[Section 491, Cr.P.C.]
Proceedings of summary character. Under section 491, Cr.P.C. detailed inquiry or recording of conclusive findings about disputed questions of law and fact are not within the scope of section 491. PLJ 1976 Lah. 155 Mst. Bachino v. Abdul Karim ASI.
Not discretionary writ but a writ of right, but when a petition is mala fide and for the furtherance of illicit love affair Court dismissed the petition. (DB) 1975 P.Cr.LJ 14444 Bashir Ahmed v. Muhammad Hassan Bhatti etc.
Relief under normal law available. High Court may refuse to exercise its power under section 491, Cr.P.C. (DB) PLD 1975 Kar. 118 Ghulam Muhammad v. Fakir Muhammad etc.
Alternative remedy if available and considered adequate is normally to be treated as a bar to remedy by way of Habeas Corpus. (DB) PLD 1974 Kar. 485 Imdad Hussain v. Noor Hussain etc. PLJ 1974 Cr. C. (Kar.) 509.
Belated application does not make difference. Where the custody of a person, whether public or private is found to be completely illegal and without jurisdiction, the question that the petitioner has come to the Court after some delay is absolutely irrelevant. If it comes to the notice of the High Court that some person is illegally detained it is the duty of the High Court to interfere at once and release the detenu. (DB) PLD 1957 Pesh. 41 Bahadar Zaman v. Crown.
Delay of 8 months not sufficient for not exercising powers u/S. 491, Cr.P.C. (DB) PLJ 1981 Cr. C. (Kar. )120 Mst. Salami v. Mir Hassan.
Habeas Corpus petition becomes infructuous if the detention is legalised subsequently. (DB) PLD 1958 Pesh. 38 Qadir.
Orders under Habeas Corpus must be executed by persons of complete integrity. (SC) PLD 1964 SC 186 Abdul Hamid.
Fresh application on new grounds is not barred under section 491, Cr.P.C. (ILR) 26 Lah. 573 dissented from). Sweeping statement that the principle of res judicata or finality of judgment does not apply to judgments/decisions/orders under Art. 199 (1) (b) (i) of the Constitution is not correct. Question raised before Supreme Court and decided by it cannot be reconsidered by High Court in writ jurisdiction. (FB) PLD 1976 Lah. 396 Muhammad Ajmal Khan v. Lt. Col. Muhammad Shafaat etc.
Fresh application. Prior application refused. Subsequent application to the judge of the same Court is competent and must be disposed of on merits. (PC) AIR 1928 PC 300 Eshugbayi Eleko v. Government of Nigeria.
"Detained". Government's order under section 5 (1) (b), West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960) requiring a person to "reside and remain" within the limits of a village amounts to detaining such person within the meaning of section 491 (1) (b), Cr.P.C. (FB) PLD 1963 Lah. 109 Muhammad Anwar v. Government of West Pakistan.
Valid order of detention produced before disposal of the application. Release cannot be ordered though there was no valid cause for detention previously. (DB) PLD 1950 Pesh. 22 Saleh Muhammad v. Crown.
High Court can go into the question of whether a warrant purporting to be issued under the Bengal State Prisoners Regulation, 1818 was truly a warrant authorised by the Regulation. (FB) PLD 1955 Lah. 585 Muhammad Anwar Bahari v. Crown.
Detenu held under Defence of Pakistan Rules for over a month and his detention not extended by a Review Board. Held detention illegal. Detnu set at liberty on application under section 491, Cr.P.C. 1976 P.Cr.LJ 393 Mst. Bakhtawar.
Section 491, Cr.P.C. and Maintenance of Public Order Ordinance. Grounds of detention supplied to the detenue not "as soon as possible" but after 15 days with no explanation for this delay. Held, manner of detention illegal. Detenu set at liberty. (DB) 1977 P.Cr.LJ 645 Muhammad Hussain v. Govt. of Sindh etc.
Writ amendment. Petitioner detained under DPR for 3 months. Petitioner applied for a writ of habeas corpus under the Constitution. Government extended the period by 3 months. Application made to amend the petition under Order VI, Rule 17, C.P.C. to include the new extension order. Held habeas corpus petition under the Constitution against initial order covers all subsequent continuous orders of same or similar nature. High Court competent to allow such amendment. (DB) PLD 1975 Lah. 65 Major-General Ghulam Jillani v. Federal Government of Pakistan.
Jurisdiction under the constitution. Art. 199 (1)(b) (i) is much wider than under section 491, Cr.P.C. (FB) PLD 1976 Lah. 396 Muhammad Ajmal v. Lt.-Col. Muhammad Shafaat etc. PLJ 1976 Lah. 510.
High Court to move to record the statements of detenus. The Supreme Court permitted the detaining authority to produce the detenus before the learned Judges of the High Court at Sihala Rest House, instead of at Lahore. (SC) PLD 1974 SC 402 Federation of Pakistan etc. v. Malik Ghulam Jillani. PLD 1975 SC 6.
Production of detenus before High Court and its jurisdiction. The High Court under Article 199 (1) (b) (i) has jurisdiction to order the production of the detenus before it for the purpose of examining the detenus; provided the detenus are in custody within the territorial jurisdiction of the Court. PLD 1974 SC 402 Supra.
General Search not intended. High Court can order recovery of detenu from custody of particular persons but cannot order a general search. Police however could embark on general search. Allegations in F.I.R. if not rebutted respondent and his companions liable for serious offences. Copy of order sent to D.I.G. Police for suitable action. 1974 P.Cr.LJ Note 68 Gohar Ali v. Muhammad Sadiq.
Petition can be made by an aggrieved person or even by a stranger provided it is done in good faith. The detenu should also be within the territorial jurisdiction of the Court. PLD 1974 Lah. 319 Manzar Bashir v. Federation of Pakistan.
Petition cannot be moved by a stranger. Person having special interest, right or authority in or from person wrongfully detained may seek relief on detenu's behalf. Stranger has no right to file a petition under section 491, Cr.P.C. PLJ 1974 Cr.C. (Kar.) 509 Imdad Hussain v. Noor Hassan. PLD 1974 Kar. 485.
Registration of criminal case directed by High Court since the allegation against the respondent required inquiry and probe. The petition had become infructuous after the release of the detenue. PLJ 1976 Lah. 164 Muhammad Zaman v. Ch. Muhammad Aslam ASI etc.
Remedy against illegal detention. High Court under section 491, Cr.P.C. can order immediate release but has no power to grant any other relief. Person illegally detained should enforce his remedies against illegality committed in order to check terror let loose by the police. PLD 1975 Lah. 729 Muhammad Shafi v. Muhammad Boota.
Statements of female detenue in habeas corpus proceedings before the High Court should never be interpreted to mean that High Court has expressed an opinion on any question relevant for determination of suit for dissolution of marriage. PLJ 1974 Cr.C. (Lah.) 428 Umaid Khan v. Akbar.
Matrimonial dispute, petition under section 491, Cr.P.C. dismissed. Brother praying High Court for the production of his sister from the custody of husband, wrongfully confining her. Petition rejected as the proper remedy lay in the Family Courts or Criminal Court. (DB) PLJ 1974 Cr.C. (Kar.) 538 Ghulam Muhammad v. Faqir Muhammad.
Detenu's statement to be recorded before the High Court disposes of the case. Held, High Court erred in disposing of the application without recording the detenue's statement, more so when she had been produced before the Court on several hearings. Case remanded to High Court for decision after recording the statement of the detenu. (SC) PLJ 1978 SC 408 Mst. Sallan v. Lal etc.
Detenue's statement not recorded by High Court. Detenue 22 years' old, brought before the High Court but her statement not recorded in the High Court for the reason that a criminal case had been registered for her abduction. Petition was dismissed as held to be vexatious and no order made about the detenue whether she was free to go where she liked. Case was mainly decided on her previous statements made before Magistrate. (DB) 1975 P.Cr.LJ 101 Muhammad Shah Syed. Detenue produced in High Court. Her statement not recorded. Held High Court erred in doing so. Case remanded. (SC) 1978 SCMR 83 Mst. Sallan v. Lal etc.
Police officer disobeying peremptory orders of Court in the matter of habeas corpus. Contempt grave. Conviction upheld. Unqualified apology tendered at the earliest opportunity not accepted. (SC) PLD 1964 SC 186 Abdul Hamid.
Flouting High Court order in Habeas Corpus petition. DSP convicted and sentenced. NLR 1984 Cr. 43. State v. Rana Saleem Akktar.
Dar-ul-Aman. A detenue is not an accused person and cannot be detained in Dar-ul-Aman against her/his wishes. 1973 P.Cr.LJ 79 Muhammad Ashiq v. Superintendent, Dar-ul-Aman. (DB) PLD 1963 Dacca 464 Jehan Ara Begum. PLD 1975 Lah. 234 Zafar Khan v. Muhammad Ashraf. PLJ 1975 Cr.C. (Lah.) 96.
Dar-ul-Aman. A major girl who marries a man of her own choice cannot be sent to Dar-ul-Aman against her wishes. The order is not only illegal but amounts to unlawful detention. (DB) 1975 P.Cr.LJ 472 Farmanullah v. D.M., Sukkur. PLJ 1975 Cr.C. (Kar.) 516.
Dar-ul-Aman detention. District Magistrate is not empowered to order detention of a female for interim period. She must be handed over to her guardian. Such power is available to High Court u/S. 491, Cr.P.C. under High Court Rules & Orders Vol. V Chapter 4-F rules 3 & 9. NLR 1988 Cr. 454 Mst. Sharman v. Superintendent, Dar-ul-Aman etc.
Detention in Dar-ul-Aman against the wishes of a minor or major female is unlawful. Detenu brought before Court and set at liberty. NLR 1988 Cr. 546 Nasim Khalid.
Magistrate, A.C.; D.M.; Sessions Judges, Addl. Sessions Judge are not authorised to send adult women to Dar-ul-Aman against their consent and in no case a female is to be kept in Dar-ul-Aman for more than 15 days without fresh orders of the Court concerned. NLR 1990 Cr. 1. State v. Dar-ul-Aman, Bahawalpur.
No female to be detained in Dar-ul-Aman against her wishes even when a woman is detained there at her own desire initially, her wishes should be ascertained once or twice a month for further remand thereby producing her in Court. NLR 1991 Cr. 32 (1). Mst. Aman Khatoon v. Supdt., Darul Aman.
Handing over girl to police not warranted by law. Father making F.I.R. alleging abduction of his daughter by some named persons. High Court without recording girl's statement whether she was major or minor handing over girl's custody to police for further investigation. Girl not being an accused held, could not be handed over to the police custody. Procedure of High Court not warranted by any provision of Criminal Procedure Code or any other law. Supreme Court recorded girl's statement and on her statement that she was major, and married to M, and wished to go with M. set girl at liberty and allowed her to go with M. (SC) 1973 SCMR 351 Muhammad Nazir v. S.H.O., P.S. Shahpur etc.
Habeas corpus petition by father against husband of her daughter. Daughter sui juris desiring to go with father, allowed to do so NLR 1982 Cr. 449. Haji Hafiz Ali v. Noor Muhammad.
Abductees claim being 17 years old cannot succeed. Criminal proceedings u/Ss. 363, 366, PPC in progress. Custody handed over to father instead of alleged husband. PLD 1980 Lah. 14 Shahida Parveen v. Muhammad Inayat.
A sui juris female should be allowed to go wherever she wishes to go. The girl was rightly allowed to go with the related female accused of her abduction, instead of father. 1987 SCMR 906. Muhammad v. Maryam Bibi.
Whether illegally detained or improperly detained or not in public or private custody, the only jurisdiction which Court can exercise is to set him at liberty. 1990 P.Cr.LJ 342 Mst. Tauqir Fatima v. Iqbal Mehdi Shah.
Adult female not handed over to father when step-mother was living with him. Detenue allowed to go with maternal grand-mother. NLR 1985 Cr. 481. Mst. Kauri Mai.
Detenue sui juris unwilling to go with her husband or guardian. Court has no alternative but to set her at liberty and allow her to move freely. Muhammadan Law. Sui juris woman cannot be forced to live with her husband against her wishes. Wife entitled to live separately from her husband. Husband may file a suit for restitution of conjugal rights but High court in proceedings under section 491, Cr.P.C. cannot compel her to go with her husband on the ground that if set at liberty she would lead immoral life. Such considerations are irrelevant for decision of case under section 491, Cr.P.C. (Full Court) (SC) 1973 SCMR 577 Mst. Sahi Bi v. Khalid Hussain and 6 others.
Sui Juris girl cannot be made to live with her husband against her wishes. The nikahnama was also under challenge in a Family Court. Girl allowed to live with her father according to her wishes. (SC) PLD 1976 SC 298 Muhammad Nawaz v. Rab Nawaz.
Custody of minor is to be handed over to a person keeping in view the welfare of the minor. Any arrangement made by the High Court in a writ petition in the nature of Habeas Corpus or u/S. 491 Cr.P.C. is an interim measure till the decision of the Guardian Judge. The custody of a minor girl is to be given to the mother under the Muslim Personal Law, till the minor attains puberty. (D.B.) PLD 1995 Lah. 151. Miss Hina Jilani v. Sohail Butt.
Minor girl produced from uncle's custody desirous of living with him, handed over to mother because of her welfare. (DB) 1980 P.Cr.LJ 790 Aziz-un-Nisa v. M. Yasin.
Custody of 5 years old girl handed over to mother u/S. 491 Cr.P.C. as father had taken away the girl without due process of law. PLJ 1995 Cr.C. (Kar.) 215, Mst. Naseem Akhtar v. Sh. Gulzar Ahmed etc.
Custody of minor son 11/2 years old handed over to mother by the Court as the child had been handed over to father temporarily mother being in hospital at the time. Held, minor was not in legal custody of respondents. PLJ 1994 Note 42, Mst. Tayyaba Khan v. Syed Begum etc.
Custody of minor in petition u/S. 491 Cr.P.C. is in its nature extra-ordinary remedy. In cases of urgency for the custody of minor special jurisdiction u/S. 491 Cr.P.C. may be invoked. It is for the competent Court to decide the matter after recording evidence as to where the welfare of minor lies. PLJ 1997 SC 1752, Nisar Ahmed v. Sultan Zari.
Minor to be handed over to the guardian and sui juris to go where he/she likes to go. When a minor is brought from the custody to the High Court she should be handed over to the guardian. In case of an adult/major detenu whether brought from illegal or improper custody or otherwise, the only order that High Court can make is to set him/her at liberty but it cannot restore status quo or order the female to live with her husband or parents against her wishes. (SC) PLD 1972 SC 6 Muhammad Rafiq v. Muhammad Ghafoor.
Sec. 491 Cr.P.C. is ordinarily not available for declaring Guardian or for determining for all time the question for custody of a minor. Where the dispute between the parties is essentially regarding custody of a girl and no question of any forcible detention arises such is essentially a matter for guardian Judge to decide and no justification is made out in such a case for issuing a direction in the nature of Habeas Corpus. High Court can pass an interim order pending final decision by Guardian Court. 1997 SCMR 1480, Abdul Rehman Khakwani v. Abdul Majid Khakwani etc.
Custody during litigation. Girl after abduction marrying accused. Girl sui juris. Held, to avoid all complications custody given to father. (DB) PLD 1980 Lah. 7 Shahida Parveen v. Dist. Judge, Sialkot.
Custody of minor when case pending before Guardian Judge proceedings u/S. 491, Cr.P.C. not a proper remedy. PLJ 1982 Cr. C. (Lah.) 281 Begaan v. Abdul Hamid.
Sec. 491, Cr.P.C. and Guardian Judge: Mother is entitled to apply for the production and custody of minor child even though the matter be pending before a guardian judge. Preference of the child is immaterial. Mother being entitled to Hizanat of minor child under 7 years, child handed over to mother by High Court. PLJ 1984 Cr.C. (Lah.) 39. Rizwana Bokhari v. Abdul Majeed.
Custody of wife. Wife cannot be compelled to live with her husband even where a husband has obtained a decree for restitution of conjugal rights. Muslim sui juris female under Muslim Law cannot be forced to live with the husband. PLD 1976 Lah. 670 Bibi Khatoon v. Faiz etc.
Maltreatment by husband is a relevant ground against husband for the purpose of section 491, Cr.P.C. PLD 1976 Lah. 670 supra.
Detention by husband neither illegal nor improper. (DB) PLD 1972 Lah. 809 Ramzan v. Ch. Muhammad Aslam etc.
" High Court in proper cases can exercise jurisdiction to release married woman from improper custody of husband. PLJ 1977 Lah. 32 Bibi Khatoon v. Faiz etc.
Wife when illegally detained by husband set at liberty in spite of the plea that under Quranic directions husband could do so. 1973 P.Cr.LJ 559 Muhammad Khan v. Aslam Khan.
Wife set at liberty. Factum of marriage and also its validity questionable. Court may set a major detenue wife at liberty but cannot restore status quo against the wishes of the detenue. Petitioner if real husband could approach civil Court for restitution of conjugal rights. (SC) 1973 SCMR 189 Sardara v. Khushi Muhammad.
Recovery from husband: Where father of the detenu stated that the husband of his daughter was detaining her forcibly, the High Court got the detenu recovered through a bailiff and set her at liberty. NLR 1984 Cr. 232. Muhammad Tufail v. Muhammad Hanif.
Habeas Corpus by husband against the parents allowed on the statement of the detenu who was 19 years old. NLR 1985 Cr. 30. Rashad Khan v. Basharat Ahmed etc.
Petition against parents of wife by husband for illegal detention of wife, dismissed in limine that there was no proof except the petitioner's affidavit about illegal detention. NLR 1991 Cr. 30 Sh. Tariq Sharif v. Ghulam Farid.
Girl marrying of her own free will, without the consent of father after she had attained puberty. Marriage valid. Detenue allowed to go with her husband. Father can however lodge a complaint under the Child Marriages Restraint Act, 1929 if he so desires, as the girl was under 16 years of age. (DB) 1975 P.Cr.LJ 1049 Ghulam Hussain v. Nawaz Ali.
Custody of a major girl not given to parents. The girl had lawfully married who apprehended danger to her life at the hands of the parents. The Court declined to hand over girl to the parents and set her at liberty in proceedings under writ petition. FIR under sec. 11 of Zina Hudood Ordinance had been registered against her husband. Islamic Law on the point discussed. PLJ 1996 Cr.C. (Lah.) 694 Kanwar Abdul Rasheed V. Capt. Munir Ahmed A.C. Arifwala etc.
Girl married under puberty (under Muhammadan Law) with a person of her own free will. Marriage valid according to Mohammadan Law and husband, held to be her guardian. Order of the High Court allowing the girl to go with the husband, held, justified. (SC) 1970 P.Cr.LJ 1035 Mauj Ali v. Syed Safdar Hussain. 1971 P.Cr.LJ 523 Mst. Rabia Bibi v. Zilladar Khan (DB) PLD 1978 Kar. 374 Zarina Khatoon.
Petition by paramour for the production of a sui juris wife of respondent. Court ordered that the wife be restored to husband who is her legal guardian and according to Quran can chastise her. The Court cannot bless an adulterous liaison of the petitioner. PLD 1971 Lah. 128 Fateh Sher v. Sarang.
Petition by paramour. High Court coming to the conclusion that Habeas corpus petition filed for furthering illicit love affair and avoiding criminal prosecution for kidnapping/abduction of woman. Relief under section 491 Cr.P.C. held justifiably refused. Courts do not function in vacuum and must take due notice of social and moral environments prevailing in community, such as, tendency on part of some young men to abuse provisions of section 491 in furtherance of illicit love affairs (SC) 1972 SCMR 398 Shaukat Ali v. Altaf Hussain etc.
Abductor's petition dismissed, as case u/Ss. 363, 366, PPC pending against him, PLJ 1978 Cr. C. (Lah.) 603 Muhammad Hayat v. Muhammad Saleem etc.
Detenue (girl) with the abductor. Girl alleged to be detained by her abductor. High Court concerned only with girl's free consent or otherwise in staying with her abductor. Appellant's contention that the alleged marriage between the girl and abductor is fasid is not for the High Court to determine under section 491, Cr.P.C. PLD 1962 Kar. 725 Amir Bakhsh v. Mehar Ali.
Production of girl aged 14 years from father's custody. Custody handed over to mother when she stated that her father wanted to put her thumb impression on a blank paper so that she could be married to a stranger. Detenu handed over to her mother. PLJ 1996 Cr.C. (Lah.) 390, Mst. Zarina Begum v. SHO.
Marriage of a girl of 15. Muslim girl aged 15 contracting marriage with a person of her own free choice. Subsequent removal of girl from husband's custody and detention by father against her will is unlawful. Validity of marriage determined according to Muhammadan Law. Writ sought primarily for the benefit of the girl. Conduct of husband cannot be pleaded against grant of writ. Provisions of Majority Act, 1875 not attracted in matters relating to marriage. (DB) PLD 1962 Kar. 442 Mushtaq Ahmed v. Muhammad Amin.
Minor Hindu girl embracing Islam and marrying a Muslim of her own free will. Case under sections 363 and 366 P.P.C. registered. Minor pending trial detained in jail by order of the Magistrate. Habeas corpus petition by the mother. Minor released and handed over to mother. High Court holding that the detention was illegal. (DB) PLD 1963 Dacca 553 Kiran Bala.
Elopement and marriage. A girl aged 15 leaving the house of her mother, who was married to stranger, go married to the petitioner who moved the High Court under section 491, Cr.P.C. for her production from the custody of her step-father. This girl was recovered and set at liberty to go with her husband, the petitioner. Mother's petition against the High Court order dismissed by the Supreme Court. (SC) PLD 1970 SC 323 Mst. Bakhshi v. Bashir Ahmad.
Custody of a minor girl married after abduction, not given to husband, girl lodged in Dar-ul-Aman. Husband and parents allowed to visit her. PLJ 1976 Lah. 155 Mst. Bachino v. Abdul Karim A.S.I.
Minor children recovery of, whether habeas corpus petition was rightly dismissed. 3 children less than 7 years of age. Appellant real mother of children and did not remarry. While father got married to a third wife. Held, writ petition could not have been easily decided on admitted facts. Appeal accepted and case remanded. PLJ 1990 Lah. 567. (DB) Mst. Fazlan Mai v. Rab Nawaz etc.
Custody of children. As regards custody of wife or children, the husband or father has a remedy not only under this section but also under the Guardians and Wards Act. (49 Cr.LJ 369 (371) Mad. Rama Iyar). But the power under this section is to be exercised in a matter of urgency, where for instance the father is suddenly deprived of the custody of his sons and there is a danger to the lives of the sons in the transferred custody. 31 Cr.LJ 719 Sultan v. Maya Ram.
Custody of Minors. When a minor is illegally or improperly detained the High Court would interfere by way of habeas corpus, but the interest of the minor is a paramount consideration and the High Court would not use the powers under section 491 if the remedy under the Guardians and Wards Act, 1890 is more suitable. 1952 Cr.LJ 578 Muhammad Amir v. Nasaruddin. (FB) 31 Cr.LJ 985 Moidin v. Kunha Devi. 31 Cr.LJ 719 Sultan Singh v. Maya Ram.
Minor girl according to birth entry but adult according to radiologist report, held, correctly handed over to father instead of alleged husband. 1985 SCMR 942. Allah Dad v. Hazur Bakhsh.
Custody of minor, its entitlement is in the jurisdiction of Family Court to determine. However, when custody is illegal High Court may exercise power under section 491, Cr.P.C. to perpetuation of illegal custody. PLJ 1975 Cr.C. (Lah.) 374 Mst. Gullan v. Allah Ditta.
Minor Children in father's custody. In petition u/S. 491 Cr.P.C., it was held that the minors were not in wrongful confinement. Petitioner-mother may approach the Guardianship Court. PLJ 1996 Cr.C. (Kar.) 1493, Sherimati Pari Baix v. Amrit Lal.
Detenue in her father's house, therefore, her presence there can neither be called illegal nor improper. Petition dismissed. PLJ 1996 Cr.C. (Lah.) 875, Muhammad Khalid Jamshed v. Malik Godha.
Custody of minor given to mother in petition u/S. 491 Cr.P.C. when the father of the children was in a foreign country and the minors were in the custody of their grand father and the paternal uncles. PLJ 1996 Cr.C. (Lah.) 1576, Noor Safia v. S.P. Sialkot etc.
Custody of minor children by father is not illegal. Therefore, relief u/S. 491 Cr.P.C. cannot be given. Parties to get the case decided the Guardian Judge. PLJ 1992 Cr.C. (Lah.) 162, Sara Palmer v. Muhammad Aslam.
Custody of 1« years old son handed over to the mother from his father in application u/S. 491 Cr.P.C. PLD 1994 Kar. 204, Mst. Tayyaba Khan v. Syda Begam and another.
Custody of minor given to mother in application u/S. 491 Cr.P.C. against the father pending determination of the question by the guardian judge. PLJ 1994 Cr.C. (Lah.) 421, Mst. Zenia v. Ahmed Jawad Sarwar = PLD 1994 Lah. 577.
Child of one year handed over to mother in petition u/S. 491 Cr.P.C. as temporary custody till matter is decided by a competent Court. PLJ 1996 Cr.C. (Lah.) 1725, Mst. Rifat Bibi v. Amanat Ali.
Custody of minors in proceedings u/S. 491 Cr.P.C. should be handed over to the person who was lawfully holding their custody before he was deprived of the custody if the interest and welfare of the minors demanded that as an interim measure, pending final decision by the Guardian Judge. 1996 SCMR 268, Ahmed Sami etc. v. Saadia Ahmed etc.
Pendacy of guardianship matter of minor before family Court would not affect proceedings u/S. 419 Cr.P.C. for habeas corpus. 1998 SCMR 289 Mst. Ghulam Fatima v. The State and 5 others.
Pending decision by Guardian Judge, High Court can u/S. 491 Cr.P.C. pass orders fort he restoration of the custody of a minor where welfare of the minor lies, as interim measure. PLJ 1996 S.C. 307, Ahmed Sami etc v. Saadia Ahmed etc.
Custody of minor children when widow mother lives with stranger. Mother being sui juris was allowed to go with the stranger petitioner, the woman allegedly being on illicit terms with the petitioner, the minor children were lodged in Dar-ul-Aman at the expenses of the mother till the case of the guardianship of the minors was decided by a competent Court. (SC) 1977 SCMR 343 Shahzad Bibi.
Minor's custody u/S. 491, Cr.P.C. cannot be handed over to father from mother after period of hizanat has expired. Petitioner should move the Guardian Judge. NLR 1987 Cr. 695. Asif Mowji v. Mst. Fatima A. Mowji.
Section 491, Cr.P.C. and Guardians and Wards Act are entirely different in scope. Provisions are neither mutually exclusive nor overlapping or destructive of each other. U/S. 491, Cr.P.C. High Court cannot order that minor girls remain with mother till puberty. 1988 SCMR 1891. Muhammad Javed Umrao v. Miss Uzma Vahid.
2 minor daughters handed over to mother in petition u/S. 491 Cr.P.C. from custody of father as the minors were kept by the father in his custody against the wishes of the minors, held it was improper custody. PLJ 1998 Cr.C. (Kar.) 1031 Mst. Moomal v. Jummo Salaro Mir Khan.
Minor children handed over to maternal grandmother in petition u/S. 491, Cr.P. when the mother of the children had died and father had taken away the children. PLJ 1998 Cr.C. 1215 Mst. Kaniz Fatima v. Shaukat Hussain, etc.
Custody given to mother when child less than 7 years. Father had snatched child from mother. PLJ 1989 Cr.C. (Lah.) 339. Fauzia Jamil v. Farhat Hussain.
Hizanat of minor girl of 5 years till the age of puberty under the law is the right oft he mother. When the minor girl was removed by the father from the custody of the mother without recourse to legal procedure, the minor was handed over to the mother in application u/S. 491 Cr.P.C. subject to the decision of the Guardian Judge. 1995 P.Cr.L.J. 474, Mst. Naseem Akhtar v. Sh. Gulzar Ahmed etc.
Order of Guardian Judge disobeyed, 2« years old child not handed over to mother. Held no case u/S. 491, Cr.P.C. is competent. PLJ 1989 Cr. C. (Lah.) 394. Naseem Bano v. Mirza.
Custody of minor child u/S. 491, Cr.P.C. can be given to the guardian even though proceedings pending before Guardian Judge and child not in illegal confinement. PLJ 1988 Cr. C. (Lah.) 280 Uzma Vahid v. Muhammad Javed.
Petition pending under Guardian and Wards Act u/S. 10 is no bar to an application u/S. 491 Cr.P.C. for the custody of the minor son to her mother. PLJ 1994 Cr.C. (Lah.) 293, Hiroku Muhammad v. Muhammad Latif. 1988 SCMR 1891, Muhammad Javed Umrao v. Miss Uzma Vahid.
Custody of child: Petition under section 491, Cr.P.C. for obtaining custody of child is no maintainable. Matter within the exclusive jurisdiction of Family courts under section 5 of Family Courts Act, 1964. 1973 P.Cr.LJ 98 Najma Sadeq Rasul v. Munira Hamid, Contra. 1977 P.Cr.LJ 800, Begum Gulzar Khurshid Ahmad v. Cdr. Sajjad Akbar. PLJ 1978 Cr.C. (Lah.) 11.
Dispute regarding matrimonial affairs must be laid before Family Court rather than before High Court under section 491, Cr.P.C. Allegation like wrongful confinement involving criminal offences to be taken to Criminal Courts for trial. (DB) PLD 1975 Kar. 118 Ghulam Muhammad v. Fakir Muhammad etc.
S.H.O. not to detain a person u/S. 54, Cr.P.C. without credible information against him. High Court released the detenues in application u/S. 491 Cr.P.C. PLJ 1993 Cr.C. (Lah.) 9, Abdul Qayyum v. SHO.
Arrest under section 54, Cr.P.C. by police should be on reasonable suspicion and not on vague surmises. Police officer must be satisfied about the credibility of information. Bail allowed by the High Court in Habeas Corpus petition. Also held, that the detention was without lawful authority. PLJ 1976 Lah. 189 Muhammad Shafi v. Muhammad Boota etc.
Habeas Corpus petition may be treated as bail petition in special circumstances. Accused admitted to bail in previous case by High Court but immediately thereafter arrested in another case. Accused granted bail. PLD 1975 Lah. 1096 Fitrath Alyas PLJ 1976 Lah. 129.
Habeas Corpus petition converted into bail application. Police had registered a false case against the detenu. Interim bail granted to the petitioner confirmed. PLJ 1997 Cr.C. (Lah.) 21, Sharifan Bibi v. Muhammad Latif etc.
Habeas Corpus petition converted into bail application when name of detenue was not mentioned in FIR and roznamcha (daily diary of police) it would bring the case of detenue in area of special circumstances. Detenue released on bail and directed to join investigation. NLR 1999 Cr. 140 Naseer v. Inspector SHO.
No entry in Roznamcha of police station about the FIR or arrest of the detenu. Held, FIR registered subsequently to the raid by the High Court bailiff. FIR quashed and the detenu set at liberty in application u/S. 491 Cr.P.C. PLJ 1996 Cr.C. (Lah.) 398, Manzoor Elahi v. SHO Luddan.
Bail allowed on oral request while hearing petition for habeas corpus u/S. 491 Cr.P.C. 1994 P.Cr.LJ 472, Mst. Rosoola Bibi v. Mahmood.
When the detenus are reported to be involved in a criminal case. Leave to appeal was granted to consider whether High Court was justified in allowing the Constitutional petition in terms of order granting bail to the detenus after having been informed that the detenus were allegedly involved in the criminal cases under the F.I.Rs in the police stations; whether High Court was justified in dismissing the criminal miscellaneous application for cancellation of bail summarily without recording any finding; whether the allegation of prosecution that the detenus jumped the bail was correct or not.
Under Art. 199. Two of the respondents had invoked the Constitutional jurisdiction of High Court under Art. 199 challenging the detentions of persons (other respondents) alleged to have been detained illegally, without jurisdiction and with mala fide intention. High Court in exercise of its jurisdiction under Art. 199 issued notice to the prosecution for laying down information about whereabouts of the detenus and also laying down the facts and reasons for detention if they were under arrest. Prosecution was not able to satisfy the High Court by producing authentic and relevant documents, particularly statements of witnesses on the basis of which the detenus were involved in case under S. 302, P.P.C. in which originally they were not named in F.I.R. High Court in view of the facts and circumstances came to the conclusion that the arrest of the dentenus was a mala fide act intended to pressurise the detenus to disclose the whereabouts of another person who was wanted by the Police in certain criminal cases. High Court, in circumstances allowed bail to detenus but no order was passed holding that the proceeding initiated against the detenus were illegal or without jurisdiction, in fact order of the High Court allowed the prosecution to investigate and directed the detenus to cooperate with the prosecution. Held, when the High Court came to the conclusion that the action was mala fide and merely to harass the detenus, it was justified in granting relief to the detenus as not only that the ground for bail were available, but also the High Court would have been cognisant of the fact that the question of liberty of citizens was involved and also to protect such persons from high handedness and illegal actions perpetrated with mala fide intention. Mir Abdul Baqi Baloch v. Government of Pakistan PLD 1968 SC 313; Shahnaz Begum v. Hon'ble Judges of the High Court of Sindh and Balochistan PLD 1971 SC 677; Zahoor Ellahi v. State PLD 1977 SC 273 and Ch. Abdul Malik v. The State PLD 1968 SC 349 ref.
Constitution of Pakistan (1973) Arts. 199, 4, 9, 10 and 14, Provisions of Arts. 4, 9, 10 and 14 of the Constitution which confer fundamental rights on a citizen whenever violated and complaint is made to a High Court about that violation, High Court must step in to investigate such facts under the discretionary jurisdiction conferred on it under Art. 199 of the Constitution and pass such order as may be found just, legal and equitable taking into consideration the facts and circumstances of each case. 1994 SCMR 1283
Under Article 4 of the Constitution of Pakistan, 1973 every citizen has an inalienable right to be treated in accordance with law and to enjoy the protection of law. Furthermore, under Article 9 of the Constitution no person shall be deprived of life or liberty save in accordance with law. Article 10 of the Constitution provides safeguards against arrest and detention. It provides that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest and every person who is arrested and detained in custody, shall be produced before a Magistrate within 24 hours of such arrest excluding the time necessary for journey from the place of arrest to the Court of nearest Magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate. These provisions do not apply to preventive detention. Article 14 of the Constitution provides that the dignity of man and subject to law the privacy of home shall be inviolable. It, in clear terms, prohibits that no person shall be subjected to torture for the purpose of extracting evidence. These provisions which confer fundamental rights on a citizen whenever violated and complaint is made to High Court about their violation, the Court must step in to investigate such facts under the discretionary jurisdiction conferred on it under Article 199 and pass such order as may be found just, legal and equitable taking into consideration the facts and circumstances of each case. 1994 SCMR 1283
Where the liberty of citizen is involved, the action initiated by the Police/prosecution is found to be mala fide and intended to extract evidence or information from the detenue the superior Courts should not be reluctant to step in and grant relief to the citizens. 1994 SCMR 1283
Under Art. 199. Arrest and detention. Constitutional jurisdiction of High Court. High Court has the jurisdiction to examine the facts and information laid before it to determine prima facie that it does not lack bona fides, is not a cooked up or manipulated affair, the detenue has not been illegally detained without a proper and legal remand order where it is required and there appear reasonable grounds for believing that the detenue is involved in the crime charged with. Prosecution in such a situation is duty bound to disclose the material upon which it has acted and High Court is to satisfy itself that such action is lawful and not in violation of law and fundamental rights.1994 SCMR 1283
Where petition under Article 199 is filed challenging the arrest and detention of any person, the High Court will not straightaway refuse to exercise jurisdiction the moment an information is laid that the detenue is involved in any criminal case registered with the Police. The High Court has the jurisdiction to examine the facts and information laid before it to determine prima facie that it does not lack bona fides is not a cooked up or manipulated affair the detenue has no been illegally detained without a proper and legal remand order where it is required and there appear reasonable grounds for believing that the detenue is involved in the crime charged with. If once it is conceded that on receipt of information as supplied the High Court should refuse to exercise its Constitutional jurisdiction without examining it, the very provision of the Constitution Article 199 (1)(b)(i) conferring power of judicial review will be frustrated. The High Court is competent to examine and satisfy itself that the detenue is not being held in custody without lawful authority or in can unlawful manner. This an be achieved only when the Court examines the information, reasons, facts and causes leading to detention. While examining, the High Court will not act as an appellate Court nor will it make sifting investigation. In such Constitutional petition the prosecution is bound to disclose the material upon which it has acted and the Court is to satisfy itself that such action is lawful and not in violation of law and fundamental rights. 1994 SCMR 1283
The Courts have to safeguard the fundamental rights of every citizen and to protect the life and liberty from illegal, unauthorised and mala fide acts of omission and commission by any authority or person. In the present case the information laid before the High Court was deficient and no substantive material was produced to satisfy it that till then there existed reasonable grounds that the detenue had committed the crime. In fact the statement of two witnesses was not produced which was basis for involving the detenus in a crime committed five months back report of which did not mention the names of the detenus. The prosecution therefore failed to produce material statement which was the basis for involving the detenus How could in such circumstances the High Court close its eyes to the glaring illegalities perpetuated in the background of the failure to arrest some other person required by police in other criminal cases. In the circumstances, the High Court was justified to reasonably conclude that the arrest was mala fide and intended to extract information about the whereabouts of that said person and therefor exercised its Constitutional jurisdiction in a limited manner by releasing the detenus on furnishing surety bond and leaving the prosecution free to make further investigation, if necessary. The High Court had thus corrected actions of the investigating agencies in the right direction without in any manner interfering with the investigation. 1994 SCMR 1283.
Where the liberty of citizen is involved, the action initiated by the Police/prosecution is found to be mala fide and intended to extract evidence or information from the detenue the superior courts should not be reluctant to step in and grant relief to the citizens. 1994 SCMR 1283, Govt. of Sindh v. Raeesa Farooq and 5 others.
Criminal case registered after the habeas corpus petition was moved on behalf of the detenu. Detenu recovered. Detenu directed to be released on bail for offences under sections 363, 366/149, P.P.C. PLJ 1976 Lah. 185 Muhammad Ali v. S.H.O., Chiniot.
Detenu recovered from illegal custody of I.O. No entry in daily diary about the detenu's arrest. S.S.P. directed to register a case against the respondent for said offence. PLJ 1989 Cr. C. (Lah.) 534. Muhammad Siddiq v. Raja Mumtaz. D.S.P., CIA Staff.
Registration of FIR ordered against SHO for unlawful detention of the detenu in petition u/S. 491, Cr.P.C. NLR 1990 Cr. 346 Muhammad Ibrahim. PLJ 1990 Cr. C. (Lah.) 368.
High Court should direct the I.G. Police to take action against the delinquent police officers for detaining a person illegally. To overlook the actions which impinge personal liberties is to encourage such violations of law. 1995 SCMR 1283, Khan Muhammad and other v. S.H.O., P.S. Phool Nagar.
Arrest of detenu recorded u/S. 54 Cr.P.C. in a case u/S. 392 PPC. Detenue not named in FIR. No incriminating material except secret information with police. Held, without credible evidence/material in the matter, provisions of se. 54 Cr.P.C. cannot be invoked for arrest of an accused. Detenue set at liberty in petition u/S. 419 Cr.P.C. PLJ 1997 Cr.C. (Lah.) 241, Mst. Gulzar Begam v. Incharge Police Chauki Shahdara Town.
Detention for non-payment of arrears of electricity charges. Detention under Land Revenue Act XVII of 1967 held to be illegal when no notice had been issued and the amount due from detenu had not been determined. Detenu released in application u/S. 491 Cr.P.C. PLJ 1997 Cr.C. (Lah.) 886, Muhammad Jamil Shahid v. S.D.O. WAPDA.
Detention found illegal in petition u/S. 491, Cr.P.C. and also one detenu found to have been subjected to physical violence. SSP directed to inquire into the matter and submit report against the police officer concerned within 20 days. PLJ 1991 Cr.C. (Lah.) 235 Ghulam Shahbaz v. SHO etc.
Detenu wrongful detained by police allowed bail on oral request in habeas corpus petition. NLR 1988 Cr. 699 Mst. Shamim v. S.A. Farooqi, SHO.
Detenu held in unlawful custody by police, I.G. Police directed to look into the matter against the police officer who kept the detenu in unlawful detention. PLJ 1987 Cr.C. (Lah.) 451. Mir Muhammad Shabbir v. Aslam Khan, DSP.
No case, no inquiry and no FIR pending against the detenu. Statement by I.O. vague and unspecific. Detention not mentioned in any police record. High Court could not order in habeas corpus petition to take the detenu in custody after completing formalities. High Court's order set aside. Once court concludes that the detention is illegal it must set the detenu free. 1995 SCMR 1995 SCMR 1283, Khan Muhammad v. SHO. PLJ 1995 S.C. 547.
Full sentence undergone, such convict cannot be detained in prison any more just because a revision petition has been admitted against the convict by the High Court. Detenu released. NLR 1988 Cr. 572 Noor Muhammad.
Court Martial: Members of Court Martial are sole, Judges of both law and fact. The High Court under section 491, Cr.P.C. cannot go into this question. It would be different if the Court Martial has no jurisdiction or convicted an accused person without hearing any evidence at all. (FB) ILR 26 Lah. 419 Jit Singh v. Imperator 47 Cr.LJ 1022.
Police assistance allowed to the female detenue when she apprehended danger from the other party. PLD 1980 Lah. 350 Bashra Parveen.
Brick-Kiln workers set free u/S. 491, Cr.P.C. even through owner pleaded that the workers owed him Rs. 2 lac and they were working to discharge their debt. NLR 1989 Cr. 556. Mir Safdar Ali v. Ali Mardan & State.
Transfer from jail: An under-trial prisoner cannot be transferred form one jail to another without the orders of the trial court. PLJ 1976 Lah. 573 Zia-ud-Din v. Supdt. Jail etc.
Transfer from one jail to another pending appeal for transportation for life. Appellant transferred from one jail to another under section 491 (1)(c), Cr.P.C. 1971 P.Cr.LJ 39 Mst. Said Bibi.
Appeal under Letters Patent: No appeal under Letters Patent clause 10 from the order of a Single Judge under section 491, Cr.P.C. is competent. There being no appeal competent from the order of a single judge, the petitioner could not go under the law to very other judge of the High Court in spite of a refusal by any one Judge. A subsequent application to other judges on the same facts is not competent. (DB) ILR 26 Lah. 573 Kishori Lal v. The Crown.
Costs: S.H.O. illegal detained the detenue in police lock up. The High Court ordered SHO to pay Rs. 200 as costs of the hobeas corpus petition. PLD 1975 Lah. 1435 Faiz Ahmad v. SHO.
Accused escaped from custody. Detenus kept in police station as hostages. Such custody held without lawful authority. Respondent ASI ordered to pay Rs. 200/- as costs to the petitioner. PLD 1976 Lah. 216 Sardar Begum v. Habib Shah Khan PLJ 1976 Lah. PLJ 1976 Lah. 152 Faiz Ahmad v. SHO Shorkot.
Application under section 491, Cr.P.C. found to be false. The petitioner was ordered to pay Rs. 1000/- as costs to the respondents. PLD 1976 Lah. 1076 Mst. Mumtaz Begum v. Zawar etc. PLJ 1976 Lah. 778.
Costs are a creature of statute or statutory rules and in the absence of either the High Court has no jurisdiction to award costs in an application for issuing a writ of habeas corpus. The High Court has no powers to grant costs of an application under section 491, Cr.P.C. (FB) Rammammal v. Vijayaragha Vatu AIR 1933 Mad. 102 (FB) 50 Cr.LJ 788 (All.) Basudeva's case (FB) AIR 1945 Pat. 44 (53, 59) Basanta v. Emperor. Contra 1970 P.Cr.LJ 401 (Lah.) Khursheed v. Khushi Muhammad purporting to be based on (High Court Rules, Orders, Vol. V, Chapter 4-F Rule 10).
Costs of Rs. 2,000 to be paid by SHO in habeas corpus petition to the petitioner for the release of the detenu illegally detained by him. NLR 1990 Cr. 340 Muhammad Ibrahim.
Petitioner to pay Rs. 2,000 as costs in habeas corpus petition u/S. 491 Cr.P.C. when it was found that the petitioner was motivated, unjustified in making the petition to take revenge from the respondent. PLD 1994 Pesh. 242, Maj. (R) Abdur Rehman Khan.
Condition of deposit of security as a condition precedent for taking further proceedings in writ petition, for habeas corpus held, is without lawful authority and unwarranted by law, 1994 SCMR 1507 (1), M.D. Tahir Advocate v. Lahore High Court, through Registrar.
Imposing costs in habeas corpus petition by a High Court when the detenus were not recovered; The Supreme Court set aside the costs as not justified. 1994 SCMR 1718, Allah Ditta v. Yousaf etc.
SHO fined Rs. 2,000 in petition u/S. 491 Cr.P.C. when the bailiff recovered the detenu from police station. The arrest of the detenu was not shown in the daily diary. SHO was also warned to be careful in future towards petitioner in particular and the public in general. PLJ 1996 Cr.C. (Lah.) 649, Muhammad Bakhsh v. SHO P.S. Uch Sharif.
ASI fined Rs. 2500/- for illegal detention of detenue in a habeas corpus petition u/S. 491 Cr.P.C. PLJ 1997 Cr.C. (Lah.) 52, Muhammad Manzoor v. Mahr Riaz Hussain ASI. Also see PLJ 1997 Cr.C. (Lah.) 56, Muhammad Aslam v. SHO.
S.H.O. fined Rs. 3000/- in habeas corpus petition when the detenus were found in handcuffs in police station. Daily diary indicated that the detenus were arrested u/S. 107/151 Cr.P.C. (One sided proceedings only). One of the detenus was a boy of 12 years. Detenus set at liberty. PLJ 1997 Cr.C. (Lah.) 136, Lal Din v. SHO.
Detenus found in veranda of police station when bailiff went there. Arrest not shown in daily diary. Detenus released and SHO ordered to pay Rs. 1000 to each detenu as costs. PLJ 1997 Cr.C. (Lah.) 182, Muhammad Nawaz v. SHO.
SHO fined Rs. 3,000/- in Habeas Corpus petition, as the arrest had not been shown in the daily diary and the detenu was not required by police for any offence. PLJ 1997 Cr.C. (Lah.) 1217, Mahboob Alam v. SHO Gojra.
sHO ordered to pay Rs. 3000 as compensation to detenu in petition u/S. 491 Cr.P.C. as the bailiff had found that the detenu had been detained by the SHO without there being any case against him. PLJ 1997 Cr.C. (Lah.) 1287, Haji Noor Hussain v. SHO. PLJ 1997 Cr.C. (Lah.) 1305, Naseer Ahmed v. SHO.
SHO find Rs. 3,000/- in Habeas Corpus petition, as the arrest had not been shown in the daily diary and the detenu was not required by police for any offence. PLJ 1997 Cr.C. (Lah.) 1217, Mahboob Alam v. SHO Gojra.
SHO ordered to pay Rs. 3000 as compensation to detenu in petition detained by the SHO without there being any case against him. PLJ 1997 Cr.C. (Lah.) 1287, Haji Noor Hussan v. SHO. PLJ 1997 Cr.C. (Lah.) 1305, Naseer Ahmed v. SHO.
Fine of Rs. 2,500/- awarded as compensation for illegal detention in habeas corpus petition when detenu was in detention of SHO without there being any case registered against him. PLJ 1999 Cr.C. (Lah.) 9 Abdur Rehman v. SHO
In Habeas Corpus petition u/S. 491, Cr.P.C. High Court can pass any of the following order:
(1) Issue rule nisi for production of detenu in Court;
(2) to set the detenu free;
(3) to convert the proceedings into bail application and grant bail to the detenu;
(4) to order registration of case against police officer/private person who was found violating fundamental right of detenu;
(5) to direct police authorities to conduct departmental proceedings against Police Officer responsible for illegal detention;
(6) when the Court is satisfied that the respondent police officers have acted in violation of Court directions or failed to obey the same, to initiate contempt proceedings against such persons;
(7) To award cost against the police officer in favour of petitioner for expenses incurred in getting the detenu released;
(8) to award monetary compensation to detenu who was deprived of liberty.
(9) to dismiss the petition when the detention is found lawful and bona fide.
Detenu may file a suit for damages against the Police Officer and Police Officer is entitled to claim set off for amount already paid in proceedings u/S. 491, Cr.P.C. The proceedings are summary in nature and the Court should avoid recording of evidence except to determine legality or otherwise of detention. (DB) PLD 1999 Kar. 124 Ali Ahmed v. Muhammad Yaqoob Almani, etc.