This habeas corpus petition has been filed by Muhammad Sharif son of Fateh Ali under section 491, Cr. P. C. For the production of Mst. Bashiran. The application is directed against Muhammad Ismail son of Niaz Mohammad, the father of the alleged detenu.
2. It has been alleged in the application that Mst. Bashiran was originally betrothed to Muhammad Siddique, the brother of the petitioner but the respondent subsquently wanted to give her in marriage to some body else. Consequently Mst. Bashiran out of her own free will went to Rohri in the company of Muhammad Siddique. She contracted marriage with Muhammad Siddique at Rohri on 13th November, 1981. Subsequently on 15th December, 1981, an affidavit was sworn by her to the effect that she was sui juris and had married Muhammad Siddique voluntarily.
3. Muhammad Ismail, her father, had registered a case on 2nd November 1981, vide F. I. R. No. 214 at Police Station, Jampur, under section 363. P. P. C. And section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, alleging that his daughter Mst. Bashiran had been enticed away by Muhammad Siddique with criminal intents. Muhammad Siddique has since been arrested in the said case. Custody of Mst. Bashiran has been given to her father. The petitioner is the brother of the aforesaid Muhammad Siddique and be has alleged that Mst. Bashiran was being tortured by her father to obtain statement against Muhammad Siddique and that her life and liberty was in danger.
4. A notice was issued to Muhammad Ismail respondent, the father of Mst. Bashiran. He has vehemently resisted the petition and has contended that no relationship of husband and wife existed between Bashiran and Muhammad Siddique and that the Nikah Nama being relied upon by the petitioner was bogus and fake document according to the respondent Mst. Bashiran was a minor girl and she was kidnapped by Muhammad Siddique with ulterior motives and criminal intents. The respondent has also challenged the locus standi of the petitioner to file this petition.
5. I have heard the learned counsel for the parties.
G. The petitioner is not related to M.W. Bashiran the so-called detenu. He is brother of Muhammad Siddique who claims himself to be the husband of Mst. Basbiran while conversely he stands arrested for commission of offence of kidnapping Mst. Bashiran with criminal intents. Mst. Bashiran has already made a statement on 23rd January, 1982, before E. A. C. And Magistrate 1st Class, Jampur, under section 164, Cr. P. C. To the effect that she was kidnapped by Muhammad Siddique who misrep--resented that her mother was ailing at Kamalia. Subsequently, he took her to various places and committed zina with her.
7. On behalf of the petitioner, reliance has been placed on Shahzad Bibi v. The State (1977 SCMR 343), Mazhar Hussain Bhuiya v. The Province of East Pakistan (PLD 1970.5 C 397), Mauj Ali v: Syed Safdar Husaain Shah and another. (1970 SCMR 437) and Mst. Sallan v. Lai (1978 SIC M R 83). All these judicial precedents are distinguishable on merits. Mushtaq Ahmad v. Mirza Muhammad Amin (PLD 1962 Kar. 342) has also been cited. In this case habeas corpus, petition was moved by the husband and not by a stranger. In Raja lbrar Hussain Khan v. The State (PLD 1982 Azad J & K 2) it has been held that in case of private detention bana fide of the applicant needs to attract the attention of the Court, particularly in case of minors. The Courts have to be careful that process of law is not abused. In Imdad Hussain v. Noor Hussain and 5 others (P L 1V 1974 Kar, 485) it was ruled that though section 491, Cr. P. C, does not place restriction as to persons or class of persons entitled to apply for relief but generally persons having special interest, right or authority in or from detenu may seek such relief. It was further held that no right vested in strangers to make application under section 491. It was obser--ved in this case that the principle that strangers have no right to file application under this section will apply with greater force in which allegations are made against private person having illegally detained persons who are either minors or females. In the circumstances of the cited case, the petitioner was alleged to have abducted the detenu from the custody of her mother. On recovery, the detenu had made statement before a Magistrate 1st Class contradicting the allegations of the petitioner. It was held that in the circumstances it was not proper to utilize extraordinary process under section 491; Cr. P. C. In Aziz-ul-Haque v. Province of East Pakistan (PLD 1968 Dacca 728) habeas corpus application filed by person showing his doubtful connections with the detenu was rejected.
8. As already observed a criminal case of abduction and commission of zina already stands registered against Muhammad Siddique, the brother of the petitioner. The detenu has also made a statement to this effect under section 164, Cr. P. C. Before a Magistrate 1st Class. The present petition under section, 491, Cr. P. C., therefore, appears to be device to obtain custody of the detenu from her father and to creat a defence of her lawful marriage with Muhammad Siddique. In this rnan--ner the process of the Court is sought to be abused.
9. In this view of the matter, the prayer of the petitioner for issuing process for the recovery of the detenu is disallowed.