' MUHAMMAD YUNUS SURAKHVI, J.---This appeal, by way of leave of the Court, is directed against the order passed by the High Court of Azad Jammu and Kashmir on 30-4-1999, whereby the habeas corpus petition filed by the appellant, herein, was dismissed.
2. , The precise facts giving rise to the present appeal are that according to the appellant Mst.
Azeeba Khatoon is her wedded wife. She entered into 'Nikah' with the appellant on 3-4-1999.
Respondents Nos.1 to 4 were not willing to give the hand of Mst.Azeeba Khatoon to the appel'ani.
Thus, they lodged a report at Police Station Baloch for allegedly committing the offences under sections 10, 11, 19 ZHA and section 14, EHO (property). On the report lodged by Ali Asghar, the father of Mst. Azeeba Khatoon and on registration of a case the appellant and Mst. Azeeba Khatoon secured their pre-arrest bail from the Shariat Court. The Shariat Court vide its order dated 7-4-1999 granted the pre-arrest bail both to the appellant and Mat. Azeeba Khatoon. However, as the girl appeared to the learned Judge a minor, therefore, he handed over her to one Khalid, her maternal uncle, who was present in the Court and S.H.O. Police Station, Muzaffarabad was directed to arrange her safe arrival alongwith her maternal uncle to the house of her parents. On 17-4-1999, the appellant, herein, filed a habeas corpus petition before the High Court under section 491 of the Code of Criminal Procedure as according to him Mst. Azeeba Khatoon was under the illegal detention of the respondents. On being satisfied with the material placed alongwith the application filed by the appellant, the learned Judge in the High Court felt advised to issue warrants for the production of Mst. Azeeba Khatoon but S.H.O. Baloch submitted a report to the effect that in spite of search made in the houses of respondents Mst. Azeeba Khatoon could not be traced out. However, the learned Judge recorded the statement of Ali Asghar, the father of the alleged detenue, who deposed that Mst. Azeeba Khatoon was not under any illegal confinement and the alleged 'Nikahnama' was a fake and fictitious which was procured by the appellant from Mst.Azeeba Khatoon under coercion and torture. After perusing the record submitted by S.H.O. Baloch, the learned Judge in the High Court felt advised to dismiss the habeas corpus petition as according to him the detenue was not under the illegal detention. It is the aforesaid order which is the subject of present appeal.
3. It is submitted by Sardar Rafique Mahmood Khan, the learned counsel for the appellant, that the High Court after having been satisfied by the material produced by the appellant directed that Mst.
Azeeba Khatoon be produced in the Court but this order was not complied with. Only her father, Ali Asghar, appeared and told the Court that Mst.Azeeba Khatoon was living with him of her free will and was not under illegal confinement. According to the learned counsel, this statement was hardly sufficient to prove that Mst. Azeeba Khatoon was not wrongly confined. The learned counsel also raised the grievance that in para. 7 of the judgment of the High Court certain observations have been made which are not only unfounded but were also outside the scope of a habeas corpus petition.
4. On the other hand, it was vehemently contended by Mr. Ghulam Mustafa Mughal, the learned counsel for the respondents, that the alleged detenue made a statement before the A.D.C.(G.), Mirpur, on 9-4-1999, that she never entered into 'Nikah' with the appellant. The learned counsel contended that a report has been lodged on behalf of the father of Mst. Azeeba Khatoon for alleged abduction of her and commission of offence of Zina upon her person. The learned counsel pointed out that as the detenue was not found from where it was alleged that she was kept under illegal confinement therefore the S.H.O. Concerned was unable to produce the detenue and to comply with the warrant of production issued by the High Court. The learned counsel for the respondents also pointed out that Mst.Azeeba Khatoon has already filed a suit for jactitation of her alleged marriage with the appellant in the Court of Family Judge, Mirpur who, under the apprehension of some fear, has shifted from her home and settled at Mirpur. The learned counsel submitted that the appeal filed by the appellant merited no consideration and the same may be dismissed. As regards the observations made in para. 7 of the impugned judgment of the Shariat Court, the learned counsel for the respondents conceded that he had no objection if the same were quashed,
5. After hearing the respective contentions of the learned counsel for the parties and perusing the record available, we are of the view that the first point raised by the learned counsel for the appellant for the production of the detenue before the Court for getting her statement recorded merits no consideration at this stage because of the changed circumstances to which we will be adverting hereinafter. It has specifically been averred in the habeas corpus petition that Mst.
Azeeba Khatoon may be recovered from the houses of the respondents situated at village Pakhu Naar, Chanoochi, Tehsil Sudhnooti. The S.H.O. Baloch, as already pointed out, made a report before the Shariat Court that from teh houses of the respondents the detenue was not traceable. Now the changed position is that Mst. Azeeba Khatoon alongwith her father, Ali Asghar, is stated to have shifted to Mirpur where she has already filed a suit for jactitation in the Court of Family Judge, Mirpur. In this view of the matter, our direction to the High Court will bear no fruit as it is not the case of the appellant himself that even at Mirpur Mst.Azeeba Khatoon is under the illegal detention of the respondents. To the above extent the prayer of the appellant is refused. However, if he feels that she is still under the illegal detention of the respondents, even at Mirpur, he may file a fresh habeas corpus petition at Mirpur circuit of the High Court.
6. So far as the observations made by the learned Judge in para. 7 of the impugned judgment are concerned, our reading shows that these observations are outside the scope of the habeas corpus proceedings. Such observations are likely to prejudice the case of either one party or the other.
These observations shall be deemed to have been made only for the purpose of deciding the habeas, corpus proceedings. Therefore, the observations made in para. 7 of the impugned judgment are hereby deleted and thus shall stand quashed as being never made.
7. In the light of what has been stated above, we partly accept the appeal in the terms indicated above.