KHADIM HUSSAIN TUNIO, J.- Through instant petition, petitioner seeks following relief (s)
(a) That direct the respondent No.2 to take necessary legal action for recovery of son of petitioner from the illegal custody of respondents Nos. 5 to 11 and produced him before this Hon'ble Court.
(b) To direct the respondents Nos.2 to 4 take measures for safe recovery of son of petitioner whose life under danger being illegal custody being illegal custody to which the respondent No.4 is fully aware.
(c) Costs to be borne.
(d) Any other relief (s), which this Hon'ble Court deems fit, just and proper in favour of the applicant.
2. It has been contended by the learned counsel for the petitioner that petitioner's son Abdul Waheed was taken away by respondents Nos. 6 to 11 along with some other persons on the instance of respondent No.5, who is an influential person, having political support of present government, who is holding post of Chairman District Council, Shaheed Benazirabad. It is also contended that the petitioner belongs to Muslim League(N), thus the respondent No.5 time and again compelled him either to join PPP or to face consequences. It is further contended that on 11.11.2017 petitioner's son Abdul Raheem Shah aged about 16 years was present at their land, some persons headed by respondents Nos.5 to 11 along with other ,came on Corolla Car, Suzuki Dotson and three motorcycles after huge firing at the petitioner and his companions reached near them, respondent No.5 asked him that he was directed to pay extortion of Rs.500,000/, but he did not pay heed to his directions, therefore, they will teach a lesson to Abdul Raheem Shah. It is also contended that respondents Nos.5 to 11 along with other companions took away his son and kept him in their custody without lawful authority. It is also contended that petitioner tried to get his son released from the clutches of the respondents, but could not succeed even the door of respondents Nos. 2 to 4 were knocked, but due to influence of other side, they failed to perform their duties, thereafter the petitioner filed Cr. Misc. Application No.2014 under section 491, Cr.P.C., in which, report was called from the respondent No.4 that petitioner's son had been taken away and police also heard huge firing and such report dated 18.11.2017 was submitted in the Court of learned IInd.
Additional Sessions Judge, Shaheed Benazirabad in Cr. Misc. Application No.2013 of 2017, which was allowed and FIR bearing No.30 of 2017 was registered. It is further contended that despite registration of FIR, petitioner's son was not recovered and the application of petitioner has been dismissed by the learned IInd Additional Sessions Judge, Shaheed Benazirabad without recovery of his son, therefore, the petitioner has filed present petition, as he has no alternate remedy except approach this Court.
3. Conversely, learned A.A.G. has vehemently opposed the contention of learned counsel for the petitioner and submitted that there is dispute between the petitioner and the private respondents over the agricultural land since long. He has further contended that civil as well as criminal litigations are pending between the parties. He has contended that petitioner Ghulam Hyder Shah lodged FIR No.30 of 2017 at P.S. Ali Abad under sections 395, 364, 386, 450, 440, 147, 148 and 149, P.P.C. read with section 7 Anti-Terrosim Act and investigation was conducted by one Inspector Habib-ur- Rehman Lashari, Incharge Anti-Terrorism and Monitoring Cell, Shaheed Benazirabad. It is further contended that during course of further investigation, it has come on record that there is enmity between the parties over landed property and no such incident has ever taken place, therefore, the case was disposed of under 'C' class vide order dated 12.01.2018 and the said report was approved by the learned Special Judge, ATC, Shaheed Benazirabad. He has further contended that SSP has also conducted discreet enquiry into the allegations levelled by the petitioner against his opponents and local police and that during course of enquiry, it has also come on surface that petitioner Ghulam Hyder Shah has managed the story of alleged abduction of his son namely Abdul Raheem Shah and lodged instant FIR against opponent party in order to pressurize them and to get undue advantages and has recorded statements of the witnesses. He has further contended that it has been surfaced that petitioner has three sow according to his family tree, but in fact he has two sons and he has managed the name of Abdul Rahman Shah as Abdul Raheem Shah, which needs verification from NADRA record. However, learned counsel for the respondent No.5 has argued on the same line as argued by the learned A.A.G.
4. Heard and perused the record.
5. At the outset, it is said that the provisions of section 491, Cr.P.C. provides that (a) " a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law and (b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty." Thus, according to the above provisions, the habeas corpus petition can be filed in appellate criminal jurisdiction of the bench if within its territorial jurisdiction the detenue is illegally or improperly detained. It is worth to add here that purpose of provision of Section 491 of the Code is meant to get a rule nisi issued so as to get the person, alleged to be illegally detained, free which too without going into any details of any complicated B questions or inquiry. Reliance is placed on the case of Muhammad Afzal v. Sessions Judge, Multan and 3 others PLD 2008 Lahore 479 wherein it was observed as:- "5 ... The proceedings under sections 491/491-A, Cr.P.C. are summary in character. These proceedings are not intended to go beyond the summary consideration of the questions essentially relevant to the alleged detention i.e. whether a detenue is to be set at liberty and as a consequence thereof be permitted to go with 'the person of his or her choice or to drop the proceedings when the detention is found legal. The Court while deciding an application under sections 491/491, Cr.P.C. is not required to go into the question of status of relationship of the parties by holding full-fledged trial of the counter claims and it should concern with free will of the detenue.......
The summary nature of the proceedings always demand pointing out of the specific place of detention and a general and vague claim of detention of a person without specific place of confinement would not be sufficient to issue a rule nisi and since in the instant case no the petitioner has not 'specifically disclosed the place of detention of alleged detenue hence even such provision (though this is not a petition under such provision) cannot help the petitioner.
6. I shall have to add here that provision of Section 491 of the Code would not be available in a matter where the matter is not one of 'illegal/improper detention' but is that of 'abduction/ kidnapping' because for such allegation the law enforcing agency, on initiation of investigation, can competently move to any place for recovery but by following the procedure which includes a right to get forceful ingress too. Since, in instant matter it is also a matter of record that allegation/claim is not that of improper detention but that of abduction without disclosing specific place of detention of such claimed abductee. On this count too, the provision of Section 491 of the Code is of no help for petitioner to advance his case.
7. Before going any further, I am forced to add here that law always provides a remedy for a genuine cause/ grievance hence if at any time it so appears that a lawful remedy/course is being exploited for personal reasons or to cause pressure upon rival then such move needs to be examined with view. Since in instant matter, such plea has specifically been raised hence same needs to be attended too.
8. From the perusal of record it is evident that instant petition has been filed under Constitutional jurisdiction of this Court which, needless to add, has its own limitations. Be that as it may, it contemplates that present petitioner has filed present petition on 07.12.2017. Record reveals that the petitioner has got issued his family tree from NADRA i.e. Form-B from the NADRA office on 9.4.2018 after about four months after filing of the present petition. Record further contemplates that civil as well as criminal litigations are pending between the petitioner and Mehmood Mahar and Ghulam Mustafa alias Pathan Bhand. It has come on record that petitioner had two sons and he has given fake name Abdul Raheem Shah to his son Abdul Rehman Shah so has seriously been claimed by, the other side. Such controversy cannot be resolved without proper inquiry/trial as well examination of record and custodian thereof. I would add that the moment a relief is dependant upon determination of controversial questions -of facts, such relief under constitutional jurisdiction cannot be granted. Reference may well be made to the case of Ijaz Hussain Suleri v. The Registrar and others (1999 SCMR 2381).
9. Further, during the course of hearing, .on query of the Court, learned counsel for the petitioner has submitted that petitioner has got allotted land from Forest Department in the name of his wife on lease, but the petitioner has not disclosed the details of any agricultural land either owned and possessed by him or got leased out from any authority in his name or in the name of his family members, or either the petitioner or in the affidavit filed in support of his petition or any proceedings lodged against the opponents. Furthermore, petitioner has also not disclosed the specific place and the names of persons who have allegedly wrongfully confined his son Abdul Raheem Shah either in the petition or in his affidavit. On query' of the Court, he further disclosed that his son was studying in school or was driving, but he has failed to produce the driving license of his son on the directions of this Court and thereafter he disclosed that his son was not in proper sense/unsounded mind and is moving freely in the area. Prima facie, it appears that petitioner has suppressed the actual facts as well as pleadings and criminal cases as well between the parties due to dispute over the landed property and he has made attempt to get favourable order by concealing the actual facts from the Court. Such attempt even includes using a non-existent person to be 'abductee'. The petitioner has miserably failed to prove his case, therefore, it is surfaced from the record that petitioner has in fact filed the present petition with mala fide intention by suppressing the real facts. On query of the Court, petitioner, who was present in Court stated that he is teacher by profession and the government employee/servant cannot be compelled to join any political party as to how he has already joined the party of Pakistan Muslim League(N) as stated by him in paragraph-2 of the petition that he belongs to Muslim League(N) party. The total effect of such acts and omissions could not be ignored lightly rather deserved an action so as to discourage such like attempts in future. These had been the reasons because of which this petition was dismissed by my short order dated 25.3.2019 with cost of Rs.50,000/- (Rupees fifty thousand) to be paid within thirty (30) days hereof with the Additional Registrar of this Court. The amount shall be incurred in dispensary of High Court. However, SSP, Shaheed Benazirabad was directed to initiate legal proceedings against the encroachers of the Forest land as per directions of Hon'ble Supreme Court of Pakistan and submit compliance report to this Court within a period of three (3) months.
These are the reasons for the aforesaid short order.