2000 PLP 2567 (YLR)

"Certified that the above expenses were incurred by me from my own pocket and that the petitioner or any body on his behalf who accompanied me neither provided any conveyance nor paid thereof."

13. In case the bailiff does not submit his claim within the time mentioned in the last rule, the amount or the balance thereof should be refunded to the party concerned. In case, however, the party fails to claim refund within six weeks, the account due to it be credited to Government under the head 'XLVI-Miscellaneous Fees and Fines' and the treasury challan showing the credit should be attached to the file of the case.

14. If the writ is to be executed at the State expense, the bailiff should be paid his expenses as admissible under the Rules.

15. If at any time, on sufficient ground shown to the satisfaction of the Registrar, it is proved that the bailiff submitted an exaggerated or incorrect claim or claimed expenses though they were met by the party concerned, this should be taken to be a misconduct and necessary proceedings against him be initiated under the High Court Establishment (Appointment and Conditions of Service) Rules, which may result in major penalty provided by the relevant Rules.

16. To check the tendency to file habeas corpus petitions relating to girls with a view to humiliate them or their parents the Court may, at its discretion; require the party concerned to deposit in advance an amount as fixed by the Court directing issuance of rule nisi to be paid to the alleged detenue as compensation if she appears in Court and makes a statement controverting the allegations of illegal confinement.

17. In disposing of any such rule the Court may in its discretion make an order for the payment by one or the other of the cost of the rule.

18. The forms of Warrants Nos. l and 2 as given here below are to be followed. [Form No.2 of Search Warrant (See rules 3 and 5] IN THE LAHORE HIGH COURT, LAHORE. To (The name and designation of the person to whom the warrant is directed). Whereas information has been laid before this Court that (give the name and description of the person) alleged to be illegally detained in (describe the house or place where the person illegally detained). This is to authorise and require you, with the assistance of (give the description of the person authorised to accompany the person to whom the warrant is directed) to search for the aforesaid (give the name and description of the person illegally detained) in the (describe the place to which the search is to be confined) and if found, to produce him forthwith before this Court to be dealt with in according to law. Given under my hand and the seal of the High Court of Lahore High Court, Lahore this day of 19 . Deputy Registrar. Form of Warrant No. 1 (See rule 2) IN THE LAHORE HIGH COURT, LAHORE. To the officer-in-charge of (name of Jail of lunatic asylum or other place. where the person is detained in custody) or to (name of person). You are hereby required to have the body of B.C. Now a prisoner in your custody (or now in your custody) before the High Court, on the day of next, be dealt with according to law and you shall then and there abide by such order as shall in that behalf be made by the said Court (if the prisoner is detained in public in custody (add) and unless the said B.C shall then and there, by the order to be released, you shall, after the said Court, shall have dispensed with his further attendance cause him to be conveyed, under safe and sure custody, back in the said (jail or asylum or other place of custody). Given under may hand and the seal of the High Court this day of 19 Deputy Registrar.

7. Historically speaking the Code of Criminal Procedure was enacted on 22-3-1898. The Code under went drastic amendments at the hands of the Legislature in 1923 by two Acts namely, Criminal Law Amendment Act, XII of 1923 (popularly known as the Racial Distinctions Acts) and Criminal Procedure Code Amendment Act, XVIII of 1923. Of these latter Act was the more important and was the outcome of, general revision of the whole Code, whereas, the former .Act was limited to the amendment of certain sections relating to the trial of European British Subjects. These Amendment Acts came into force from 1-9-1923. Immediately before Independence the territories which now constitute Pakistan were governed as part of India by the Government of India Act, 1935 (25 and 26 Geo V Ch.42) which was the Constitution instrument then enforced. The Constituent Assembly passed on 6-7-1954 the Government of India Amendment Act, 1954 whereby section 223-A was inserted in the Government of India Act, 1935 ' in the following words: "Section 223-A.

Every High Court shall have power throughout the territories in relation to which it exercises jurisdiction to issue any person or authority including in appropriate cases any Government within those territories writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them." This jurisdiction was continued in the same form by Article 170 of the Constitution of 1956. The Constitutional jurisdiction in the nature of habeas corpus, presently vesting in the superior Courts was initially conferred by Article 98 of the Constitution of 1962 and has been continued as such by Article 199 of the Constitution of 1973 which reads as under: Article

199. Jurisdiction of High Court.

(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,-- (a) on the application of any aggrieved party, make an order-- (i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do or to do anything he is required by law to do; or (ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or (b) on the application of any person, make an order-- (i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or (ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or (c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II. (2) Subject to the Constitution, the right to move a High Court for the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II shall not be abridged. (3) An order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law. (4) Where-- (a) an application is made to a High Court for an order under paragraph (a) or paragraph (c) of clause,(1), and (b) the making of an interim order would have the effect of prejudicing or interfering with the carrying out of public work or of otherwise being harmful to public interest or State property or of impeding the assessment or collection of public revenues. The Court shall not make an interim order unless the prescribed law officer has been given notice of the application and he or any person authorised by him in that being heard and the Court, for reasons to be recorded in writing, is satisfied that the interim order-- (i) would not have such effect as aforesaid; or (ii) would have the effect of suspending an order or proceeding which on the face of the record is without jurisdiction. (4A) An interim order made by a High Court on an application made to it to question the validity, or legal effect of any order made, proceeding taken or act done by any authority or person, which has been made, taken or done or purports to have been made, taken or done under any law which is specified in Part I of the First Schedule or relates to, or is connected with (State Property or) assessment or collection of public revenues shall cease to have effect on the expiration of a period of (six months) following the day on which it is made, unless the case is finally decided, or the interim order is withdrawn, by the Court earlier. (4B) Every case in which, on an application under clause (1), the High Court has made an interim order shall be disposed of by the High Court on merits within six months from the day on which it is made, unless the High Court is prevented from doing so for sufficient cause to be recorded. (5) In this Article, unless the context otherwise requires,-- 'Person" includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or Tribunal, other than the Supreme Court, a High Court or a Court or Tribunal established under a law relating to the Armed Forces of Pakistan ; and prescribed law officer" means- (a) in relating to an application affecting the Federal Government or an authority of or under the control of the Federal Government, the Attorney-General, and (b) in any other case, the Advocate General for the Province in which the application is made. Article 199 is similar to, but wider than the t jurisdiction conferred by section

491. Under Article 199 of the Constitution the High Court, may, on the application of a person, not necessarily an aggrieved party, if there be no other adequate remedy, direct a person in custody in the Province to be produced to satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner. The provision is similar to section 491(1) of Code of Criminal Procedure, but being a Constitutional provision is of higher authority. The provision confers on the High Court a jurisdiction which corresponds broadly to that possessed by the High Court in England to issue the prerogative writ of habeas corpus to safeguard the liberty of the subject. The first thing to be noticed in the provision is that the person who applies and the person who is detained need not be identical. And the restriction that the application should be by an aggrieved party is not applicable to an applicant for this writ. In England, ordinarily a person detained should apply at necessary fact to be disclosed in an affidavit in support of the petition are within his knowledge, though if he is not in a positron to apply, there is no legal bar to a friend or relation applying on his behalf. The', second point to be noted is that the Article applies to all forms of custody, public or private.

8. Apart from the power of arrest given to police officers and private persons and power to execute sentences of imprisonment conferred on Courts, there is a variety of statutes empowering different authorities to arrest and detain persons in circumstances specified in those statutes. Thus where a person has been convicted of a criminal offence and is undergoing imprisonment under a valid warrant, the warrant is an effective reply to the allegation of illegal detention. The same will be the position where a person is sent to prison for a debt or by process in a civil proceedings, or is committed to jail by some other judicial authority. The Court, will not enquire in such a case into the allegations of lack of jurisdiction unless the lack of jurisdiction is evident, particularly where the objection is only technical and there is a right of appeal or revision.

9. Since the issue before the Court is of lawful authority, the High Court's jurisdiction in cases under Special Acts will be limited to enquiring: (1) Whether the document authorising detention is on the face of it valid? (2) Whether the authority acting under the Special Act was a competent authority constituted in accordance with Act? (3) Whether the authority acted within the limits and under the conditions prescribed by the Act? and (4) Whether any fundamental right has been contravened?

10. Enquiry into all these questions will be permissible, because each of them affects the legality of the arrest. Thus the High Court may, set, at liberty a person detained under the Frontier Crimes Regulations if his detention was ordered in violation of a provision of the Regulation. If the order of detention is. not within the objection specified in the Act, but mala fide, with an ulterior motive, or an entirely different object, or the order does, not fall within the four corners of the Act, the detention will be unauthorised. The burden,. however, of showing that statutory conditions' were not satisfied will be on the petitioner. Section 491 cannot be construed as granting the power of, issuing writs although the power which it grants is certainly, in many respects similar to the power that may be exercised by the issue of such a writ. Section 491 confers statutory powers and not generally the power, of issuing writ of habeas corpus and arty power of passing interim orders would have to be, granted if, gathered at all, from the language of section 491 and not from any pre conceived notion of powers which are to be found as being implied in or ancillary to the power of issuing a writ of habeas corpus, because where powers are conferred by statute it is impossible to say that any power, expressly conferred, is inherent in the given power unless it is in fact a part of that power itself or absolutely necessary to the exercise of the main power. The powers to issue directions in the nature of the habeas corpus are a specie in themselves and are quite distinct from the rest of the pattern of- the Criminal Procedure Code. These are the powers vested in the High Court to afford relief to people who are suffering illegal restrains by the orders of the executive or that of any Judicial Tribunal. It affords an effective means of immediate release from unlawful detention whether in prison or in private custody. Section 491 and Article 199 of the Constitution provide a, remedy in all cases of wrongful deprivation of personal liberty. The Courts secure the liberty of the person, by, ordering his immediate release .from unlawful detention. It cannot grant, any other relief to, the detenue in respect of allegations of wrongful detention or any allegation of torture or some other inhumane acts committed on his person.

11. By their very nature and purpose the proceedings under section 491 are summary in character. Controversies ate not tried nor entire evidence is recorded under ordinary substantive and procedural laws, civil or criminal. These proceedings are not intended to go beyond the summary consideration of the questions essentially relevant to the alleged detention, e.g. whether ;art alleged detenue be set at liberty and as a consequence thereof be permitted to go with the person of his or her choice and or one claiming right to the -former's custody or company: The Court would not' go into the question of status or relationship of parties. The invocation of jurisdiction under this section to challenge detention. in prison involving intricate legal issues merits dismissal. In such a case petitioner should have filed a Constitutional petition. Where age of detenue -is a disputed question of fact which, cannot be conclusively determined in summary proceedings particularly when forgery is alleged, no order can be made under this section. In a habeas corpus petition bona fide of a petition has to be fully examined so that no one is permitted to abuse process of law. It would not be irrelevant to make it clear that the proceedings under section 491, Cr.P.C. must be in open Court as there are only two provisions that empowers Courts to hold proceedings . in camera, namely; section 352, Cr.P.C. and section 14 of the Official Secrets Act. Both the sections have no application to habeas corpus proceedings because while section 14 deals with an offence punishable under Official Secrets Act itself section 352, Cr.P.C. deals with the trial of an offence. As in case of section 491 there is no trial for an offence, the hearing cannot be in camera and must be held in open Court.

12. Since the intention of the Legislature was not to oust the jurisdiction of the High Court in matters of the custody of the children, Judges of the Family Courts were not vested with powers to entertain, heir and adjudicate upon the matters relating to the custody of the children which matters were within the jurisdiction of the High Court. Proceedings by way of habeas corpus can be adopted for obtaining custody of minors by their parents; legal guardians, or others who are entitled to have such custody. The lawful detention of a child from the person who is legally entitled to his custody is, for the purpose of the issue of the writ, regarded as equivalent to an unlawful imprisonment of the child. When the mother ,is deprived of the custody of her minor child below the age of seven years and she has not contracted a second marriage, a writ of habeas corpus under section 491, Cr.P.C. would be the most appropriate remedy and the High Court may not stay its hand on the ground that dispute for the custody of the minor can be adjudicated by the -Guardian Judge. High Court as Court of Record and patria potestas over minors had power of directing delivery of minor child into custody of his mother II the child was snatched from her lawful custody.

13. In dealing with the question of custody of a minor, under section 491, there must be prima facie proof that custody is illegal and improper and the Court while disposing of such application would exercise jurisdiction in the interest and welfare of minor. The Court would not put a premium on immorality and would not give minor in custody of the father of her murdered paramour in preference to her mother. Where children were not given in custody of the mother against whom there were, allegations of immorality, they were sent to Darul Aman at the expense of the mother.

14. In the light of the-above discussion and in the presence of the allegations made by the petitioner which are supported by an affidavit against which there is no counter affidavit and the children one being of about 6 years and the other being of 7-1/2 years, the welfare of the minors seems to be in it that they should not be deprived of the natural love and affection of their real mother from whose custody they were snatched by the respondent. As such the Criminal Miscellaneous is allowed and both the minors are given to the custody of the petitioner, real mother. It is clarified that this order shall not come in the way of the parties to seek their proper remedy available to them under the Guardians and Wards act. 15 Disposed of. N.H.Q./A-99/L