' This order shall also be read in both Criminal Miscellaneous No,1737-H of 2001 and Criminal Miscellaneous No,6620-B of 2001.
2. Petitioner Naik Muhammad has sought recovery of detenues Nargas Bibi and Shabana Bibi, who were married to. Naik Muhammad and his brother Muhammad Ihsan respectively on 11-8-2001.
Nikahnamas were duly registered with the Nikah Registrar, Sadar, Lahore. Bailiff of this Court was deputed to recover the alleged detenues from the house of Muhammad Ali. When the Bailiff reached at the given address mother of the alleged detenues confronted them with knife in her hand and stated that she had been awaiting their arrival for more than half an hour. The detenues were not available on the address, since it appears from the statement of the mother of the detenues that the police who had been contacted by the Bailiff to accompany him to the address of Muhammad All had informed the respondent regarding the arrival of the Bailiff.
3. Ch. Ali Muhammad, Advocate, has appeared on behalf of father of the alleged detenues Muhammad Nawaz. He produced in the Court F.I.R. No,190 of 2001 which had been registered at Police Station Mananwala, District Sheikhupura OR 12-8'2001 by Muhammad Nawaz under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Learned counsel for the petitioner has argued that since the petitioner was accused in the F.I.R. He was not entitled to relief from the Court and the detenues could not be recovered in habeas corpus proceedings. He also produced copies of order of Judicial Magistrate, Sheikhupura, regarding statements of both the detenues under section 164, Cr.P.C. The order itself shows that the statements of the detenues were not recorded. Only the statements under section 161, Cr.P.C. Were adopted as their statements under section 164, Cr.P.C. This raises an apprehension that if the statements of detenues had been recorded under section 164, Cr.P.C. After following proper procedure. The statements may not have been same as the statements under sections 161, Cr.P.C. It was, therefore, directed that both the detenues be produced in Court on 5-11-2001 in order that the Court may satisfy itself that the statements of the detenues had been voluntarily made and they themselves had repudiated the Nikahs with the petitioner and his brother.
4. On 5-11-2001 the detenues were not produced. An independent application was filed under section 476, Cr.P.C. By learned counsel for respondents. Notice was given in this application to learned counsel for the petitioner. However, learned counsel for respondent was again directed to produce the alleged detenues in the Court today. In the meanwhile, petitioner Naik Muhammad and his brother Muhammad Ihsan were directed to join the investigation in the F.I.R. Registered by Muhammad Nawaz and the S.H.O. Was directed that subject to their joining the investigation, they would not be arrested till today. Similar order was passed on the application of the petitioner Naik Muhammad and his brother Muhammad Ihsan on bail application filed by them on 21-11-2001.
Petitioner Naik Muhammad and his brother Muhammad Ihsan are both present in the Court today, S.H.O. States. That they had joined the investigation. On the other hand, the detenues have not been produced and learned counsel for the complainant Muhammad Nawaz has relied on the following: "Hazaray Shah v. The State" (1998 PCr.LJ 417). ' to argue that the bail application of the petitioners could not have been entertained since they have already applied in the Sessions Court and have not appeared in the case. Since circumstances of this case are rather unusual and the initial incident which took place when the Bailiff's report created very strange impression that not only police had been in collusion with the complainant party but also Judicial Magistrate had not exercised hit judicial mind properly nor exercised his jurisdiction, therefore, bail before arrest had been granted in exceptional circumstances till today. Today, again detenues have not been produced and it is being alleged that they are minors without any evidence being produced. The only way to settle the matter is that both the detenues should be produced. If it was' possible to produce them in the Court of the Judicial Magistrate, there appears no impediment regarding their production in the High Court. The respondent has taken shelter behind technicalities to avoid production of the detenues in this Court, therefore, he is again directed to produce the detenues in this Court in the same manner he should not be proceeded again for Contempt of Court. In the meanwhile, petitioners' bails are extended till 12-12-2001 to appear before Sessions Judge with an application for bail before arrest.
However, the Sessions Judge shall also examine the record of the F.I.R. When he passes the order in accordance with law and satisfies himself in this behalf. Learned counsel for the petitioner in the meantime, shall file reply to the application under section 476, Cr.P.C.
5. Case to be re-listed on 7-12-2001 for production of Nargas Bibi and Shabana Bibi.