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Writ Petition No. 895 of 1957 decided on 18th September 1957 under Article 170 of the Constitution of Islamic Republic of Pakistan.

S. 4‑Camp for abducted persons at Lahore (Pakistan)‑Detention in camp, of abducted woman recovered by recovery staff of Azad Kashmir Government from Azad Kashmir territory‑Detention, held; lawful‑No case fog writ of habeas corpus‑Constitution of Pakistan, Art. 170‑Azad Kashmir Recovery of Abducted Persons Act, 1954‑Sakhi Daler Khan v. Superintendent Incharge, Recovery of abducted Women L D 1957 Lah. 813 distinguished : not correctly decided.

Held, that the relevant provisions of the Azad Kashmir Recovery of Abducted Persons Act, 1954, the Notification issued under it on the 18th of June 1955, and the procedure adopted by the Azad Kashmir Government for the recovery and restoration of abducted persons ,.agreed to between representatives of Azad Kashmir Government and the Pakistan Government at their meeting on 29th July 1954, made it clear that detention of a woman at the abducted persons camp at Lahore (Pakistan) recovered by recovery staff of Azad Kashmir Government from Azad Kashmir territory was under tile authority of the Azad Kashmir Government in accordance with the provisions of Azad Kashmir Abducted Persons Act, 1954.

The petition for a writ of habeas corpus was therefore dismissed.

Sakhi Daler Khan v. Superintendent Incharge, Recovery of Abducted Women P L D 1957 Lah. 813 distinguished: not correctly decided.

Hasan Akhtar for Petitioner

S. A. Mahmud, A. A. G. for Respondents.

Date of hearing : 18th.September 1957.

Karamat Husain of village Tangdev, District Mirpur (Azad Kashmir), has moved this Court for the issue of a writ of habeas corpus for release of Mst. Shan Devi alias Mst. Sultan Begum, the wife of his uncle Muhammad Zaman, who himself is said to be in England at present, from the camp for abducted persons at Lahore. The application proceeds, inter alia, on the ground that Mst. Shan Devi was recovered by the Pakistan Police from Azad Kashmir and is being detained at Lahore under the Pakistan (Recovery of Abducted Persons) Ordinance (VII of 1949) which had no application in Azad Kashmir. The recovery of Mst. Shan Devi and her detention in a camp were, therefore, claimed to be illegal and without jurisdiction. In support of this contention, reliance was placed on a Single Bench authority of this Court Sakhi Dater Khan v. Superintendent Incharge, Recovery of Abducted Women (P L D 1957 Lah. 813) in which Muhammad Shafi, J. held that detention in a camp in Pakistan of an abducted person arrested by Pakistan Police in Azad Kashmir was not detention in accordance with the provisions of section 8 of the Pakistan (Recovery of Abducted Persons) Ordinance (VII of 1949).

Before we deal with the legal objections, it is necessary to clarify the facts of the case. Mst. Shan Devi was admittedly a Hindu female below the age of sixteen at the time of Partition and before the fist day of January 1949 had become separated from her family. According to the statement of the learned counsel for the petitioner, she was brought up by the family of the petitioner and subsequently converted to Islam and married to Muhammad Zaman in about 1950. The learned Additional Advocate-General stated that the abductee was recovered from village Tangdev, on the 20th of July 1957 by the recovery staff of the Azad Kashmir Government and not by the recovery staff of tote Pakistan Government (which has not been denied before us by the petitioner) and brought to Lahore to be detained in the abducted persons camp for the decision of her case by the Tribunal under the Azad Kashmir Recovery of Abducted Persons Act, 1954.

The learned counsel for the petitioner did not appear to know that such an Act was in operation at the time when Mst: Shan Devi was recovered, and when we brought the relevant provisions of the Act to his notice, he challenged Mst. Shan Levi's detention on the ground that the Azad Kashmir Act could not be in operation in Pakistan to legalise her detention in the abducted persons camp at Lahore. In reply; the learned Additional Advocate-General has placed reliance on (1) a Notification issued by the Azad Kashmir Government on the 18th June 1955, by virtue of which the Tribunal set up by the Pakistan Government under Ordinance VII of 1949 was to function as a Tribunal under section 9 (1) of the Azad Kashmir Recovery of Abducted Persons Act, 1934, and (2) the minutes of a meeting held between the representatives of the Azad Kashmir Government arid the Pakistan Government at Pulandri on the 29th July 1954. Minute No. 2 records a decision regarding the procedure governing recovery and restoration of abducted persons adopted by the Azad Kashmir Government. In accordance with it, the recovered person is to be brought to Lahore and detained in a camp there for a month, so that tier relatives, if present in Pakistan, could be traced. Oil tire expiry of the month, the female abductee is to be produced before the Tribunal for decision of tier case If she admits herself to be a non-Muslim abducted person and desires to go to India to her relatives, and there is do objection to it on behalf of the abductor, she is to be depored forthwith. In case, however, the abductor claims that she was a pre-Partition Muslim, then the case is to be decided on merits by the Tribunal.

The relevant provisions of the Azad Kashmir Recovery of Abducted Persons Act, the Notification issued under it on the 18th of June 1955, and the procedure adopted by the A Azad Kashmir Government for the recovery and restoration of abducted persons make it abundantly clear that Mst. Shan Devi was being detained in the camp at Lahore under the authority of the Azad Kashmir Government in accordance with the provisions of the Azad Kashmir Recovery of Abducted Persons Act, 1954. The objection taken by the petitioner's counsel in the alternative has, therefore, no force.

The decision in Sakhi Dater Khan v. Superintendent Incharge, Recovery of Abducted Women is distinguishable, firstly, on the ground that the abducted person in that was recovered from the Azad Kashmir territories by the Pakistan recovery staff for which they had no authority, and secondly, the aforementioned Notification and the agreement regarding the recovery and restoration of abducted persons were not brought to the notice of the learned Judge who decided the case. The decision in that case proceeds on the assumption that the detention of the abductee was under the provisions of the Pakistan Ordinance VII of 1949, whereas in the light of the Notification and the procedure adopted by the Azad Kashmir Government for the recovery and restoration of abducted persons mentioned above, the detention is in fact and in law under the authority of the Azad Kashmir Government under the provisions of the Azad Kashmir Recovery of Abducted Persons Act, 1954. The decision in Sakhi Dater Khan's case, therefore, cannot be said to have laid down the law correctly on this point.

This petition is accordingly dismissed but, in the circumstances of the case, there will be no order as to costs.

The girl was handed over to the custody of petitioner on hail. His counsel has been informed to direct his client that he should surrender her to the Officer Incharge of the Abducted Women's Camp at Lahore.

A.H. Petition dismissed.

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