MUHAMMAD REAZ AKHTAR CHAUDHRY, J.--- This is an application for interim relief. The succinct anticedent giving rise to the instant application are that respondent No,1 Zahoor Ahmed moved an application under sections 491 and 561-A of the Code of Criminal Procedure before the High Court of Azad Jammu and Kashmir. It was claimed by him that he entered into a Nikah with Mst. Safeena Bibi, petitioner on 15-6-2006 but the Rukhsati has not taken place, meanwhile the respondent No,2 enticed away her and has kept her in illegal confinement. The petitioner moved an application before the police city Muzaffarabad but no case was registered as order of interim injunction was passed by the Judge, Family Court. It was claimed by him that Mst. Safeena Bibi is in illegal confinement. She may be recovered and set at liberty. On this application the police was ordered to produce Safeena Bibi before the Court. Safeena Bibi was produced before the Court, who stated that she is not in any illegal confinement. She has entered into marriage with respondent No,2, Muhammad Maroof and is her wife. She was sent to jail till the decision of the case pending before the Judge, Family Court, Muzaffarabad by the learned Acting Chief Justice of High Court.
2. Now, a petition for leave to appeal has been filed against this, judgment of the Acting Chief Justice of the High Court. The aforesaid application has been moved for interim relief through which petitioner has craved that the judgment of the High Court may be suspended and she may be released.
3. Ch. Muhammad Ibrahim Zia, the learned counsel for the petitioner argued that the respondent moved an application under sections 491 and 561-A, Cr.P.C. Before the High Court and it was craved by him that Mst. Safeena Bibi may be recovered and set at liberty but instead of setting her at liberty, the learned Acting Chief Justice of the High Court has detained her in the Central Jail, Muzaffarabad. He submitted that the order of learned Acting Chief Justice of the High Court is illegal and is not recognized by any law. He further submitted that the learned Chief Justice of High Court did not record any statement of the petitioner while under law he was duty bound to record the statement of the petitioner. It was next contended by the learned counsel that under sections 491 and 561-A, Cr.P.C. The learned Acting Chief Justice of the High Court has to satisfy whether Mst.
Safeena is in the illegal confinement and if she is found in illegal confinement then she has to be set at liberty but instead of it, he has passed an order for her detention, which is violation of the fundamental right. He further submitted that the High Court misused the process of law. He further submitted that prima facie this judgment of the High Court is not sustainable.
4. I have heard the learned counsel for the petitioner, perused the judgment of the High Court and other documents. A perusal of record shows that Mst. Safeena Bibi has already filed a suit for jactitation of marriage against the non-petitioner in the Court of Family Judge. An order for interim injunction has also been passed by the Judge, Family Court. In that suit she has claimed that her no marriage has taken place with the non-petitioner at all. This suit is yet subjudice before the Court. The present application before the High Court that the petitioner is in illegal confinement of Muhammad Maroof. She may be recovered and set at liberty. It was the fundamental duty of the learned Acting Chief Justice of the High Court to record the statement of the petitioner when she was produced before him and to ensure whether she was in illegal confinement or not but it stultifies me that no statement of the petitioner was recorded by the learned Judge of the High Court but in the order of the High Court it is stated that Mst. Safeena Bibi has not accepted respondent No,1 as her husband. Her claim was that she is wife of respondent No,2 and placed Nikahnama before the Court. She has stated that she was not in the illegal confinement of Muhammad Maroof. When the learned Acting Chief Justice of the High Court came to the conclusion that she was not in the illegal confinement, then he has to dismiss the petition but instead of it, the learned Acting Chief Justice has detained the petitioner in the Central Jail, Muzaffarabad till the decision of the civil case while no such relief was claimed by anyone.
5. It would not be out of place to mention here that in an application under sections 491 and 561-A, Cr.P.C. a Court can only set at liberty the detenue. The High Court has twofold jurisdiction under sections 491 and 561-A, Cr.P.C. (i) to deal with a person within its appellate criminal jurisdiction according to law; and (ii) to set him at liberty, if he is illegally or improperly detained, and if the court reaches the conclusion that person produced before him is not in an illegal or passed regarding custody of that person. If a person is minor, the Court improper confinement or detention, then what sort of order may be may make over his custody to the guardian and if he is major then only jurisdiction which lies with the Court is to set him at liberty. This view finds support of the case reported as Muhammad Rafique v. Muhammad Ghafoor PLD 1972 SC 6, which is as under:- "The High Court has two-fold jurisdiction under this section (i) to deal with a person within its appellate criminal jurisdiction according to law; and (ii) to set him at liberty if he is illegally or improperly detained. The question which falls for determination, however, is that if the Court finds that the person brought before it was not being illegally or improperly confined or detained what order can be passed regarding the custody of that person.
' If the person is a minor, the Court may take over his custody to the guardian which will be dealing with him in accordance with law, but if the person is major, the only jurisdiction which the Court can exercise is to set him at liberty whether illegally or improperly detained in public or private custody or not. The Court may set at liberty, but cannot restore status quo ante against the wishes of the person brought before it. Such a course will lead to curtailment of liberty for which there is no warrant under section 491 nor can such an order be sustained under section 561-A of the Code as it cannot be said that allowing a person freedom of movement is an abuse of the process of the Court.
The aforesaid report clearly contains that the High Court on an application under sections 491 and 561-A, Cr.P.C. Can only set the person at liberty and cannot pass any other order. In the instant judgment, the learned Acting Chief Justice has detained the petitioner in Central Jail, Muzaffarabad, which prima facie seems to be an illegal order. The same is, hereby suspended till further order subject to objections from other side. The petitioner shall be released immediately.
The Senior Superintendent of Police, Muzaffarabad is directed to provide the escort to the petitioner and the S.S.P. Should also ensure that Mst. Safeena Bibi should safely reach to her destination where she wants to go.