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Criminal Miscellaneous Application No. 337 of 1975, heard on 18th June 1975.

‑‑ S. 491‑Habeas corpus, writ of‑Not a discretionary writ but a writ of right‑Writ, however, not issued as a matter of course Detenu, according to respondents, married to one of respondents in 1973 and such claim supported by nikahnama filed in original Petitioner, alleging to have married detenu in 1975 but only a copy of nikahnama produced‑Affidavits of detenu filed by both parties‑Affidavit filed by petitioner only a copy and not proved to have been sworn in before a Court but that filed by respondents original one and bearing seal of Court and clearly affirming marriage with respondents in 1973‑Difficult in circumstances to believe petitioner's lack of knowledge of previous nikah‑Conflicting affidavits of detenu existing and criminal proceedings between parties still pending, Courts could take note of social and moral environments prevailing in community and dismiss habeas corpus petitions appearing mala fide and presented for furtherance of illicit love affairs and avoidance of criminal proceedings ‑Petition, held, an abuse of process of Court, in circumstances, and dismissed.

Imdad Hussain v. Noor Hassan and 5 others P L D 1974 Kar. 485; Ghulam Muhammad v. Fakir Muhammad and another P L D t975 Kar. 118 and Muhammad Rafique v. Muhammad Ghafoor P L D 1972 S C 6 ref.

Shaukat Ali v. Altaf Hussain Qureshi and another 1972 S C M R 398 ref.

S. Hamid Hussain, for Appellant,

Muhammad Ramzan Qureshi for Respondent.

Zafar Hussain Mirza, A: G. Sind for the State.

Date of hearing : 18th June 1,975.

‑‑The petitioner claims that the first respondent is his maternal uncle, and the dispute in this habeas corpus application is about the daughter of this respondent, one Mst. Aziza. The petitioner's contention is that he had been engaged to her with t‑he first respondent's consent, but that, later, the first respondent changed his mind. His daughter, Mst. Aziza, however, wanted to marry him; therefore the first respondent turned her out of his house. Accordingly, Mst. Aziza appeared before the Civil Judge and Magistrate, Thatta, and swore an affidavit on 30th August, 1974, that she had been turned out of her house by her father because she wanted to marry the petitioner. Thereafter, the petitioner and Mst. Aziza were married in Karachi on 21st April 1975, and the marriage was registered with Union Committee No. 31 of Karachi. Further, according to the petitioner, he and Mat, Aziza have lived together thereafter, in their home village. But, on occasion of Bid, the first respondent came to the petitioner's house and said that he should be allowed to take Mst. Aziza to his home to celebrate Eid according to the customs of his caste. The petitioner was happy that there had at last been a re‑conciliation with the first respondent ; therefore he allowed his wife to go with her father. But the first respondent then kept her locked in his house, and, when the petitioner went to take her back, the first respondent threw out the petitioner. In the events that happened, the petitioner then filed a complaint against the first respondent for Mst. Aziza's wrongful confinement in the Court of the Additional District Magistrate, Thatta. The complaint was filed on 1st November 1974 but the case was, thereafter, transferred to the Court of the Civil Judge and First Class Magistrate, Thatta, where it did not make any progress; accordingly, on 19th, April, 1975, the petitioner filed this habeas corpus application against the first respondent and some of his relations, who, he believed were detain ing his wife. We had admitted the petition on 22nd, April 1975. and ordered the issue of a rule nisi to the respondents as then impleaded. On the 29th of April, 1975, Mr. Muhammad Ramzan Qureshi had appeared on behalf of these respondents and stated that Mst. Aziza was not with them, because she was with her husband, to whom she had been married some years earlier. As the name of the husband was specified in the affidavit filed on behalf of the respondents, Mr. S. Hamid Hussain, with our permission, impleaded the husband as respondent No. 6‑A and a rule nisi was issued against him also. However, Mr. Muhammad Ramzan Quershi's contention before us on 20^th May 1975, was that the habeas corpus application was a gross abuse of the process of the Court and invited us to recall our orders. In support of this contention, he had relied on a series of Division Bench judgments of this Court, of which, we may refer to only two ; (i) Imdad Hussain v. Noor Hassan and five others, (P L D 1974 Kar. 481) (R) Ghulam Muhammad v. Fakir Muhammad and another (P L D 1975 Kar. 118) Both these Division Bench judgments appeared to lend support to the contention of Mr. Muhammad Ramzan Quershi, and at the same time Mr. Qureshi submitted that the detenu, being in an advanced stage of pregnancy, should not be summoned to this Court. This allegation was supported by a medical certificate of the Civil Surgeon, Thatta, which wag not questioned before us. We were profoundly disturbed by these circumstances; accordingly we had directed the Advocate‑General to assist us on the question whether this was a fit case for the issue of a rule nisi.

2. Mr. S. Hamid Hussain submitted that it was the duty of this Court to issue a rule nisi as soon as a habeas corpus application was filed. But, as submitted by the Advocate‑General, an application under section 491 of the Criminal Procedure Code is but another name for the ancient prerogative writ of habeas corpus, and though this is a writ of right, it does not issue as matter of course. Therefore, the submission of Mr. S. Hamid Hussain, that this Court had no discretion in such a writ, is totally misconceived. But, as the question always is of the facts and circumstances of the case, we may refer here to the circumstances relevant to the petitioner's case.

3. The petitioner claims to be the nephew of the first respondent, but this allegation is denied by the respondents who contend that he was their servant. In order to rebut this allegation, the petitioner has filed a copy of a certificate to show that be was a college student at the relevant time. But the original certificate has been suppressed. However, even if we assume that the copy of the certificate filed is correct, how will it establish the petitioner's claim that he was the nephew of the first respondent Again, according to the respondents. Mst. Aziza was married to respondent No. 6‑A in 1973, and this claim is supported by the original Nikahnama, whereas the petitioner has merely filed a copy of his Nikahnama. Again, we observed that the petitioner relies on an affidavit of Mst. Aziza filed before the civil Judge and First Class Magistrate, Thatta, on 30th August 1974. But this too is only a copy of an affidavit, and we regret to say that the question, whether the affidavit was sworn in Court as alleged, is not clear from the copy filed. However, the respondents also have produced an affidavit filed by Mst. Aziza, which is the original affidavit, and not a copy. Further, unlike the illegible copy filed by the petitioner, the affidavit of Mst. Aziza filed by the respondents clearly bears the seal of the Court. Now Mst. Aziza has affirmed in this affidavit that she was married to respondent No. 6‑A in. 1973. The parties are from Thatta, and, as the original Nikahnama of the marriage with respon dent No. 6‑A has been produced, for the purpose of this petition only, we would observe that we find it difficult to believe that the petitioner could not have been aware of Mst. Aziza's marriage vide the original Nikhanama filed. However, we are aware that other proceedings are pending; therefore we would make it clear that our observations are of a tentative nature and it may be open to the petitioner to prove his claim in a Civil Court in a suit. The question, however, is, whether, in these circumstances, a habeas corpus application is the proper remedy for deciding the petitioner's claim.

4. Section 491 of the Criminal Procedure Code, in so far as it is relevant, reads:

"491. (1) Any High Court may, whenever it thinks fit, direct:‑

(a) that a person within the limits of the 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"

On the plain language of this section, a writ can be issued only "whenever it (a High Court) thinks fit." Now, if we were to accept Mr. S. Hamid Hussain's submission, that he was entitled to the issue of a rule nisi because merely, in his words, he had laid information before us that some one was in illegal detention, then the words quoted would become redundant, and as rightly submitted by the learned Advocate‑General, though a writ of habeas corpus is not a discretionary writ, but a writ of right, this does not matter of course. Mr. S. Humid Hussain, mean that it is issued as a however, referred us to the observations of Muhammad Yaqub Ali, J., in Muhammad Rafique v. Muhammad Ghufoor (P L D 1972 S C 6) whilst the observations appear to lend support to the submission, the observations in a case necessarily have reference to the facts of that case, and, in the case cited, the respondents do not appear to have questioned the issue of the rule nisi. However, this point was examined by their Lordships in Shaukat Ali v. Altaf Hussian Qureshi and another (1972 S C M R 398) anti the facts of this case are on all fours with those in the instant case, because the petitioner had relied on a Nikahnama' and the alleged detenu had filed conflicting affidavits, and criminal proceedings were pending between the parties. In these circumstances, the Lahore High Court had dismissed the habeas corpus petition. In upholding the order of the high Court, Anwarul Haq, J. observed

"We are also inclined to agree with the views expressed by the learned Judge regarding the tendency to abuse the provisions of section 491 of the Cr. P. C. on the part of some young men in furtherance of their illicit love affairs. Courts do not function in a vacuum and must take due note of the social and moral environments prevailing in the community for which the law is to be administered. Such being the case the High Court was justified in refusing relief if it came to the conclusion chat, the petition had been presented for the sake of furthering an illtcit lave affair and avoiding criminal prosecution in connection with the kindnapping/abduction of the woman in question."

5. Mr. S. Hamid Hussain sought to distinguish this authority on the ground that the detenu had been allowed to be examined, but the submission is totally erroneous, because Anwarul Haq, J., observed:

"The learned Judge had deputed a bailiff of the High Court to recover the young woman, but she was not found at the house of her father, who appeared before the Court on the 29th June 1972, and stated that the girl had been taken away by her mother to the house of some relatives. Basing himself on these facts, as well as on his experience that such like applications were being frequently made in a male fide manner by the paramours to obtain custody of the girls and to disgrace their parents, the learned Judge dismissed the petitioner's application."

Therefore, we agree with the learned Advocate‑General that Shaukat Ali's case binds us and is directly applicable to the instant case. Additionally, in both the Karachi cases, relied upon by Mr. Muhammad Ramzan Qureshi, the examination of the detenu was not permitted. Accordingly respectfully following the authorities cited, and bearing in mind specially the pendency of criminal proceedings between the parties, we hold that this application is an abuse of the process of the Court and dismiss it. We thank the Advocate‑General for his assistance.

Petition dismissed.

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