Order Sheet

IN THE HIGH COURT OF SINDH KARACHI

Criminal Misc. Application No. 186 of 2014

Date	Order with signature of Judge

1. For orders on office objection & reply of advocate at flag ‘A’ :

2. For Katcha Peshi :

Applicants                 :   Mst. Haseena and Muhammad Raheem through

                                        Mr. Khalid Hussain Rajpar, Advocate.

Respondent No.1    :   Mst. Basran, present in person.

Respondents 2 to 7 :   Through Mr. Shehzado Saleem,

                                        Additional Prosecutor General.

Date of hearing        :   04.07.2014.

Nadeem Akhtar, J. – This Criminal Miscellaneous Application under Section 561-A Cr.P.C. has been filed by the applicant against the order passed by the learned Sessions Judge Thatta, whereby it was held that he had the territorial jurisdiction to entertain the respondent No.1’s application under Section 491 Cr.P.C. for recovery of the present applicant No.1 as the applicants were the residents of Mirpur Sakro, District Thatta ; and, accordingly rule nisi was issued for the production of the alleged detainee / applicant No.1.

2.         Briefly stated, the facts of the case are that respondent No.1 Mst. Basran filed Habeas Corpus Application No.35/2014 under Section 491 Cr.P.C. on 02.05.2014 before the Sessions Judge Thatta against applicant No.2 Muhammad Rahim and S.H.O. P.S. Mirpur Sakro. It was alleged by respondent No.1 that after kidnapping her daughter Mst. Haseena / applicant No.1 about three years back with the help of his companions, applicant No.2 married her forcibly and against her will. It was claimed by respondent No.1 that her daughter / applicant No.1 was in illegal confinement of applicant No.2 in Mirpur Sakro, District Thatta, and in the title of her application, the present applicant No.2 was shown to be residing in Mirpur Sakro, District Thatta. It was averred by respondent No.1 that she came to know “recently” about the fact that the applicants were living at the said address, and when she along with her husband went to meet their daughter / applicant No.1, applicant No.2 did not allow her to meet her parents ; and, upon their protests, they were threatened of dire consequences by applicant No.2. Respondent No.1 had alleged that her daughter / applicant No.1 was confined illegally by applicant No.2 in his house, and her life was in danger. In the above background, it was prayed by respondent No.1 that the S.H.O. P.S. Mirpur Sakro be directed to recover applicant No.1 from the illegal custody of applicant No.2, to produce her before the Court, and after recording her statement, she may be set at liberty.

3.         The S.H.O. P.S. Mirpur Sakro submitted his report on 21.05.2014 before the trial Court, stating therein that he made an inquiry and went at the given address to recover the alleged detainee / applicant No.1, but no information in this behalf was received by him from any one. He recorded the statements of two witnesses ; namely, the chowkidar and a resident of the area. The chowkidar stated that he had not seen applicant No.2 Muhammad Rahim residing there, nor was any one living there with the name of Muhammad Rahim. The second witness / resident also made a similar statement by stating that applicant No.2 was not residing in his neighbourhood and he had not seen him.

4.         A preliminary legal objection was raised before the trial Court by applicant No.2 that the trial Court had no territorial jurisdiction in the matter as both the applicants were not residing within the limits of the territorial jurisdiction of the trial Court, but were living in Karachi. After hearing the learned counsel for the parties, the impugned order was passed by the trial Court whereby the above objection was rejected, and it was held that the trial Court had the territorial jurisdiction to entertain the respondent No.1’s application under Section 491 Cr.P.C. for recovery of the present applicant No.1 as the applicants were the residents of Mirpur Sakro, District Thatta ; and, rule nisi was issued for the production of the alleged detainee / applicant No.1.

5.         I have heard the learned counsel for the applicants, the learned Additional Prosecutor General for the state, as well as respondent No.1 Mst. Basran who was present in person, and have also examined the material available on record. I have noticed that the applicants got married at Karachi on 20.02.2012 and their Nikah was registered at Karachi on 21.02.2012. In their Nikahnama, both the applicants have been shown as the permanent residents of Mirpur Sakro, District Thatta, but Karachi was shown as their place of residence at the time of Nikah. Before getting married with applicant No.2, applicant No.1 executed her affidavit of free will on 20.02.2012, wherein she mentioned her address of Thatta. Admittedly, applicant No.1 is not living with her parents for the last many years. It appears that before or in February 2012, the applicant shifted to Karachi, and after contracting marriage with applicant No.2, she started living with him as his legally wedded wife.

6.         The record reveals that applicant No.1 filed a Suit for jactitation bearing Family Suit No.504/2014 on 30.05.2014 before the VII^th Civil and Family Judge, Malir Karachi, against one Qadri S/O Urs, which is subjudice according to the learned counsel for the applicants. It has been alleged in this Suit by applicant No.1 that about two months back, her parents, other family members and the said Qadri came to her house in Karachi and pressurized her to accompany them by leaving the house of applicant No.2 as her Nikah with the said Qadri was performed when she was only a few months old ; they insisted that they do not recognize her marriage with applicant No.2 ; they threatened her that in case she does not obey their command, they will not let her enjoy her life with applicant No.2 ; she did not succumb to such illegal demands and threats ; and, thereafter the said Qadri kept on visiting her mohalla and kept on defaming her by claiming her as his wife. Applicant No.1 has prayed in her above Suit for a declaration that she is the legally wedded wife of applicant No.2, and was never in the alleged Nikah of the said Qadri. In the title and verification of this Suit, applicant No.1 has disclosed her address of Karachi, and the Suit has been filed and is subjudice before the VII^th Civil and Family Judge, Malir Karachi.

7.         The tenor of the impugned order shows that the learned trial Court was impressed only with the fact that the address of Mirpur Sakro, District Thatta, was mentioned in the applicant No.1’s affidavit of free will and the affidavit filed by her along with her Suit for jactitation. Following facts / material, which were on record, were not appreciated by the learned trial Court :

i)          only the address of Mirpur Sakro, District Thatta, was mentioned in the affidavit of free will, but the said affidavit was sworn by applicant No.1 at Karachi, and not in District Thatta, as the same was attested by the Justice of Peace at Karachi ;

ii)         the affidavit of free will was sworn on 20.02.2012, whereas the application under Section 491 Cr.P.C. was filed by respondent No.1 in May 2014 ;

iii)        the Nikah of the applicants was solemnized and registered at Karachi, and as per their Nikahnama, they were residing at Karachi at the time of their Nikah;

iv)        in the title and verification of the Suit for jactitation filed by applicant No.1, which is mentioned in the impugned order, she has disclosed her address of Karachi ;

v)         the said Suit has been filed by applicant No.1 at Karachi, and is subjudice at Karachi ;

vi)        when an affidavit is sworn by the deponent before the Computerized Identity Section of the Court, the CNIC of the deponent is verified through the bar code and NADRA, and the address given in the CNIC is printed in the affidavit by the said Section ;

vii)       the address of Mirpur Sakro, District Thatta, was printed in the affidavit filed by applicant No.1 in her said Suit because at the time of swearing the affidavit before the Computerized Identity Section of the Court, her CNIC with the said address was verified and the same address was printed in her affidavit ; and,

viii)      the S.H.O. had submitted his report along with the statements of two witnesses that he made an inquiry and went at the given address to recover the alleged detainee / applicant No.1, but no information in this behalf was received by him from any one, and both the witnesses had also stated that applicant No.2 was not living at the address given by respondent No.1.

8.         The learned trial Court failed to appreciate that more than sufficient material was available on record to substantiate that the applicants were not residing within its territorial jurisdiction, but are residing at Karachi at least since February 2012. Therefore, assumption of jurisdiction in the matter and taking cognizance therein by the trial Court, was void ab initio and coram non judice. In view of the above discussion, the proceedings in Habeas Corpus Application No.35/2014 (Mst. Basran V/S Muhammad Raheem and another) before the Sessions Judge Thatta, are liable to be quashed.

            The above are the reasons of the short order announced by me on 04.07.2014, whereby this Criminal Miscellaneous Application was allowed as prayed.

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     J U D G E