CH. MUHAMMAD IBRAHIM ZIA, C.J.---The captioned petition for leave to appeal is addressed against the judgment of the High Court dated 17.11.2017, whereby the writ petition filed by respondents No.1 and 2, herein, has been accepted.
2. Precise facts for disposal of the instant petition for leave to appeal as depicted from the record are that respondent No.2, herein, filed an application under section 491, Cr.P.C. before the Sessions Judge Muzaffarabad claiming therein, that respondent No.1 solemnized Nikah with him as per her free will and consent at Hattian Bala on 04.07.2017 and Nikahnama has duly been registered on 17.07.2017. He averred that after marriage, respondent No.1 was detained by her father in connivance with other respondents due to mala fide intention to dissolve the marriage already contracted by them. On filing of the aforesaid application the learned Sessions Judge ordered for production of respondent No.1 before the Court. In compliance of the said order respondent No.1 was produced before the Court on 18.08.2017, and whose statement was recorded. Petitioner herein, also produced a Nikahnama before the Sessions Judge and claimed that respondent No.1, herein, is his wife. After necessary proceedings, the learned Sessions Judge, vide order dated 23.08.2017, sent respondent No.1 in Shelter Home, Muzaffarabad and directed In-charge Shelter Home not to allow anyone to meet with respondent No. 1. Feeling dissatisfied from the said order respondents Nos.1 and 2, herein, filed a writ petition in the High Court with the following prayer:- "It is therefore, very humbly prayed that by accepting this writ petition petitioner No.1, kindly be released from Shelter Home, Muzaffarabad, to go and live with her own choice, according to the law restoring her fundamental rights already snatch by respondents by setting aside the impugned judgment/order dated 23.08.2017. Any other relief which this Hon'ble Court deems fit in circumstances of the case may also be granted."
After necessary proceeding the learned High Court through the impugned judgment dated 17.11.2017 while accepting the writ petition, set aside the order dated 23.08.2017, passed by the learned Sessions Judge, Muzaffarabad and respondent No.1, was set at liberty to follow her choice.
This judgment of the learned High Court is subject of the instant petition for leave to appeal.
3. Raja Aftab Ahmed Khan, Advocate, counsel for the petitioners argued the case at length and referred different documents, especially, the impugned marriage contract deeds of the contesting parties. He submitted that the alleged marriage contract deed of Muhammad Jameel son of Nazir Hussain is fake, whereas in fact Muhammad Sagheer Awan, petitioner No.1 married respondent No. 1 . Her father has also accepted this marriage. He submitted that the learned High Court has acted in violation of law while issuing the writ against a validly passed order by the learned Sessions Judge, whereby respondent No.1 was sent to shelter home but she has illegally been set at liberty by the High Court through the impugned judgment. As the question of marriage is disputed and unless the same is settled by the Family Court in suit, allowing respondent No.1 to populate with respondent No.2 amounts to protect the illegal acts and perpetuate the commission of offence.
Therefore, important legal questions are involved, justifying the grant of leave. He further argued that while granting leave the prayed interim relief may also be granted.
4. Conversely, Raja Atif Khan, Advocate, counsel for the contesting respondents forcefully defended the impugned judgment and submitted that the learned High Court has rightly passed the same while recalling the order of the Sessions Judge which was passed without jurisdiction. He submitted that before the learned Sessions Judge an application under section 491, Cr.P.C. was filed. As neither there was any criminal case registered against the respondents nor the matter was raised in application under section 491, Cr.P.C., therefore, the Court has to determine whether the detenue has to be set at liberty or not but the Court has got no jurisdiction to direct a sui juris person to be kept in detention in shelter home. The order passed by the Sessions Judge is clearly against the fundamental law and beyond the jurisdiction which has rightly been set at naught by the learned High Court. He submitted that all the objections raised by the petitioners are irrelevant to the proceedings under section 491, Cr.P.C. No question of law is involved in the petition for leave to appeal the same merits dismissal.
5. I have heard the learned counsel for the parties and perused the record made available.
Admittedly this petition has arisen out from the application filed under section 491, Cr.P.C. filed before the Sessions Judge Muzaffarabad. While disposing of the said application the learned Sessions Judge vide order dated 23.08.2017, sent respondent No.1 to shelter home till the decision/validity of the marriage by the Family Court. The High Court through the impugned judgment while accepting the writ petition filed by the respondents set aside the order passed by the learned Sessions Judge while declaring that respondent No.1 is sui juris and she cannot be forced to live in shelter home. The counsel for the petitioner could not succeed to satisfy the Court that how the Sessions Judge is empowered to pass such order under the provisions of sections 491, Cr.P.C. as according to the stated facts the Sessions Judge either has to determine whether the detenue is in an illegal confinement or not and pass order either to reject the application or to set the detenue free but sending the sui juris lady to shelter home in the proceedings under section 491, Cr.P.C. is without lawful authority. The High Court has rightly issued the writ.
6. So far as the points raised by the counsel for the petitioners are concerned, the same cannot be resolved in these proceedings. The petitioners are at liberty to agitate the same before the proper forum either before the Family Court or if there is any criminal case registered according to the version of the petitioners then in criminal case proceedings, the competent Court may determine the propositions and resolve the same but not under section 491, Cr.P.C. If the petitioners approach the concerned forum, such forum shall attend and resolve the proposition without taking any influence from this order or the impugned judgment of the High Court.
No question of law is involved in this petition for leave to appeal therefore, the same is hereby consigned to record along with the application for interim relief.