P L D 2011 Lahore 516 (PLP)

MUHAMMAD FARRUKH IRFAN KHAN, J.

Petitioner through this petition under section 491, Cr.P.C. seeks recovery of alleged detenu namely Nasir Ahmad his brother from the illegal custody of respondents Nos. 2 to 6.

2. Briefly the facts of the case are that respondents Nos.2 to 6 are in the business of sending people abroad and they represented to the petitioner that they can send his brother abroad i.e. to Italy. For this purpose they demanded an amount of Rs.12.0 lacs for preparation of passport on 15-10-2010 and asked the petitioner to deposit the remaining amount till 14-12-2010. The alleged detenu went to respondents Nos.2 to 6 at Safdarabad Jumma Khan Aud to give them the said amount and the respondents assured the petitioner that his brother's flight is scheduled for 16-12-2010. Till now neither the petitioner's brother has contacted the petitioner nor the respondents Nos.2 to 6 have given any proof of sending the brother of the petitioner abroad and are extending threats of dire consequences to the petitioner.

3. The petitioner apprehends that the respondents Nos.2 to 6 have not sent his brother abroad and have detained him illegally, hence this petition.

4. Arguments heard. Record perused. Subsection-b of section 491, Cr.P.C. reads as under:-- "

491. Power to issue directions of the nature of a Habeas Corpus.--Any High Court may, whenever it thinks fit, direct (a) (b) that a person illegally or improperly detained in public or private custody within such limits to set at liberty."

5. Plain reading of the said provision makes it clear that the person to be set free is illegally or improperly detained in public or private custody. The petitioner's case is that he has entered into some transaction with the respondents for sending his brother the alleged detenu abroad and in connection therewith, the petitioner has allegedly paid huge sum of money which according to the petitioner reflects the earning of his whole life. The requirement of the law is that the alleged custody of a person is illegal or improper when he is confined without his will.

6. Even otherwise reading of section 491; Cr.P.C. makes it manifestly clear that in order to exercise the discretionary power the Court in the first instance should have been informed as to where the alleged detenu is detained. Reading of para-4 of the instant petition is necessary which is reproduced below:-- "That when the petitioner insisted the respondents Nos.2 to 6 assure the petitioner that they have sent the brother of the petitioner abroad, they became anger and extended the threats of dire consequences to the petitioner if he again asked them about his brother from which doubts have been created in the mind of the petitioner and the respondents Nos.2 to 6 have, not sent his brother abroad rather they have detained him somewhere or perhaps have murdered him hence necessity has arisen to file the instant petition before this Hon'ble Court.

7. The stance of the petitioner is that he is not sure as to whether his brother has been murdered or is illegally confined by respondents Nos.2 to 6 at some unknown place. The petitioner has not indicated and/or disclosed any place from where the recovery of his brother could be effected. Powers under section 491, Cr.P.C. are to be exercised only in cases of illegal and improper custody and not for any other consideration, including coming to the rescue of a party, where the matter clearly falls under certain other provisions of law, for the sake of expediency.

8. It has been observed by this Court that the incidence of abusing the provisions of section 491, Cr.P.C. has increased manifold of late by stretching the controversy into the ambit thereof, which would otherwise not fall under the purview of the said provision. It is therefore, essential, to pause for a moment and take measures to arrest such, a tendency before it erodes the real essence of section 491, Cr.P.C. This being so, this petition has no force and the same is dismissed in limine. N.H.Q./T-21/L Petition dismissed.