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Petition for Special Leave to Appeal No. K‑39 of 1974, decided on 4th September 1974.

(On appeal from the judgment and order of the High Court of Sind & Baluchistan, Karachi, dated the 20th March 1974, in Criminal Miscellaneous Application No. 87 of 1974).

‑‑‑‑ Art. 185(3;‑Question whether detenu is a relative of petitioner not raised before High Court‑Supreme Court would not enter into such question.

‑‑ S. 491 ‑‑‑Habeas corpus‑Petitioner applying for release of detenu girl already an accused person in case filed by detenus' mother Habeas corpus petition, in circumstances, held, not bona fide and High Court rightly refused to exercise its discretion under S. 491.

Imdadally Agha, Advocate Supreme Court instructed by M. I. Memon, Advocate ‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing : 4th September 1974.

‑The petitioner filed Criminal Miscellaneous Application No. 87 of 1974 under section 491, Cr. P. C., for the production of Mst. Kamal Khatoon wife of Noor Hassan Domki respondent No. 1. He alleged that Mst. Kamal Khatoon has been wrongfully confined in the house of Ghulam Mohiuddin Domki respondent No. 3 in village Badani, Taluka Kashmore, District Jacobabad. Later on, when the case came up for hearing before the High Court on the 18th March 1974, Ghulam Mohiuddin respondent No. 3 denied that Afst. Kamal Khatoon was con fined in his house. Thereupon, the counsel for the petitioner asked for the adjournment of the case to consider the position and also to supply fresh address of Mst. Kamal Khatoon's confinement. On the 26th March, 1974, the learned counsel for the petitioner filed an application praying that the Superintendent of Police, Jacobabad may be ordered to search the house of one Ghulam Mustafa son of Ahmad Khan Domki, resident of village Haji Khan, Taluka Kashmore, and to produce Mst. Kamal Khatoon.

It may be mentioned that a case is pending against the petitioner, his father, his cousin and his uncle under section 364/34, P. P. C. at the instance of Mst. Kamal Khatoon's mother. In this case, Mst. Kamal Khatoon was produced by Muhammad Ali S. H. O. The learned First Class Magistrate recorded her statement.

An objection was raised before the High Court about the maintainability of the petition on the ground that the petitioner was neither a relation nor a friend of the detenu. The High Court accepted this objection and dis missed the petition by order dated the 26th March, 1974. The High Court further held that the petitioner himself is facing the trial alongwith his relations under section 364, P. P. C. for the abduction of Mst. Kamal Khatoon and that it would be proper if the matter is left to be tried by the ordinary Criminal Court and not proceeded with in the High Court. The petitioner seeks permission to file an appeal against the said order.

Mr. Imdadally Agha, learned counsel for the petitioner has contended that the finding of the High Court that the petitioner is not related to Mst. Kamal Khatoon is erroneous. According to him, Mir Shabaz Khan, Domki, died in the year 1963 in District Jacobahad and he was paten al uncle of the father of the petitioner Imdad Hussain. Mst. Kamal Khatoon is the daughter of Mir Shahbaz Khan and, therefore, the petitioner is a relative of Mst. Kamal Khatoon. This point should have been raised before the High Court. We are not inclined to enquire into the question whether the petitioner is a relative of Mst. Kamal Khatoon. In the High Court, the petitioner did not challenge the contention of the learned Advocate‑General that he is not related to Mst. Kamal Khatoon.

It will be further noticed that the petitioner is an accused person in a case filed by the mother of Mst. Kamal Khatoon. In our opinion, in such circumstances, his application under section 491, Cr. P. C. was not bona fide and the High Court has rightly refused to exercise its discretion under section 491, Cr. P. C. We do not consider this as fit case for interference. The petition is dismissed.

Petition dismissed.

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