1. ABDUL KADIR SHAIKH, J.----Imdad Hussain son of Balach Khan Domki, resident of village Balach Khan, Taluka Kandhkot, District Jacbbabad has filed this petition under section 491, Cr. P. C. For the production of Mst. Kamal Khatoon wife of Noor Hassan Domki (respondent No. 1), who is said to be wrongfully confined in the house of Ghulam Mohiuddin Domki (respondent No. 3) in village Badani, Taluka Kashmore, District Jacobabad. It is alleged that in the month of August 1973, Noor Hassan Domki had declared his wife to be Karl with one Gulzar Lashari, and she apprehending that she would be murdered by her husband and his associates came to live with her mother in village Shahbaz Khan Domki. Noor Hassan Domki then persuaded his mother-in-law to allow his wife to live with him on the assurance that he would behave himself, in which connection he executed a bond on 24-10-1973. It is alleged that Mst. Kamal Khatoon afterwards left the 'house of her husband as she apprehended danger to her life, and made a statement in the form of an affidavit on 29-12- 1973 to the effect that she was living with her cousin Balach Khan and Muhammad Hassan as she considers herself "to be safe there."
2. One day earlier i.e. 28-12-1973, Mst. Kamal Khatoon's mother had, however, lodged a report with the Kandhkot Police Station against the petitioner, his father, his cousin and his uncle, under section 364/34, P. P. C., in which connection the accused persons were arrested, and sent up for trial in the Court of Civil Judge and First Class Magistrate, Kandhkot. They were released on bail later on. Mst.
3. Kamal Khatoon was produced by Muhammad A.I, S. H. O., Kandhkot, Police Station (respondent No. 4) and Muhammad Alam Kakepota, A. S. I. P. Of the same Police Station (respondent No. 5) before Mr. Abdul Aziz (P. W. 6), formerly Mukhtiar kar and F. C. M., Kandhkot, before whom she gave a statement; it is alleged, however, that the learned Magistrate recorded her statement as desired by two Police Officers named above.
4. It was with this alleged factual background that the petitioner approached this Court through this petition praying that the respon--dents be directed to produce Mst. Kamal Khatoon, and she may be set at liberty.
5. On 26th February 1974, when this case came up for hearing, the two Police Officers arid the Magistrate (respondents 4 to 6), appeared in Court pursuant to notice issued against them. No appearance was made by any of the respondents 1 to 3, but since the process issued against them was not returned, the hearing of the case was adjourned to another date It was, however, noticed that no allegation had been made against the respondents present in Court of having wrongfully detained Mst. Kamal Khatoon. All that was alleged against these respondents was that the two Police Officers took ,'llsr. Kamal Khatoon and produced her before Mr. Abdul Aziz, formerly Mukhiarkar and F. C. M., Kandhkot, who recorded her statement as desired by them. Since the precise question to be determined in these proceedings is whether or not Mst. Kamal Khatoon had been wrongfully detained in the house of Ghulam Mohiuddin (res--pondent No. 3). And the allegations levelled against the two Police Officers and the then Mukhiarkar and F. C. M., Kandhkot could not be gone into for the purpose of the trial of the controversy involved in this case, the joinder of these three respondents was considered unnecessary, and their pames were therefore deleted.
6. On 18th March 1974, the next date of hearing Ghulam Mohiuddin (respondent No. 3) appeared and filed an affidavit through his counsel to the effect that the allegations levelled by the petitioner against him were totally false and Mst. Kamal Khatoon was not confined in his house. In the circumstances, we called upon the learned counsel for the petitioner to show how these proceedings could be continued further. In reply, he requested for adjournment to consider the position, and also to apply fresh address of Mst. Kamal Khatoon's confinement. The case was, therefore adjourned. Today the learned counsel filed an application in Court praying that the Superintendent Police of Jacobabad may be ordered to search the house of one Ghulam Mustafa son of Azad Khan Domki, resident of village Haji Khan, Taluka Kashmore, District Jacobabad, and to pro--duce Mst. Kamal Khatoon as according to petitioner's information which he feels to be true, she is wrongfully confined there.
7. The assertion that Mst. Kamal Khatoon has been wrongfully detained at the fresh a Idress is, however, based on information allegedly received by the petitioner from undisclosed source. It is not to be forgotten that the petitioner is himself involved in the crime reported by Mst. Kamal Khatoon's mother against him regarding abduction of her daughter. This case was registered as long ago as 18th December 1973, and the accused persons, including the petitioner, are facing the trial in the Court o a First Class Magistrate, Kandhkot. On petitioner's own showing Mst. Kamal Khatoon was produced before a First Class Magistrate on 1-1-1974 who recorded her statement.
8. She is also to be produced as a witness at the trial in the case which the petitioner is facing as an accused person. In these proceedings, the petitioner had initially alleged that Mst. Kamal Khatoon was wrongfully detained in the house of Ghulam Mohiuddin Zamindar in village Badani, Taluka Kashmore, District Jacobabad, and now he requests for search being made of the house of another Zamindar in another village. On the facts and circumstances of this case, we do not consider it proper to allow the petitioner to utilize the extraordinary process of this Court under section 491, Cr. P. C. In the manner requested by him particularly when his own credentials appear to be doubtful.
9. There is no doubt the language of section 491, Code of Criminal Pro--cedure places no restraint as to the person or class of persons who may apply for relief; inJeed the person really aggrieved is usually so coerced as to be unable himself to make an application, someone else, therefore, has to seek relief on his behalf. As a general rule, however, any person having special interest, right or authority in or from the person wrongfully detained may seek relief on his behalf, and a stranger has no right to make an application. In this connection the observations made in re: Hardlal Singh (AIR 1949 E Pb. 130) may be usefully quoted: "To allow irresponsible persons to move petitions under section 491, on behalf of persons about whose affairs they have really no knowledge, merely on account of the existence between them of any political or other affinity is prejudicial to the proper and efficient administration of justice and otherwise undesirable."
10. This case was approved of by this Court in Jumma Khan Baluch v. Government of Pakistan and others (PLD 1957 Kar. 939); the relevant passage reads as under:- "We should note that Mr. Farooqi raised an objection almost at the end of the arguments on the 3rd day of the hearing to the maintainability of the writ petition on the ground that it was not filed by the detenus or their relations or personal friends but by the Secretary of a semi-political body who displayed ignorance of facts whiting to the detenus of their personal nature and who based the attack on facts which appeared in papers and were of racial or political character. He contended that writ petitions by such petitioners should not be encouraged as it amounted to an abuse of the process of law. He relied on the relevant observa--tions made in In re: Hardial Singh AIR 1949 E Ph.
130. a recognise the strength of this contention but do not feel inclined to dismiss the petition on this short ground because the objection was raised almost at the conclusion of the arguments and because in this case we do not see how detenus, who are absolute st-angers in this country presumably without any personal friends and relations and without the means of coming to this Court, could be expected to seek legal redress. While overruling this objection on account of the peculiar circumstances of this case, we recognised its general soundness."
11. "Applications under section 491 of the Code of Criminal Procedure or Article 98 of the Constitution challenging the detention of any person should normally be made by a relation of the detenu who is sufficiently close to him and/or by a friend who can satisfy the Court that there is no one else available amongst the relations of the detenu to challenge his detention order and that the petitioner (if he is a friend) is very close to the detenu and knows all about the facts and circumstances of the case so that he can help the Court in coming to a correct decision on the facts alleged or controverted."
12. These principles will apply with greater force in cases in which allegations are made against private person having illegally detained persons who are either minors or females-particularly so when litigation between the parties is already pending in a Court of law, or any other Statutory Tribunal. If an outsider or a stranger is allowed to apply for a writ in the nature of habeas corpus on behalf of a detenu, complications may arise if any kind of order is made which affects the detenu adversely and later on it is chal--lenged by the detenu himself on the ground that the person seeking relief previously had no authority to make the application. It may also be pointed out that the Code of Criminal Procedure has made available in section 552, a remedy in cases of abduction or unlawful detention of a woman or female child under the age of 16 years, for any unlawful purpose, by way of making an application to the District Magistrate. In many cases such as this, the allegations set forth in the application for seeking relief under section 491, Code of Criminal Procedure, usually make out offences punish--able under the substantive law for which, in the ordinary course, relief is to be sought under the normal procedure laid down under the law, rather than making a direct approach to the High Court under its extra- D ordinary jurisdiction under section 491, Cr. P. C., or through constitutional means. These remedies pertain to jurisdictions that are essentially dis--cretionary in nature, and may not in a fit case, be exercised. An alternate relief available in any other quarter, if considered adequate, would normally be treated as a sufficient bar to an attempt at such a remedy, I am, however, tempted to quote the following passage from the book. "The Law of Extraordinary Legal Remedies" by Forrest G. Ferris (1926-Edn,) at page 59: "As mere inquiry is primarily sought, and the costs fall on relator if the action of the state has been inadvisedly sought and obtained, the exact or precise legal interest which relator may have in inaugu--rating the inquiry and in its result should not be subjected to too rigid a test at the instance of those whose conduct and action are sought to be investigated. However, a mere stranger, as a general rule, has no right to make application. Where the application is made by another as by next friend, it is necessary that the petition show what relation petitioner bears to the party restrained."
13. All this, however, is not to be misconstrued as fetters having been placed on the exercise of powers by a High Court under section 491, Code of Criminal Procedure or Article 199 of the Constitution.
14. Neither the Legislature nor the Makers of the Constitution have placed such limitation --the guard is against a stranger or a volunteer seeking gain for himself as a next-friend of an alleged detenu, or a caution against the likelihood of the process of Court of law being misused or abused.
15. The petitioner, in the present case, is himself facing trial as an accused person along with his relations under section 364/34, P. P. C. For being allegedly involved in the abduction of Mst. Kamal Khatoon. The case was registered against him on 18-12-1973 and it was after nearly two months that he filed his application under section 491, Cr. P. C. Alleging that Mst. Kamal Khatoon was wrongfully detained by Ghulam Mohiuddin, the respondent No. 3. The Extraordinary process of this Court utilised by him has not only dragged Ghulam Mahiuddin who has vehemently denied the allegations made by the petitioner, but two police-officers of Kandhkot and a Magistrate now posted at Ghotki had to attend this Court unneces--sarily for what, in the normal course, is considered as having been done by them in performance of their respective duties. It would be seen from the facts stated above that Mst. Kamal Khatoon is a crucial witness in the case pending in the Court of the Civil Judge and First Class Magistrate, Kandhkot. We would rather leave ordinary course of law in that case to be gone through than interfere with it by directing production of Mst.
16. Kamal Khatoon from far-flunged village of Jacobabad District.
17. For these reasons, we dismiss this Criminal Miscellaneous Appli--cation.
18. KHHDA BAKHSH MARRI, J.----I agree.
19. S. A. H.