2004 PLP 258 (SCMR)

MUNIR A. SHEIKH, J--This petition is directed against the order dated 10-12-2001 of the Lahore High Court, Lahore, passed it Habeas Corpus petition filed by respondent No.2. The facts of the case are that petitioner No.1 Muhammad got a case F.I.R. No.190 registered on 13-8-2001 against Nek Muhammad, Ehsan and three others for the abduction of his daughters Mst. Nargis and Mst. Shabana under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance No. VII of 1979. The said abductees were recovered by the police from respondent No.2 and produced before the Judicial Magistrate, Sheikhupura, on 27-10-2001 for recording of their statements under section 164, Cr.P.C. The Judicial Magistrate vide his separate orders of even date recorded the statements of the abductees and observed that they had supported the case as made out in the F.I.R. in earlier statements made by them under section 161, Cr.P.C. They were handed over to the present petitioners i.e. their parents. The application made by them under section 164, Cr.P.C. was; however, dismissed. Respondent No.2, Nek Muhammad, in a clandestine manner by concealment of facts filed habeas corpus petition in the Lahore High Court on 29-10-2001. In paragraph 5 thereof he put up-a new story that Mst. Nargis and Mst. Shabana were with his brother Muhammad Ihsan and were forcibly taken away from their custody by Muhammad Ali and others at Sheikhupura. The said Muhammad Ali was impleaded as one of the respondents in the habeas corpus petition and the present petitioners were not impleaded as party. An order was passed for the recovery of the abductees from said Muhammad Ali. When the case was taken up on 31-10-2001 it was brought to the notice of the learned Judge of the High Court by said Muhammad Ali that the abductees were not with him. It was also brought to the notice of the Court that a case has already been registered against Nek Muhammad and others. The abductees had already been handed over to their parents by the Judicial Magistrate, Sheikhupura, 'on 27-10-2001. The learned Judge of the High Court passed an order for recovery of the abductees from their parents i.e. the present petitioners, for production before the Court. The alleged abductees were accordingly recovered by the bailiff from the house of the petitioners and the learned Judge of the High Court on 10-12-2001 sent the minor Mst. Shabana to Dar-ul-Amaan. A Board of Doctors was also ordered to be constituted to ascertain the age of the said abductee Mst. Shabana. The learned Judge further allowed Mst. Nargis on her own statement to accompany her parents i.e. the present petitioners. The said abductors in spite of all these misstatements and suppression of facts were allowed pre-arrest protective bail by the High Court. Learned counsel for the petitioners submitted that instead of approaching the, Court of Session, the said abductors continued getting extension in their bail granted by the High Court. He maintained that the proceedings in the habeas, corpus petition were without jurisdiction in view of the above facts and the act of the learned Judge of the High Court to proceed with the petition would amount to putting premium upon the fraud committed by the abductors instead of punishing them. Leave is granted to consider, whether the proceedings in the habeas corpus, petition as a whole are maintainable in the facts and circumstances of the present case. Mst. Shabana shall remain in Dar-ul- Amaan as ordered by the High Court but the order for constitution or Board of Doctors for examining her .age shall remain suspended. The petitioners be allowed to meet Mst. Shabana as and when they would like to see her in the presence of an officer of Dar-ul-Amaan. However, if Mst. Shabana wishes to go with the petitioners i.e. her parents, she may move this Court by filing a proper application on which an order will be passed according to law. The order of grant of pre-arrest protective bail to the accused respondents by the High Court is hereby recalled. The police is directed to arrest them immediately if they have not secured bail from a Court or competent jurisdiction. The police is further directed to investigate the case uninfluenced by any observation made in any of the orders passed in the habeas corpus petition or on any application made in the said petition by the High Court and by this Court. Further proceedings before the Lahore High Court in the habeas corpus petition and connected applications shall remain stayed till the final disposal of this appeal. N.H.Q./M-521/S Leave granted.