restore status quo ante against the wishes of the person brought before it. Such a course will lead to curtailment of liberty for which there is no warrant under section 491 nor can such an order be sustained under section 561-A of the Code as it cannot be said that allowing a person freedom of movement is an abuse of the process of the Court."
7. ' In Sardar v. Khushi Muhammad 1973 SCMR 189 case at page 191 it was observed:-- "We are unable to accept this contention. In the first place although respondent Khushi Muhammad alleged that the father of the detenu passed her on to respondents Nos.2 to 4, the detenu said that she had been married to petitioner Sardara against her will. It is thus evident that not only the factum of the marriage but also its validity is in question. In the second place the fact of the case reported in PLD 1971 Lah. 128 were entirely different. In that case-the High Court found that the detenu was a married woman and that the application under section 491 of the Code of Criminal Procedure was a collusive affair between her and her paramour. In these circumstances the Court in the exercise of its discretion was correct in directing that the woman although a sui juris be restored to her husband. Any other course would not only have resulted in giving the Court's blessings to the immoral activities of two unscrupulous persons who, in Islam, were liable to extreme penalty, but also could have deprived her of an opportunity to correct herself. If the petitioner is really the husband of the detenu, and bona fide wants her to be restored to him, the proper course for him is to approach the Civil Court for restoration of his conjugal rights."
8. ' In Mst. Bibi v. Hussain Bakhsh alias Hussania 1983 PCr.LJ 141(1) case detenue's husband was not permitting her to meet her parents and was keeping her in illegal detention the detenue being sui juris was allowed to go wherever she liked. In Muhammad Tufail v. Muhammad Hanif 1984 MLD 1489 case the detenue stated that her husband had kept her at his house forcibly and did not allow her to see her parents, she was set at liberty and was allowed to go with her father. In Haji Hafiz Ali v.
9. Noor Muhammad and others 1983 PCr.LJ 204 case it was held that detenue in her statement alleging that she was major and had been kept under duress by her husband and did not want to go back to her husband, the said detenue was set at her liberty to go wherever she want.
10. The detenue Shahida Khatoon has stated before this Court that she has been wrongfully confined by her husband, the respondent No, 1 . She is sui juris and cannot be kept or confined against her will and wish, therefore, she is set at liberty to go wherever she would like, consequently the petition is allowed in terms of the above order.