' K. E. CHAUHAN, -Mst. Parveen Akhtar daughter of Muhammad Zakir, Caste Mirasi (hereinafter called the detenu) had allegedly illicit relations with a boy Muhammad Tahseen aged 18/19 years son of Subedar Nawab Din. The boy was caught red-handed in a roam in the house of the father of the girl. He was allegedly murdered on the spot by (1) Nur Muhammad grandfather and (2) Qadir Bakhsh alias Qadir uncle of the girl. The body of the paramour was cut into pieces and then disposed of in some place. Muhammad Zakir father of the girl filed a petition Cr. Misc. No, 580-H-76 under section 491, Cr. P. C., alleging that his daughter was being illegally detained by the police. In that application he made no mention of the aforesaid incident. However, in pursuance of the process issued by this Court the detenu was produced in Court on 15-9-1976 by the Bailiff (not from the custody of the police but as found sitting in a station-wagon in the company of certain other persons). On that date, two police officials also appeared in Court and disclosed the above facts.
They pointed out that petitioner Muhammad Zakir was rather an accused having taken part in the cutting and disposing of the body of the deceased paramour. The girl made a statement that she would like to go with the father of her paramour. She admitted that she was married to one Hafeez but added that as she had danger to her life from her husband, therefore, she would not like to go with him. She stated that her age was 13/14 years but then corrected and said that she was of 17/18 years. She also deposed that she would not like to go with her father because from him also she had danger to her life. As the age of the girl was in doubt, therefore, the case was adjourned for arguments to some other date. In the meantime Muhammad Zakir father of the girl was arrested and is now confined in Jail. Mst. Barkat Jan mother of the girl then filed Cr. Misc. No, 960.M-76 read with Cr. Misc. No, 953-M-76, submitting that in the circumstances the custody of the girl should be handed over to her. The father of the deceased paramour was also present and he desired that in accordance with the wishes of the girl her custody should be given to him. On the last date of hearing, namely, 16-12-1976. Hafeez husband of the girl also appeared and verbally submitted that the custody of his wife should be handed over to him. It may be mentioned that the girl has made a statement under section 164 of the Code of Criminal Procedure before a Magistrate in which she has admitted that the deceased boy was with her in her room on the fateful day when he was done to death by her grandfather and uncle. The grandfather, however, has expired in jail.
2. The first question to be attended to is as to what is the age of the girl. We have on record an X- Ray of bones of the girl together with an ossification report of the Doctor dated 5-10-1976, wherein he has indicated that the age of the girl is between sixteen and seventeen years. There is no other authentic evidence on the present record before us to show that she is a major. In that view of the matter for the purpose of the present proceedings we would proceed on the basis that the girl is yet below 18 years of age (i,e,, between 16 and 17 years) and is a minor under the Majority Act IX of 1875.
3. The next question is as to whom the custody of the girl, in the circumstances of the case, should be handed over. No doubt for the purposes of marriage the girl being above 15 years of age is a sui juris and from that point of view is free to act in that matter. Under Muhammadan Law, a husband of a minor wife is her legal guardian and has a right to have her custody but as in this case the girl has refused to accompany her husband, she cannot be compelled to go with him against her wishes, especially when the husband verbally conceded before us at the Bar that though his marriage with the girl was solemnised somewhere in 1973, but rukhsati had not yet taken place.
Obviously, it is not for this Court to stage a rukhsati of an unwilling girl in the circumstances hereinbefore mentioned. The next candidates left in the field are the mother of the girl and the father of the deceased paramour. We find that the girl is a Mirasi by caste and is not related to the paramour's family who are utter strangers to her. In these circumstances, it is neither just not fair, and nor in the welfare of the girl to hand her over to the paramour's father. Rather if the prosecution story is correct then handing over the girl to paramour's father will tantamount to putting a premium on the immoral activities of the paramour and the Court cannot be a party to such an arrangement. The preference of the girl in that respect cannot also be accepted because in the overall circumstances we do not consider the same to the intelligent or in her own welfare. The only person thus left is Mst. Barkat Jan, the mother of the girl. It was argued by the learned counsel for paramour's father as also by Sh. Nasim Hassan, Advocate, whom we heard amicus curiae that it was not in the interest of the prosecution case or the welfare of the girl to entrust her to her mother, because, (a) the girl was responsible for bringing infamy to her family ; (b) that she was a prosecution witness in the case against her own father and uncle, though in her statement under section 164, Cr. P. C. Before a Magistrate, she had not particularly involved her father in the specific act of murder ; (c) that the parental relations of the girl will pressurise her to go hostile to prosecution case which will be spoiled if the girl was handed over to them ; and (d) that her life would not be secure and safe in that family and in that place. We have attended to these pleas but in our opinion there is no justification to deprive the mother from the custody of her daughter.
There is nothing on the record to show that the mother has any interest adverse to the girl. Rather Hafeez husband of the girl and her mother both stated before us that the prosecution story was all concoction. No doubt there is a case registered against the father of the girl but as already mentioned, the girl in her own statement under section 164, Cr. P. C. Has not involved her father in the particular act of murder. The occurrence is of 8-5-1976 or round about that period and uptil now no overt act harmful to the girl has been attributed to her mother. In the context the mother would be more concerned about the safety and security of the girl than anybody else. As regards the fact that there is a likelihood of the girl turning hostile to prosecution case if she was given in custody of the mother, that is no consideration to stop her from being lodged in a place which will be conducive to her welfare, especially when so far as the prosecution is concerned it was already secured a statement from the girl under section 164, Cr. P. C. It is interest the minor alone and not any other interest which is to be paramount consideration while determining the place of custody of a minor. Solely acting on that basis, we direct that the custody of the girl should be handed over to her mother Mst. Barkat Jan. . A copy of this judgment and order should be sent to the Manager, Darul Aman, Lahore where the girl is at present lodged for compliance. Costs deposited by Muhammad Zakir should be refunded to his wife Mst. Barkat Jan.