MUHAMMAD QASIM KHAN, J.--- Through this petition, the; petitioner has prayed for the production of her daughter Mst. Sumera Bibi before this Court and determination of her fate in the facts and circumstances mentioned in the petition.
2. Brief facts of the case are that daughter of petitioner Mst. Sumera Bibi was married with Muhammad Ahmad but the same was ended in divorce and now she is living with one Khalid Mahmood. When the Mst. Razia Bbi, mother of petitioner approached to said Khalid Mahmood to take back her daughter , he refused to return her. She is living with Khalid Mahmood against Law and Quran-o-Sunna. Hence, this petition.
2. Learned counsel for petitioner argued that petitioner's daughter Mst. Sumera Bibi was married with Muhammad Ahmad but unfortunately , she developed illicit relations with one Khalid Mahmood and said Khalid Mahmood with his companions forcibly got executed a divorce deed (TALLAQ NAMA) between Sumera Bibi and her husband Muhammad Ahmad. The period of marriage life between Sumera Bibi and her husband was five months and Mst.
Sumera Bibi was also carrying pregnancy out of her husband. Further argued that now she has secretly been kept by Khalid Mahmood her paramour and other respondents for their illicit desires and the detenue is living her life against the law of the land and Quran-o-Sunna. To strengthen his arguments, learned counsel states that the alleged abductee is pregnant and her Iddat period will remain till birth of child. He also argued that order passed by learned Sessions Judge on the petition filed by the petitioner under Section 491 Cr.PC is against law and facts of the case.
3. Heard. Record perused.
4. Petitioner earlier filed an application under Section 491 Cr.PC before the learned Justice of Peace through her learned counsel Mr. Ghulam Yasin Abbasi, Advocate. The facts narrated in this writ petition and criminal miscellaneous mentioned above are different on material facts. However , without discussing the same, the record shows that the learned Sessions Judge directed the SHO for the production of alleged detenue-and service upon respondents No.3 to 9. The respondents' appeared before the Court on 03.04.2010 and stated that Mst. Sumera Bibi is not in their custody and further that the petitioner is at liberty to point out the clue of detenue in their houses and she can be searched from there. However , the learned Sessions Judge directed the SHO to ensure the production of alleged detenue Mst. Sumera Bibi. On 06.04.2010 Mst. Sumera Bibi was produced before the Court.
Her meeting with the petitioner was arranged by the learned Sessions Judge, thereafter the statement of Mst.
Sumera Bibi was recorded, wherein she stated that Bashir Ahmad Lambardar of Mauza Mullani had produced her before police and she was earlier residing in the house of Malik Nazir Ahmad who is relative of her mother Mst.
Ruqayya Bibi i.e. petitioner . She further stated that her previous husband Muhammad Ahmad had divorced her and now she is under the period of Iddat. Also stated that none of the respondents detained her illegally , she refused to go with the petitioner and stated that she does not want to go to Darul Aman As Mst. Sumera Bibi was not ready to accompany her mother i.e. petitioner and had also refused to go to Darul Aman, the learned Sessions Judge set her at liberty and the petitioner and her learned counsel in the light of statement made by Mst. Sumera Bibi did not press petition which was dismissed as withdrawn vide order dated 06.04.2010. No illegality could be established to the proceedings before learned Sessions Judge and he has passed an order with framework of law .
5. Habeas corpus literally means "Have his body". The writ of habeas corpus is a protective process for securing the liberty of people by affording an effective means of immediate release from unlawful detention whether in any prison or any private custody , by it the Court commands the production of the subject and inquires into the cause of his detention and if there is no legal justification the person is set at liberty this is why this writ is called the great writ of liberty . Hence, an order in the nature of habeas corpus is initiated to preserv e the liberty of the subject and is a safeguard against the unlawful or improper manner of detention. It should be so construed as to advance the remedy and suppress the mischief and therefore it should always be construed in favour of the detenue.
6. The major Muslim woman like a major Muslim, being sui-juris is entitled for the same rights and liberties as are granted to the Muslim male. There is no law that a female on the mere ground of her gender must invariably be treated as a person under some sort of disability . Article 9 of the Constitution of the Islamic Republic of Pakistan, 1973 guarantees that no person can be deprived of life or liberty except in accordance with law. As such a major Muslim girl cannot be detained in Darul Aman without her consent. Such detention for the purpose of preventing her from indulging in some alleged immorality would amount to preventive detention apart from the fact that there is no law requiring her to be so detained, the mandate of Article 10(4) of the Constitution ibid even forbids the making of such Laws. So if the writ in the nature of habeas corpus is issued and detenue is brought before the Court, the Court shall decide as If the person is a minor , the Court may make over his custody to the guardian which will be dealing with him in accordance with law but if the person is major the only jurisdiction which the Court can exercise is to set him at liberty whether illegally or improperly detained in public or private custody or not.
7. Hence , a sui-juris woman cannot be forced to live with any one against her wishes and even if a sui-juris woman is unwilling to go with her guardian, the Court cannot compel her to go with him, and she has to be set at liberty and allowed to move freely as has been held in PLD 1972 SC 6 titled "MUHAMMAD RAFIQ Vs. MUHAMMAD GHAFOOR" that:- "Taking into consideration, the provisions of section 491 and 561-A, Cr.P.C. as well as that of the Fundamental Right No.1 in the Constitution of Pakistan (1962) that No person shall be deprived of life or liberty save in accordance with law" there was no warrant in law for the direction passed by the High Court regarding the custody of the woman in the case.
The High Court has two fold jurisdiction under section 491, Cr.P.C. : (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. If the Court finds that the person brought before it was not being illegally or improperly confined or detained then if the person is a minor , the Court may make over his custody to the guardian which will be dealing with him in accordance with law, but if the person is major , the only jurisdiction which the Court can exercise is to set him at liberty whether illegally or improperly detained in public or private custody or not. The Court may "set at liberty". but cannot restore status quo and against the wishes of the person brought before it. Such a course will lead to curtailment of liberty for which there is no warrant unde r section 491 nor can such an order be sustained under section 561-A of the Code as it cannot be said that allowing a person freedom of moment is an abuse of the process of the Court ".
8. It is also a settled principle of law, that High Court cannot resolve the factual controversy in constitutional jurisdiction and also cannot assume the role of Investigating Officer. The factual controversy between the statement of alleged detenue before the learned Sessions Judge and facts narrated in this writ petition could not be resolved in writ jurisdiction.
9. As discussed above the learned Sessions Judge has passed a legal and valid order in accordance with the Constitution of Islamic Republic of Pakistan. 1973 and law applicable thereto. Since . the alleged detenue appeared before the learned Justice of Peace on 06.04.2010 and got recorded her explicit statement; there is no need to issue the writ in the nature of habeas corpus as statement of alleged abductee before the learned Sessions Judge that she is residing with her free will is suf ficient. This writ petition is dismissed in- LIMNI. No order as to costs.