SARDAR MUHAMMAD IQBAL, C. J.-This petition under Article 201 of the' Interim Constitution of the Islamic Republic of Pakistan, read with sections 491 and 561-A of the Code of Criminal Procedure, has been moved by Mian Manzar Bashir, an Advocate of the High Court, seeking a writ of habeas corpus for production in Court of General (Retired) A. M. Yahya, Khan, who, until immediately before the assumption of power by the present regime in the third week of December 1971, has been acting as the Chief Martial Law Administrator, Supreme Commander of Armed Forces and the President of Pakistan, but is alleged to be under illegal, detention of the respondent at the present moment.
Since under Article 201 of section 491 aforementioned a writ of a High Court cannot run beyond its own territorial limits and the petitioner was not clear as to the exact place where A. M. Yahya Khan was allegedly being detained in an unlawful manner, we sent for Mr. M. B_ Zaman, learned Advocate-General, Punjab, and directed him to inform this. Court as to the place of detention of the alleged detenu at the time of presentation of this petition. The Central Government being the respon--dent, we gave a similar direction to Maulvi Ihsanul Haq, learned Standing Counsel for the Central Government. They sought adjournment till date to comply with our direction.
2. The Advocate-General, Punjab, and the Standing Counsel for then Central Government have both made statements at the Bar that the retired General was detained at Abbottabad under lawful orders of the Central Government. They have, therefore, then up the position that the alleged detenu being at a place which is beyond the territorial jurisdiction of the Lahore High Court, this Court is destitute of legal power to issue a writ of habeas corpus which should run up to Abbottabad for production of the retired General before this Court to be dealt with according to law. On the other hand, the petitioner argues that the detenu is in the custody of the Central Government, and it is, the location of the detaining authority which is relevant and since Islamabad is within the territorial jurisdiction of this Court, we can issue direction to enquire as to under what law and in which manner the detenu is being held in custody. According to him, wherever the detenu may be, whether in Sibi, Abbottabad, Karachi, Lyallpur or in any other town, the relevant consideration will be whether --the Central Government is within our territorial jurisdiction.
3. Under Article 201(2)(b)(i) a High Court can, on the application] of a person, make an order directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without' lawful authority or in any unlawful manner. It is manifest from the provision that before we invoke our jurisdiction to issue a writ of haheas corpus, it is necessary that the person in custody should be within our territorial jurisdiction. It does not say that the authority or the person under whose order a person is being held in custody should be within the territorial jurisdiction of the Court.
4. The provisions of section 491 of the Code of Criminal Procedure are almost the same as are contained in Article 201 (2)(b)(i). The only difference is that whereas under Article 201, a High Court exercises a constitutional jurisdiction, the power conferred on it by section 491 is under the ordinary law. The power given under Article 201 cannot be abridged or curtailed except by a constitutional amendment, but the power under section 491 may be subject to any other municipal law. It has been consistently held that under section 491, Cr. P. C. a writ o habeas corpus cannot be issued unless the detenu is within the territorial jurisdiction of the Court. In Vishambhar Dayal v. U. P.
Government (AIR 1945 Oudh 117it was observed: "The person concerned in each of these applications under section 491, Criminal Procedure Code is confined, as stated in the applications, either in the Central Prison, Fatehgarh, or the Central Prison, Naini, Allahabad, and the question which at once arises is whether this Court has jurisdiction to entertain them. Under section 491 the persons concerned must be within the limits of the appellate criminal jurisdiction of the Court. In these cases the persons concerned were arrested and some of them were at first confined within them. Mr. Bahadurji has suggested that the Court ought to consider only the place of arrest. And original confinement and regard these persons as still constructively within the limits of its jurisdiction, but we are clearly of opinion upon the terms of the section, which are quite clear that this view is not tenable. Indeed Mr. Bahadurji himself conceded that he could not press the contention very strongly." In V. M. Sarangapani v. Emperor (AIR 1946 Nag. 20) it was --held: "Section 491 authorises the High Court to issue in a proper case an --order under that section only with reference to persons who are within, its appellate criminal jurisdiction and whom it regards as having been illegally detained. That section does not authorise the High Court to, deal with persons who are so detained or alleged to have been so detained beyond its jurisdiction. Hence the Nagpur High Court has no jurisdiction under section 491 to take any action regarding a person detained in the --Rajahmundry jail." In S. Bismillah Shah v. The N.-W. F. Government (PLD 1950 Pesh. 43) it was observed: "The words of clause (b) of subsection (1) of section 491, Criminal Procedure Code, are absolutely clear, and admit of no doubt that the High Court has no jurisdiction to issue a writ of habeas corpus in case of the persons not detained within the limits of its appellate Criminal Jurisdiction." The same view was taken in Muhammad Kasim v. Prov. Of the Punjab (PLD 1973 Lah.
473). The contention of the petitioner is, therefore --destitute of any legal foundation.
5. Learned counsel next contended that the order of detention was passed by the Central Government which could order detention of a person anywhere in Pakistan, and since the Central Government is located within the jurisdiction of this Court, we can declare their order to be without lawful authority and direct them to produce the detenu in Court so that he :should be treated in accordance with law.
We do not deny to ourselves the authority to declare the action of the Central Government as without lawful authority because it is clearly provided in Article 201(2)(a)(ii) that in a given case we can declare an act .Of the Government to be without lawful authority. However, in order B that an act of the Central or a Provincial Government, or a local body be declared as without lawful authority, it is necessary that the application' ' should be moved by an aggrieved person. The petitioner being a strangeis doubteless not an aggrieved person. We may also observe that even .If the order of detention of General (Retd.) A. M. Yahya Khan is held to' be without lawful authority, it will not be competent for us to issue a ,direction under this provision to the Central Government to produce him before us, there being a separate provision in Article 201(2)(b,(i) for .Exercise of power in that behalf. In Leo Zepantis v. Emperor (AIR 1944 Cal. 76 the facts were that one `S', a Greek, came to Calcutta as a sick seaman and landed with proper permission. He was suffering from asthma and bronchitis and he as well as the agents of the ship's owners, thought that he had a claim against the owner of the ship in respect of his illness. Both he and the ship's agents believed that it was of some value because there were negotiations for a settlement. These negotiations came to nothing and `S' began proceedings in the Calcutta High Court. He was forcibly removed for being repatriated to Egypt by a Greek steamer leaving Calcutta. On a petition presented in the High Court seeking a writ of habeas corpus it was held by Derbyshire, C. J., that the order was without lawful authority but the Court could not issue the writ prayed for because the alleged detenu was out of the territorial jurisdiction of the Court. In this behalf he observed: "Not under any law or regulation having -the force of law to which our attention was drawn was there any power residing in anybody except the Central Government to order this man's removal from this country to Egypt. Perhaps the Provincial Government or a proper Court of law might have ordered it. Each one .Of these authorities would no doubt have taken into consideration the state of this man's health and the fact that he had a claim which he was prosecuting against the owners of a ship in respect of damage to his health. None of these matters have been taken into consideration. The Greek Consul had no right in Calcutta to order his removal from Calcutta; the ship's ragent had no right to order his removal from Calcutta; the police had no right to order his removal from Calcutta unless they did it under an authority from the Central Government, or perhaps the Provincial Government or a proper Court of Law. The Police had no such authority; the Greek Consul had no authority; the ship's agents had no such authority. In my opinion, this was a piece of lawlessness on the part of the ship's agents, the police and the Greek Consul. I regret that we are not in a position to help this man as he is out of the jurisdiction."
6. The Constitution of Pakistan is of a federal character. The Pro--vinces have been given the autonomy and separate High Courts have been constituted to exercise powers under Article 201 in respect of the matters failing within their respective sphere. The provisions in Article 201(2)(b)(i) that a High Court can make an order directing a person in custody to be brought before it if he is within the territorial jurisdiction has been made for a reason. If this provision had not been there, it might have resulted into conflicting decisions and different directions. In that case, a petition for a writ of habeas corpus in respect of a detenu alleged to have been detained at Abbotabad would have been competent in the High Court of Peshawar as well as before this Court. In respect of the same subject---matter and for the same relief there could simultaneously be two peti--tions in two different High Courts and they would have been competent to pass orders, which could run counter to each other. In such an event, confusion apart, it would have impaired the confidence of the people in the administration of justice by the superior Courts. To obviate such a situation it was necessary to clearly specify the forum for a writ of habeas corpus. In order that a petition may lie, it was proposed that the detenu should be within the territorial jurisdiction of the Court. Therefore, even if we' hold that the order is without lawful authority, it will not be competent for us to issue a writ of habeas corpus because the detenu is out of our jurisdiction.
7. The petition merits to be dismissed on another ground also. Under Article 201 of the Interim Constitution there is no restriction as to the person who may make the application for an order of habeas corpus. It is not necessary that the detenu himself should apply or that the petitioner should be an aggrieved person. A stranger may also move an application but it is open to the Court to examine if the petitioner is acting bona fide for the detenu and has moved the Court in his interest. If a person has, in fact, no knowledge of the affairs of the detenu, or he is not favourably inclined towards him and has moved the application not with an honest intention to procure his release, but has done so with a view to furthering his own ends or to achieve a political objective, the petition can be held to be a mala fide proceeding and rejected on that ground. In Azizul Haque v. Province of East Pakistan (PLD 1968 Dacca 728it was observed : "We think that applica--tions 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 avail--able 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 contro-- verted." We are not prepared to go that far that a person should necessarily be a friend or relative of the detenu before he can move an application --for habeas corpus but doubtless a petition which is not based on good C faith and has been made not with a view to having the detenu released but to further one's own political objective, should be dismissed. It is clear from the averments made in the petition itself that the petitioner is no friend of the detenu. He has, in fact, made no secret of his aversion for him for his alleged misdeeds He wants him to be tried for high treason. He had earlier in December 1971 when the Pakistan Armed Forces in East Pakistan allegedly surrendered to the Indian Armed Forces, demanded the removal of Agha Muhammad Yahya Khan and also lodged an F. I. R. Against him under section 302, P. P. C, which case, he says, is still pending investigation. This petition under Article 201 of the Interim Constitution read with sections 491 and 561-A, Cr. P. C. Is, therefore, not based on good faith.
8. The upshot of the above discussion is that this petition is devoid of force and is dismissed accordingly.