1978 PLP 83 (SCMR)

DORAB PATAL, J.‑This is a petition for leave against an order of the Lahore High Court disposing of a habeas corpus petition filed by the petitioner. After hearing the learned counsel for the petitioner and the learned counsel for the father of the detenu Mst. Manzooran Bibi, we were satisfied that the case had to be remanded to the High Court, therefore, we have converted the petition into an appeal and allowed it. However, as we have remanded the case, we would not like to make any observation which would pie judge. Accordingly we would only observe that the petitioner's claim to be the paternal aunt of the detenu and to have brought her up, further according to her the detenu' marriage broke up, therefore, the detenu came back to live with her but on au application filed by the detenu's husband to the Martial Law authorities, the Police sent for the detenu and later on handed over her to one Ghulam Sabir. The detenu's husband was then a tenant of the said Ghulam Sabir, and, the said Ghulam Sabir in turn handed over the detenu to the two respondents in this petition who are also landlords. Hence the habeas corpus petition in the High Court. The petitioner s contention that she is the detenu's paternal aunt is denied by the dctenu's father. On the contrary. from the judgment under appeal, it would appear that according to the detcnu's father, the detenu had been abducted by one Kharal, but on the promulgation of Martial Law, the detenu's father had reported the matter as a result of which the detenu was returned to her husband who was then a tenant of the respondents. It would also appear from the judgment under appeal that the parties had filed affidavits in support of their respective allegations. But the case was heard en several dates in the High Court over a period of months acid many persons were present at these hearings. Some of these persons were supporters of the dctenu's father whilst others supported the petitioner and these persons made statements and counter statements in the Court which nave been relied upon in the judgment under appeal to supplement the pleadings. There is no record of these statements and counter statements, but retying on the statements made in support of the detenu's father, the learned Judge in the High Court came to the conclusion that the petitioner had committed perjury and had filed the habeas corpus application fn order to use the detenu for immoral purposes. Accordingly, he dismissed the habeas corpus petition, ordered the petitioner s prosecution and the return of the detenu to ha father. Mr. Saeedur Rehman defended the impugned order on the basis of the law declared by this Court, whilst Mr. Wasim Sajjad submitted that these judgments supported the petitioner's case. The law declared by this Court is clear and the controversy between the parties turns on what the true facts are. And as submitted by Mr. Wasim Sajad it is clear that the habeas corpus application was decided without recording any evidence whatever not even the evidence of the detenu therefore, learned counsel relied on this Court's observations in Muhammad Nazir v. The S. H. O., Police Station. Shahpur and 3 others (1973 S C M R 351). The facts of this case were that the Lahore High Court had decided a habeas corpus application without recording the state ments of the detenu, therefore, this Court sat aside the Lahore High Court's order and disposed of the habeas corpus application. As on the facts vie did not consider it proper to decide the habeas corpus application, with respect we would only observe that the High Court erred in disposing of this application without recording the detenu s evidence, the more so, as she bad been produced before the Court on the several dates of the hearing of the case. Unfortunately, the attention of the High Court was not drawn to the relevant observations in the case cited, therefore, we have allowed the appeal and remanded the case so that the High Court may decide it after recording the evidence on the question whether the petitioner is the detenu`s aunt and all other questions necessary for deciding the habeas corpus application. As the appeal is allowed it is necessary to give a direction for the custody of the detenu pending the hearing of the habeas corpus application in the High Court. One of us had ordered that the detenu be kept in the local Darul Aman, pending the hearing of the petition for leave but we find that attempts were made by the parties to approach the detenu in the Darul Aman. Once again we would refrain from making any observations on this unfortunate aspect of the case except to state that the object of keeping the detenu was frustrated by these illegal attempts to approach her, therefore, pending the remand of the case in the High Court we direct that the shall stay with her father. Appeal allowed.