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Constitutional Petition No.D-731 of 2014, decided on 8th July, 2014.

----Art. 199---Constitutional petition---Fundamental Rights---Private person---Petitioners sought issuance of writ of habeas corpus for recovery of their father, who was an adult sane person residing with private respondent---Validity---While forming Art.199(1)(b)(c) of the Constitution, legislature did not confine powers and jurisdiction of High Court but clothed the High Court with an authority to issue appropriate directions to any person or authority, if there was denial to any of the Fundamental Rights---Deliberate use of phrase "any person" in addition to words "authority, including any government" itself showed that exercise in such like matter could well be exercised regardless the character and status of one which could be "private" or of "an authority, including government"---Terms "harassment" and "inducement" could not be taken as synonym to "mental disorder"---Any adult person with sound mind could not be compelled to reside with a particular relation particularly, when such was against wishes of that person; it was not the relation which earned company of an adult but wish and will of that adult only---Issue agitated by petitioners did not fall within the ambit of any writ, which could be exercised by High Court---Petition was dismissed in circumstances. Human Rights Case No.8901-S of 2012 ref. Abdul Mueed Shaikh for Petitioners. Sajjad Ahmed Chandio for Respondent No.1.

Allah Bachayo Soomro, Addl. A.G. Sindh along with SIP Nazar Lashari, P.S. Baldia.

Date of hearing: 8th July, 2014

Through instant petition, the petitioners have invoked constitutional jurisdiction of this Court and have prayed as under:--

(a) To constitute medical board for checking of 4 diseases i.e. (i) Heart Disease (ii) Urology Dilation (iii) Brain with memo (iv) Eyes of Muhammad Ibrahim Joyo as to the proper treatment and fitness of the father of the petitioner;

(b) To declare that the petitioners being real sons of Muhammad Ibrahim Joyo have visitation rights to see the face of their beloved father and the respondent No.1 cannot restrain the petitioners from visiting their father;

(c) To direct the respondent No.1 to allow the petitioners to visit their beloved father Muhammad Ibrahim Joyo without any hindrance;

(d) This honourable Court if deems fit order the petitioner No.1 to conduct treatment of Muhammad Ibrahim Joyo from Karachi and his entire treatment if going on from Karachi;

(e) Costs.

(f) Any other relief; 2. Learned counsel for the petitioners while reiterating the contentions, pleaded in the instant petition, has argued that the petitioners approached the learned District and Sessions Judge, Hyderabad by filing an application under section 491, Cr.P.C., same was dismissed, where after the petitioners have approached this Court mainly on humanitarian grounds for medical treatment of theft father and respondents are not allowing them to visit their beloved father, they are also ready to take care of their father with all their best efforts and also intend to get his treatment from a reputable hospital. In support of his contention, he has relied upon the Human Rights Case No.8901-S of 2012 filed by Mir Muhammad Khokhar decided by apex Court by order dated 18-5-1012. 3. Learned counsel for respondent No.1, while refuting the above contentions, has argued that the instant petition is not maintainable under the law as is devoid of merits; the prayers of the instant petition are not falling within the ambit of any writ, which this Court can competently exercise within parameters of Article 199 of the Constitution. He further contends that during proceedings under section 491 Cr.P.C. Muhammad Ibrahim Joyo appeared on 15-4-1014 where his statement was recorded wherein he categorically contended that he is able to understand and he is all right, presently residing with respondent No.1 on his own free will without any restraint and that he intends to continue residing with him. In support of his contention he has submitted Photostat copies of various news clippings and senior citizen card, wherein his address is shown. 4. On the other hand, learned A.A.-G. contends that unnecessarily the petitioners have joined the Government as party; Government has no concern with the private dispute between the petitioners and respondents, however, he says that this Court has got no jurisdiction and jurisdiction lies with the Civil Court. 5. Before proceeding with the matter, in hand, let"s have a look at the Article-199 which is 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 Federations.

(ii) Declaring that any act done, or proceeding taken, within the territorial jurisdiction of this Court, by a person performing functions in connection with the affairs of the Federation,

(b) On the application of any person, make an order:-

(i) irecting that a person in custody within the territorial jurisdiction of the Court be brought

(ii) equiring a person within the territorial jurisdiction of the Court, holding or purporting to hold a public office,...

(iii) n 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-1 of Part-II

(2) Subject to.

(3) An order shall not be made 6. he facts of the instant petition, prima fade, brings it out from the scope of Article 199(1)(a) (b) as these relate to a person or its function (act done) in connection with the affairs of the Federation, Province, or a local authority within territorial jurisdiction of the Court. The relieves, sought in the instant petition, also bring it out of the scope of the Article 199(1)(b)(i) which relate (s) to a complain of holding one in custody without lawful authority or in an unlawful manner which the present petitioners have no where alleged. 7. It is material to mention here that while forming the Article 199(1)(b)(c) of the Constitution, the legislature has not confined the powers and jurisdiction of this Court but clothed this Court with an authority to issue appropriate directions to any person or authority if there is denial to a any of the Fundamental Rights. The deliberate use of the phrase "any person" in addition to words "authority, including any Government, itself shows that exercise in such like matter can well be exercised regardless the character and status of one which may be "private" or of "an authority, including government". We may safely say that it is the duly of the Court to protect Fundamental Rights, guaranteed in the Constitution and Article 199 of the Constitution empowers this Court to issue any appropriate directions for the enforcement of Fundamental Rights, conferred by the Constitution in its Chapter-I of Part II. 8. It is pertinent to mention that to invoke the "constitutional jurisdiction" of this Court one is required to first qualify the test of being "aggrieved person" (if matter is not one of public interest litigation) and then to show that his / her case falls in any of the categories, so defined by the Article 199 else the petition shall not be competent 9. The learned counsel for the petitioners was also confronted with this legal position who candidly conceded that instant petition does not fall within writ jurisdiction of this Court, however, on humanitarian grounds, this matter can be considered as the Honourable apex Court did in Human Rights Case No.8901-S of 2012 while dealing with issue of similar nature. 10. Before examining the above referred judgment of honourable apex Court, it would be proper to discuss the merits of the case. The petitioners have claimed themselves to be sons of "Muhammad Ibrahim Joyo" and under such status they are claiming that they have visitation right to see him (Muhammad Ibrahim Joyo); take care of his treatment. It is also not a disputed position that respondent No] is also one of the sons of Muhammad Ibrahim Joyo with whom Muhammad Ibrahim has been residing. It is also a matter of record that admittedly the petitioners approached the learned Sessions Court by filing application under section 491, Cr.P.C. where the statement of Muhammad Ibrahim Joyo was recorded, For the sake of convenience same is reproduced as under:--

"To my understanding, I am alright and not sick I also understand everything. Presently I am residing with my son Muzafar Ali on my own free will without any restraint and also want to continue residing with him. I am never confined or detained illegally by my son Muzaffar Ali or Mohsin Ali in any manner" The above statement of Muhammad Ibrahim and documents placed by respondent No.4, prima facie, shows that Muhammad Ibrahim Joyo is capable of understanding and manifestly, he is participating all his routine activities, and is not suffering from any mental disease. The petitioners have not challenged the soundness of Muhammad Ibrahim Joyo as is evident from pars-12 of the petition which is:--

That Muzaffar Ali Joyo along with his 150 companions of Print Media, Electronic Media and police did not allow the petitioners with the beloved father and through undue harassment and inducement recorded statement of their choice before the honourable Court, hence ...." 11. It would be momentous to mention here that the terms "harassment" and "inducement" cannot be taken as synonym to "mental disorder". An adult person with sound mind cannot be compelled to reside with a particular relation particularly, when such is against the wishes of that person. It is not the relation which earns the company of an adult but the wish and will of that adult only. In such a situation, an English maxim is worth to refer that "one can lead the horse to the water but can"t make it to drink". Without prejudice to this, the present petitioners have not challenged order of the dismissal of their application, filed under section 491, Cr.P.C. but have come for different relieves. Since the respondent No.1 is also one of the son(s) of Muhammad Ibrahim Joyo, therefore, claim of respondent No.1 regarding taking care of his father, cannot be doubted particularly when Muhammad Ibrahim Joyo, per his statement, is satisfied. 12. We also find strength in such conclusion with the judgment, referred by the counsel for the petitioner"s i.e. Human Rights Case No.8901-S of 2012, passed by honourable Supreme Court. The relevant para-5 thereof reads as under:--

"Now turning to the question of custody of Ghulam Hussai, we have asked certain question to him. He seems to be well-oriented knowing about his family members, village, place of residence etc, desires that he would like to live with his children and nominated two sons Mir Muhammad and Khair Muhammad, wife Zubaida and daughter Hasba. In the circumstances, we allow him to stay independently in his village where he wants to go along with his wife and daughter and other sons. Nobody will compel him to live with him/her. S.P. Tando Allahyar present in court is directed to provide him complete protection in plain clothes and arrange his departure wherever he wants to go. Mst. Zubaida his wife and Mst. Hasba his daughter shall accompany him as is attendants to look after him. The Superintendent Police shall also ensure his safe departure from Islamabad to Karachi preferably today from where he will be taken to his native village. He will stay in Shifa International Hospital until arrangement of air travel. The Registrar shall ensure the return of balance amount, if any, to the depositors. In the meanwhile the learned Sessions Judge, and the High Court shall initiate contempt proceedings against Mir Muhammad Khokhar for violation of Court orders, result of the same shall be communicated to this Court through Registrar." (Under lining is supplied for emphasis) 13. In view of meticulous examination of available record, facts and circumstances, we are of the firm view that issue agitated by the petitioners is not falling within the ambit of any writ, which can be exercised by this Court. Accordingly, this petition is not maintainable and the same is hereby dismissed. The petition stands dismissed. MH/M-133/Sindh Petition dismissed.

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