2002 PLP 382 (YLR)

W.P.No.7156 of 2001; Crl. Misc. Vo.711-H of 2001; Muhammad Muzaffar 'Khan's case PLD 1959 SC 9; Nawabzada Raunaq Ali's case PLD 1973 SC 236 and Nisar Muhammad's case PLD 1997 SC 852 ref. Qazi Imran Zahid for Petitioner. Ahsan Rasool Chatha for respondents. The brief facts out of which the ,resent writ petition arises are that the respondents arrested detenu namely Muhammad Naeem on 10-1-2002 and is detained by the respondents illegally. The petitioner being aggrieved filed this petition.

2. Learned counsel of the petitioner submits that the detenu was detained by the respondents without issuing any warrant of his arrest. The respondents have taken the action against the detenu without any service of notice and without adopting the roper procedure prescribed under the law. therefore, action of the respondents is without lawful authority and is in violation the law laid down by the superior courts. In support of his contention he relied upon Masud Akhtar v. The State (1981 PCr.LJ 207) and Ch. Noor Hussain v. The State (1983 PCr.LJ 796). Learned Counsel of the respondents raised a preliminary objection that the detenu has alternative remedy under the law. Therefore, this petition is not maintainable. He further submits that petitioner/detenu approached this Court with unclean hands. The detenu secured loan from the respondents amounting to Rs.3 lacs in the year 1995. The detenu executed an agreement with the respondent-Corporation. The detenu did not repay a single penny to the Corporation till date. The respondents had initiated proceedings against the guarantor Malik Muhammad Hussain under the provisions of Land Revenue Act, 1967. The guarantor had repaid Rs.25,000 to the Corporation. The petitioner concealed these facts from this Court. Notices under sections 81 and 82(1) of the Punjab Land Revenue Act were issued to the detenu on 17-7-2001, 2-1-2002 and 10-1-2002 respectively. Notice was duly supported by the certificate issued by the competent Authority in this regard. The detenu did not file reply of the notice and the respondents have lawful authority to take action against the detenu.

3. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself. The petition is not maintainable in view of the law laid down by this Court in Writ Petition No.7156 of 2001 and Criminal Miscellaneous No.711-H of 2001 for the reasons recorded in the aforesaid judgment of this Court. This petition is not maintainable on the ground that detenu has alternative remedy before the higher authorities under the provisions of Punjab Land Revenue Act, 1967. I am not in a position to deviate from my own view on the well-known principle of consistency as per principle laid down by the Honourable Supreme Court in Muhammad Muzaffar Khan's case (PLD 1959 SC

9. It is pertinent to mention here that the above-referred judgment of this Court was upheld by the Division Bench as well as by the Honourable Supreme Court. It will not be out of place to mention here that judgments cited by the learned counsel of the petitioner are distinguished on facts and law. The question of maintainability was not raised and decided in the cited judgments. Even otherwise the petitioner/detenu concealed material facts from this Court as the detenu allegedly had secured loan from the Corporation but this fact was not mentioned in the contents of the petition. In this view of the matter I am not inclined to exercise my discretion in favour of the petitioner as per principle laid down by the Honourable Supreme Court in Nawabzada Raunaq Ali's case (PLD 1973 SC 236). In case the contentions of the learned counsel of the parties are put in juxta position then it brings the case of the petitioner in the area of disputed question of fact and this Court has no jurisdiction to, resolve the disputed question of fact in summary proceedings under section 491, Cr.P.C. as per principle laid down by the Honourable Supreme Court in Nisar Muhammad's case (PLD 1997 SC 852). In this view of the matter the judgments cited by the learned counsel of the petitioner have no relevance and are distinguished on facts and law. The point of jurisdiction was not raised and decided in the cited judgments.

4. However, in the interest of justice and fairplay, respondents are directed to release the detenu after receiving Rs.50,000 from the petitioner. After the release the detenu is directed to appear before the Manager of the respondents who is directed to consider the request of the detenu to discharge his liabilities in easy instalments in the interest of the respondent-Bank and to save the detenu's family from destruction. The Manager is also directed to consider the request of the detenu under the incentive, schemes issued by the respondents. In case his case falls within the four-corners of the aforesaid scheme then he is directed to give him benefit in accordance with law under the incentive scheme. With these observations, this petition is disposed of: N.H.Q./S-359/L Order accordingly.