1983 P Cr (PLP)

Rafique Mahmood Khan, A. A.‑G. for the State. Date of institution : 2nd February, 1933.. By this application under section 561‑A, Cr. P. C., it was brought to the notice of this Court that the District Magistrate, Muzaffarabad is seized of a search warrant for recovery of the petitioner namely Mst. Nasim Naz who in compliance of this warrant to be executed by the said Magistrate is to be produced before the Court of Additional Sessions Judge, Karachi so as to enable that Court to record her statement. A certified copy of the order dated 25‑1‑1983 trade by the Additional Sessions Judge, Karachi was brought on record of this Court, the perusal of which shows that the IXth Additional Sessions Judge, Karachi has issued the impugned warrant under section 100, Cr. P. C. and which has further been forwarded to the District Magistrate, Muzaffarabad (A. K.) for execution. The girl to be recovered i.e. the petitioner has appeared before me in person and has denied the allegation of one Javed which he made before the Court of Additional Sessions Judge Karachi that she was kept in wrongful confinement by one Abdur Razzaq. Suleman Khan the father of the girl has also appeared in support of the instant application stating that his daughter was never kept in wrongful con finement by Abdur Razzaq or anybody else. She lives all free with her parents and in their absence, if they ever happened to go to Karachi, she resided in the house of her real maternal uncle so as to protect herself from the evil designs of a person named Javed who has lodged a false case against Abdur Razzaq and some others at Karachi. Section 100, Cr. P. C. under which the impugned warrant was issued by the Court of Additional Sessions Judge, Karachi could not have legally been issued by that Court. Section 100, Cr. P. C. provides.‑ If any Magistrate of the first class or Sub‑Divisional Magistrate has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue a search warrant, and the person to whom such warrant is directed may search for the person so confined; and such search shall be made in accordance therewith, and the person, if found, shall be immediately taken before a Magistrate, who shall make such order as in the circumstances of the case seems proper. Evidently, the impugned warrant was issued by the Additional Sessions Judge, Karachi without jurisdiction and this being the case, an illegal warrant cannot be allowed to be executed by the District Magistrate Muzaffarabad within the territory of Azad Kashmir. Section 100, Cr. P. C. authorises specified Magistrates to act and no other authority is competent to proceed under this section. If some other authority invokes this section in performance of his duty that is ab initio void for being without lawful authority. The District Magistrate is thus directed not to execute such a warrant which is illegal on its very face. It is impressed upon the police and Magistrates in Azad Kashmir that warrants issued by the Courts in Pakistan and sent to them for execution should strictly be dealt with in accordance with the provisions of law concerned so that chances may not arise for deprivation of liberty of a person unwarrantedly. In this case, if the girl were not to have an opportunity to approach this Court to get the stay of the execution of an illegal warrant to be executed by the District Magistrate, the executing officer would have fallen in error to get the execution of the warrant issued under section 100, Cr. P. C. by the Additional Sessions Judge, Karachi without jurisdiction. That being so, this application is accepted. Application accepted.