ORDER NASIRA IQBAL, J.- Petitioner Rab Nawaz has sought recovers' of his wife Mst. Kammo from, the alleged illegal custody of respondent Nos. 2 to I1). According to the averments in the Petition the petitioner married Mst.
Kammo on 24.7.1905 without the consent of her family. They got registered a false FIR against the Petitioner at P.S. Gunjah; District Khushab. This FIR had been found false and was accordingly discharged. Thereafter Mst. Kammo was forcibly abducted b> Respondents No. 2 to 19 on 23.1 L1995 and Petitioner got FIR No. 196'1995 registered against these Respondents on 23.11.1995 under Sections 365 148 149 PPC at P.S. Gunjah. However, the S.H.O. Respondent No. 1 did not investigate the case against the Respondents No. 2 to 19 who had obtained bail before arrest, and he had tailed to recover Mst. Kammo from the Respondents. The Petitioner apprehended that she had been done to death.
2. Respondent No. 1 was directed to file a reply to the Petition and also to produce Mst. Kammo in Court after recovering her from the custody of the Respondent Nos. 2 to 19. Respondent No. I reported that according to his investigation Mst. Kammo had gone to Karachi of her own free will and was residing with her brother. She had filed a suit for Dissolution of Marriage against the Petitioner before the Family Court at Karachi. During investigation, an affidavit of Mst. Kammo had been produced before the police wherein she had stated that she was voluntarily living with her brother in Karachi. The statement of Kammo under section 164 Cr.P.C, was recorded before the Magistrate at Karachi to the same effect. The case had been transferred under the orders of the D.I.G. Police. Sargodha Range. Sargodha, to the Range Crimes Sargodha.
The S.P. Range Crime was directed to file a report regarding the fresh investigation. S.I. Muhammad Aslant who was entrusted with the investigation has appeared in- Court alongwith the report. He has disclosed that he called both the parties and recorded their statements u/S. 161 Cr.P.C. He had offered to the Petitioner that he should accompany him to Karachi where the I.O. Would record the statement of Mst. Kammo in his presence. She could also be produced before a Magistrate for recording her statement.
3. Since according to earlier investigation, Mst. Kammo, who is sui juris voluntarily gone to Karachi, she is not available within the jurisdiction of this court and therefore*according to provisions of section 491 Cr.P.C., application for her recovery does not lie before this Court. Learned Counsel for the petitioner, when confronted with this situation, argued that if the detenue had been removed from the jurisdiction of this Court after the filing of the Petition, she could be recovered from any territory outside the jurisdiction of the Court. Reliance was placed on 1988 PCrLJ 334. Ayesha Butt vs.. Khwaja Asad and PLD 1990 SC 968 Ata Rasool vs. SHO P.S./auharabad.
4. I have examined both the above-cited judgments. In the trust case, the Petitioner had sought recovery of her infant daughter from the illegal custody of the Respondent. The mother of the Respondent, instead of producing the minor, had removed her to Karachi and Respondent refused to disclose her address. In these circumstances the Police was directed to register a case against the Respondent U/S. 365/368 PPC and to recover the minor from wherever found. In the second case, SHO P.S. Jauharabad had handed over a young married girl to her parents. Habeas Corpus petition filed by father-in-law was dismissed by the High Court. While hearing the Appeal against this order, the Supreme Court directed the father of the girl to produce her before the Court. She was not produced and subsequently it was discovered that she had been murdered.
5. Both these cases proceed on distinguishable facts. In the present case FIR had been registered before this application was filed and it was found during investigation that the detenue was in Karachi where she had got recorded her statement before the Magistrate that she had gone there voluntarily and had also filed a suit for Dissolution of Marriage against the Petitioner. Duly certified copy of the Suit is also on the police file. In these circumstances, it appears that the detenue was not within the territorial jurisdiction of this Court when this Petition was filed. The statement of the detenue u/S. 164 Cr.P.C, has been recorded by the Magistrate at Karachi^to the effect that she is residing there of her own free will. However, the investigating officer is proceeding to Karachi to further investigate the case. If the Petitioner wishes to satisfy himself in this behalf, Petitioner may accompany the I.O. To Karachi. If the allegations in the FIR are found to be correct, the I.O. Is bound to recover the abductee in accordance with law. The Petitioner can also seek redress from the Courts at Karachi against the alleged illegal detention of Mst. Kammo if so advised. This Petition is disposed of with these observations.