' This application has been filed by one Mst. Naznin (hereinafter mentioned as the detenue) under section 491, Cr.P.C. From Darul Aman, Larkana, where she is presently detained. It appears that the detenue is 21 years of age and a matriculate left her parents' house in District Dadu travelled to Larkana where she appeared before the police and stated that she apprehends danger to her life at the hands of her parents. The detenue was produced before the Judicial Magistrate who recorded the statement of detenue on 26-7-1997 and sent her to Darul Aman, Larkana.
2. Apparently the detenue filed Criminal Miscellaneous Application No,21 of 1997, which came up before a Division Bench of this Court at Larkana Circuit. Her statement was also recorded in Court where an order was passed on 18-8-1997 dismissing the petition and directing that she be sent to Darul Aman. Thereafter, she has filed this petition on 4-5-1997. She was produced in Court today and her statement has been recorded. She has particularly re-asserted what she had earlier stated i.e, that she does not want to go to her parents' house and she wants to go with a person who is a respectable of her village.
3. Mr. Munir Ahmed Rahuja, Advocate for the applicants has argued that the situation has materially altered from the filing of the first petition inasmuch as the first petition was filed by a relative of her while this one has been filed by a relative of her while this one has been filed by herself. This contention does not appear to be correct and the order of the Court dated 28-8-1997 indicates that even in the earlier petition the detenue herself was the applicant.
4. Mr. Shafi Muhammad Memon, Advocate filed power on behalf of one Muhammad Nawaz i.e, the father of the detenue and requested that he may also be heard in this matter. We permitted him to do so. Mr. Memon contended that an earlier order having already been passed by a Division Bench it was not proper for us to entertain this fresh application. Mr. Memon further argued that custody of the detenue could only be delivered to his client who was her father and natural guardian and to no one else. However, he was unable to refer to any provision of law or binding precedent which debars entertainment of a second petition in the nature of habeas corpus.
5. Mr. Ghulam Rasool Qureshi, learned counsel for the State also prayed for dismissal of the petition.
According to Mr. Qureshi under the Muslim Law the custody of an unmarried girl always vests with her father. He further stated that to allow the detenue to go with any one that she pleased, including a person not related to her within the prohibtory degrees, would promote immorality which cannot be countenanced in a Muslim society, and therefore, the order dated 28-8-1997 was just and proper.
6. We have carefully considered the contentions raised by the learned counsel. Mr. Memon was not able to refer to any provisions of law or a binding precedent to the effect that a second petition in the nature of habeas corpus cannot be entertained at all. On the contrary w, are aware that traditionally successive applications in the nature of habeas corpus were entertained by the High Court in England. Technically an order passed on an application under section 491 Cr.P.C. Has not been treated as judgment in terms of section 369 of the Code so as to attract the bar of res judicata. This view was taken by a Full Bench of the erstwhile High Court of West Pakistan in the case of Nasim Fatima v. Government of West Pakistan (PLD 1967 SC 103) and reiterated by Division Bench of Lahore High Court in Furrukh Nahid Hashmi v. Shah Abrar Qadri (1994 PCr.LJ 1361). To be fair it might be correct to observe that Courts in Pakistan have gereally entertained successive applications under section 491, Cr.P.C. Only when fresh grounds have been made out. We have no hesitation in observing that normally we would not have, as a matter of judicial propriety if not strict law, proceeded to entertain this petition and taken a view contrary to the one taken by another Division Bench. Nevertheless it seems that the attention of the Division Bench was not drawn to the judgments of the Honourable Supreme Court in the cases of Muhammad Rafiq v.
Muhammad Ghafoor (PLD 1997 SC 6) and Mst. Sahibi v. Khalid Hussain and six others (1973 SCM R 577). With profound respects we are constrained to observe that principles of law laid down in the above two cases, which we propose to discuss in some detail have pursuaded us to take the view that the order dated 28-8-1998 must be treated to have been passed per incurium.
7. The first question that has been of some anxiety to us is that Article 9 of the Constitution guarantees that no person can be deprived of life or liberty except in accordance with law. No law has been brought to our attention which empowers this Court, or for that matter any other Court or authority to direct the detention of a person in Dural Aman without her consent. It goes without saying that detention in Darul Aman is restraint on human liberty and this position was not disputed before us.
8. The next important question for consideration is that females who have attained the age of majority cannot be treated as chattel who must invariably be entrusted to the custody of one person or another. Mr. Ghulam Rasool Qureshi was unable to refer to any standard tax of Muslim law or any reported precedent to the effect that a major Muslim girl should only live in the custody of her guardian. This argument pre-supposes that a female on the mere ground of her sex must invariably be treated as a person under some sort of disability. We regret we have not been able to find any principle of Islamic law or our own Constitution and legal system to support this view. We are clearly of the opinion that a major Muslim woman like a major Muslim man is sui juris and entitled to the same rights and libertie. A contrary view would be plainly violative of the mandate of Article 25 of the Constitution.
9. We would agree with Mr. Qureshi to the extent that in an Islamic society when more than one option is available with the Court, the Court should choose the one which is more in consonance with the moral values of Islam. The important question to be borne in mind, however, is that the question of entrusting the detenue to the custody of one person or another arises only when such detenue is a minor.Admittedly, the detnue in the present case is a major, being more than 20 years old. As such, no question as to entrusting her to the custody of one person or another arises. Mr. Qureshi has apprehended that in case the applicant is allowed to go with a person not related to her within the prohibited degrees, she might indulge in sexual immorality or might be subjected to sexual assault and should, therefore, remain detained in Darul Aman unless she agrees to go with her parents. In this context it might suffice to observe that the applicant is not only a major but a reasonably deducted person. She is certainly aware of what she has decided to do. We must take it clear that we are not entrusting her to the custody of any person but only restoring her liberty. In case she indulges in immoral sexual behaviour or is subjected to sexual assault the penal laws in the country are adequate to punish the wrong doers. We are, however, entirely unable to accept the contention that because of a vague apprehension not founded upon any material she should be detained indefinitely in Darul Aman. Indeed, she came to Darul Aman herself but by the mere fact of filing applications seeking her release and the statement on oath made by her in Court it is clear that she does not wish to stay there any more and her detention would be without her consent. Such detention for the purpose of preventing her from indulging in immorality might amount to preventive detention. Apart from the fact that there is no law requiring her to be so detained, the mandate of Article 10(4) of the Constitution even forbids the making of such law.
Moreover, persons subjected to detention have been provided with a member of safe-guards by the Constitution itself and no person other than an enemy alien can be subjected to indefinite detention. In any event would it be justifiable to order indefinite detention of a person on the basis of vague apprehension founded upon nothing except the fact of her being a female, particularly by a Court charged with the duty to enforce fundamental rights of citizen?
10. In the case of Muhammad Rafiq v. Muhammad Ghafoor it was alleged that the detenue was abducted by the respondent who was keeping her in unlawful custody. The parents of the detenue, however, stated that she was lawfully married to the respondent. The detenue was kept in Darul Aman for sometime and therefore, the application was dismissed and she was given over to the respondent. Upon an appeal to the Hon'ble Supreme Court it was held:-- ' "if the person is a minor, the Court may make 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 same view was reiterated by a five member Full Bench of the Hon'ble Supreme Court headed by late Hamoodur Rehman, C.J. In the case of Mst. Sahibi v. Khalid Hussain and others it was held that under the Muslim law the sui juris woman cannot even be forced to live with her husband against her wishes and Quranic Injunctions were against it. With respect to a similar apprehension of immorality Waheeduddin Ahmed, J. In his leading judgment observed.
' "The observation of the learned Single Judge of the High Court that if Mst. Irshad Begum is set at liberty she will lead immoral life is irrelevant in the decision of the case under section 491, Cr.P.C.
Under section 491, Cr.P.C., if a sui juris detenue is unwilling to go with her husband or guardian the Court cannot compel her to go with them. She must be set at liberty and allowed to move freely."
11. In view of the above mentioned legal position and authoritative pronouncements of the Hon'ble Supreme Court, which we are bound to follow, we have no option but to direct that the detenue be released from the custody forthwith. She is free to go wherever she pleases.