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Criminal Petition No. 271 of 1986, decided on 22nd October, 1986.

(On appeal from the judgment and order of the Lahore High Court at Lahore, dated 30‑6‑1986 passed in Criminal Miscellaneous No.403/M of 1986).

‑‑‑Art. 185(3)‑‑Criminal Procedure Code (V of 1898), S. 491‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10 & 16‑‑Habeas corpus application‑‑Bona fide of‑‑Leave to appeal granted to consider inter alia contention that in granting application under S.491, Cr.P.C. question of making application bona fide was not enquired into which resulted in making over custody of alleged detenu to respondent /accused in case registered at petitioner's instance under Ss.10 & 16 of Ordinance (VII of 1979).

Shaukat Ali v. Altaf Hussain Qureshi 1972 S C M R 358 ref.

Mian Abdul Rashid, Advocate Supreme Court instructed by Muhammad Aslam Chaudhry, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 22nd October, 1986.

Mst. Nur Safia was married to one Bashir Ahmed on 2‑9‑1985 but the Rukhsati did not take place. On 14‑9‑1985 Dost Muhammad sent his wife Mst.Bhaki and his daughter Mst. Sughra to the house of the petitioner to take Mst. Nur Safia to a graveyard to offer Fatiha. The respondent also accompanied them. Mst. Nur Safia did not turn up to the house of the petitioner and, therefore, after a futile search, as F.I.R. was lodged by him at Police Station Pindi Bhattian, District Gujranwala on 21‑9‑1985. Mst.Nur Safia was secured from a bus stop on 13‑5‑1986, when she was found to be in the company of Haq Nawaz, by a police party accompanied by the petitioner and his wife. The statement of Mst. Nur Safia was recorded on the same day under section 164, Cr.P.C. by a Magistrate First Class wherein she involved all the persons named in the abovementioned F.I.R. including the respondent. In her statement Mst. Nur Safia stated that during the period she remained in the custody of the accused persons Haq Nawaz had been committing Zina with her.

2. The respondent filed a Criminal Miscellaneous No. 199/H of 1986 on 13‑9‑1986 against the S.H.O. and A.S.I. of the Police Station Pindi Bhattian and Bashir Ahmed alleging that Mst. Nur Safia had been illegally detained by the said police officers after she was forcibly abducted from the house of her aunt. If was further stated in the petition that Mst.Nur Safia had also filed a complaint under section 452/506, Cr.P.C. in the Court of a Magistrate, Sargodha against her father and Bashir Ahmed and Waryam. In this complaint too her statement was recorded in which she had, inter alia, stated that she would like to marry Haq Nawaz. This complaint was, however, filed on 29‑10‑1985 due to non‑prosecution. On 2‑1‑1986 she also instituted a suit for jactitation of her marriage in the Court of Judge Family Court, Sargodha. On the above Criminal Miscellaneous Application the learned Judge of the High Court issued necessary process and deputed a bailiff to recover the alleged detenu. However, the bailiff did not succeed in the matter but on 13‑5‑1986 Imtiaz Ahmed, A.S. I. brought it to the notice of the learned High Court that Mst. Nur Safia had been recovered at Ferozwala and produced before a Magistrate who after recording her statement under section 164, Cr.P.C. had handed over her to her parents. The police was, therefore, directed to produce her in Court. Consequently Mst. Nur Safia was produced before the learned Judge in the High Court on 26‑5‑1986 by whom she was ordered to be lodged in Darul Aman. On 31‑5‑1986 she was again produced in Court and her statement was recorded by the learned Judge. She denied having been abducted by anybody. She declined to accompany her parents and desired to go with Mst. Bhaki and Mst. Maryam both of whom are accused persons in the case registered against them by the petitioner. By an order, dated 31‑5‑1986 the learned single Judge in the High Court allowed her to go with Mst.Bhaki and Mst.Maryam as she was sui juris. Aggrieved by this order the petitioner filed Criminal Miscellaneous No. 403/ M of 1986 in the High Court praying for the recall of the order, dated 31‑5‑1986 and recovery of the alleged detenu from the custody of the respondents, The said petition was dismissed by the learned single Judge as per impugned judgment.

3. Leave to appeal in this case is sought from the above orders of the learned High Court, dated 31‑5‑1986 and 30‑6‑1986. It was contended by the learned counsel for the petitioner that in granting the application under section 491, Cr.P.C. the question of making the application bona fide was not enquired into by the learned Judge in the High Court which has resulted in making over the custody of the alleged detenu to the respondents/ accused in the case registered at the petitioner's instance under Articles 10 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance. 1979. It was pointed out that the alleged detenu had made two statements, one under section 164, Cr.P.C. before a Magistrate clearly implicating the person accused in the case registered against them and the other before the learned Judge in the High Court which were contradictory. The learned counsel stated that the habeaus corpus petition was filed by the respondent to create a defence and to further the illicit love affair between Haq Nawaz and Mst. Nur Safia. Reference was made by the learned counsel to Shaukat Ali v. Altaf Hussain Qureshi 1972 S C M R 358.

4. The above contentions, inter alia, require examination and leave is accordingly granted. The appeal will be heard on the present record with liberty to the parties to file additional documents, if any. The detenu shall be lodged in Darul Aman pending disposal of the appeal which shall be fixed within two months.

M.I. Leave granted.

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