UMER FAROOQ ASLAM Versus MANZOOR BEGUM
ORDER
This petition under section 491‑A of the Criminal Procedure Code, 1898 is directed for the recovery of Mst. Farhat Shaheen, detenue, alleged wife of the petitioner from the custody of her mother Mst. Manzoor Begum wife of Tasaddaq Hussian from Mir Pur District of Azad Jammu and Kashmir.
2. Learned counsel for the petitioner has submitted that the petitioner was born and brought up in London. It is further submitted that the petitioner and the aforesaid Mst. Farhat Shaheen were' duly married on 4‑7‑1996 in U.K. The petitioner came to Pakistan on 7‑5‑1997. He further stated that the alleged detenue left her own house on 11‑5‑1997 and came to the petitioner to live with him. However, on 18‑5‑1997, Mst. Manzoor Begum, the mother of the alleged detenu took her away to Azad Jammu and Kashmir for making arrangement of her formal Rukhsati. However, the detenue was not allowed to live with the petitioner. Learned counsel has relied on the judgments in the cases of Muhammad Javed Umrao v. Miss Uzma Waheed (1988 SCMR 1891), Abdur Rahim 'v. Home Secretary Government of West Pakistan and another (PLD 1975 SC 109) and Nabi Bakhsh and another v. The State (PLD 1991 Peshawar 10).
3. Mr. Sher Zaman Khan, learned Dy.A.‑G. for Pakistan and Khawaja Muhammad Sharif, learned Advocate‑General Punjab as well as Mr. Naveed Rasool Mirza learned Additional Attorney General Punjab have appeared on Court's call.
4. The learned Deputy Attorney‑General for Pakistan has submitted that the alleged detenue is residing in Mirpur district of Azad Jammu and Kashmir which does not fall within the limits of the appellate criminal jurisdiction of this Court, therefore, this Court has no jurisdiction to issue any process for habeas corpus under section 491, Cr.P.C. He relied on the cases of Nazir Ahmad v. Muhammad Fayyaz (PLD 1984 Lah. 149) and S. Bismillah Shah v. N.‑W.F.P., Govt. (PLD 1950 Peshawar 43). He further argued that the matter in dispute is basically relatable to a matrimonial dispute for the resolution of which the issuance of a direction under section 491‑A, Cr.P.C. is not appropriate as held in the cases of Mst. Farhat Fatimah Shah v. Nadeem Aslam Shah and 2 others (1973 P.Cr.LJ 61) and Ghulam Muhammad v. Fakir Muhammad and others (PLD 1975 Karachi 118).
5. Learned Advocate‑General, Punjab as also the learned Addition Advocate General Punjab have supported the arguments advanced by the learned
Deputy Attorney‑General for Pakistan.
6. I have heard the learned counsel for the petitioner as well as the learned Law Officer. The present petition has been made under the provisions of section 491‑A, Cr.P.C. The said provision was inserted by Act XII of the 1933 but the same was omitted by Act II of 1950. As such the powers of the High Court outside the limits of its appellate criminal jurisdiction were no longer available. This application under section 491, Cr.P.C. is, therefore, misconceived.
In the case of "Muhammad Javed Umrao" referred to by the learned counsel for the petitioner, the facts were quite different as the minor had been removed from the appellate jurisdiction of the High Court after the matter had already become subjudice. Similarly, the reference made by the learned counsel to the cases of "Abdur Rahim" PLD 1975 SC 109 and "Naveed Bakhsh" PLD 1991 Pesh. 10 is also not apt inasmuch as the land in dispute had been leased out in the settled area over which the jurisdiction of the Peshawar High Court was exercisable despite the fact that one of the parties belonged to the tribal area.
7. In the present case, the alleged detenue has been living with her parents in the State of Azad Jammu and Kashmir since before the making of the present application which place falls beyond the territorial jurisdiction of this Court. The provisions of section 491, Cr.P.C. before this Court are, therefore, not attracted. Same is the position of the extraordinary jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
In the case of Mian Manzir Bashir, Advocate v. Federation of Pakistan through Secretary, Government of Pakistan, Islamabad (PLD 1974 Lahore 319), a Full Bench of this Court declined to issue & direction in the nature of habeas corpus for the production of late General Agha Muhammad Yahya Khan, on the ground that the detenu was detained at Abbottabad which place Has outside the territorial jurisdiction of the Lahore High Court.
Similarly, in the case of Malik Muhammad Qasim v. Province of the Punjab, through Secretary, Home Department Civil Secretariat, Lahore (PLD 1973 Lahore 473), it was found that the detenu Nawab Muzaffar Hussain, M.P.A., was arrested under the Defence of Pakistan Rules at Multan Air Port and was taken to Sukkhar for detention before a petition for hebeas corpus could be filed before this Court. It was held that the writ of habeas corpus could not be issued in these circumstances.
In the case of Aasia v. Mashhud Ahmad (1990 P.Cr.IJ 847), the Sindh High Court expressed the view that a direction in the nature of habeas corpus could be issued in regard to a detenu found within the limits of its appellate criminal jurisdiction only.
In Extraordinary Legal Remedies by Forrest G. Ferris, the author expressed his opinion in section 38 of Chapter IV of the book as follows:‑
"38. Venue.‑‑Application for the writ should, unless otherwise provided by statute, be made to the Court or judge exercising jurisdiction over the place or territory where or within which the party in custody is held, the place of detention fixes the jurisdiction, without reference to the residence of the person detaining."
In the case of Leo Zepantis v. Emperor (AIR 1944 Calcutta 76), the detenu was removed from Calcutta to Egypt before the filing of an application for habeas corpus which was dismissed. Similar view was expressed in cases of V.M. Sarangapani v. Emperor (AIR 1946 Nagpur 20), Vishambhar Dayal Tripathi v. UP. Government (AIR 1945 Oudh 117) and the cases of Nazir Ahmad PLD 1984 Lah. 149 and S. Bismillah Shah PLD 195 Pesh. 43.
8. Even otherwise, this seems to be a family dispute for which ordinarily a petition for habeas corpus is not an appropriate remedy. See the cases of Mst. Farhat Fatimah Shah 1973 PCr.LJ 61 and Ghulam Muhammad PLD 1975 Kar. 1180. In the case of Mukhtar Ahmad v. Ghafoor Ahmad (PLD 1990 Lahore 486), issuance of writ of habeas corpus was declined for the purpose of effecting a 'Rukhsati' of the detenu. It is also very much doubtful that the alleged detenu had ever resided with the petitioner within the jurisdiction of this Court. No exceptional circumstances have been shown to exist for the interference by this Court in the present case.
9. For the foregoing reasons, I do not find any merit in this petition which is dismissed.
N.H.Q./U‑6/L Petition dismissed.