' The petitioner, Mst. Shagufta Shaheen, through this Constitutional petition is seeking a direction to respondent No,1, Magistrate 1st Class, Phalia, District Mandi Baha-ud-Din, to record her statement under section 164, Cr.P.C. And also a direction for her release from Darul Aman.
' She has also prayed for the taking of a legal action against Mr. Muhammad Arif Khan Niazi, Magistrate 1st Class, Phalia, District Mandi Baha-ud-Din for the alleged misuse of his powers and authority.
2. Respondent No,1 has already recorded the petitioner's statement under section 164, Cr.P.C. In compliance of the orders dated 2-2-2000 passed by this Court, in this writ petition.
3. The petitioner is admittedly 24 years old, an educated lady and sui juris. The contention of the learned counsel for the petitioner that she cannot be confined in Darul Aman against her wishes, has force. In Mst. Sahi Bi v. Khalid Hussain and 6 others 1973 SCM R 577, the Lahore High Court vide its order, dated the 22nd May, 1972 had handed over the custody of the, detenue to her husband against her wishes and gave the police help for that purpose. The order was challenged before the Supreme Court and it was held by the Apex Court that as the detenue was sui juris and unwilling to go with her husband or guardian, the Court had no alternative but to set her at liberty and allow her to move freely. It was further held that "we are satisfied that under the Mohammadan Law, a sui juris woman cannot be forced to live with her husband against her wishes. Qur'anic Injunction is against it. According to the Mohammadan Law, if there is disagreement between the husband and the wife, the wife is entitled to live separately from her husband". It was further held that:-- ' "......................... The observation of the learned Single Judge or the High Court that if Mst. Irshad Begum is set as liberty she will 1ead immoral life is irrelevant for 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."
' Similarly in Mir Muhammad v. The State and 4 others 1995 PCr.LJ 2085, a judgment delivered by a Division Bench of Karachi High Court, the detenu was major and sui juris and had contracted marriage out of her own free will before the registration of F.I.R. Against her husband and others by her father, it was held that the Magistrate before whom detenue was produced as a witness in the said case for making a statement under section 164, Cr.P.C. Could only record or refuse to record her statement, but he could not send her to Darul Aman unless an apprehension was shown by the detenue that her life would be in danger with either of the parties. Detention of the detenue in Darul Aman was declared to be illegal and improper and she was set at liberty accordingly to go wherever she liked. In Mst. Nazneen v. Judicial Magistrate, Larkana 1999 M LD 1250 (Karachi), a judgment delivered by Division Bench of Karachi High Court, the detenue in similar circumstances, was directed to be released from Darul Aman forthwith.
4. In view of the settled law on the subject, the learned Additional Advocate-General as well as the learned counsel appearing for the father of the petitioner have not been able to show that how can the petitioner be kept in Darul Aman against her wishes.
5. In view of the above discussion, the impugned orders, dated 21-12-1999, 4-1-2000, 18-1-2000 and 22-1-2000 passed by Magistrate 1st Class, Phalia, District Mandi Baha-ud-Din directing the lodging of the petitioner in Darul Aman against her wishes and keeping her in Darul Aman are declared to be without lawful authority and are set aside. Her detention in Darul Aman, against her wishes, is declared to be illegal and improper and she is directed to be set at liberty at once and is allowed to go wherever she likes. Charges of Darul Aman, under the circumstances, shall be borne by respondent No,1 from his own pocket. The prayer of the writ petitioner of taking a stem legal action against respondent No,1 for having kept her in confinement in Darul Aman against her wishes as a misuse of his powers and authority, is not granted, because I am of the view that respondent No,1 may not have been properly assisted in this regard. This writ petition is accordingly disposed of.