MUHAMMAD SAFFAR Versus ASSISTANT DIRECTOR SOCIAL WELFARE

ORDER

1. ABDUL KADIR SHAIKH, J .‑‑This appeal by leave is directed against the order of Sind High Court dated 17‑3‑1988 by which an application under section 491 of the Code of Criminal Procedure in the nature of habeas corpus was dismissed.

2. The application was filed by the appellant claiming to be the husband of the detenu Mst. Musarrat Aftab who was detained in Darul Aman, Latifabad, Hyderabad under an order passed by the Additional District Magistrate, Hyderabad dated 8‑3‑1988 immediately after granting bail to the appellant and the detenu in a case under section 294, P.P.C. This order reads as follows:

3. "Mr. Nazir Hussain relative of Mst. Musarrat Aftab d/o Allah Bux Gorar residerrt of Sojharo Gorar Taluka Mehar has made application to this Court, when she was produced alongwith Muhammad Saffar son' of Muhammad Siddique Baloch in other case with challan under section 294, P.P.C. by police station SITE, stating therein that she was doing obscene act in a public place, i.e. Hill Park SITE area Hyderabad with said Muhammad Saffar.

4. On presentation of challan the Advocate of Muhammad Saffar stated that she is wedded wife of Muhammad Saffar and custody may be delivered to him, while Nazir Hussain relative of Mst. Musarrat Aftab contended that she has been abducted by Muhammad Saffar. On enquiry from Mst. Musarrat Aftab it was observed that she was under pressure of both the parties; specially from Muhammad Saffar and was not in a position to give her statement voluntarily as to what she has to do. There was also apprehension of breach of peace had she been released and allowed to go as usual.

5. I, therefore, think it is proper that she may be sent tot Darul‑Aman. Shah Latifabad, Hyderabad cohere she may bet kept for some time and again produced in this Court for) statement."

6. It was against this order that appellant filed a petition under section 491 of the Code of Criminal Procedure which was dismissed, as stated earlier.

7. Learned Judges of the Division Bench of the High Court had directed production of the alleged detenu, and at the hearing of the case recorded her statement. She stated that she had got married to the appellant, but without the consent of her mother or uncle, and further stated that she would like to go with her husband. Her mother and uncle who were present in Court showed ignorance of the alleged Nikah between the appellant and Mst. Musarrat Aftab in the circumstances that Nikahnama was not proved and there was nothing reliable on record, according to the learned Judges, to indicate that Mst. Musarrat Aftab is aged 18 years as mentioned in the Nikahnama, their Lordships followed the rule laid down by this Court in Shaukat Ali v. Altaf Hussain Qureshi and another (1972 S C M R 398) in which this Court declined to grant leave to appeal in a similar situation as this on the ground that "the Nigh Court would not allow furthering of illicit love affairs", and on this ground directed that "we would allow her to go with the mother in case she wishes to go. However she cannot go with the alleged husband".

8. Leave to appeal was granted by this Court primarily to examine the vires of the order of Mst. Musarrat Aftab's detention in Darul Aman. Latifabad, Hyderabad. She is present in Court pursuant to the direction issued on 5‑4‑1988 and her mother is also present in Court. Since a criminal case under section 294, P.P.C. is pending against the appellant and Mat. Musarrat Aftab, we do not consider it appropriate to record her statement on oath as that would necessarily entail permitting the parties to cross‑examine her, and the evidence thus recorded by us in these proceedings would obviously affect the trial of the criminal case. We, however, questioned Mst. Musarrat Aftab as to where she would like to go in case she is released from Darul Aman and in reply she stated that she desires to go with the appellant. The mother of Mst. Musarrat Aftab repeated before us that she has no knowledge of her daughter's Nikahnama and claims her custody. She also stated that she will apply for the custody of her daughter in appropriate Court of law.

9. The position of the case now is that Mat. Musarrat Aftab has been held by the High Court to be a minor, and there is a contest regarding her custody between her mother and the alleged husband, who may well be her paramour. It is also totally inappropriate in these proceedings to appoint a guardian for her custody. The question then for consideration is whether she should be set at liberty or may continue to remain in Darul Aman, Latifabad, Hyderabad. Since, as stated earlier, she has been held to be below the age of 18 years, and the legality of her marriage is yet to be determined before Court of law, we are clearly of the view that she cannot be allowed to go; with her alleged husband. She is also totally unwilling to accompany her mother who is present in Court. Her mother however states that she will file an application for her custody. In the circumstances, it is only proper that the question of her custody should be determined by the Court of competent jurisdiction in appropriate proceedings and not in this summary jurisdiction. We, therefore, direct that Mst. Musarrat Aftab shall remain in Darul Aman, Latifabad, Hyderabad till such time that an order is passed for her custody by a Court of law, or unless she complies with the impugned order of the High Court.

10. The appeal is accordingly disposed of with the direction as above.

11. M.Y.H./M‑603/S Order accordingly.