1988 P Cr (PLP)

4. Today, the case has come up for arguments. I have heard Mr. Mohammad Ali Sheikh, learned counsel for the applicant, Mr. Abdul Ghafoor Mangi, Assistant Advocate‑General, Sind, for respondent 1, and Mr. Nooruddin Sarki, learned counsel for respondent2.

5. Learned counsel for the applicant has pointed out that on an application under section 491, Cr.P.C. being No.349/1987, made by Ghulam Sarwar, respondent

2. Rule Nisi was issued for the production of the same detenu and her statement was recorded in open Court in the presence of the parties and their counsel with the assistance of Mr. Syed Sarfraz Ahmed, Assistant Advocate‑General, Sind, and she stated that she had not been wrongfully confined by anybody and she was living with Ibrahim in his house. And, by the order, dated 20‑10‑1987, she was allowed to go wherever she wanted. The record of the said case is available before me. I may reproduce the order, dated 20‑10‑1987, which reads as follows: ‑ "Mst. Sami has been produced by the respondent in pursuance of the notice of this Court. She is major. Her statement has been recorded in open Court in presence of parties and their counsel with the assistance of Mr. Sarfraz Ahmed, A.A.‑G. The father of Mst. Sami Siddiq and her uncle Wall Muhammad are also present. She has stated that she is not wrongfully confined and she wants to go with respondents Nos. 2 and

3. She is major she can go wherever she wants."

6. It is submitted by the learned counsel for the applicant that notwithstanding her statement made by the detenu in this case mentioned herein above that she is staying at the house of Ghulam Sarwar, respondent 2 out of her own free will without any force or compulsion, she should not be allowed to stay with him and she should be directed to go with the applicant who is her husband. In support, he relied on Fateh Sher v. Sarang P L D 1971 Lah. 128, Ramzan v. Ch. Muhammad Aslam, Magistrate I Class, Sahiwal and 3 others P L D 1972 Lah. 809, Muhammad Rafique v. Muhammad Ghafoor P L D 1972 SC 6, Allah Dad son of Rakha v. Hazur Bakhsh and others 1985 S C M R 942, Shahida Parveen v. Muhammad Inayat and another P L D 1980 Lah. 14, Muhammad Anwer Shahzad v. Muhammad Ismail and 2 others 1982 P Cr. L J 133 and Khalid Mehmood v. Abdul Sattar and 3 others 1988 P Cr. L J 148.

7. On the other hand, Mr. Nooruddin Sarki, learned counsel for respondent 2 submitted that Mst. Sami, the detenu alongwith the application praying for recalling the search warrants and recording her statement filed an affidavit wherein she has stated that she is married to Ghulam Sarwar and she is living in his house according to her own free will. She has further stated therein that on 20‑10‑1987, when she was produced in this Court in Criminal Miscellaneous No.349/1987, she was under great mental torture and Muhammad Ibrahim had threatened her to give statement in his favour as he had told her that if she failed she as well as her husband would be killed by him. She has further stated that the Nikahnama produced by Mohammad Ibrahim is forged one and does not bear her thumb‑impression.

8. In the proceedings under section 491, Cr.P.C. what the High Court is required to do is to find out whether the detenu is illegally or improperly detained in the custody of the respondent and, if it is so, then to set her at liberty, I may produce herein below the provisions of section 491, Cr. P. C. "491.‑ (1) Any High Court may, whenever it thinks fit, direct‑‑ (a) that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law; (b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty; (c) that a prisoner detained in any jail situate within such limits be brought before the Court to be there examined as a witness in any matter pending or to be inquired into in such Court; (d) that a prisoner detained as aforesaid be brought before a Court‑martial or any Commissioner for trial or to be examined touching any matter pending before such Court‑martial or Commissioners, respectively; (e) that a prisoner within such limits be removed from one custody to another for the purpose of trial; and (f) that the body of a defendant within such limit be brought in on the Sheriff's return of cepi corpus to a writ of attachment. (2) The High Court may, from time to time, frame rules to regulate the procedure in cases under this section. (3) Nothing in this section applies to persons detained under any law providing for preventive detention."

9. It is common ground that the present case falls under clause (b) and no other clause. Therefore, I have to examine whether Mat. Sami, the detenu is detained illegally or improperly. She has clearly stated in her deposition before this Court that she is 21 or 22 years of age and living with Ghulam Sarwar out of her own free will therefore, it cannot be said that she has been detained illegally. However, much emphasis is laid by Mr. Mohammad Ali Sheikh, learned counsel for the applicant that she has been detained improperly because she is a married woman and married to Mohammad Ibrahim, the applicant. But, this is disputed as stated hereinabove and, therefore, it will not be proper for this Court to go into this question. It will be determined in proper forum if proceedings are taken in that behalf.

10. Mr. Abdul Ghafoor Mangi, Assistant Advocate‑General, Sind, and Mr. Nooruddin Sarki, learned counsel for respondent 2 have relied on two cases, namely, (i) Sardara v. Khushi Muhammad etc. 1973 SCMR 189 and (2) Mst. Sahi Bi v. Khalid Hussian and 6 others 1973 S C M R 577, which are highest authorities to be followed if applicable to this case, in view of the provisions of Article 189 of the Constitution.

11. In the first named case of Sardara (supra) reliance was placed on an earlier decision of the Supreme Court in the case of Muhammad Rafique v. Muhammad Ghafoor P L D 1972 SC 6, which has been referred to by Mr. Mohammad Ali Shaikh and wherein inter alia it was observed as follows:‑ "The High Court has two‑fold jurisdiction under this section (i) to deal with a person within its appellate criminal jurisdiction according to law; and (ii) to set him at liberty if he is illegally or improperly detained. The question which falls for determination, however, is that if the Court finds that the person brought before it was not being illegally or improperly confined or detained what order can be passed regarding the custody of that person. If the person is a minor, the Court may make over his custody to that guardian which will be dealing with him in accordance with law, but if the person is 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 le t or not. The Court may 'set 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 for which there is no warrant under section 491 nor can such an order be sustained under section 561‑A of the Code as it cannot be said that allowing person freedom of movement is an abuse of the process of the Court."

12. It may also be pertinent here to refer to the observations of the Supreme Court in Sahi Bi's case. In this case also the dictum laid down in the case of Muhammad Rafiq was also followed and it was inter alia observed by Mr. Waheeduddin Ahmed, J., who wrote the opinion :of the Court at page 580 of the report as follows: ‑ "The observation of the learned Single Judge of the High Court that if Mst. Irshad Begum is set at liberty she will lead immoral life is irrelevant for the decision of the case under section 491, Cr.P.C. Under section 491, Cr.P.C., if a sui juris detenu is unwilling to go with her husband or guardian, the Court cannot compel her to go with them. She must be set at liberty and allowed to move freely. This position was made clear in the abovementioned case decided by this Court and the learned Single Judge should have set at liberty the detenu and allowed her to move freely according to her wishes."

13. So far as the cases cited by Mr. Mohammad Ali Sheikh are concerned, I have already referred to above Muhammad Rafique v. Muhammad Ghafoor P L D 1972 SC

6. Regarding the other case of Supreme Court cited by Mr. Mohammad Ali Sheikh, namely, Allah Dad son of Rakha v. Hazur Bakhsh and others 1985 S C M R 942 firstly, it has no application to the facts of the present case, secondly, the custody of the minor abductee was claimed by her father and the welfare of the minor was considered. In some cases of High Court referred to by Mr. Sheikh, discretion of the Court was not exercised in handing over the custody of the detenu to the paramour and such is not the case here and other cases are not relevant.

14. I, therefore, dismiss this application. The applicant may seek his remedy according to law. M. B. A./ M‑392/ K Application dismissed.