Mohammad Azam Khan, C.J.- Respondents No.1 and 2 filed an application under section 491 Cr.P.C. before the High Court, to the effect that Mehnaz Kousar, appellant, herein, is a daughter and sister of respondents No.1 & 2, respectively and she was entered into wedlock with Muhammad Shabir . She filed a suit for dissolution of marriage and consequently marriage was dissolved by the Family Court. Against the judgment and decree of the Family Court an appeal is pending before the Shariat Court. Muhammad Shabir lodged a report against Mehnaz Kousar in the offences under sections 10, 11, 16 and 19, the offence of Zina, Enforcement of Hudood Act, 1985, (ZHA). After being arrested, she was released on bail by the Additional Tehsil Criminal Court. The order of the Additional Tehsil Criminal Court was challenged by Muha mmad Shabir in the Shariat Court. Appellant filed an application under sections 10, 11, 16 and 19 ZHA on the ground that previously , she was lodged in the Dar-ul-Aman and after being released on bail, she is living with Fazal Kareem, son of Muhammad Taj, whose bail bond was accepted by the Tehsil Criminal Court. Respondents claimed that they are real mother and brother of Mehnaz Kousar and respondent No.8, Fazal Kareem who furnished surety for custody is a Ghair Mahram (??? ????), (prohibited degree of inter-marriage), and brother of the accused against whom case was registered in the offences under sections 10, 11, 16 and 19 ZHA, who does not fall in prohibited degree. They requested that she be recovered and a direction be issued that she should not live with a person who does not fall in prohibited degree Ghair Mahram (??? ????). A learned single Judge in the High Court on 18th July, 2016 ordered the S.S.P ., Kotli to produce her before the Court on the next date of hearing, which was fixed as 28th July, 2016. No-one appeared on 28th July, 2016. Fresh notice was issued to the S.S.P., Kotli to produce her in the Court on 4th August, 2016. On 4th August, 2016, Mr. Abdul Qayyum, Sub Inspector , Incharge Chowki Tatapani produced Mehnaz Kousar , appellant, herein, in the Court. A learned single Judge in the High Court observed that she has state d that she wants to go with her uncle, fazal Kareem, respondent No.8, therein, who is not her real uncle, and sent her to Dar-ul-Aman on 4th August, hence this appeal by leave of the Court.
2. Mr. Muhammad Zarait Khan, Advocate , counsel for the appellant, submitted that appellant was forcibly married with Muhammad Shabir . The appellant filed a suit for dissolution of marriage and Muhammad Shabir filed a suit for restitution of conjugal rights in the Family Court Kotli on 8th February , 2016. She alleged that she was forcibly married with Muhammad Shabir by her mother , brother and other relatives. The Family Court passed a decree for dissolution of marriage while suit filed by Muhammad Shabir for restitution of conjugal rights was dismissed on 13th May, 2016. He stated that before filing of suit, she filed an application against the present respondents before the Magistrate that she apprehends danger to her life from mother , brother and other relatives. The Magistrate recorded her statement and sent her to Dar-ul-Aman . The Decree of dissolution of marriage was passed by the Family Court on 13th May, 2016. He submitted that Muhammad Shabir got registered a false and fabricated case against appellant, herein, and Muhammad Waqas and some others in the offences under sections 10, 11, 16 and 19 ZHA. After thorough investigation, the investigating agency deleted the offences under sections 10 and 11 ZHA.
After being arrested, the appellant, herein, filed an application before the Tehsil Criminal Court, Kotli. The Additional Tehsil Criminal Court through order dated 4th September , 2015, released her on bail.
3. He submitted that the appellant, herein, is major , she was released on bail. She is not in illegal custody of any person. Liberty of a citizen is most important. The High Court while passing the order curtailed the liberty of appellant, herein, while sending her to the shelter home. The order is against the provisions of section 491 Cr.P.C.
The learned counsel relied upon the cases reported as Safeena Bibi vs. Zahoor Ahmed , [2006 SCR 411], Ali Muhammad vs. The State & anothe r [2013 SCMR 1484 ] and Falak Sher vs. Alam Sher and 2 others [1991 P.Cr.L.J.
2432].
4. In the case reported as Safeena Bibi vs. Zahoor Ahmed , [2006 SCR 411], this Court observed that on an application under sections 491 and 561-A Cr.P.C., a Court can only set at liberty the detenue. The High Court vests twofold jurisdiction under sections 491 and 564-A Cr.P.C. to set a person at liberty if he/she is illegally or improperly detained, and if the Court reaches on the conclusion that the person produced before it is not in an illegal or improper confinement or detention then what sort of order may be passed regarding custody of that person. If a person is minor , the Court 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 .
5. In the case reported as Ali Muhammad vs. The State & another [2013 SCMR 1484 ], the Supreme Court of Pakistan observed that the provisions of section 491 Cr.P.C. were meant to secure release of a person from an illegal or improper custody or confinement and these provisions cannot be exercised while curtailing the liberty of a citizen.
6. In the case reported Falak Sher vs. Alam Sher and 2 others [1991 P Cr. L. J. 2432], the detenue was brought before the High Court, she stated that she is 25 years old and she was married to respondent No.1. She wants to go with her husband. The High Court released her and sent with her husband.
7. While controverting the arguments, Ch. Abdul Salam, Advocate, counsel for private respondents, submitted that the petitioners before the High Court are real mother and brother of the appellant, herein. She was married to one Muhammad Shabir . She developed illicit relations with Muhammad Waqas, whereu pon, her husband got registered a case in the offences under sections 10, 11, 16 and 19 ZHA. On 26th August, 2015, with the convenience of Muhammad Waqas, accused, she filed an application against her mother and brother that she apprehends danger to her life. The Magistrate sent her to Dar-ul-Aman . Later on, she was released on bail by Additional Tehsil Criminal Court. The Additional Tehsil Criminal Court instead of sending her in the custody on the surety of a person who falls in prohibited degree, released her on bail on the surety of Malik Muhammad Fazal Kareem, who is brother of the accused, Muhammad Waqas and does not fall in the prohibited degree. Under the injunctions of Islam, a young lady cannot live with a person who is a Ghair Mahram (??? ????), and does not fall in the prohibited decree. The order passed by the Additional Tehsil Criminal Court for releasing her on the surety bond of Fazal Kareem is an illegal order and against the injunctions of Islam. The High Court adopted the right course while sending the appellant, herein, to Dar-ul-Aman. He submitted that no doubt the appellant filed a suit for dissolution of marriage against Muhammad Shabir and marriage was dissolved through judgment and decree dated 13th May, 2016, but the fact of the matter is that the said decree has been challenged by way of an appeal in the Shariat Court. The appeal is pending and the Shariat Court has passed the status-quo order . He also argued that the bail granting order has been challenged by way of a revision petition, which is also pending before the Shariat Court. He submitted that a young lady cannot be allowed to live with Ghair Mahram (??? ????), a person who does not fall in prohibited degree. A person who does not fall in the prohibited degree cannot take in the custody , the appellant as this act may lead her to live a sinful life. He relied upon case reported as 1972 SCMR 398 and PLD 1998 SC 328 and requested for dismissal of the appeal.
8. In a case reported as Shaukat Ali vs. Altaf Hussain Qureshi and another [1972 SCMR 398], the Supreme Court of the Pakistan observed that we are also inclined to agree with the views expressed by the learned Judge regarding the tendency to abuse the provisions of section 491 Cr.P.C. on the part of some young men in furtherance of their illicit love affairs. The Courts do not function in a vacuum and must take due notice of the social and moral environments prevailing in community for which the laws are to be administered.
There is no case at page No.328 of the report [PLD 1998 SC 328].
9. Mr. Raza Ali Khan, Advocate General, ably assisted the Court and argued that the purpose of section 491 Cr.P.C. is that when it is brought in the notice of the High Court that any person is in illegal custody , the High Court shall order for brining the person before it and if from the statement, it reaches the conclusion that the person is kept in illegally custody or illegally detained, if such person is minor then the High Court may hand over the custody of minor to his legal guardian and if the person is major then the High Court has to pass order for release of such person. There is no concept of curtailing the liberty of a citizen. The appellant was released on bail by a Court of competent jurisdiction. The Court while releasing the appellant on bail has not imposed the condition that she can only be released on surety of some person who falls in prohibited decree. The order is still intact. The High Court cannot pass such order while exercising powers vested in it under section 491 Cr .P.C.
10. W e have heard the learned counsel for the parties and perused the record.
11. The appellant, herein, in the suit for dissolution of marriage claimed that she was forcibly married with Muhammad Shabir on 23rd July, 2015. After the solemnization of marriage she was confined in a room and mercilessly beaten by the husband. She ran away from the house of her husband and reached the house of her mother . She was again sent to the house of her husband, who again started beatin g her and she again returned to the house of her mother . The mother , brother and other relatives locked her in a room and threatened to kill her.
She again ran away and reached the shrine of Panag Shareef and from there she approached the Court of Sub Divisional Magistrate and filed application for protection of her life. The Magistrate sent her to Shelter home on 29th August, 2016. On 26th August, 2015, a case in the offences under sections 10, 11, 16 and 19 ZHA, was registered against the appellant, herein, Muhammad Waqas and some others. Later on, after thorough investigation, the offences under sections 10 and 11 ZHA were deleted and challan was presented in the offences under sections 16 and 19, ZHA. After being arrested, she was released by Additional Tehsil Criminal Court, Kotli on bail. The trail Court accepted the bail bond furnished by Muhammad Fazal Kareem and she was released from shelter home.
The Family Court passed a decree for dissolution of marriage on 13th May, 2016, and dismissed the suit filed by Muhammad Shabir for restitution of conjugal rights. It is worth mentioning that Muhammad Shabir filed an application for cancelation of bail in the District Criminal Court, Kotli. The said application was dismissed. The bail was kept intact, whereupon he filed a revision petition in the Azad Jammu & Kashmir Shariat Court, which is still pending for adjudication.
12. Section 491 Cr.P.C. confers powers in the High Court in the nature of habeas corpus. The provisions of section postulate that when the matter is brought in the notice of the High Court that any person is illegally and improperly detained in public or private custody within its territorial limits, the Court may order that such person be brought before it and after hearing such person if it reaches the conclusion that such person is in illegal custody , it shall set such person at liberty . Liberty of a citizen is a fundamental right guaranteed under the Constitution. Section 4 (5) of the Azad Jammu & Kashmir Interim Constitution Act, 1974 guarantees the right to move freely throughout the Azad Jammu & Kashmir territory and liberty of citizen could not be curtailed without due process of law. The proceedings under section 491 Cr.P.C., before the High Court are meant to secure release of a person from illegal or improper custody or confinement and not for depriving of his/her liberty .
We are aware of the fact that in our social set up the tendency has developed in the young persons to enter into marital tie without consent of the parents and for curbing such tendency the parents try to marriage the ladies forcibly without consent and if some lady enters into marital tie without consent of parents/family , the cases of Zina and abduction are registered against such lady or her spouse by the family and in such mattes proceedings of 491 Cr.P.C. are invoked by the interested person for recovery . In the case reported as Shaukat vs. Muhammad Sharafat Khan and another [2008 SCR 574], this Court observed as under:- "6 ............................................................
A perusal of the section reveals that in proceedings under section 491 Cr.P.C. whenever the High Court deems fit or it is of the opinion that a person is in illegal or improper custody or is detained without his or her will the High Court may order for his production in the Court so that the detenue be dealt with in accordance with law, the underlying principle in a writ of habeas corpus petition is to ensure the production and well being of person who is in illegal custody and who has to be brought before the Court. And if the High Court after hearing the detenue reaches on the conclusion that person/detenue is in illegal custody , it has to order for setting him/her at liberty .
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 sub-section (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 not 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."
The question of sending a lady to Dar-ul-Aman when there are two claimants, came before the supreme Court of Pakistan in a case reported as Ali Muhammad vs. The State and others [2013 SCMR 1484 ], in the circumstances that two person were calming to be the husband of the same women. The lady stated in the High Court that she married to one person and marriage took place on 25th December , 2012 and second person claimed that he married to her on 14th May, 2013. One person, who claimed the marriage earlier got registered an FIR against the other person and the lady also filed a suit for jactitation of marriage against the other person that he shall not claim her as his wife. The High Court ordered that the detenue be sent to Dar-ul-Aman , till the question is decided by the Civil Court. The order was challenged in the Supreme Court of Pakistan. The Supreme Court of the Pakistan observed that the purpose of section 491 Cr.P.C. is to secure release of a person from an illegal or improper custody or confinement, but it has been utilized in the present case for depriving a person of her liberty . It was observed in pare No.3 as under:- "3. It is evident from the facts of the prese nt case that Mst. Naseem Akhtar is a grown up young lady and she is not involved in any criminal case as an accu sed person. Her consistent stand before the Lahore High Court, Lahore and before this Court has been that she was not in any kind of confinement or under any restraint while living with her father . Although she has to rival suitors yet she has expressed a clear desire before this Court that she wishes to go an live with her father namely Ali Muhammad petitioner . We have found it to be rather disturbing that despite her eagerness to continue living with her father she had been deprived of her liberty and ordered by the learned Judge-in-Chamber of the Lahore High Court, Lahore to be lodged at a Dar-ul-Aman and that too for an indefinite period. It is quite ironical and shocking that habeas corpus proceedings before the Lahore High Court, Lahore, which were meant to secure release of a person from illegal or improper custody or confinement, had been utilized in the present case for depriving a free person of her liberty and the net result achieved was that a grown up or young lady who was not found to be in any kind of confinement or under any restraint had been locked up and incarcerated within the confines of a Dar-ul-Aman for an indefinite period! Such an approach adopted and the result achieved by the learned Judge-in-Chamber of the Lahore High Court, Lahore surely ran contrary to the very essence and purpose of a with petition for habeas corpus which is securing freedom and not curtailing liberty .........."
It was further observed in para No.6 as under:- "6. Before parting with this judgment we may observe that we have felt sadden ed by the fact that through the impugned order an Hon'ble Judge of a High Court had allowed his responsibility of protecting a citizen' s a constitutional right to liberty to be overshadowed by his own subjective sense of morality . In this context we have found the following part of the impugned order to be utterly unacceptable and, if we may say so with respect, completely and unreservedly unpalatable:- "2. Learned counsel appearing on behalf of the respondents submitted that Mst. Naseem Akhtar has filed a suit for jactitation of marriage and she cannot be detained in the Dar-ul-Aman for an indefinite period, rather her abode in the Dar-ul-Aman would amount to illegal detention.
3. This contention of he learned counsel is untenable for the reasons that the Court cannot allow a person to live in immoral life and for this purpose she has been sent to Dar-ul-Aman to save her from the commission of an offence.
She would stay in teh Dar-ul-Aman till the time her suit for jactitation of marriage is decided."
(underlining has been supplied for emphasis)
It is unfortunate that in his zeal and eagerness to prevent commission of an imagined or apprehended sin/crime the learned Judge-in-Chamber of the Lahore High Court, Lahore had not only chosen to ignore the Divine command but had also decided to disregard the constitutional mandate.........."
In a case reported as Farmanullah vs. District Magistrate, Sukkur and 4 others , [1975 P.Cr.L.J. 489], it was observed as under:- "........... It is not doubt correct that the girl has married a man of her own choice. She is a major and has every right to do so and simply because she has married a man of her own choice is no ground that she should be kept in Darul Aman under an illegal order of detention.............." It is proved from the record that Mehnaz Kousar was forcibly married with Muhammad Shabir by her mother , brother and other relatives. She filed a suit for dissolution of marriage on the ground of cruelty that she was forcibly married with Muhammad Shabir . The allegation of cruelty , was proved before the Family Court and the Family Court dissolved the marriage on this ground. After fleeing away from the house of husband when she was beaten, she reached the house of her mother . After returning to her husband' s house she was again beaten by him and later on by the mother , brother and other family members and thereafter she came to the shrine of Panag Shareef, from where she approached the Court of SDM and filed application for protection of her life. The Magistrate after recording her statement sent her to Dar-ul-Aman . A case .in the offences under sections 10, 11, 16 and 19 ZHA was got registered by Muhammad Shab ir, her husband. The Police after completing investigation deleted the offences under sections 10 and 11 ZHA and presented challan in the offences under sections 16 and 19 ZHA. She was released on bail by the Court, the impugned order for sending the appellant to the Dar-ul-Aman till further order in such circumstances was not warranted. The appellant was not in illegal custody or confinement rather she was on bail granted by the Court of competent jurisdiction without imposing of any condition. It is only the Court having jurisdiction, which may impose any condition while granting a bail to an accused. The High Court has no jurisdiction to pass such order while the exercising powers vested in it under section 491 Cr.P.C., in presence of a valid bail granting order .
What has been discussed above, the appeal is accepted, the order of the High Court dated 4th August, 2016 is set- aside. There will be no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.