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Criminal Miscellaneous Application No. 500 of 1981, decided on 28th July, 1981.

-- S. 491-Kabeas corpus-Alleged detenu a married girl about 18/20 years old and living with her husband since marriage-Detenu not showing her willingness to go with her mother-Question of her detention, held simply does not arise, in circumstances. -[Habeas corpus].

----- S. 491-Habeas corpus-Alleged detenu, a minor girl about 10/12 years old, and residing with her grown up brother under care of her elder sister-Detenu unwilling to go with her mother, having contracted a second marriage with a stranger after death of her father-Any order forcing girl to stay with her mother, held, would not be to her best interest--Matter with regard to claim of hizanat or otherwise, held further, to be decided by proper Court.

Usman Ghani Rashid for Petitioner.

Azizullah K. Shaikh for Respondents Nos. 1 and 2.

Abdul Sattar Shaikh, A. A -G. for the State.

Mst. Zulekha wife of Mohammad Ismail who has married second time with Ahmed Sand has filed the instant application under section 491, Cr. P. C. alleging that her two daughters, namely Mst. Farzana and Mst. Afsana, who are minors, are being kept in unlawful custody by Niamatullah and Master Shamsuddin. The rule nisi was issued to Niamatullah and Master Shamsuddin respondents Nos. 1 and 2 respectively, who are present in Court and have produced the two alleged detenus Mst. Farzana by appearance is about 18 to 20 years of age and has given her age to be 20 years. There can be no doubt about the fact that she is a pubert. She has stated that she was married to respondent 1, about two months back and is happily living with him. There is no question of her detention and it is not against her wishes that she is residing with her own husband.

She did not show any willingness to go to her mother who is married to a stranger, and she has stated that ever since the second marriage of her mother she along with her younger sister had been residing with their brother Amanullah who earns his livelihood as a Lahourer. In view of the statement of Mst. Farzana, who is a pubert. and by all appearances a major, it is apparent that she is not being detained any where against her will.

Mst. Farzana, who has given her age as 12 years, appears by her looks to be about 10 years old. Sire is intelligent enough and old enough to answer all the questions in a proper manner. From her very appearance it is apparent and obvious that she is not being detained or maltreated in any away. She has stated that she is residing with her brother and because they all reside in the same house her elder sister is taking care of her when her brother goes out for works. According to her, she would not like to go to her mother as her mother is married to a stranger, and it was at the instance of these persons that her late father was murdered. The child has stated that she got this information from her grand father who resides at Landhi. She has explained that previous to the marriage of her elder sister with respondent 1 they used to reside in Landhi with their brother who bad separate residence from that of her grandfather who is a chowkidar.

The girl has very frankly stated her mother's second husband is a Zamindar who owns land and who is quite well to do person, but due to her fear, as already stated, she prefers to live with her brother and under the care of her elder sisters.

After examination and the making of the statements by the two children it is apparent that any order forcing them to stay with their mother would probably not to be their best interest. In any case, we are not concerned here with the matter with regard to the claim of Hizanat or otherwise of the mother, who can approach the proper Court for relief. Under the circumstances, this petition must fail and is dismissed. The two girls are allowed to go wherever they like.

Petition dismissed.

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