P L D 1962 (W (PLP)

Dates of hearing: 24th and 27th August 1962. Upon an application made by Lal Muhammad, the District Magistrate, Quetta-Pishin, summoned Mst. Irshad Khatoon and after recording her statement permitted her to accompany the petitioner whom she claimed to be her husband. This order of the learned District Magistrate was challenged by means of a revision in the Court of Sessions Judge, Quetta, which was dismissed. It is against the order of the learned Sessions Judge dated the 23rd of July 1962 that Muhammad Sharif, the father of Mst. Irshad Khatoon, has filed this revision petition.

2. Muhammad Sharif petitioner lodged a report in the Police Station, Islamabad, Quetta, on the 21st of March 1962, alleging that Lai Muhammad' and others had abducted his minor daughter Mst. Irshad Khatoon: In pursuance of that report, a case under sections 363/368/109, P: P. C. is pending in the Court of the Additional Magistrate 1st Class, Quetta. The prosecution evidence in that case has not yet concluded.

3. During the investigation of the case, the police recovered Mst. Irshad Khatoon from the house of Lai Muhammad on the 21st of March 1962. Several orders were passed regarding the custody of Mst. Irshad Khatoon. The first order is dated the 22nd of March 1962 wherein it was directed that after the medical examination she may be given in the sapurdari of Dr. Khushi Muhammad. Dr. Khushi Muhammad filed a sapurdarinama on that very day. On the 24th of March 1962, the Officer Incharge Police Post reported that Dr. Khushi Muhammad's family was going out of Quetta, consequently he was unable to keep Mst. Irshad Khatoon. Thereupon, an order was passed on the same day that the girl may be handed over to Abdul Jalil, member of the Union Council till further orders. Abdul Jalil, thereupon, filed a sapurdarinama and took her in his custody. On the 25th of April 1962 an order was passed by the Additional Magistrate as follows:- "From this certificate produced today it is clear that she is minor so she be handed over to her father." Thereupon, Muhammad Sharif petitioner, filed a sapurdarinama and took Mst. Irshad Khatoon in his custody.

4. On the 24th of April 1962, Lai Muhammad filed an application before the District Magistrate wherein he stated that Mst. Irshad Khatoon was being illegally detained and severely maltreated by the police in order to obtain a statement against him that she may be summoned in Court and her statement be recorded and she be set at liberty. The learned District Magistrate thereupon ordered for the production of Mst. Irshad Khatoon. Mst. Irshad Khatoon was produced on the 27th o f April 1961 when her statement was recorded wherein she stated that she was married to Lai Muhammad on the 26th of May 1961 at Quetta. In support of her marriage she produced the Kabeennama dated the 26th of May 1962 which bore her signature. She also stated that she had married Lal Muhammad of her own accord and that she did not want to go back to her father as she apprehended danger from him. She also complained that she was beaten and abused by the Police Inspector. Thereupon, the learned District Magistrate passed an order allowing Mst. Irshad Khatoon to accompany Lal Muhammad, her husband.

5. It is admitted by Muhammad Sharif petitioner that she was more than 15 years of age consequently her marriage with Lal Muhammad was a valid marriage. There is no law which warranted her being treated like a chattel and handed over to different persons against her will.

6. It have questioned the learned counsel for the State as well as the counsel for the petitioner to point out the provisions of law under which the Investigating officer could recover an, abducted woman and have her remanded to the custody of his' choice. The learned counsel have failed to point out any provisions of law warranting such a course. A minor can be recovered from illegal custody on the application of a guardian by an order of the Guardian Judge. The other provisions regarding the recovery and production of persons including the minors are contained in sections 100 and 552, Cr. P. C. Section 100, Cr. P. C. provides "if any Magistrate of the First Class or Sub-Divisional Magistrate has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue a search-warrant and the person to whom such warrant is directed may search for the person so confined; and such search shall be made in accordance therewith and the person, if found, shall be im mediately taken before a Magistrate, who shall make such order as in the circumstances of the case seems proper". In a case under section 363, P. P. C., the police officer should apply for warrant being issued by a Magistrate under section 100, Cr. P. C. and then produce the minor before the Magistrate for such orders as in the circumstances of the case, the Magistrate might deem proper. The abdueted girl was no doubt a witness in the case but she cannot be detained against her will especially in the case of a legally wedded woman. Under orders of the trial Magistrate she could have been bound down for appearance before the Court as a witness whenever summoned. Section 552, Cr. P. C., provides that "upon complaint made to a District Magistrate on oath of the abduction or unlawful detention of a woman, or of a female child under the age of 16 years, for any unlawful purpose, he may ma a an order for the immediate restoration of such woman to her liberty, or of such female child to her husband, parent, guardian or other person having the lawful charge of such child, and may compel compliance with such order, using such force as may be necessary". The application that was filed before the learned District Magistrate does not mention section 552, Cr. P. C., but it is clear from the proceedings that were taken by him that he passed the order under that section. The orders passed by the learned trial Magistrate in the case under sections 363/368, P. P. C. were not warranted under any law and the detention of Mst. Irshad against her will when she was the legally married wife of Lal Muhammad, was unlawful. The learned District Magistrate was perfectly justified in passing the orders in question. Mushtaq Ahmad v. Mirza Muhammad Amin and others (P L D 1962 Kar. 442) is an authority which was given in similar circumstances and is fully applicable to the facts of the case. There is no merit in this petition which is dismissed. However, this may be mentioned that the order passed in this petition will not, in any way, affect the judgment of the trial Court in the case under sections 363/368/109, P. P. C. pending before the learned Additional Magistrate 1st Class, Quetta. K. B. A. Petition dismissed.