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Criminal Miscellaneous No.140 of 1987, decided on 17th May, 1987.

---S.491--Habeas corpus-- Detenue, major girl appearing before Court and deposing that she was living with her parents of her own free will and without being wrongfully confined by any one--Detenue set at liberty to go anywhere she liked and refused to be sent to Darul Aman in circumstances.

Muhammad Ghafoor v. Muhammad Rafiq P L D 1972 S C 6 ref.

Mahboob Ellahi Sham for Applicant.

This is an application moved by the applicant under section 491, Cr.P.C. alleging therein that he is husband of detenue Mst. Farzana and that their marriage took place on 26-2-1987. That after marriage the detenue was taken away by her parents forcibly and, therefore, this application was filed under section 491 Cr.P.C. In the application four respondents have been shown, and in para 2 of the application it is stated that respondent No.1 is father of detenue, respondent No.2 is her mother, respondent No.3 is her brother, and respondent No.4 is her brother-in-law.

I had issued notice to the respondents who- have appeared today, and have also produced alleged detenue Farzana. Her statement has been recorded. She appears to be adult. She has stated in her statement that she is living with her parents with her own free will. She has not been wrongfully confined by any one, and she wants to go back to her parents. Mr. Mahboob Ellahi learned counsel appearing from the applicant made a request that since she has come with her parents she may be sent to "Darul Aman" and her further statement be recorded after few days. In this connection he has relied upon N'L.R.1983 Crl. Law Judgments page,243, wherein my learned brother Nasir Aslam Zahid, J. , was pleased to direct that the detenue be pt in Darul Aman, and after two days her further statement was recorded and the final order was:--

" I have seen the detenue. She is an adult woman. She is mother of several children. She has also stated that under no restraint. In these proceedings it is for this Court to ascertain whether the detenue is under any restraint. I am satisfied that the detenue is under no restraint. The detenue Mst. Miran is permitted to go wherever She wants. "

I am in respectful agreement with the above illegally of my learned brother, and there can be no dispute about the legal position as enunciated in the above decision.

In a similar case it has been held by Supreme Court 1j, case of Muhammad Ghafoor 'v. Muhammad Rafiq (P L D 1972 S.C. page 6) that:--

"In cases where the person brought before it was illegally or improperly confined or detained, what order can be passed by the High 'Court regarding custody of that person. It was held:---

If the person is a minor, the Court may make over his custody to the guardian which will be dealing with him in ordinance with law, but if the person is major, the only diction which the Court can exercise is to set him at liberty, whether improperly detained in Public or private custody or not. The Court may 'set at liberty", but cannot restore status, quo ante against the wishes of the person brought before it. Such a course will lead to curtailment of liberty for which there is no warrant under section 491, Cr.P.C. nor can such an :order be sustained under section 561-A of the Code, as it cannot be said that allowing a person freedom of movement is an abuse of the process of the Court."

So far as the question of sending the detenue to 'Darul Aman' is concerned, it depends upon circumstances of each case and in the present case since the detenue is adult, she has appeared in the), Court voluntarily, and has stated that she has not been wrong full confined by any one, and she is living with her parents with her free will. I do not feel it necessary to send her to 'Darul Aman'.

In view of the above circumstances, the alleged detenue Mst. Farzana being adult is allowed to go wherever she likes.

S.A. /M-232/ K Order accordingly

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