' This petition has been filed by Mst. Bakhat Amna who is lodged in Darul Aman since 4-4-1997 under the orders of this Court. The petition is pending for the last six months.
2. Briefly the facts giving rise to the filing of this writ petition are that Mst. Bakhat Amna petitioner was married to one Abdur Rahim Fareedi which fact has been strongly controverted by her father Syed Atta Ullah Shah. According to him she was married to one Shahbaz Hussain. During the course of argument it has been revealed that Shahbaz Hussain has instituted a suit for jactitation of marriage in between Bakhat Amna and Abdur Rahim Fareedi which is at initial stage. The petitioner was lodged in Darul Aman on the hope that some conciliation will be effected in between the parties and the controversy in between the petitioner and father on one hand and Abdur Rahim Fareedi on the other hand may be resolved but unfortunately in spite of various adjournments no progress seems to have been made in that behalf rather the relations have become more strained. It has been disclosed by the learned counsel for Syed Atta Ullah Shah that a criminal complaint has been filed by the father wherein Mst. Bakhat Amna and her husband had been named as accused persons. Both of the accused have been summoned in that complaint.
Prior to filing of the complaint case F.I.R. No,469 of 1996 had been lodged on 15-12-1996 which according to the learned counsel for the petitioner had been got cancelled but the learned counsel for respondent No,2 Syed Atta Ullah Shah states that although a report praying for discharge of the accused has been made yet the case has not been finally cancelled by the Magistrate.
3. Be that as it may, the fact remains that Mst. Bakhat Amna was named as accused in the criminal case and subsequently in the criminal complaint. My learned brother Rao Iqbal Ahmad Khan, J.
With a view to ascertain the will of petitioner recorded her statement on 22-5-1997. She had been produced from Darul Aman wherein she stated that she was 18 years old. She got married to Abdur Rahim Fareedi and her Nikahnama with Shahbaz Hussain, dated 5-4-1996 according to her is false.
After recording her statement she was again lodged in Darul Aman as there was some indication that some conciliation of compromise in between the parties may be effected. The matter was adjourned for today.
4. Today, Malik Muntazir Mehdi, learned counsel for respondent No,2 has appeared. On Court query he has admitted that Mst. Amna is 18 years of age and also that criminal case got registered by her father had been recommended to be cancelled by the police. He, however, argued with vehemence that in such a situation she should be ordered to continue living in Darul Aman and has placed reliance on the case of Allah Bachaya v. Abdul Hakim, S.H.O. Civil Lines 1975 PCr.LJ 732.
The case has no bearing on the facts of the present case because admittedly the girl in that case was minor and she could not be set at liberty and her custody had to be given to the legal guardian. Naturally father has the first right of the guardianship of the minor. Then he also relied upon 1995 SCMR 942. In this case the girl being less than 18 years of age was allowed to continue with the father. Obviously the facts of that case are different from the facts of the present case. The learned counsel has also relied on some Fatawas given by eminent Muftis belonging to Bralvi School of Thought wherein it has been observed that any girl belonging to Hashmi Tribe i,e, Syed by caste cannot be married to a person who is not a Syed as such the marriage of the petitioner being Syed or being Syeda with Abdur Reheem Fareedi who is admittedly not Syed is invalid. I am not in a position to make any comments or pass any judgment on the point because admittedly a suit is pending adjudication before the learned Family Judge where any objection relating to the validity of the marriage can be taken and decision and decree will be awarded by the Court having the jurisdiction. At the moment I am concerned with the liberty of the petitioner who is admittedly major. Since she is not minor her custody cannot be given to any particular person. She being major has Constitutional right of freedom. I am, therefore, left with no choice but to set her at liberty.
5. Accordingly, she will not be lodged in Darul Aman any further because no body can be kept in Darul Aman for an indefinite period. She is, therefore, ordered to be set at liberty.
6. With these observations this petition is disposed of.