Muhammad Abid Khan vs Mst. Noreen

2014 M L D 670

[Peshawar]

Before Mrs. Irshad Qaiser, J

MUHAMMAD ABID KHAN---Petitioner

Versus

Mst. NOREEN and others---Respondents

Criminal Revision No.34-A of 2013, decided on 4th November, 2013.

Criminal Procedure Code (V of 1898)---

----S. 491---Proceedings under S.491, Cr.P.C.---Nature---Issuance of directions of the nature of habeas corpus---Scope---Petitioner/brother of alleged detenu had claimed that respondent had been divorced by alleged detenu, and that there was no relationship of husband and wife between them, but respondent/divorced wife, in order to get revenge, had kept the detenu (husband) in illegal confinement in order to increase his agonies---Factum of divorce was strongly denied by respondent lady---Petitioner could not produce relevant record in respect of divorce--- Proceedings under S.491, Cr.P.C. by their nature were summary in character, and the entire evidence was not recorded to decide the main controversy between the parties---Section 491, Cr.P.C. had not mandated to determine the factum of Nikkah or divorce between the couple; and it would be none other than the Judge Family Court to adjudicate the same---No illegality having been pointed out in impugned order, petition was dismissed, in circumstances.

PLD 2005 SC 219 ref.

Naz Elahi Mughal and Q.M. Sheheryar for Petitioner.

S.M. Asif and Yasir Zahoor Abbasi for Respondents.

Date of hearing: 4th November, 2013.

JUDGMENT

MRS. IRSHAD QAISER, J.---Petitioner Muhammad Abid Khan has filed the present criminal revision petition under section 435 Cr.P.C. against the order dated 24-9-2013 of learned Sessions Judge Abbottabad vide which the application of the petitioner filed under section 491, Cr.P.C. was rejected.

2.It appears from the record that petitioner Muhammad Abid, the brother of alleged detenue Muhammad Asif, filed a habeas corpus petition under section 491, Cr.P.C. against respondent No.1 to the effect that his brother Muhammad Asif has improperly and illegally been detained by accused/respondent in his own house for the last more than one week and is neither being allowed to move out of the house nor to meet the petitioner. That on 24-2-2013 Muhammad Asif faced same neuro problem and remained under treatment. That respondent No.1 was his wife but she has been divorced by Asif. In order to take revenge, the respondent confined him in his room and he is being mentally tortured by her. In her reply the allegation of the petitioner was strongly rebutted by respondent and contended that the very theme of the petitioner is against the mandate, rational and spirit of section 491 Cr.P.C. Muhammad Asif is the bona fide husband of the respondent and the only aim of petitioner is to squeeze out the money and grab the property of her husband. That petitioner is interfering in the private life of respondent No.1 and her husband. That all sort of medical treatment is being administered by respondent. That to live with love and affection with wife does not amount to detention. After hearing the arguments the learned Sessions Judge vide order dated 24-9-2013 rejected the petition. Hence the present petition.

3.I have heard learned counsel for the parties and perused the record.

4.The main arguments of learned counsel for petitioner are that respondent has been divorced by her husband Muhammad Asif. There is no relationship of husband and wife between Asif, brother of petitioner, and respondent No.1 but in order to get revenge she kept him in illegal confinement in order to increase his agonies. The factum of divorce was strongly denied by respondent. In order to settle the matter, on 11-10-2013 petitioner was asked to produce relevant record in respect of divorce of respondent with the alleged detenue. But instead of producing relevant record he produced his affidavit as well as the affidavits of Qazi Muhammad Sheheryar Advocate and one Abdul Jalil, which is not the substitute of divorce deed which could give a slight clue regarding the illegal detention. Moreover, it is settled that proceeding under section 491, Cr.P.C. by their nature are summary in character and the entire evidence is not recorded to decide the main controversy between the parties. It has rightly been held by the Sessions Judge that it is beyond the mandate of section 491, Cr.P.C. to determine the factum of Nikah or divorce between the couple and it shall be none other than the Judge Family Court to adjudicate the same. Reference in this respect is made to PLD 2005 SC 219 wherein it is held:-- "It was inappropriate and undesirable, if not illegal for the High Court to have determined the fate of the couple by adjudicating the validity of marriage on the touchstone of the injunction of Islam, in proceeding under section 491, Cr.P.C."

5.Learned counsel for petitioner could not point out any illegality in the impugned order. Accordingly, for the reasons stated hereinabove, the criminal revision as well as Criminal Miscellaneous No.669 of 2013 is dismissed being devoid of any force.

HBT/669/P Revision dismissed.