IMDAD HUSSAIN vs NOOR HASSAN AND 2 OTEHRS
This matter concerns a petition for leave to appeal against a High Court order dismissing an application filed under Section 491 of the Code of Criminal Procedure 1898. The petitioner sought the production of a woman, Mst. Kamal Khatoon, alleging she was wrongfully confined. The High Court dismissed the petition on two grounds: first, that the petitioner lacked standing as he was neither a relative nor a friend of the alleged detenu; and second, that the petitioner was an accused in a criminal case involving the alleged abduction of the same woman, making it inappropriate for the High Court to exercise its extraordinary jurisdiction under Section 491. The Supreme Court upheld the High Court's decision, noting that the petitioner failed to challenge the standing objection before the High Court and that the petition lacked bona fides given the petitioner's status as an accused in a related criminal proceeding. The Court affirmed that the High Court correctly exercised its discretion in refusing to entertain the petition, emphasizing that such extraordinary remedies should not be invoked by parties with conflicting interests in related criminal trials.
- Can a person who is an accused in a criminal case regarding the abduction of an alleged detenu maintain a habeas corpus petition for her production?
- Is a High Court's refusal to exercise discretion under Section 491, Code of Criminal Procedure 1898, justified when the petitioner fails to establish standing?
- Should a High Court entertain a habeas corpus petition when the underlying matter is already subject to trial in an ordinary criminal court?
- Section 491, Code of Criminal Procedure 1898
- Section 364, Pakistan Penal Code 1860
1. ' WAHEEDUDDIN AHMED, J.-The petitioner filed Criminal Miscellaneous Application No, 87 of 1974 under section 491, Cr. P. C., for the production of Mst. Kamal Khatoon wife of Noor Hassan Domki respondent No,
1. He alleged that Mst. Kamal Khatoon has been wrongfully confined in the house of Ghulam Mohiuddin Domki respondent No, 3 in village Badani, Taluka Kashmore, District Jacobabad.
2. Later on, when the case came up for hearing before the High Court on the 18th March 1974, Ghulam Mohiuddin respondent No, 3 denied that Al sr. Kamal Khatoon was confined in his house.
3. Thereupon, the counsel for the petitioner asked for the adjournment of the case to consider the position and also to supply fresh address of Mst. Kamal Khatoon's confinement. On the 26th March, 1974, the learned counsel for the petitioner filed an application praying that the Superintendent of Police, Jacobabad may be ordered to search the house of one Ghulam Mustafa son of Ahmad Khan Domki, resident of villa HO Khan, Taluka Kashmore, and produce Mst. Kamal Khatoon.
4. ' It may be mentioned that a case is pending against the petitioner, his father, his cousin and his uncle under section 364/34, P. P. C. At the instance of Mst. Kamal Khatoon's mother. In this case, Mst.
5. Kamal Khatoon was produced by Muhammad All S. H.
0. The learned First Class Magistrate recorded her statement.
6. ' An objection was raised before the High Court about the maintainability of the petition on the ground that the petitioner was neither a relation nor a friend of the detenu. The High Court accepted this objection and dismissed the petition by order dated the 26th March, 1974. The High Court further held that the petitioner himself is facing the trial alongwith his relations under section 364, P. P. C. For the abduction of Mst. Kamal Khatoon and that it would be proper if the matter is left to be tried by the ordinary Criminal Court and not proceeded with in the High Court. The petitioner seeks permission to file an appeal against the said order.
7. Mr. Imdadally Agha, learned counsel for the petitioner has contended that the finding of the High Court that the petitioner is not related to Mst. Kamal Khatoon is erroneous. According to him, Mir Shab: Khan, Domki, died in the year 1963 in District Jacobahad and he was patentor uncle of the father of the petitioner Imdad Hussain. Mst. Kamal Khatoon is the daughter of Mir Shahbaz Khan and, therefore, the petitioner is a relative of Mst. Kamal Khatoon. This point should have been raised before the High Court. We are not inclined to enquire into the question whether the petitioner is a relative of Mst. Kamal Khatoon. In the High Court, the petitioner did not challenge the contention of the learned Advocate-General that he is not related to Mst. Kamal Khatoon.
8. ' It will be further noticed that the petitioner is an accused person in a case filed by the mother of Mst. Kamal Khatoon. In our opinion, in such circumstances, his application under section 491, Cr. P.
9. C. Was not bona fide and the High Court has rightly refused to exercise its discretion unde section 491, Cr. P. C. We do not consider this as fit case for interference. The petition is dismissed.
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