1. ' ABDUL RAHIM KAZI, J.--This petition has been filed by the petitioner seeking the following reliefs:-- "It is, therefore, humbly prayed on behalf of the petitioner that this Hon`ble Court may be pleased to direct the respondent No,1 to produce the son of the petitioner, namely, Ghias Ahmed son of Mohiuddin Ahmed Farooqui before this Hon`ble Court, who has been arrested and detained by the respondent without registration of any case F.I.R. Since 11/12 night of March, 1995 at about 2-30 hours, without any reason and without producing him before any competent Court of Law and may further be pleased to set him at liberty. It is also prayed that the cost of the petition be borne by the respondents. It is, also humbly prayed that this Hon'ble Court may also be pleased to grant any other relief or reliefs which this Hon'ble Court may deem fit and proper in the circumstances of the case petition?
2. ' The main contention of the petitioner is that the son of the petitioner, namely, Ghias Ahmed was taken into custody by the S.H.O. Model Colony Police Station, Malir, Karachi by trespassing in the house of the petitioner. The said detenu is then said to have been kept at different police stations from time to time. The petitioner, for the reasons alleged by her to the effect that this arrest and detention of the said Ghias Ahmed is without lawful authority had tiled this petition seeking the writ of habeas corpus. Notice was issued to Advocate-General Sindh. At the very first instance, the S.H.O., Shahra-e-Faisal Karachi-East had placed on record a statement in writing to the effect that the said detenu Ghias Ahmed was neither arrested in any case of the said police station nor he is in custody with the said police station. Another statement was also placed on record duly signed by Senior Superintendent of Police, District East, Karachi to the effect that according to the reports of all S.D.P.Os./S.H.Os. Of that District, the report regarding noted subject may kindly be treated as Nil from the said District. This position was also disputed by the petitioner and her counsel and in denial thereof the petitioner filed three affidavits namely, that of Kousar Parveen, wife of detenu, Muhammad Hashim and Mrs. Muarram Naeem. According to the affidavit of the wife of detenu, the detenu was arrested by S.H.O. Muhammad Aslam Khan who had taken her Dopatta to blind fold the detenu. The other affidavits also supported this contention. In rebuttal of the above, the S.H.O, Model Colony, Malir namely, Muhammad Aslam Khali has filed his affidavit. He has denied the allegation made in the petition and in the affidavit. S.H.O. Shahra-e-Faisal, Karachi-East, Muhammad Akhtar Lodhi has also filed counter-affidavit. Mr. Muhammad Akram Naeem A.S.P.
3. District East, Karachi has also filed affidavit denying the said allegation that the allegations made in the affidavits are totally false and denied by me. Thereafter the petitioner filed her affidavit in rejoinder rebutting the contentions of the three police officers made by them in their counter- affidavits.
4. ' The matter has come up for hearing today. We have heard Mr. Muhammad Jamil Chaudhry, learned counsel for the petitioner and Mr. D. M. Nadeem, learned Addl. A.-G., Sindh. The main contention raised by the counsel of the petitioner is that from the facts stated in the affidavits filed by the petitioner and the three deponents and also contents of the newspaper item published on 13th March, 1995, this Court should issue direction to the Home Secretary to the effect that the said detenu is in custody with the above said police officers and the Home Secretary should cause his production in Court. As against this, Mr. K.M. Nadeem, learned Addl. A.-G. Has submitted that since the said police officers have denied the arrest or custody of the detenu, no further action in this petition could be taken.
5. ' We have given anxious consideration to the above submission of the learned counsel. It would be pertinent here to produce the provision of Article 199(1)(b)(i) which reads as under:-- "directing that 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 an unlawful manner."
6. ' There is another identical provision in law which is embedded in section 491 of Cr.P.C. The relevant portion of the abovesaid section of the Criminal Procedure Code reads as under:--
491. Power to issue directions of the nature of a habeas corpus.-(1) Any High Court may, whenever it thinks fit, direct--
(a) that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law;
(b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty;
(c) that a prisoner detained in any jail situate within such limits be brought before the Court to be there examined as a witness in any matter pending or to be inquired into in such Court;
(d) that a prisoner detained as aforesaid be brought before a Court Martial or any Commissioner for trial or to be examined touching any matter pending before such Court Martial or Commissioner respectively;
(e) that a prisoner within such limits be removed from one custody to another for the purpose of trial; and
(t) that the body of a defendant within such limits be brought in on the Sheriff's return of cepi corpus to a writ of attachment.
(2) The High Court may, from time to time frame rules to regulate the procedure in cases under this section.
(3) Nothing in this section applies to persons detained under any law providing for preventive detention.
7. ' The above provisions do say that a person who is in custody within the territorial jurisdiction of the Court may be directed to be brought before the Court to satisfy as to whether he is being held in unlawful custody or otherwise and then to pass appropriate orders. From this, it may be observed that in order to take any further proceedings under the above provisions it is necessary to determine if the alleged detenu is in custody and if so with whom. In the present case, there are statements on oath through the affidavits made by both the parties and their witnesses. In such circumstances, it would be necessary to hold an enquiry of fact to determine as to whether the said detenu was factually arrested or taken into custody by such police officers. It may further be observed that a report in newspaper by itself does not amount to conclusive evidence unless the source of the report on which such news is published is brought before the Court and said source, if a person, is then to be subjected to the cross-examination. All these matters would require holding of enquiry of fact which cannot possibly be done in exercise of Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. It may be advantageous to refer to the case of Mst. Asmat and 4 others v. Muhammad Nawaz Mali and 12 others (1981 PCr.LJ 854). In this case a Division Bench of this Court had dismissed an application under section 491, Cr.P.C. On the principle that the concerned S.H.O. Had denied the allegation that he was detaining the petitioner and the said S.H.O had filed such affidavit in Court and also that there were no other allegations if the detenu was held in custody of any other person. In the said case it was further observed by their Lordships as under:-- "In these circumstances, Mr. Gohar All Baloch made a novel prayer that this Court should direct the S.H.O. Muhammad Nawaz Malik to register a case at their instance in regard to the abduction, or detention of the detenu. To such extent, it is open to the petitioners, or, any one interested in them to go to the police station, and lodge a report, and should the Police Officer In charge of the police station refuse to record such report, the petitioners will have a separate cause of action. In the present petitions, however, we cannot give a direction to S.H.O. Muhammad Nawaz Malik to register a case, because no such prayer has been made."
8. We are inclined to follow the above judgment of the Division Bench. In the present case since there is only word against word that no specific allegation is coming forth as to where the detenu is kept and in whose custody at present, we would dismiss this Constitutional petition. However, it is observed that in the light of the above discussion it will be open to the petitioner to institute a criminal case against the concerned persons if so desired and permissible under law .