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Petition for Special Leave to Appeal No.85 of 1979, decided on 27th March, 1979.

(On appeal from the judgment and order of the Lahore, High Court, Lahore, Bahawalpur Circuit, dated 28‑2‑1979 in Cr.Misc. No. 126‑H of 1979/BWP).

‑‑‑Art.185(3)‑‑Penal Code (XLV of 1860), Ss.363 & 366‑‑Criminal Procedure Code (V of 1898), 5.491‑‑Abduction of minor girl‑‑Habeas corpus‑‑Writ of‑‑Age of abductee‑detenu ‑‑High Court relying on birth entry of abductee in relevant registration record rather than medical opinion holding abductee‑detenu, as minor and handing over her custody to her father and not to her alleged husband‑accused‑ Discretion found to have been properly exercised by High Court‑‑Leave to appeal refused.

Haji M. Anwar Butter, Advocate with Muhammad Aslam Chaudhry,

Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 27th March, 1979.

‑This petition for leave to appeal is directed against the judgment and order dated 28‑2‑1979 of a learned Single Judge of the Lahore High Court, whereby Mat. Kalsoom allegedly abducted by Allah Dad (petitioner herein) was restored to her father Hazur Bakhsh (respondent No.1 herein).

The facts of the case are that one Mst. Kalsoom was abducted by the petitioner and others and a report to this effect was lodged by her father under section 363/366, P.P.C. The girl was allegedly removed to Shuja Abed and her Nikah performed with the petitioner.

It appears that Mst. Kalsoom, the abductee, was made to move petition before the High Court seeking bail before arrest in the case under section 363/366/309, P.P.C. obviously with a view to providing a defence for the petitioner against his prosecution under section 363/366, P.P.C. During the hearing of the said petition the question with respect to the age of the abductee arose and she was got medically examined by the Radiologist of B.V. Hospital, who basing his opinion on her bony age considered her to be between 16 and 17 years. However, the said petition was disposed of with the observation that there being no offence with which Mst. Kalsoom was charged, there was no case for bail.

Since Mst. Kalsoom was in the custody of the petitioner Allah Dad, her father Hazur Bakhsh (respondent No.l herein) moved the Lahore High Court under section 491, C.P.C. seeking her recovery on the ground that she was minor and was forcibly abducted by the

petitioner and others. A learned Single Judge of the said Court, after examination all the pros and cons of the case and going through the entire material produced before him with respect to the age of the girl by an exhaustive order dated 26‑2‑1979 restored the custody of the girl to her father (respondent No.l) notwithstanding her alleged Nikah with the petitioner and her statement before the Court that she wanted to join her husband. Allah Dad petitioner. Hence this petition for leave to appeal by Allah Dad petitioner.

In support of this petition for leave to appeal it is submitted that the age of the girl after examination by the Radiologist was found to be between 16/17 years, that according to her wish expressed before the learned Single Judge she wanted to join her husband Allah Dad petitioner to whom she was legally wedded and that in these circum stances, the learned Single Judge exercised his declaration improperly in handing over Mst. Kalsoom to respondent No.1.

We observe that all these points were fully examined by the learned Single Judge of the High Court and repelled. The learned Judge found that Mst. Kalsoom was, according to the authentic material before him such as her birth entry in the registration application submitted in the District Registration Office only a few days more than 14 years at the time of her alleged abduction and at the time of her alleged Nikah, having been on 28‑12‑1964. The learned Judge also observed that the medical opinion could not be given preference over the above authentic material produced before him with respect to the age of the abductee. So far as the Nikah of the abductee with the petitioner and her statement before the Court that she wanted to join her husband, the petitioner, are concerned, the learned Judges observed that since the girl remained under the continuous influence of the petitioner, her statements could not be said to be voluntary or free from force, fraud and deceit. His conclusion was expressed as follows‑‑:

"In the light of the above discussion, it is impossible to give a finding, even if the age of the detenue is ignored that her choice for going with Allah Dad is voluntary and is not tainted by misrepresentation and fraud on the one hand and threat or coercion on the other. I am unable to hold that such a choice by the detenue In the circumstances she is placed at present, is intelligent one and for her welfare. It is not possible, therefore, to act upon it "

He accordingly held "that the safest course in the entire circumstances and the one which is in the welfare of the minor detenu is to hand her custody over to the father, subject of course to a declaration by a Court of competent jurisdiction that her custody should be handed over to someone else",

We do not think that the learned Single Judge while restoring Mat. Kalsoom to her father in the above terms exercised the discretion vested in him imporperly. There is, therefore, no ground for inter ference. This petition is dismissed.

S . Q Petition dismissed.

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