P L D 1988 Lahore 333 (PLP)

Muhammad Rafiq v. Muhammad Ghafoor P L D 1972 S C 6 ref. Syed Zafar Hussain Shah for Appellant, Tasadduq Hussain Jillani, A.A.‑G, for Respondent No.l. FAZAL KARIM, J.‑‑This Intra‑Court Appeal under section L4 of the Law Reforms Ordinance, 1972, by Nur Hussain, is directed against an order of a learned Single Judge of this Court dated 12‑1‑198~ dismissing the appellant's application under Article 199, of the Constitution.

2. On the complaint of her father Pir Ali Shah, the detenue, Mst. Iqbal Bibi, was tried under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and was convicted and sentenced by the Sessions Court. She unsuccessfully appealed before the Federal Shariat Court. After serving out the sentence of imprisonment, she was released from jail and she appeared 'before a Magistrate and on her request was sent to Darul Aman; she declined to go with her parents, On 14‑12‑1987, she again appeared before the Magistrate and stated that she would not like to live any more in Darul Aman and that she should be allowed to go with her phoophizad Nur Hussain, appellant The learned Magistrate made inquiries and found that Nur Huzssain. petitioner, was in no way related to her. He, therefore, directed tier to be kept in Darul Aman till such time as somebody, related to her, sought her custody.

3. Nur Hussain then filed a petition under Article 199 of the Constitution; according to him, his wife Nur Sain was a phoophizad of the detenue and as the detenue was being kept in Darul Aman against her will, her detention was illegal. He, therefore, prayed for, the detenue to be set at liberty.

4. The learned Single Judge noticed that before the Magistrate, the petitioner was stated to be a phoophizad of the detenue; now he was "putting up another version that petitioner's wife is phoophizad of the detenue". Observing that though it was not necessary for such a petition to be made by an aggrieved person, the learned Single Judge was of the view that "conduct of the petitioner does not merit interference in this extraordinary jurisdiction since the petition seems to have been moved for certain extraneous consideration. " He, however, directed the Superintendent Darul Aman "to summon the parents and brothers of the alleged detenue and arrange their meeting and therefore, the detenue or the parents may move the appropriate: authorities in this regard"

5. We have heard the learned counsel for the appellant and the learned A. A.‑G. Learned counsel for the appellant maintains that there is hardly any basis for the observation that the petition was ,moved for certain extraneous consideration", Concerning the direction to the Superintendent Darul Aman, namely,' that a meeting between the detenue and her parents and brothers should be arranged, it is pointed out that it was at the instance of the detenue's father that she was tried and convicted; that after her release from the Jail the detenue had declined to go with her parents and brothers, for, she thought that she was falsely accused of the offence and that as she was sui juris, she could not be compelled to go with anybody against her will. Learned A.A.‑G. supported the contention of the appellant's counsel. Learned counsel for the appellant also maintains that as the detenue was being, kept in Darul Aman against her will', her detention was illegal and without lawful authority.

6. We have also summoned Mst.lqbal Bibi from Darul Aman. She says that the appellant Nur Hussain and his wife are related to her; that she does not want to live in Darul Aman any more and that she be set at liberty.

7. That the detenue is being held in custody in Darul Aman without lawful authority admits of no doubt. There is nothing in law, I and none was cited before us, authorising the Magistrate to direct her detention in Darul Aman, particularly when the detenue did not want any more to live there. In the peculiar circumstances of the case, it is in our view vain to hope that a meeting between the C detenue and her parents and brothers would prove fruitful; as noticed above, the detenue refused to go with her parents when she was ,released from jail and when she appeared before the Magistrate on 14‑12‑1987, she again refused to go and live with them. In any case, there being no doubt about her custody in Darul Aman being without lawful authority, all that this Court is required to see is how to proceed further in the matter. in the‑‑ connection reference may with advantage be made to Muhammad Rafiq v Muhammad Ghafoor P L D 1972 Supreme Court 6 where it was held that if the person detained is a major, the only jurisdiction which the Court can exercise is to set him at Liberty whether illegally or improperly detained in public or private custody or not. "The Court may set him 'at liberty' but cannot restore status quo ante against the wishes of the person brought before it. Such a course will lead to curtailment of liberty . That was a case under section 491, Cr.P.C. but the above observations in our opinion, apply equally to a petition under Article 199, sub‑Article (1) , clause (b) (i) of the Constitution. For, though that Article does not expressly provide for the person in custody to be set at liberty, yet, once the Court is satisfied that he is being held in custody without lawful authority, it follows, by necessary implication, that the only course open to the Court is to set him at liberty. To hold otherwise would not only be against the spirit underlying Article 199, but would also sin against the fundamental right enshrined in Article 9 of the Constitution: "No person shall be deprived of life or liberty save in accordance with law." It was held in Abdul Baqi Baluch v. Government of Pakistan PLD 1968 S C 313 at 322 that "under Article 98 (2)(b)(i) of the Constitution [now Article 199 (1)(b)(i)] a duty has been cast upon the High Court, whenever a person detained in custody is brought before that Court, to 'satisfy itself' that he is not being held in custody without lawful authority or in an unlawful manner". The right conferred by this clause, concerned as it is with the liberty of a citizen, was described as "this most cherished right" in Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri P L D 1969 S C

14. We are perfectly clear in our mind that we would be failing in the performance of our constitutional duty to enforce "this most cherished right" if, after having satisfied ourselves that the custody is without lawful authority, we were not to order what follows necessarily and inevitably, namely, that the person in custody be set at liberty.

8. We would, therefore, accept the appeal, set aside the order of the learned Single Judge and set Mst. Iqbal Bibi at liberty. M. B. A./N-117/L Appeal accepted.