Find a Lawyer

Writ Petition No. 205 of 1983, decided on 22nd February, 1983.

‑‑ Art. 9‑Criminal Procedure Code (V of 1898), S. 552‑Custody of woman‑District Magistrate, held, legally not competent to send woman to Dar‑ul‑Aman District Magistrate should, either set her at liberty forthwith or order for immediate restoration to a person having lawful charge of alleged detent ‑‑ Order of sending her to Dar‑ul‑Aman and direction for her medical examination as to state of her mental health, held, without lawful authority and of no legal effect‑District Magistrate not yet passed final order under S. 552, Cr. P. C. and High Court as a rule not substitute its own decision for decision of Courts. Tribunal, detenu directed to be produced before District Magistrate today who would decide application under S. 552, Cr. P. C. according to law.

Mst. Sharman v. Superintendent, Darul Aman and others N L R 198 Criminal 454 rel.

Asaf Saeed Khan Khosa for Petitioner.

T. H. Jilani for Respondents.

Date of hearing : 22nd February, 1983.

This is a petition under Article 9 of the Provisional Constitution Order, 1981, whereby Mst. Aimna petitioner wants this Court to declare the order dated 13th February, 1983 sending her to Darul Aman, to be without lawful authority and also to set her at liberty.

2. On 19th February, 1983 I directed Superintendent Darul Aman to produce Mst. Aimna before me and also directed the District Magis trate Dera Ghazi Khan, to appear in person and explain as to under what provision of law, he had sent the petitioner to Darul Aman. The District Magistrate appeared on 20th February, 1983. Mst. Airnna was also produced before me. The case was adjourned to 21st February, 1983 for further proceedings. On 21st February, 1983 Nabi Bakhsh, the father of Mst. Aimna, moved an application for impleading him as party. The application was allowed subject to all just exceptions and the case was adjourned to 22nd February, 1983. On 22nd February, 1983 1 recorded the statement of the petitioner who made the following statement

"I was sent to Darul Aman with my own consent. Then said I was sent by the District Magistrate against my consent. I do not want to remain in Darul Aman."

3. The learned counsel for the petitioner submitted that the District Magistrate was not legally competent to send Mst. Aimna, the petitioner in Darul Aman. The learned A. A. G. has, however, tried to defend the order of the District Magistrate. The learned counsel for the father of the petitioner has not been able to quote any provision of law atithorising the District Magistrate to send the petitioner to Darul Aman, especially after having recorded her statement.

4. After hearing the learned counsel for the parties, for the reasons given in case Mst. Sharman v. Superintendent Darul Aman and others N L R 1981 Criminal 454. I am inclined to bold that the learned District Magistrate was not, legally competent to send her to Darul Aman. He should have either set her at liberty forthwith or should have passed order for immediate restoration to a person having lawful charge of alleged detenu. It is, therefore, held that the impugned order to the extent of sending Mst. Aimna to Darul Aman and direction for her medical examination as to the state of her mental health is, without lawful authority and of no legal effect. It is remarkable that the learned District Magistrate has not passed a final order under section 552, Cr. P. C. Since this Court while exercising the writ jurisdiction does not as a rule even not in case where it does interfere, substitute its own decision for the decision of the subordinate Courts/ tribunals, I would direct that Mst. Aimna be produced before the learned District Magistrate, Dera Ghazi Khan today under police escort and the learned District Magistrate, Dora Ghazi Khan would decide the application under section 552, Cr. P. C. strictly in accordance with law.

M. A. K. Petition accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.