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Criminal Revision No. 61 of 1973, decided on 26th January 1973.

----‑‑S. 439‑Abductee stating to be legally wedded to accused and desiring to accompany accused/petitioner instead of parents who allegedly being opposed to such wedlock filed false report of abduc tion‑Magistrate sending abductee to Dar‑ul‑Aman‑ Order of Magistrate, held, illegal ‑Abductee though a little below 16 allowed to accompany accused/petitioner in circumstances‑Penal Code (XLV of 1860), S. 363.

Mst. Bakhshi v. Bashir Ahmad P L D 1970 S C 323 ref.

Sher Zaman Khan for Petitioner.

Khuda Dad Burqi for the State.

A case under section 363, P. P. C. was registered at Police Station Chakwal on 9th of October 1972, in respect of the abduction and rape of Mst. Ghulam Sughra at the instance of her father, Fazal Hussain. She was, consequently recovered by the police and produced before tile Resident Magistrate, Chakwal who recorded her statement about her future custody on 4th January 1973, and stated that she would like to accompany Bashir (petitioner), and not her parents, but the Magistrate instead directed it at she may be lodged in Dar‑ul‑Aman, Lahore. Aggrieved by this order it has moved this Court under section 439, Cr. P. C. She was accordingly sent for through a bailiff and produced before me today after a due notice to the State. I have recorded her statement who has supported his claim by deposing that she had solemnized her nikah with him of his own accord and free will and was living with him as his wife when recovered from his house by the police, that his parents having disapproved of her choice lodged a false report accusing him of abduction, that she had made the same statement before the Magistrate requesting him to send her along with Bashir (petitioner), but he despatched her to Dar‑ul‑Aman, and that she may be allowed to accompany her husband today.

2. In view of her statement, learned State counsel frankly conceded that he could not defend the impugned order as Bashir, petitioner was legally entitled to her custody although she was a little below sixteen years at the time of her elopement with him. Reliance was placed on Mst. Bakhshi v. Bashir Ahmad (P L D 1970 S C 323). I have therefore to accept this petition and setting aside this order allow Mst. Ghulam Sughran to accompany the petitioner, who would produce her in the Court concerned as and when called upon to do so for her evidence in this case under section 363, P. P. C.

Petition accepted.

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