P (PLP)

The words of clause (b) of subsection 1 o section '491; Criminal Procedure Code, are absolutely clear, and admit of no doubt that the High Court has no jurisdiction to issue a writ of habeus corpus in case of the persons not detained within the limits of its appellate Criminal jurisdiction. 95 I C 4,9 distinguished A I R 1944 Cal. 76; A I R 1945 Oudh 117 and A I R 1945 Nag. 20 relied on. Pir Abdul Latif Khan, a Member of the Provincial Legislative Assembly, son of Pir Abdul Qadir Khan Sahib, of Zakori Sharif, of D. I. Khan, was ordered by the Deputy Commissioner, D. I. Khan to furnish a bond in Rs. 30,000 with fifteen sureties to be of good behaviour for three years, under section 40, Frontier Crimes Regulation, or in deault to undergo simple imprisonment for a period of three years. Since Abdul Latif Khan failed to furnish the requisite bond he is undergoing simple imprisonment awarded to him. Sayed Bismillah Shah, son of Sayed Muzammil Shah, Sayed of Akora, Tehsil Nowshera, District Peshawar, has made this application, under section 491, Criminal Procedure Code, that the detention of Abdul Latif Khan of Zakori Sharif was illegal and improper, and, therefore, 'this Court should order that the said Pir Abdul Latif Khan of Zakori ; Sharif be, produced in Court and set at liberty. It is admitted by the learned counsel for the applicant that Pir Abdul Latif Khan of Zakori Sharif is not detained in public or private custody within the limits of Appellate Criminal Jurisdiction of this Court. Under the circumstances, the question is whether assuming that the order passed by the Deputy' 'Commissioner, D. I. Khan is illegal and improper, this Court' has jurisdiction under section 491, Criminal Procedure Code, to order that Pir Abdul Latif Khan of Zakori Sharif be set at liberty. The words. of clause (b) of subsection (1) of section 491, Criminal Procedure Code, are to the following effect: "Any High Court may, whenever it thinks fit, direct that a, person illegally or improperly detained in public or private custody within such limits be set at liberty." Such limits refer to the limits contained in sub‑clause (a) and which are the limits of the High Court's appellate criminal jurisdiction. Since Abdul Latif Khan of Zakori Sharif is not confined within the limits of the appellate criminal jurisdiction of this Court, this Court has no authority to order him to be set at liberty. The learned counsel appearing for the applicant, however referred me to a case, Muhammadalli Allabakhsh v. Ismailji Abdulali reported in 95 Indian Cases, page 49 in which it was held "The High Court 'of judicature has under its common Law powers, jurisdiction to issue a writ for the production of a person outside British India provided it is satisfied that he is in the custody or control of a person within its jurisdiction. The enactment of section 391, Criminal Procedure Code, cannot be sail to have affected this Common Law jurisdiction of the High court." Nothing has been shown to me whether, this Court, has, like the Bombay High Court, Common Law power which ,rive jurisdiction to issue writs of habeas corpus in cases in which the persons are not detained within the limits of criminal appellate jurisdiction of this Court. In the above case, their Lordships of the Bombay Nigh Court held that by the Charter of 1823, there was given to the Chief justice and puisne judges of the Supreme Court such jurisdiction and authority as judges of the Court of King's Bench had, and might lawfully exercise, within that part of Great, Britain called England as far as circumstances would permit. The High Courts were given these powers by the Supreme Court Charter of 1823. This Court is not a High Court, in the same as Bombay High Court is the High Court, nor were any powers given to it by the Supreme Court Charter of 1823. Therefore, the authority quoted by the learned counsel will have no application to the facts of the present case. The words of clause (b) of subsection 1 of section

491. Criminal Procedure Code, are absolutely clear, and admit of no doubt that the. High Court' has no jurisdiction to issue 'a writ of habeas corpus in case of the persons not detained within the limits of its appellate criminal jurisdiction. If any authority is needed to support this view, reference may be made to Leo Zepantis v. Emperor reported in A I R 1944 Cal. p.

76. In this case one S, a Greek, came to Calcutta and fell suddenly ill. He had a claim against the owners of the ship in respect of his illness, but he was forcibly, removed from Calcutta by the Ship's agents. But, as by the time the application for habeas corpus was made, S. had been removed from British India to Egypt, their Lordships of the Calcutta High Court held that they could not help S. because he had already gone out of their jurisdic tion. In A I R 1946 Oudh, p. 117, their Lordships of the Oudh Chief Court in case Vishambhar Dayal Tripathi v. U. P. Government held; "In order that the High Court may entertain in the application by a detenue order section 491, the detenu must be within the appellate jurisdiction of the High Court". Their Lordships went to the extent of holding that even if the detenu was arrested and originally confined within the appellate criminal jurisdiction of the High Court, still be has to be within the appellate criminal jurisdiction of the High Court at the time of the hearing of the application to give power to the High Court to issue a writ of habeas corpus. The same view was taken in A I R 1945 Nag. P. 30 in case V. M. Sarangapani accused applicant v. Emperor. I consequently hold that as Pir Sahib of Zakori Sharif is not confined within the appellate criminal jurisdiction of this Court, therefore, this Court has no jurisdiction to entertain an application of his behalf under section 491, Criminal Procedure Code. The result is that I refuse to issue a rule nisi and reject this application. Learned counsel has made a request to grant a certificate under section 205 of the Government of India Act as adopted by the Pakistan Provisional Constitution Order, 1947, but I am afraid, the case does not involve a substantial question of law as to the interpretation of the Government of India Act or any order in Council made there under, and consequently, I withhold the certificate. Orders announced. K. M. A. Petition rejected.