' This order will dispose of a Habeas Petition under section 491, Cr.P.C. The brief facts giving rise to this petition are that Mst. Amina Bibi respondent No,2 was married to Muhammad Anwar 30/35 years back and four sons were born from the wedlock from which two are married. The respondent No,2 was diverted by Muhammad Anwar 11 years back and Muhammad Anwar contracted second marriage with the petitioner in the year 1990 and two sons, namely, Qaisar Anwar and Faisal Hussain were born from this wedlock. The said Muhammad Anwar was murdered by some unknown persons in the area of Chak No,10. Tehsil Arifwala and an F.I.R was got registered on the complaint of Muhammad Farooq Lambardar of Chak No,10 at P.S. Saddar, Arifwala against unknown persons. The respondent No,2 and her sons with the collusion of police managed to involve the petitioner in the murder of her husband Muhammad Anwar due to family dispute over the property of the deceased Muhammad Anwar and due to the reasons that she was the lady for whom the deceased had given divorce to respondent No,2. The petitioner has been granted bail in the said criminal case by the High Court and after release on bail she was residing with her minor sons care of Muhammad Shafi, Chowkidar, Servant Quarter, Civil Secretariat, Lahore. A few days back the respondent No,2 along with her sons took away the minor sons of the petitioner illegally from the lawful custody of the petitioner, the real mother and detained them forcibly in her house and that there was apprehension of foul play with the detentes by their stepbrothers and divorced step-mother, their recovery was sought by invoking section 491, Cr.P.C.
2. Respondent No,1, S.H.O., Police Station Saddar, Depalpur was directed to recover the detenus from the custody of the respondent NO.2 and produce them before the Court on 15-6-2000.
3. The detenus have been recovered by the S.H.O./Inspector Muhammad Boota, P.S. Saddar, Depalpur. The grandmother of the children, the uncle and the step-brothers of the minors are also present.
4. Arguments heard at length.
5. The petitioner has taken the stand that she is the real mother. The minors were in her custody and the respondent No,2 (divorced step-mother) has no right to have their custody when the real mother is alive. On the other hand, the respondent No,2 Mst. Amina Bibi has taken the stand that as the petitioner has murdered her own husband, who was ex-husband of respondent No,2, she was not entitled to the custody of the minors nor it is in the welfare of the minors to give them in her custody.
6. The relevant provisions regarding the direction of the nature of Habeas Corpus is contained in Chapter XXXVII of the Code of Criminal Procedure (Act V of 1898) and Chapter IV-F of the High Court Rules and Orders, Vol. Which is reproduced for ready reference:--
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 Commissioners for trial or to be examined touching any matter pending before such Court-martial or Commissioners respectively;
(e) that a prisoner within such limits be removed from one custody to another for the purpose of trial; and
(f) that the body of a defendant within such limits be brought in on the Sheriff's return of cape 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.
' In exercise of the powers conferred by subsection (2) of section 491, Cr.P.C. The High Court framed the following rules which are contained in Chapter 4-?, Vol.V of the High Court Rules and Orders:--
1. All applications for an order under section 491 shall be made on an affidavit setting forth the circumstances under which the order is sought: ' Provided that all communications addressed to the High Court by a person in the custody of a public officer complaining of his detention or the conditions of his detention, whether supported by affidavit or not, shall be laid before a Judge for orders as applications under this rule.
2. Where the Court is of opinion that a prima facie case for granting the application is made out, a rule nisi may be issued calling upon the person or persons against whom the order is sought to appear on a day to be named therein to show cause why such order should not be made and at the same time to produce in Court the body of the person or persons alleged to be illegally or improperly detained then and there to be dealt with according to law: ' Provided that if the Court so orders, production of the body of the person alleged to be illegally or improperly detained may be dispensed with.
3. If the application for an order under clause (a) or (b) of subsection (1) of the section alleges that a person is confined under such circumstances that the confinement amounts to an offence, the Court may, at the time of issuing a rule nisi also, issue a search warrant, and the person to whom the warrant is directed may search for the person who confined; and such search shall be made in accordance therewith, and the person, if found, shall be immediately brought before the Court, which shall make such order as in the circumstances of the case may seem to be proper.
4. The provisions of sections 43, 75, 77, 79, 82, 83 and 84, Criminal Procedure Code, shall, so far as may be, apply to all such warrants issued under Rule 3.
5. If the Court issuing a search warrant under Rule 3 has reasons to believe that the person to whom the warrant has been directed may not be able to identify the person confined, the Court may order a person named in the warrant to accompany the person to whom the warrant is directed to assist him in the execution of the warrant.
6. The writ or the warrant shall be served by the bailiff of the Court out of the list prepared by the Registrar in consultation with the Deputy Registrar or by such other person as may be appointed by the Judge. Where the application is by or on behalf of a security prisoner, the writ will be served on the Punjab Government and not on the officer detaining the prisoner. (Rule 6 substituted vide C.S. No,11, dated 1-5-1971).
7. On the return day of such rule or on any day to which the hearing thereof may be adjourned, where no cause is shown or where cause is shown and disallowed, the Court shall pass an order that the person or persons illegally or improperly detained shall be set at liberty or delivered to the person entitled to his or their custody. Where cause is allowed, the rule shall be discharged.
8. The Court may, if necessary, in disposing of such rule, take evidence or direct a Court of Session or a Magistrate to take evidence.
9. Upon the return and the production of the party on whose behalf the rule was issued, the custody of the prisoner shall be under the control and direction of the Court until the disposal of the rule.
Pending the hearing, the Court may admit the prisoner to bail or remand him to prison where he is in custody.
10. When a bailiff is deputed by the Court to produce an alleged detenu/detenus the party requiring the production should deposit in advance, an amount equal to the calculated expense for the journeys involved, keeping in view his grade of pay and the daily allowance admissible to him under the West Pakistan Travelling Allowance Rules (hereinafter called the Rules).
11. When the party or somebody on its behalf accompanies the bailiff for purposes of identification and meets the expenses of journey, the bailiff should only be paid his daily allowance admissible under the Rules and the balance of the amount deposited in Court should be returned to the party concerned after the final' disposal of its petition.
12. After the writ is executed and the petition is finally disposed of, the bailiff should submit, within a week, his claim of travelling expenses which should be paid out of the amount deposited by the party concerned. No claim on this account should be entertained after the stipulated time except in special circumstances when the time is extended by the Registrar, subject to a maximum of one month from the date of the final disposal of the petition. The claim of the bailiff should be supported by the following certificate: "Certified that the above expenses were incurred by me from my own pocket and that the petitioner or any body on his behalf who accompanied me neither provided any conveyance nor paid thereof."
13. In case the bailiff does not submit his claim within the time mentioned in the last rule, the amount or the balance thereof should be refunded to the party concerned. In case, however, the party fails to claim refund within six weeks, the account due to it be credited to Government under the head 'XLVI-Miscellaneous Fees and Fines' and the treasury challan showing the credit should be attached to the file of the case.
14. If the writ is to be executed at the State expense, the bailiff should be paid his expenses as admissible under the Rules.
15. If at any time, on sufficient ground shown to the satisfaction of the Registrar, it is proved that the bailiff submitted an exaggerated or incorrect claim or claimed expenses though they were met by the party concerned, this should be taken to be a misconduct and necessary proceedings against him be initiated under the High Court Establishment (Appointment and Conditions of Service)
Rules, which may result in major penalty provided by the relevant Rules.
16. To check the tendency to file habeas corpus petitions relating to girls with a view to humiliate them or their parents, the Court may, at its discretion, require the party concerned to deposit in advance an amount as fixed by the. Court directing issuance of rule nisi to be paid to the alleged detenue as compensation if she appears in Court and makes a statement controverting the allegations of illegal confinement.
17. In disposing of any such rule the Court may in its discretion make an order for the payment by one or the other of the cost of the rule.
18. The forms of Warrants Nos.1 and 2 as given here below are to be followed.
' [Form No,2 of Search Warrant (See rules 3 and 5] ' IN THE LAHORE HIGH COURT, ' LAHORE.
' To (The name and designation of the person to whom the warrant is directed).
' Whereas information has been laid before this Court that (give the name and description of the person) alleged to be illegally detained in (describe the house or place where the person illegally detained). This is to authorize and require you, with the assistance of (give the description of the person authorised to accompany the person to whom the warrant is directed) to search for the aforesaid (give the name and description of the person illegally detained) in the (describe the place to which the search is to be confined) and if found, to produce him forthwith before this Court to be dealt with in according to law.
' Given under my hand and the seal of the High Court of Lahore High Court, Lahore this day of 19.
' Deputy Registrar.
' Form of Warrant No,1 (See rule 2)
' IN THE LAHORE HIGH COURT, ' LAHORE.
' To the officer-in-charge of (name of Jail of lunatic asylum of other place, where the person is detained in custody) or to (name of person).
' You are hereby required to have the body of B.C. Now a prisoner in your custody (or now in your custody) before the High Court, on the day of next, be dealt with according to law and you shall then and there abide by such order as shall in that behalf be made by the said Court (if the prisoner is detained in public in custody (add) and unless the said B.0 shall then and there, by the order to be released, you shall, after the said Court shall have dispensed with his further attendance cause him to be conveyed, under safe and sure custody, back in the said (jail or asylum or other place of custody). Given under may hand and the seal of the High Court this day of 19 .
' Deputy Registrar.
7. Historically speaking the Code of Criminal Procedure was enacted on 22-3-1898. The Code underwent drastic amendments at the hands of the Legislature in 1923 by two Acts namely, Criminal Law Amendment Act, XII of 1923 (popularly known as the Racial Distinctions Acts) and Criminal Procedure Code Amendment Act, XVIII of 1923. Of these latter Act was the more important and was the outcome of a general revision of the whole Code, whereas the former Act was limited to the amendment of certain sections relating to the trial of European British Subjects. These Amendment Acts came into force from 1-9-1923. Immediately before Independence the territories which now constitute Pakistan were governed as part of India by the Government of India Act, 1935 (25 and 26 Geo V Ch.42) which was the Constitution instrument then enforced. The Constituent Assembly passed on 6-7-1954 the Government of India Amendment Act, 1954 whereby sec ion 223-A was inserted in the Government of India Act, 1935 in the following words: "Section 223-A.---Every High Court shall have power throughout the territories in relation to which it exercises jurisdiction to issue any person or authority including in appropriate cases any Government within those territories writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them."
' This jurisdiction was continued in the same form by Article 170 of the Constitution of 1956. The Constitutional jurisdiction in the nature of habeas corpus, presently vesting in the superior Courts was initially conferred by Article 98 of the Constitution of 1962 and has been continued as such by Article 199 of the Constitution of 1973 which reads as under: ' Article 199. Jurisdiction of High Court.---(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,--
(a) on the application of any aggrieved party, make an order--
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do or to do anything he is required by law to do; Or
(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or
(b) on the application of any person, make an order--
(i) 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 an unlawful manner; or
(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or
(c) on the application of any aggrieved person, make an order given such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II.
(2) Subject to the Constitution, the right to move a High Court for the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II shall not be abridged.
(3) An order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect o1 any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law.
(4) Where--
(a) an application is made to a High Court for an order under paragraph (a) or paragraph (c) of clause (1) , and
(b) the making of an interim order would-have the effect of prejudicing or interfering with the carrying out of public work or of otherwise being harmful to public interest or State property or of impeding the assessm ent or collection of public revenues. The Court shall not make an interim order unless the prescribed law officer has been given notice of the application and he or any person authorized by him in that behalf has had an opportunity of being heard and the Court, for reasons to be recorded in writing, is satisfied that the interim order--
(i) would not have such effect - as aforesaid; or
(ii) would have the effect of suspending an order or proceeding which on the face of the record is without jurisdiction.
(4A) An interim order made by a High Court on an application made to it to question the validity, or legal effect of any order made, proceeding taken or act done by any authority or person, which has been made, taken or done or purports to have been made, taken or done under any law which is specified in Part I of the First Schedule or relates to, or is connected with (State Property or) assessm ent or collection of public revenues shall cease to have effect on the expiration of a period of (six months) following the day on which it is made, unless the case is finally decided, or the interim order is withdrawn, by the Court earlier.
(4B) Every case in which, on an application under clause (1), the High Court has made an interim order shall be disposed of by the High Court on merits within six months from the day on which it is made, unless the High Court is prevented from doing so for sufficient cause to be recorded.
(5) In this Article, unless the context otherwise requires,-- "person" includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or Tribunal, other than the Supreme Court, a High Court or a Court or Tribunal established under a law relating to the Armed Forces of Pakistan ; and "prescribed law officer" means--
(a) in relating to an application affecting the Federal Government or an authority of or under the control of the Federal Government, the Attorney-General, and
(b) in any other case, the Advocate- General for the Province in which the application is made.
Article 199 is similar to, but wider than the jurisdiction conferred by section 491. Under Article 199 of the Constitution the High Court, may, on the application of a person, not necessarily an aggrieved party, if there be no other adequate remedy, direct a person in custody in the Province to be produced to satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner. The provision is similar to section 491(1) of Code of Criminal Procedure, but being a Constitutional provision is of higher authority. The provision confers on the High Court a jurisdiction which corresponds broadly to that possessed by the High Court in England to issue the prerogative writ of habeas corpus to safeguard the liberty of the subject. The first thing to be noticed in the provision is that the person who applies and the person who is detained need not be identical. And the restriction that the application should be by an aggrieved party is not applicable to an applicant for this writ. In England, ordinarily a person detained should apply at necessary fact to be disclosed in an affidavit in support of the petition are within his knowledge, though if he is not in a position to apply, there is no legal bar to a friend or relation applying on his behalf. The second point to be noted is that the Article applies to all forms of custody, public or private.
8. Apart from the power of arrest given to police officers and private persons and power to execute sentences of imprisonment conferred on Courts, there is a variety of statutes empowering different authorities to arrest and detain persons in circumstances specified in those statutes. Thus where a person has been convicted of a criminal offence and is undergoing imprisonment under a valid warrant, the warrant is an effective reply to the allegation of illegal detention. The same will be the position where a person is sent to prison for a debt or by process in a civil proceedings, or is committed to jail by some other judicial authority. The Court will not enquire in such a case into the allegations of lack of jurisdiction unless the lack of jurisdiction is evident, particularly where the objection is only technical and there is a right of appeal or revision.
9. Since the issue before the Court is of lawful authority, the High Court's jurisdiction in cases under Special Acts will be limited to enquiring:
(1) Whether the document authorizing detention is on the face of it valid?
(2) Whether the authority acting under the Special Act was a competent authority constituted in accordance with Act?
(3) Whether the authority acted within the limits and under the conditions prescribed by the Act?
And
(4) Whether any fundamental right has been contravened?
10. Enquiry into all these questions will be permissible, because each of them affects the legality of the arrest. Thus the High Court may set at liberty a person detained under the Frontier Crimes Regulations if his detention was ordered in violation of a provision of the Regulation. If the order of detention is not within the objection specified in the Act, but mala fide, with an ulterior motive or an entirely different object, or the order does not fall within the four corners of the Act, the detention will be unauthorized. The burden, however, of showing that statutory conditions were not satisfied will be on the petitioner. Section 491 cannot be construed as granting the power of issuing writs although the power which it grants is certainly, in many respects similar to the power that may be exercised by the issue of such a writ. Section 491 confers statutory powers and not generally the power of issuing writ of habeas corpus and any power of passing interim orders would have to be granted if gathered at all, from the language of section 491 and not from any preconceived notion of powers which are to be found as being implied in or ancillary to the power of issuing a writ of habeas corpus, because where powers are conferred by statute it is impossible to say that any power, expressly conferred, is inherent in the given power unless it is in fact a part of that power itself or absolutely necessary to the exercise of the main power. The powers to issue directions in the nature of the habeas corpus are a specie in themselves and are quite distinct from the rest of the pattern of the Criminal Procedure Code. These are the powers vested in the High Court to afford relief to people who are suffering illegal restrains by the orders of the executive or that of any Judicial Tribunal. It affords an effective means of immediate release from unlawful detention whether in prison or in private custody. Section 491 and Article 199 of the Constitution provide a remedy in all cases of wrongful deprivation of personal liberty. The Courts secure the liberty of the person by ordering his immediate release from unlawful detention. It cannot grant any other relief to the detente in respect of allegations of wrongful detention or any allegation of torture or some other inhumane acts committed on his person.
11. By their very nature and purpose the proceedings under section 491 are summary in character.
Controversies are not tried nor entire evidence is recorded under ordinary substantive and procedural laws, civil or criminal. These proceedings are not intended to go beyond the summary consideration of the questions essentially relevant to the alleged detention, e.g. Whether an alleged detente be set at liberty and as a consequence thereof be permitted to go with the person of his or her choice and or one claiming right to the former's custody or company. The Court would not go into the question of status or relationship of parties. The invocation of jurisdiction under this section to challenge detention in prison involving intricate legal issues merits dismissal. In such a case petitioner should have filed a Constitutional petition. Where age of detenue is a disputed question of fact which, cannot be conclusively determined in summary proceedings particularly when forgery is alleged, no order can be made under this section. In a habeas corpus petition bona fide of a petition has to be fully examined so that no one is permitted to abuse process of law. It would not be irrelevant to make it clear that the proceedings under section 491, Cr.P.C. Must be in open Court as there are only two provisions that empowers Courts to hold proceedings in camera, namely; section 352, Cr.P.C. And section 14 of the Official Secrets Act. Both the sections have no application to habeas corpus proceedings because while section 14 deals with an offence punishable under Official Secrets Act itself section 352, Cr.P.C. Deals with the trial of an offence. As in case of section 491 there is no trial for an offence, the hearing cannot be in camera and must be held in open Court.
12. Since the intention of the Legislature was not to oust the jurisdiction of the High Court in matters of the custody of the children, Judges of the Family Courts were not vested with powers to entertain, heir and adjudicate upon the matters relating to the custody of the children which matters were within the jurisdiction of the High Court. Proceedings by way of habeas corpus can be adopted for obtaining custody of minors by their parents, legal guardians, or others who are entitled to have such custody. The lawful detention of a child from the person who is legally entitled to his custody is, for the purpose of the issue of the writ, regarded as equivalent to an unlawful imprisonment of the child. When the mother is deprived of the custody of her minor child below the age of seven years and she has not contracted a second marriage, a writ of habeas corpus under section 491, Cr.P.C. Would be the most appropriate remedy and the High Court may not stay its hand on the ground that dispute for the custody of the minor can be adjudicated by the Guardian Judge. High Court as Court of Record and patria protests over minors had power of directing delivery of minor child into custody of his mother if the child was snatched from her lawful custody.
13. In dealing with the question of custody of a minor under section 491, there must be prima facie proof that custody is illegal and improper and the Court while disposing of such application would exercise jurisdiction in the interest and welfare of minor. The Court would not put a premium on immorality and would not give minor in custody of the father of her murdered paramour in preference to her mother. Where children were not given in custody of the mother against whom there were allegations of immorality, they were sent to Darul Aman at the expense of the mother.
14. In the light of the above discussion and in the presence of the allegations made by the petitioner which are 'Supported by an affidavit against which there is no counter-affidavit and the children one being of about 6 years and the other being of 7-1/2 years, the welfare of the minors seems to be in it that they should not be deprived of the natural love and affection of their real mother from whose custody they were snatched by the respondent. As such the Criminal Miscellaneous is allowed and both the minors are given to the custody of the petitioner, real mother. It is clarified that this order shall not come in the way of the parties to seek their proper remedy available to them under the Guardians and Wards act.
15. Disposed of.