Tayyaba Mehboob Vs ASJ Sarai Alamgir etc

Form No: HCJD/C-121

ORDER SHEET

LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Writ Petition No.58868/2021

Tayyaba Mehboob Vs.

Additional Sessions Judge, Sarai Alamgir, and others S.No. of order/ Date of order/ Order with signature of Judge, and that of parties or counsel, proceeding Proceeding where necessary

14.10.2021 Mr. Ghulam Mustafa Chaudhry, Advocate, with the Petitioner.

Mr. Irfan Ali Malik, Additional Advocate General, with Dilshad Haider/SI.

Mr. Irfan Ali Malik, Advocate, for Respondents No.4 to 6.

The Petitioner was married to Respondent No.4 and out of the wedlock two sons, Haider Mirza and Muhammad Suleman Baig, were born who are now 81⁄2 and 31⁄2 years old respectively. Respondent No.4 worked in Dubai but came back to Pakistan about eight months ago when he lost his job due to coronavirus pandemic. According to the Petitioner, his frustrations made him cruel and non-cooperative and he expelled her from the house on 21.8.2021. Respondents No.4 to 6 refused to allow her access to the children whereupon she filed an application under section 491(1-A) Cr.P.C. in the Court of the Additional Sessions Judge, Sarai Alamgir, for their recovery. The Court directed the Respondent SHO to produce the minors who reported that Respondents No.4 to 6 had taken them to Rawalpindi. In view of this development, on 2.9.2021 the Petitioner’s counsel withdrew the aforementioned application – which she states was without her instructions. The Petitioner has now made this petition under Article 199 of the Constitution of

the Islamic Republic of Pakistan, 1973 (the “Constitution”), for the recovery of the minors.

2.Mr. Irfan Ali Malik, Advocate, has entered appearance on behalf of Respondents No.4 to 6 and objected to the maintainability of this petition on three grounds: first, this Court has no jurisdiction as the minors are in Rawalpindi; secondly, the Petitioner previously filed a habeas corpus petition before the Additional Sessions Judge, Sarai Alamgir, but withdrew it unconditionally on 2.9.2021. This constitutional petition on the same cause of action is not competent. Thirdly, Respondent No.4 has moved the Guardian Court at Rawalpindi for his appointment as the guardian of the minors so the Petitioner cannot continue with these proceedings and let the matter be decided that court.

3.The learned counsel for the Petitioner, Mr. Ghulam Mustafa Chaudhry, Advocate, has controverted the above contentions and argues that this petition is competent. The learned Additional Advocate General supports him.

4.Article 175(1) of the Constitution stipulates that there shall be a Supreme Court of Pakistan, a High Court for each province and for the Islamabad Capital Territory and such other courts as may be established by law. In terms of Article 198 the Lahore High Court has its Principal Seat at Lahore and Benches at Bahawalpur, Multan and Rawalpindi. In Mst. Parveen Akhtar v. Director FIA Lahore and 5 others (PLD 1996 Lahore 328) a Division Bench of this Court held that the creation of Benches was a “matter of administrative convenience rather than the one affecting the rights of an individual or jurisdiction of the Court.” Similarly, in Mst. Rukhsana Bibi v. SHO Police Station Cantt. Multan and 3 others (2013 PCr.LJ 1055) a Single Judge termed the division of areas for the Benches and the Principal Seat as one for the convenience of the litigant public.

5.The working of the aforementioned Benches is regulated by the Lahore High Court (Establishment of Benches) Rules, 1981. The relevant provisions of these Rules are as follows:

3.All matters arising within the area assigned to a Bench shall be filed before and disposed of by that Bench unless otherwise directed by the Chief Justice.

5.The Chief Justice may transfer any proceedings pending at the Principal Seat of the Lahore High Court or a Bench to another Bench or the Principal Seat of the Lahore High Court.

6.The Chief Justice may determine cases or class of cases which may be disposed of at the Principal Seat or a Bench, as may be deemed expedient.

10.The most Senior Judge for the time being at a Bench shall exercise such powers of the Chief Justice as may be delegated to him by the Chief Justice.

11.Without prejudice to the generality of the foregoing rules and subject to the provisions of the Order1, the Chief Justice may, from time to time, pass such orders as may be considered necessary for efficient working of the Benches.

6.Rule 3 stipulates that all matters arising within the area assigned to a Bench have to be filed before that Bench and decided by it. Rule 5 empowers the Chief Justice to transfer any proceedings pending at the Principal Seat of the Court or a Bench to another Bench or the Principal Seat. In Altaf & Company v. Adam Sugar Mills Ltd. and others (PLD 1992 Lahore 342) it was held that the Chief Justice can order transfer of a case under Rule 5 only when the matter is pending at the Principal Seat or the Bench. In other words, a party cannot file a case at the Principal Seat (or the Bench), which otherwise lacks jurisdiction, and request that it may be entertained there. The same view was expressed in M/s Wilson’s Pharmaceutical v. Glaxo Ltd. and another (1994 MLD 2273) and Mian Muhammad Nawaz Sharif v. Sardar Farooq Ahmad Khan Leghari (PLD 1996 Lahore 92).

Provisional Constitution Order, 1981 (CMLA Order No. 1 of 1981).

7.The Hon’ble Supreme Court of Pakistan had the occasion to consider Rule 3, supra, in Syed Ahmed Ali Rizvi and another v. The State (PLD 1995 SC 500). In the said case a habeas corpus petition was filed at the Principal Seat of the High Court for the recovery of A & B from the alleged unlawful custody of FIA who had arrested him at Lahore. The State argued that there was no illegality as they were apprehended in a case duly registered in Rawalpindi. The learned Single Judge was not persuaded as he found that A & B were not named in the FIR and had been implicated by a witness during investigation. Accordingly, he converted the habeas corpus petition into a bail application and granted it. Subsequently, he recalled his order on the ground that he had no jurisdiction in the matter as the crime report (FIR) originated at Rawalpindi and it ought to have been dealt with by the Bench there. The apex Court disagreed with this view holding as under:

“Rule 3 provides that all matters arising within the area assigned to a Bench shall be filed before and disposed of by that Bench. This may be the territorial limit of the Benches administratively fixed by the Rule but it cannot curtail or limit the jurisdiction conferred on a Judge of the High Court by Constitution and law and he can exercise such jurisdiction throughout the territorial limits of the High Court. In spite of the above rule a Judge sitting at the Principal Seat of the High Court having Benches can exercise jurisdiction within the entire territorial jurisdiction of the High Court.”

In respect of the case before it, the august Supreme Court held:

“In the present case the petition was filed challenging the arrest at Lahore in which bail was granted but the authorities concerned with a view to frustrate the said order, involved the petitioners in the FIR registered at Rawalpindi. In such circumstances the authorities by involving a person in different cases arising within the territorial jurisdiction of different Benches cannot deprive a person from invoking the jurisdiction of High Court at its Principal Seat. Where actions are mala fide intended to frustrate or obstruct the process of law or harass a person depriving him of his liberty by involving him in cases pertaining to different Benches technicalities should not stand in the way of justice. And being so satisfied, a Judge of the High Court sitting at Bench can exercise jurisdiction in respect of matter arising in an area

Writ Petition No.58868/2021 5

assigned to any other Bench. The learned Judge seized of the matter, knowing well that such action was an ‘afterthought’, mala fide or intended to frustrate the order should not have refused to exercise jurisdiction and wash his hands off the case.”

8.In Mian Muhammad Nawaz Sharif v. Sardar Farooq Ahmad Khan Leghari (PLD 1996 Lahore 92) considering the fact that Syed Ahmed Ali Rizvi was a habeas corpus matter, Irshad Hasan Khan, Acting CJ, observed that application of the law laid down therein was limited to the cases involving liberty of a citizen.2

9.Admittedly, this petition under Article 199 of the Constitution is in the nature of habeas corpus. Therefore, in view of the above-mentioned dictum of the Hon’ble Supreme Court, no objection can be taken to its institution at the Principal Seat.

10.The objection relating to the jurisdiction of this Court can be disposed of in another way. The Code of Civil Procedure, 1908 (“CPC”), lays down that a suit is competent before a court in whose local limits the cause of action arises wholly or in part. In terms of Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1), Federation of Pakistan through Secretary Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others v. Aftab Ahmad Khan Sherpao and others (PLD 1992 SC 723) and Ardeshir Cowasjee and others v. Karachi Building Control Authority and others (PLD 2004 SC 70), the CPC is applicable to the constitutional petitions. In the instant case, since the minors were removed from Sarai Alamgir (which falls within the area assigned to the Principal Seat under Rule 3, supra) and a part of the cause of action arose there, this Court has the jurisdiction in the matter. Here, it would be useful to refer to the following observations of the Hon’ble I would not comment on this holding as it is not required for the purposes of the instant case.

Writ Petition No.58868/2021 6

Supreme Court in Ch. Manzoor Elahi v. Federation of Pakistan etc. (PLD 1975 SC 66):3

“A High Court has jurisdiction under Article 199 of the Constitution to grant relief to a person arrested illegally within its jurisdiction although he is for the time being detained outside the jurisdiction.

“A High Court has power to grant relief to a person, detained within its territorial jurisdiction although he was arrested illegally outside the jurisdiction.

“Where the liberty of a person is involved a High Court can exercise its jurisdiction under Article 199 of the Constitution and grant him relief even though he has misconceived his remedy and come up with an application under sections 498 and 561A of the Code of Criminal Procedure.

“Under Article 199 of the Constitution a High Court has a variety of powers, any one of which can be exercised to grant relief to the aggrieved person.

“Article 199 of the Constitution is available not only for the enforcement of the Fundamental Rights but also to enforce the rights and obligations contained in Articles 4 and 5 of the Constitution.”

11.Let us now move to the second ground of attack. This petition is neither barred under Order XXIII Rule 3 CPC nor on the principle of res judicata. Order XXIII Rule 3 CPC stipulates that where the plaintiff withdraws from a suit or abandons part of a claim without the court’s permission is precluded from instituting a fresh suit in respect of such subject-matter or part of the claim. The proceedings under section 491(1-A) Cr.P.C. are neither a suit nor proceedings in a suit.

12.Res judicata, also known as claim preclusion, is the Latin term for “a matter decided”. Generally, it postulates that a cause of action may not be agitated again once it has been adjudged. In Pir Bakhsh (represented by his legal heirs) and others v. The Chairman, Allotment Committee, and others (PLD 1987 SC 145) the Hon’ble Supreme Court approvingly quoted the following excerpt from Cooley’s Treatise on the Constitutional Limitation to explain the concept:

In arriving at these conclusions the apex Court inter alia relied on Jamil Ahmad and another v. The State and 5 others (PLD 1969 SC 344).

“And as to the first, we understand the rule to be, that a decision once made in a case, by the highest court empowered to pass upon it, is conclusive upon the parties to the controversy and their privies, who are not allowed afterwards to revive it in a new proceeding for the purpose of raising the same or any other questions. The matter in controversy has become res judicata, a thing definitely settled by judicial decision; and the judgment of the court imports absolute verity. Whatever the question involved, whether the interpretation of a private contract, the legality of an individual act, or the validity of a legislative enactment, the rule of finality is the same. The controversy has been adjudged, and once finally passed upon is never to be renewed ... The rule of conclusiveness to this extent is one of the most inflexible principles of the law; in so much that even if it were subsequently held by the courts that the decision in the particular case was erroneous, such holding would not authorize the reopening of the old controversy in order that the final conclusion might be applied thereto.”

13.The doctrine of res judicata is not applicable to the facts and circumstances of the instant case because the Additional Sessions Judge never decided the matter on merits. Even otherwise, in a cornucopia of cases the courts have held that this doctrine does not apply to habeas corpus proceedings. Reliance is placed on Mst. Razia Rehman v. Station House Officer and others (PLD 2006 SC 533), Abdul Wahid v. Mst. Aliya and 2 others [PLJ 2008 Cr.C (Lhr) 297] and Mst. Rabyia Ilyyas v. Additional Sessions Judge and others (PLD 2019 Lahore 281). A further reference may be made to Mst. Nazneen v. Judicial Magistrate, Larkana, and 2 others (1999 MLD 1250) in which a Division Bench of the Sindh High Court held that “technically an order passed on an application under section 491 Cr.P.C. has not been treated as judgment in terms of section 369 of the Code so as to attract the bar of res judicata.”

14.Mr. Malik’s contention that this Court cannot proceed because Respondent No.4 has moved the Guardian Court at Rawalpindi for his appointment as the guardian of the minors also deserves a short shrift. In Muhammad Javed Umrao v. Uzma Vahid (1988 SCMR 1891) the Hon’ble Supreme Court held that the habeas corpus petition and the proceedings under Guardian &

Wards Act are two different subjects. Relevant excerpt is reproduced below:

“The Guardians and Wards Act, as the title itself suggests, deals with the Guardians, Wards and the problems and questions relating to them. Section 7 relates to the appointment of a guardian by the court and section 12 authorizes the court to make interlocutory order for protection of minor and interim protection of person and property. The two matters, one dealt with by section 491 Cr.P.C. and the other under the Guardians and Wards Act, are entirely different and there is no question of one excluding the other, the one overlapping the other or the one destroying the other. The law as it stands shows no such repugnancy.

“It is true that the facts of individual cases may be such where the cover of proceedings of one sort is taken for advancing the cause of other. In such cases it has to be ascertained as to what is the substance of the proceedings and thereafter the proceedings are to be diverted to the appropriate channel be it of section 491 Code of Criminal Procedure or one under Guardians and Wards Act.”4

15.In Nisar Muhammad and another v. Sultan Zari (PLD 1997 SC 852) the apex Court observed that the proceedings under section 491 Cr.P.C. are summary in nature. The court only determines whether the custody of the child with the parent is illegal or improper and makes a provisional order in that respect leaving the matter to be decided by the Guardian Judge in appropriate proceedings. The Supreme Court added that “availability of another remedy at law, such as the remedy under the Guardians and Wards Act for obtaining custody of a minor child is not a valid ground for refusing an application for habeas corpus by the parent or guardian of the minor who is entitled to have his or her custody where the minor is being illegally detained by another person.” However, the Court said that the jurisdiction under section 491 Cr.P.C. is extraordinary and should be sparingly exercised.5 In Mst. Ghulam Fatima v. The State and 5 others (1998 SCMR 289) ruled that pendency of the guardianship matter before a Family Court does not bar proceedings under section 491 Cr.P.C.

This view was reiterated recently in Mirjam Aberras Lehdeaho v. SHO, Police Station Chung, Lahore, and others (2018 SCMR 427).

Also see: Mst. Nadia Perveen v. Mst. Almas Noreen and others (PLD 2012 SC 758).

16.The above principle also applies to the habeas corpus petitions filed under Article 199 of the Constitution.

17.In view of what has been discussed above, I hold that this petition is maintainable.

18.Let a direction be issued to Respondent No.2 to ensure that minors Haider Mirza and Muhammad Suleman Baig are produced before this Court on the next date of hearing.

19.Relist on 25.10.2021.

(Tariq Saleem Sheikh) Judge Approved for reporting

Judge Naeem