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W.P.No.1722/2010.

Mst. Razia Bibi.

The State,etc.

20.04.2010. Mr. Mumtaz Hussain Bazmi, Advocate for the

petitioner.

Through this petition, the petitioner has

prayed for the production of her daughter Mst.
Sumera Bibi before this Court and determination
of her fate in the facts and circumstances
mentioned in the petition.
2. Brief facts of the case are that daughter of
petitioner Mst. Sumera Bibi was married with
Muhammad Ahmad but the same was ended in
divorce and now she is living with one Khalid
Mahmood. When the Mst. Razia Bbi, mother of
petitioner approached to said Khalid Mahmood to
take back her daughter, he refused to return her.
She is living with Khalid Mahmood against Law
and Quran-o-Sunna. Hence, this petition.
2. Learned counsel for petitioner argued that
petitioner’s daughter Mst. Sumera Bibi was
married with Muhammad Ahmad but
unfortunately she developed illicit relations with
one Khalid Mahmood and said Khalid Mahmood
with his companions forcibly got executed a
divorce deed (TALLAQ NAMA) between Sumera
Bibi and her husband Muhammad Ahmad. The
period of marriage life between Sumera Bibi and
her husband was five months and Mst. Sumera
Bibi was also carrying pregnancy out of her
husband. Further argued that now she has
secretly been kept by Khalid Mahmood her
paramour and other respondents for their illicit
desires and the detenue is living her life against
the law of the land and Quran-o-Sunna. To
strengthen his arguments, learned counsel states
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that the alleged abductee is pregnant and her

Iddat period will remain till birth of child. He also
argued that order passed by learned Sessions
Judge on the petition filed by the petitioner under
Section 491 Cr.PC is against law and facts of the
case.
3. Heard. Record perused.
4. Petitioner earlier filed an application under
Section 491 Cr.PC before the learned Justice of
Peace through her learned counsel Mr. Ghulam
Yasin Abbasi, Advocate. The facts narrated in this
writ petition and criminal miscellaneous
mentioned above are different on material facts.
However, without discussing the same, the record
shows that the learned Sessions Judge directed
the SHO for the production of alleged detenue
and service upon respondents No.3 to 9. The
respondents appeared before the Court on
03.04.2010 and stated that Mst. Sumera Bibi is
not in their custody and further that the
petitioner is at liberty to point out the clue of
detenue in their houses and she can be searched
from there. However, the learned Sessions Judge
directed the SHO to ensure the production of
alleged detenue Mst. Sumera Bibi. On 06.04.2010
Mst. Sumera Bibi was produced before the Court.
Her meeting with the petitioner was arranged by
the learned Sessions Judge, thereafter the
statement of Mst. Sumera Bibi was recorded,
wherein she stated that Bashir Ahmad
Lambardar of Mauza Mullani had produced her
before police and she was earlier residing in the
house of Malik Nazir Ahmad who is relative of her
mother Mst. Ruqayya Bibi i.e. petitioner. She
further stated that her previous husband
Muhammad Ahmad had divorced her and now
she is under the period of Iddat. Also stated that
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none of the respondents detained her illegally,

she refused to go with the petitioner and stated
that she does not want to go to Darul Aman. As
Mst. Sumera Bibi was not ready to accompany
her mother i.e. petitioner and had also refused to
go to Darul Aman, the learned Sessions Judge set
her at liberty and the petitioner and her learned
counsel in the light of statement made by Mst.
Sumera Bibi did not press petition which was
dismissed as withdrawn vide order dated
06.04.2010. No illegality could be established to
the proceedings before learned Sessions Judge
and he has passed an order with framework of
law.
6. Habeas corpus literally means “Have his

body”. The writ of habeas corpus is a protective

process for securing the liberty of people by
affording an effective means of immediate release
from unlawful detention whether in any prison or
any private custody, by it the Court commands
the production of the subject and inquires into
the cause of his detention and if there is no legal
justification the person is set at liberty this is why
this writ is called the great writ of liberty. Hence,
an order in the nature of habeas corpus is
initiated to preserve the liberty of the subject and
is a safeguard against the unlawful or improper
manner of detention. It should be so construed as
to advance the remedy and suppress the mischief
and therefore it should always be construed in
favour of the detenue.
7. The major Muslim woman like a major
Muslim, being sui-juris is entitled for the same
rights and liberties as are granted to the Muslim
male. There is no law that a female on the mere
ground of her gender must invariably be treated
as a person under some sort of disability. Article
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9 of the Constitution of the Islamic Republic of

Pakistan, 1973 guarantees that no person can be
deprived of life or liberty except in accordance
with law. As such a major Muslim girl can not be
detained in Darul Aman without her consent.
Such detention for the purpose of preventing her
from indulging in some alleged immorality would
amount to preventive detention apart from the
fact that there is no law requiring her to be so
detained, the mandate of Article 10(4) of the
Constitution ibid even forbids the making of such
Laws. So if the writ in the nature of habeas
corpus is issued and detenue is brought before
the Court, the Court shall decide as If the person
is a minor, the Court may make over his
custody to the guardian which will be dealing
with him in accordance with law but if the
person is major the only jurisdiction which
the Court can exercise is to set him at liberty
whether illegally or improperly detained in
public or private custody or not.
8. Hence, a sui-juris woman cannot be
forced to live with any one against her wishes
and even if a sui-juris woman is unwilling to go
with her guardian, the Court cannot compel
her to go with him, and she has to be set at
liberty and allowed to move freely as has been
held in PLD 1972 SC 6 titled “MUHAMMAD

RAFIQ Vs. MUHAMMAD GHAFOOR” that:-

“Taking into consideration, the
provisions of section 491 and 561-A,
Cr.P.C. as well as that of the
Fundamental Right No.1 in the
Constitution of Pakistan (1962) that
“No person shall be deprived of life or
liberty save in accordance with law”
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there was no warrant in law for the

direction passed by the High Court
regarding the custody of the woman
in the case.
The High Court has two-fold
jurisdiction under section 491, Cr.P.C.
: (i) to deal with a person within its
appellate criminal jurisdiction
according to law; and (ii) to set him at
liberty if he is illegally or improperly
detained. If the Court finds that the
person brought before it was not
being illegally or improperly confined
or detained then if the person is a
minor, the Court may make over his
custody to the guardian which will be
dealing with him in accordance with
law, but if the person is major, the
only jurisdiction which the Court can
exercise is to set him at liberty
whether illegally or improperly
detained in public or private custody
or not. The Court may “set at liberty”,
but cannot restore status quo and
against the wishes of the person
brought before it. Such a course will
lead to curtailment of liberty for which
there is no warrant under section 491
nor can such an order be sustained
under section 561-A of the Code as it
cannot be said that allowing a person
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freedom of moment is an abuse of the

process of the Court”.
9. It is also a settled principle of law, that
High Court cannot resolve the factual controversy
in constitutional jurisdiction and also can not
assume the role of Investigating Officer. The
factual controversy between the statement of
alleged detenue before the learned Sessions
Judge and facts narrated in this writ petition
could not be resolved in writ jurisdiction.
10. As discussed above the learned Sessions
Judge has passed a legal and valid order in
accordance with the Constitution of Islamic
Republic of Pakistan, 1973 and law applicable
thereto. Since the alleged detenue appeared
before the learned Justice of Peace on 06.04.2010
and got recorded her explicit statement; there is
no need to issue the writ in the nature of habeas
corpus as statement of alleged abductee before
the learned Sessions Judge that she is residing
with her free will is sufficient. This writ petition is
dismissed in-LIMNI. No order as to costs.

(MUHAMMAD QASIM KHAN)

JUDGE

Gulzar

APPROVED FOR REPORTING.

JUDGE