IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
PRESENT: 
Mr. Justice Asif Saeed Khan Khosa  
Mr. Justice Ijaz Ahmed Chaudhry 
 
 
Criminal Petition No. 749-L of 2013 
(Against the order dated 04.07.2013 of the Lahore High Court, 
Lahore passed in Criminal Miscellaneous No. 1057-H of 2013) 
 
 
Ali Muhammad 
                                                  …Petitioner 
versus 
The State, etc. 
… Respondents 
 
 
For the petitioner:  
 
Malik Muhammad Imtiaz Mahal, ASC 
with the petitioner and Muhammad 
Tariq present in person. 
 
On Court's call: 
 
 
Mst. Naseem Akhtar, alleged detenue 
 
For respondent No. 2: 
Muhammad Imran Khan, in person, 
with the Station House Officer of 
Police 
Station 
Qadirpur, 
District 
Jhang 
 
For the State: 
Mr. 
Mazhar 
Sher 
Awan, 
Additional 
Prosecutor-General, 
Punjab 
with 
Mahmood, Ahmed, S.I. and Mahmood 
Hashmat, A.S.I./I.O. 
 
 
Date of hearing: 
 
 
19.07.2013 
 
JUDGMENT 
 
Asif Saeed Khan Khosa, J.: In compliance with this Court's 
order dated 18.07.2013 the alleged detenue namely Mst. Naseem 
Akhtar has been produced before the Court from the relevant Dar-ul-
Aman. Ali Muhammad petitioner and the two suitors of the alleged 
detenue, i.e. Muhammad Imran Khan (respondent No. 2) and 
Muhammad Tariq are also in attendance. Mst. Naseem Akhtar has 
stated her age to be about twenty-eight years and admittedly Ali 
Muhammad petitioner is her father whereas Muhammad Tariq 
Criminal Petition No. 749-L of 2013 
2
happens to be a maternal cousin of Mst. Naseem Akhtar. 
Muhammad Imran Khan respondent claims that he had got married 
to Mst. Naseem Akhtar on 14.05.2013 whereas Muhammad Tariq 
maintains that Mst. Naseem Akhtar had got married to him on 
25.12.2012 and that their marriage is still intact. This assertion of 
Muhammad Tariq is accepted as correct not only by Ali Muhammad 
petitioner but also by Mst. Naseem Akhtar who has categorically 
and unequivocally stated before the Court that Muhammad Tariq is 
the only person with whom she had contracted marriage which 
marriage still subsists and that she had never contracted marriage 
with Muhammad Imran Khan respondent. Mst. Naseem Akhtar has 
clearly and vociferously stated that while living with her father 
namely Ali Muhammad petitioner she was not in any kind of 
confinement or under any restraint and that she wants to go back 
and live with her father. We have been informed by the learned 
counsel for the parties that Muhammad Tariq had lodged FIR No. 
101 at Police Station Shah Nikdar, District Sargodha on 10.08.2013 
for an offence under section 496-A, PPC in respect of an alleged 
enticing away of Mst. Naseem Akhtar by Muhammad Imran Khan 
respondent and the said criminal case is still under investigation of 
the local police. We have also been apprised that on 26.06.2013 
Mst. Naseem Akhtar had filed a suit for jactitation of marriage 
against Muhammad Imran Khan respondent which suit is presently 
pending before the learned Judge, Family Court, Sillanwali, District 
Sargodha. In the said suit Mst. Naseem Akhtar has claimed that she 
had never got married to Muhammad Imran Khan and that the said 
Muhammad Imran Khan ought to be restrained from maintaining or 
proclaiming that Mst. Naseem Akhtar is his lawfully wedded wife.  
 
2. 
The 
relevant 
facts 
of 
the 
case 
referred 
to 
above 
unambiguously show that the alleged detenue namely Mst. Naseem 
Akhtar is a grown up young lady who acknowledges Muhammad 
Tariq as her lawfully wedded husband and refuses to accept 
Muhammad Imran Khan respondent as her spouse. The said 
categorical stand taken by Mst. Naseem Akhtar is also supported by 
her father namely Ali Muhammad petitioner. In that backdrop 
Muhammad 
Imran 
Khan 
respondent 
had 
filed 
Criminal 
Criminal Petition No. 749-L of 2013 
3
Miscellaneous No. 1057-H of 2013 before the Lahore High Court, 
Lahore which petition had been filed under section 491, Cr.P.C. in 
the nature of habeas corpus seeking recovery of Mst. Naseem Akhtar 
from the custody of her father namely Ali Muhammad petitioner. On 
the basis of an order of the Court Mst. Naseem Akhtar was 
produced before a learned Judge-in-Chamber of the Lahore High 
Court, Lahore on 01.07.2013 and on the said date the following 
order had been passed by the Court: 
 
"Mst. Naseem Akhtar, detenue, has been produced in the Court, 
who submits that she had contracted marriage with Muhammad 
Tariq on 15.12.2012 and the Nikahnama produced by the 
petitioner Muhammad Imran is forged one as she had not 
contracted marriage with him. 
 
2. 
Learned counsel for the respondents wants to place on 
record 
certain 
documents 
showing 
that 
the 
petitioner's 
Nikahnama is a fake document. Counsel shall submit document 
on 04.07.2013.  
 
3. 
In view of two Nikahnamas existed on record, it would be 
appropriate to send detenue to Dar-ul-Aman, Lahore, wherefrom 
she shall be produced in the Court on date fixed."  
 
On the next date of hearing, i.e. 04.07.2013 the learned Judge-in-
Chamber of the Lahore High Court, Lahore had disposed of the said 
habeas corpus petition with the following order:  
 
"On the basis of existence of two Nikahnama on record in respect 
of Mst. Naseem Akhtar, she was lodged in Dar-ul-Aman, Lahore 
so that in the appropriate proceedings genuineness of the 
Nikahnamas could be adjudicated by the court of competent 
jurisdiction. 
 
2. 
Learned counsel appearing on behalf of the respondents 
submitted that Mst. Naseem Akhtar has filed a suit for jactitation 
of marriage and she cannot be detained in the Dar-ul-Aman for 
an indefinite period, rather her abode in the Dar-ul-Aman would 
amount to illegal detention.  
 
3. 
This contention of the learned counsel is untenable for the 
reason that the Court cannot allow a person to live in immoral life 
and for this purpose she has been sent to Dar-ul-Aman to save 
her from the commission of an offence. She would stay in the 
Dar-ul-Aman till the time her suit for jactitation of marriage is 
decided. In this respect a direction is issued to the learned family 
Court concerned for deciding the suit of Mst. Naseem Akhtar 
expeditiously by taking proceedings on day to day basis before 
proceeding on summer vacations.  
 
4. 
Learned counsel for the petitioner has pointed out that the 
mother of Mst. Naseem Akhtar by adopting a deceitful method is 
also residing alongwith her daughter in the Dar-ul-Aman. If it is 
so, the petitioner has the remedy before the Court upon whose 
order the mother of the detenue had joined her in Dar-ul-Aman.  
Criminal Petition No. 749-L of 2013 
4
 
5. 
With these observations, this petition is disposed of."  
  
Ali Muhammad petitioner has approached this Court through the 
present petition seeking release of his daughter namely Mst. 
Naseem Akhtar from the relevant Dar-ul-Aman whereat she 
presently stands lodged for an indefinite period as a result of the 
impugned order passed by the learned Judge-in-Chamber of the 
Lahore High Court, Lahore.  
 
3. 
It is evident from the facts of the present case that Mst. 
Naseem Akhtar is a grown up young lady and she is not involved in 
any criminal case as an accused person. Her consistent stand 
before the Lahore High Court, Lahore and before this Court has 
been that she was not in any kind of confinement or under any 
restraint while living with her father. Although she has two rival 
suitors yet she has expressed a clear desire before this Court that 
she wishes to go and live with her father namely Ali Muhammad 
petitioner. We have found it to be rather disturbing that despite her 
eagerness to continue living with her father she had been deprived 
of her liberty and ordered by the learned Judge-in-Chamber of the 
Lahore High Court, Lahore to be lodged at a Dar-ul-Aman and that 
too for an indefinite period. It is quite ironical and shocking that 
habeas corpus proceedings before the Lahore High Court, Lahore, 
which were meant to secure release of a person from an illegal or 
improper custody or confinement, had been utilized in the present 
case for depriving a free person of her liberty and the net result 
achieved was that a grown up young lady who was not found to be 
in any kind of confinement or under any restraint had been locked 
up and incarcerated within the confines of a Dar-ul-Aman for an 
indefinite period! Such an approach adopted and the result achieved 
by the learned Judge-in-Chamber of the Lahore High Court, Lahore 
surely ran contrary to the very essence and purpose of a writ or 
petition for habeas corpus which is securing freedom and not 
curtailing liberty. We are sure that the learned Judge-in-Chamber of 
the Lahore High Court, Lahore would have done better if he had 
sought guidance in this regard from various judgments handed 
down by this Court on the subject from time to time. Some of such 
Criminal Petition No. 749-L of 2013 
5
foundational judgments are referred to by us in the following 
paragraph.  
 
4. 
In the case of Muhammad Rafique v. Muhammad Ghafoor (PLD 
1972 SC 6) it had been held by this Court as follows: 
 
"Leave to appeal from the order of the High Court was 
granted on 10.04.1970 to examine the legality of the direction 
that Mst. Surraya Begum be given into the custody of the 
respondent against her free will.  
 
On hearing the learned counsel for the parties and taking 
into consideration the provisions of sections 491, 561-A of the 
Code of Criminal Procedure and the Fundamental Right 1 that 
"No person shall be deprived of life or liberty save in accordance 
with law"' the Court found no warrant in law for the direction 
given by the learned Judge about the custody of Mst. Surraya 
Begum.  
 
Section 491, Cr.P.C., under which the High Court 
exercised jurisdiction inter alia provides:  
 
 
"491.—(i) Any High Court may, whenever it thinks 
fit, direct— 
 
 
(a)  
that a person within the limits of its 
appellate criminal jurisdiction be brought up 
before the Court to be dealt with according to law;  
 
(b) 
that 
a 
person 
illegally 
or improperly 
detained in public or private custody within such 
limits be set at liberty;"  
(The other clauses of the section are not relevant to 
the present case). 
 
The High court has two-fold jurisdiction under this section: (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. The question which falls for determination, 
however, is that if the Court finds that the person brought before 
it was not being illegally or improperly confined or detained what 
order can be passed regarding the custody of that person.  
 
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 ante 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 freedom of movement is an abuse of the process of the 
Court."  
 
(underlining has been supplied for emphasis) 
  
Criminal Petition No. 749-L of 2013 
6
It had been held by this Court in the case of Muhammad Nazir v. 
The SHO Police Station, Shahpur and 3 others (1973 SCMR 351) as 
under:  
 
"After hearing the learned counsel for the parties, we are satisfied 
that the learned Single Judge could not hand over the custody of 
the girl to A.S.I. Illaqa as no case has been registered against her. 
The case was registered against Muhammad Amir and Shah Wali. 
In such circumstance, no order could be passed against Mst. 
Fatima Bibi. It is strange that the learned Single Judge did not 
record the statement of the girl to find out whether she is major 
or minor and handed over the custody of the girl to the Illaqa 
Police for further investigation. This procedure is not warranted 
by any provision of the Criminal Procedure Code or any other law. 
The girl has appeared before us. Her statement has been 
recorded. She is major and is married to Muhammad Saeed. She 
wants to go with her husband. In these circumstances, the appeal 
is allowed and Mst. Fatima Bibi is set at liberty to go with her 
husband." 
(underlining has been supplied for emphasis) 
 
 
This Court had observed and held in the case of Mst. Sahi Bi v. 
Khalid Hussain and 6 others (1973 SCMR 577) in the following 
terms:  
 
"After hearing the learned counsel for the parties, we are satisfied 
that under the Mohammadan Law, a sui juris woman cannot be 
forced to live with her husband against her wishes. Quranic 
injunction is against it. According to the Mohammadan Law, if 
there is disagreement between the husband and the wife, the wife 
is entitled to live separately from her husband. In the present 
case, there is disagreement between Mst. Irshad Begum and 
respondent No. 1 and in such circumstance, she is entitled to live 
with her mother. 
 
 
The observation of the learned Single Judge of the High 
Court that if Mst. Irshad Begum is set at liberty she will lead 
immoral life is irrelevant for the decision of the case under section 
491, Cr.P.C. Under section 491, Cr.P.C., if a sui juris detenue is 
unwilling to go with her husband or guardian, the Court 
cannot compel her to go with them. She must be set at 
liberty and allowed to move freely. This position was made 
clear in the above mentioned case decided by this Court 
and the learned Single Judge should have set at liberty the 
detenu and allowed her to move freely according to her 
wishes". 
(underlining has been supplied for emphasis) 
 
5. 
For what has been discussed above this petition is converted 
into an appeal and the same is allowed, the impugned order passed 
by the learned Judge-in-Chamber of the Lahore High Court, Lahore 
on 04.07.2013 in Criminal Miscellaneous No. 1057-H of 2013 is set 
Criminal Petition No. 749-L of 2013 
7
aside and the detenue namely Mst. Naseem Akhtar is set at liberty. 
She may go and live with her father namely Ali Muhammad 
petitioner, as desired by her.  
 
6. 
Before parting with this judgment we may observe that we 
have felt saddened by the fact that through the impugned order an 
Hon'ble Judge of a High Court had allowed his responsibility of 
protecting a citizen’s constitutional right to liberty to be 
overshadowed by his own subjective sense of morality. In this 
context we have found the following part of the impugned order to 
be utterly unacceptable and, if we may say so with respect, 
completely and unreservedly unpalatable:  
 
“2. 
Learned counsel appearing on behalf of the respondents 
submitted that Mst. Naseem Akhtar has filed a suit for jactitation 
of marriage and she cannot be detained in the Dar-ul-Aman for 
an indefinite period, rather her abode in the Dar-ul-Aman would 
amount to illegal detention.  
 
3. 
This contention of the learned counsel is untenable for the 
reason that the Court cannot allow a person to live in immoral life 
and for this purpose she has been sent to Dar-ul-Aman to save 
her from the commission of an offence. She would stay in the 
Dar-ul-Aman till the time her suit for jactitation of marriage is 
decided.” 
(underlining has been supplied for emphasis) 
 
 
It is unfortunate that in his zeal and eagerness to prevent 
commission of an imagined or apprehended sin/crime the learned 
Judge-in-Chamber of the Lahore High Court, Lahore had not only 
chosen to ignore the Divine command but had also decided to 
disregard the constitutional mandate. God Almighty has forbidden 
even leveling of an allegation of zina unless four eyewitnesses are 
produced in support of such an allegation and if such number of 
eyewitnesses are not produced then the person leveling the 
allegation is to be whipped and flogged. In the present case the 
learned Judge-in-Chamber had not even leveled an allegation but 
had only imagined a possibility of commission of zina in future and 
had then proceeded to punish the detenue by depriving her of her 
liberty and putting her in the confines of a Dar-ul-Aman for an 
indefinite period. In these indefensible circumstances, after having 
been punished only for an imagined or apprehended sin, the 
Criminal Petition No. 749-L of 2013 
8
detenue has appeared to us to be, in the words of Shakespeare’s 
King Lear, a woman "more sinned against than sinning". Apart from 
that the Constitution of Pakistan mandates that the judgments of 
this Court are binding on all other courts in the country but while 
passing the impugned order the learned Judge-in-Chamber had 
failed to follow the above mentioned, and many other, judgments 
rendered by this Court on the subject. It may be true that during 
the pendency of a petition filed in the nature of habeas corpus a 
court can pass a rule nisi regarding interim custody of the alleged 
detenue but it is unimaginable and unthinkable that after final 
disposition of such petition the alleged detenue, who was otherwise 
a free person, may be put to physical restraint or confinement for an 
indefinite period and that too not on the basis of any concrete fact 
or allegation but merely on the basis of an imagined possibility of 
commission of a sin or a crime. The learned Judge-in-Chamber 
ought to have known that it had been already been clarified by this 
Court in the case of Muhammad Rafique (supra) that  
 
“ ------- 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 ante 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 
freedom of movement is an abuse of the process of the Court."  
 
 
It appears that in the present case the learned Judge-in-Chamber of 
the Lahore High Court, Lahore had transcended the legal 
requirements applicable or relevant to the lis before him and had 
decided to enter the realm of morality little appreciating that the 
field chosen by him did not lie in his domain and it lied in a domain 
which he ought to have consciously avoided to enter. The learned 
Judge-in-Chamber ought to have remembered that in the case of 
Mst. Sahi Bi (supra) this Court had already clinched this issue by 
declaring as under:  
 
"The observation of the learned Single Judge of the High Court 
that if Mst. Irshad Begum is set at liberty she will lead immoral 
life is irrelevant for the decision of the case under section 491, 
Cr.P.C." 
Criminal Petition No. 749-L of 2013 
9
 
7. 
The Office is directed to send a copy of this judgment to the 
Registrar of the Lahore High Court, Lahore who may bring the same 
to the notice of the Hon’ble Judge of the said Court who had passed 
the order impugned through the present petition/appeal for his kind 
information and perusal.  
 
 
Judge 
 
 
 
 
 
 
 
 
 
 
 
Judge 
Lahore 
19.07.2013 
Approved for reporting. 
 
Arif 
 
