P L D 1974 Karachi 485 (PLP)

(a) Criminal Procedure Code (V of 1898)‑‑‑ S. 491‑Habeas corpus‑Petitioner himself involved in crime reported by alleged detenu's mother regarding abduction of detenu and case in progress‑Detenu produced before First Class Magistrate and her statement recorded and such statement against petitioner's allegations‑ Detenu also to be produced as witness in criminal case against petitioner‑Petitioner first stating in his application of detenu being wrongfully detained by one zemindar but later changing version and applying for search to be made of house of another zemindar in another village‑Not proper, held, in circumstances, for High Court to utilise extraordinary process under S. 491. ‑‑ S. 491‑Habeas corpus‑Section though not placing restriction as to persons or class of persons entitled to apply for relief, generally however, person having special interest, right, or authority, in or from, detenu may seek relief‑No right vested in strangers to make applica tion under S.

491. There is no doubt that language of section 491, Code of Criminal Procedure places no restraint as to the person or class of persons who may apply for relief; indeed the person really aggrieved is usually so coerced as to be unable himself to make an application, someone else, therefore, has to seek relief on his behalf. As a general rule, however any person having special interest, right or authority in or from the person wrongfully detained may seek relief on his behalf, and a stranger has no right to make an application. In re: Hardial Singh A I R 1949 E Ph. 130; Jumma Khan Baluch v. Government of Pakistan and others P L D 1957 Kar. 939 and Aziz‑ul Haque v. Province of‑ East Pakistan and another P L D 1968 Dacca 728 ref. ‑‑-S. 491‑Habeas corpus‑Principle that strangers have no right to file application under section‑Applies with greater force in case of allegations made against private persons for illegal detention of minors or females‑More so in case of litigation already pending between parties. The principles will apply with greater force in cases in which allegations are made against private person having illegally detained persons who are either minors or females‑particularly so when litigation between the parties is already pending in a Court of law, or any other Statutory Tribunal. If an outsider or a stranger is allowed to apply for a writ in the nature of habeas corpus on behalf of a detenu, then complications may arise if any kind of order is made which affects the detenu adversely and later on it is challenged by the detenu himself on the ground that the person seeking relief previously had no authority to make the application.

S. 491‑Habeas corpus, remedy by way of‑Pertains to essentially dis cretionary jurisdiction‑Alternative relief available in any other quarter if considered adequate‑Normally to be treated as a bar to remedy by way of habeas corpus. The allegations set forth in the application for seeking relief under section 491, Code of Criminal Procedure, usually make out offences punish able under the substantive law for which, in the ordinary course, relief is to be sought under the normal procedure laid down under the law, rather than making a direct approach to the High Court under its extraordinary jurisdiction under section 491, Cr. P. C., or through constitutional means: These remedies pertain to jurisdictions that are essentially discretionary in nature, and may not in a fit case, be exercised. An alternate relief available in any other quarter, if considered adequate, would normally be treated as a sufficient bar to an attempt at such a remedy. The Law of Extraordinary Legal Remedies by Forrest G. Ferris (1926‑Edn.), p. 59 ref.