MOHAMMAD AZAM KHAN, C.J.---The titled appeal by leave of the Court has been filed from the judgment of the High Court dated 27th September, 2013, whereby application filed by the petitioner, appellant herein, under section 491, Cr.P.C., has been dismissed.
2. The facts of the case are that the appellant filed an application under section 491, Cr.P.C. In the High Court for production of Fozia Bibi, daughter of Manzoor Hussain, alleging therein that Fozia Bibi is his lawfully wedded wife. Her brothers and other relatives were against her marriage with the petitioner/appellant and after solemnization of marriage, they filed a false case against the petitioner/appellant under section 10, 16, 19, ZHA and 14, EHA. A Jirga was convened and Fozia Bibi was sent with respondents Nos.3 to 7 by the Jirga that they will send her back to the house of the appellant after few days. The respondents have confined her at some secret place. The High Court initially issued the order to the District Police for her production. The Superintendent Police reported that the detenue has gone to Pakistan along with her parents and brothers at some unknown place. She is not within the jurisdiction of the District Police. The High Court directed the appellant to furnish fresh addresses of the respondents. He failed to do the same. The police also reported that Fozia Bibi and the appellant were arrested by the Police in a case under sections 10, 16, 19, ZHA and 14, EHA and have been released on bail by the District Criminal Court, Hattiol Bala. The police have already moved an application for cancellation of bail granted to the appellant and Fozia Bibi. On this report, a learned single Judge in the High Court vide impugned judgment dated 27th September, 2013, dismissed the application having become infurctuous, hence this appeal by leave of the Court.
3. Mr. Sadaqat Hussain Raja, Advocate, counsel for the appellant, submitted that the judgment of the High Court is against law and the record. Mst. Fozia Bibi is a sui-juris and lawfully wedded wife of the appellant. Respondents No,3 to 7 have restrained her against her will. He referred to Nikah Nama dated 11th June, 2013 and a copy of statement of Fozia Bibi, recorded by the Magistrate under section 107. The High Court has failed to consider the same.
3(sic.) M/s. Sardar Pervaiz Akhtar and Raja Aftab Ahmed Khan, Advocates, while arguing on behalf of the respondents, submitted that a criminal case under sections 10, 16, 19, ZHA and 14, EHA was registered against the appellant and Fozia Bibi. They were committing zina. After being arrested, they have been released on bail. They submitted that a person against whom a criminal case has been registered, has no right to file application under section 491, Cr.P.C.
The learned counsel referred to and relied upon the judgment of this Court delivered in the case reported as Shaukat v. Muhammad Sharafat Khan and another [2008 SCR 574]. They requested for dismissal of the appeal.
4. We have heard the learned counsel for the parties and perused the record. The detailed facts of the case have already been narrated above. On the application of the appellant filed under section 491, Cr.P.C., a learned single Judge in the High Court issued a notice to the Police for producing the detenue in the Court. The police reported that a case under sections 10, 16, 19, ZHA and 14, EHA was registered against the appellant and Fozia Bibi and police arrested them. After being arrested, they have been released on bail by the District Criminal Court, Hattian Bala. After being released on bail, Fozia Bibi has gone out of the jurisdiction of the District Hattian Bala to Pakistan. The bail granting order was also produced before the Court. On this report, a learned single Judge in the High Court observed that after being released on bail as reported by the Police, Fozia Bibi has gone to Pakistan along with her parents. The application has become infurctuous.
5. It may be observed that although the appellant claims that he has entered into marriage with Fozia Bibi and has relied upon the Nikah Nama dated 11th June 2013 and a copy of the statement of Fozia Bibi recorded by the Magistrate under section 107, but at the same time it is on the record that an FIR, bearing No,48 of 2013, under sections 10, 16, 19, ZHA and 14, EHA was registered against the appellant and Fozia Bibi on a report made by respondent No,5, Mazhar Hussain Shah. In the case reported as Shaukat v. Muhammad Sharafat Khan and another [2008 SCR 574], this Court has observed that in case of women and children, stranger has no right to file application under section 491, Cr.P.C. It was observed in paragraphs Nos.7 and 8 of the referred judgment as under:-
7. While dealing with the cases like one in hand, it is incumbent upon the High Court to consider whether the application is maintainable or not as well as the bona fides of petitioner have to be looked upon. While determining the bona fide it has to be seen in particular facts of a case particularly when the alleged detenue is a child or a woman and the relation of petitioner with the detenue woman. In such like case the Court has to carefully examine the relationship with the person, so that no-one is permitted to abuse the process of law. The opening words of subsection
(1) of section 491, Cr.P.C. Are [Any High Court] may whenever it thinks fit show that power to summon a person is in discretion of the High Court and the discretion must be exercised judiciously and with due care and caution.
8. It may be observed in the case of women and children the stranger has no right to file application under section 491, Cr. P. C. This principle is applied with greater force in a case where allegations are levelled against the private person having illegally detained persons who are minors or women."
When a case has been registered under sections 10, 16, 19, ZHA and 14, EHA against the appellant, he is not entitled for filing application under section 491, Cr.P.C.
The result of the above discussion is that the appeal has no merit, it is hereby dismissed.