' MUHAMMAD ALI MAZHAR, J.---This criminal miscellaneous application under section 491, Cr.P.C.
Has been filed by the applicant with the following prayer:- "a. That this honourable Court may be pleased to issue Rule Nisi or to appoint any responsible officer of this honourable Court to pay a surprise visit at the premises of police station (Dera Allahyar (Jhat Pat) District Jaffarabad) and to ascertain the fact regarding the wrongful confinement of the detenues. b. That this honourable Court may be pleased to direct the respondent No,1 to register the F.I.R. Of the applicant his verbatim. c. To award costs. d. To grant any other equitable relief, which, this honourable Court deems fit and proper under the circumstances of the case in favour of the applicant.
2. The brief facts of the case are that the applicant is the father of alleged detenu No,1, Ali Dino and father-in-law of alleged detenu No,2, Mst. Noor Jahan. His son Allah Dino contracted marriage with Mst. Noor Jehan who filed a Constitution Petition No,S-1910/2011 in this Court and prayed for directions against D.P.O., Sukkur, SHO Police Station A-Section, Sukkur and S.H.0: Police Station Jhatpat District Jaffarabad not to cause any harassment to her. On 25-7-2011, the petition was disposed of by learned Single Judge of this Court with the directions to the aforesaid respondents not to cause any harassm ent and if any F.I.R. Is lodged, it would be first intimated by the S.H.O.
Concerned to the Additional Registrar of this Court. It is further contended in the instant application that both the alleged detenues were living happily but on 22-10-2011, the S,H.O. Police Station Dera Allahyar (That Pat) District Jaffarabad forcibly entered into the house of applicant and took away the detenues.
3. The applicant along with main petition also moved an application under section 561-A, Cr.P.C.
For appointment of raid Commissioner in order to ascertain the factum of unlawful confinement of the detenues. Though in the main application as well as in the Misc. Application, the applicant did not mention the name of the concerned Police Station to maintain secrecy but at the time of appointment of raid Commissioner, the learned counsel for the applicant disclosed that the detenues are confined at Police Station, Dera Allahyar (That Pat) District Jaffarabad. Although the said Police Station was situated within the territorial jurisdiction of Baluchistan High Court but since the learned counsel relied upon an earlier order of this court passed by a learned Single Judge on 25-7-2011 in which the directions were issued to the S.H.O. Police Station, Jhat Pat District Jaffarabad, therefore, he argued that the-applicant will avail appropriate remedy but in the meanwhile Commissioner may be' appointed simply, to ascertain the whereabouts of the alleged detenus and keeping in view the urgency and misery of the applicant, the Commissioner was appointed. On 26-10-2011, the Commissioner submitted his report and stated that S.H.O. Abdul Sallam Khoso handed over the copies of F.I.R.., application to Magistrate for recording 164, Cr.P.C.
Statements of alleged detenu No,2 and remand order of alleged detenues.
4. Though the present application is only confined to the relief of Rule Nisi and the recovery of the alleged detenues from wrongful confinement but on 26-10-2011, the learned counsel for the applicant sought time to go through the report submitted by the Commissioner and on, oral motion, he argued that in the same proceedings the F.I.R. Lodged at Police Station Jhat Pat District Jaffarabad, which is though beyond the territorial jurisdiction of this. Court but it can be quashed by this Court in this criminal miscellaneous application, which is only moved under section 491, Cr.P.C. Since he wanted to argue the matter on this aspect, therefore, the matter was adjourned for 1-11-2011 to satisfy that this Court can quash F.I.R. Recorded outside the province of Sindh and set aside an order passed by the Magistrate exercising jurisdiction outside the province of Sindh.
5. It is obvious that the present application has been moved under section 491, Cr.P.C. And not under Article 199 of the Constitution of Pakistan. So far as section 491, of Cr.P.C. Is concerned, it is unambiguously couched with the, provision that this court can exercise powers to issue directions of the nature of habeas corpus and whenever it thinks fit, it can direct that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law. In the same section, many powers have been conferred upon this Court including to set at liberty a person illegally or improperly detained in public or private custody within its limits.
It is clear that the power under the aforesaid provision can be exercised by this Court or any High Court within the limits of its appellate criminal jurisdiction. In the present case it is clear beyond any shadow of doubt that Police Station Dera Allahyar (Jhat Pat) District Jaffarabad is beyond the limits of appellate criminal jurisdiction of this court and powers under Section 491, Cr.P.C: in relation to the said Police Station can only be exercised by learned High Court of Baluchistan.
6. Now we would like to take up the writ of habeas corpus provided under Article 199 of the Constitution. Under dub-Article (1) of Article 199 of the Constitution of Pakistan, it is plainly provided that subject to the Constitution, a, High Court may, if it is satisfied that, no other adequate remedy is provided by law can pass an order on the application of any person under clause (b) of sub Article (1), directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful .Authority or in an unlawful manner. Clause (b) clearly provides that the powers conferred upon this Court for writ of habeas corpus can only be exercised within the territorial jurisdiction of this Court and not otherwise.
7. After reconciling Section 491, Cr.P.C. And Article 199 of the Constitution, it is quite apparent that for exercising jurisdiction under section 491, Cr.P.C., the powers are limited and confined to the appellate criminal jurisdiction of High Court while under Article 199 the prerequisite of exercising jurisdiction in the matter of habeas corpus is that the corpus must be within the territorial jurisdiction of the High Court. Learned counsel for the applicant himself admitted that the alleged detenues have obtained bail from the Competent Court situated in District Jaffarabad and they are already pursuing all lawful competent courts, he raised an oral motion that this court is competent to quash F.I.R. No,259/2011, lodged at Police Station Dera Allahyar (Jhat Pat) District Jaffarabad on 11-10-2011, which was lodged much earlier than the institution of present criminal miscellaneous application in this court on 25-10-2011.
8. The honorable Supreme Court in its judgment reported in 1973 SCM R 189 (Sardara v Khushi Muhammad) has discussed Section 491, Cr.P.C. And also quoted its own judgment reported in PLD 1972 SC 6-, in which, it was held that 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 person.
9. The learned counsel for the applicant referred to PLD 1975 SC 66 (Ch. Zahoor Ellahi v Federation of Pakistan). The facts of the aforesaid case are highly distinguishable and not relevant to the present controversy. In the aforesaid case the Frontier Crime Regulations 1901 and Special Areas (Restoration of Jurisdiction) Order (P.O. No,11 of 1961) were under discussion. The petition of Ch. Zahoor Ellahi was already pending in High Court, therefore the honourable Supreme Court directed the High Court to decide the petition as expeditiously as possible and dismissed the .C.P. No,61- P/1973 and Appeal No,2/1974 filed by Ch.Zahoor Elahee with further observation that detenu Ch.Zahoor Elahi shall however continue on bail already granted to him by Supreme Court during the pendency of the constitution petition in the High Court. Even. Otherwise the aforesaid matter pertained to the jurisdiction of apex Court under Article 184 of the Constitution.
10. After reconciling the aforesaid provisions of the Constitution and Criminal Procedure Code relating to the habeas corpus, we have no uncertainty in our mind to hold that we can not quash the proceedings lodged at Police Station Dera Allahyar (Jhat Pat) District Jaffarabad which is beyond the territorial as well as appellate criminal jurisdiction of this Court.
11. As result of above discussion, this Criminal Miscellaneous Application is dismissed.