1991 P Cr (PLP)

(a) Criminal Procedure Code (V of 1898)

S. 491

Original defaulter was neither arrested nor was under arrest when the detenu had allegedly furnished security for the payment of arrears due to the former

Naib-Tehsildar, therefore, had no legal authority to arrest the detenu and as such his detention in Havalat pursuant to warrants of arrest and the order issued by Naib-Tehsildar was quite illegal

Detenu was set at liberty in circumstances. (b) Criminal Procedure Code (V of 1898)

S. 491

Penal Code (XLV of 1860), Ss.343, 218, 465 & 468

Prevention of Corruption Act (II of 1947), S.5

Naib-Tchsildar had not been able to justify the arrest and detention of the detenu and appeared to have misused his authority and illegally and dishonestly arrested the detenu, an innocent person, and detained him for more than seven days and to justify his illegal act he had prepared false record

Superintendent of Police was consequently directed to immediately get a criminal case registered against him under Ss.343, 218, 465 & 468, P.P.C. and S.5 of the Prevention of Corruption Act, 1947, on the basis of the complaint. Ch. Abdus Sattar Goraya for Petitioner. On 27-5-1990, Muhammad Yar petitioner filed habeas corpus petition for the recovery of his son, Nek Muhammad (hereinafter to be referred as the detenu), from the alleged illegal detention of Tehsildar/Assistant Collector First Class, Pakpattan and two others, respondents 1 to 3, in this Court. So, Bailiff was deputed to recover and produce the detenu before the Court. On raid, the Bailiff found the detenu locked up in Havalat. After having been recovered from the Havalat, the detenu was produced before the Court on 29-5-1990, alongwith the Bailiff's report. Muhammad Ali, Naib-Tehsildar, who in fact had arrested the detenu and deposited him in the Havalat, voluntarily appeared in the Court. He stated that Ghulam Farid brother of the detenu was a defaulter for the payment of loan of Rs.40,800 to the Agricultural Development Bank of Pakistan. On 29-4-1990, the detenu stood surety and promised to pay the arrears by 20-5-1990. He further stated that as neither his brother Ghulam Farid nor the detenu deposited/paid the amount in question, therefore, he (Naib-Tehsildar) on 21-5,1990 issued warrants for the arrest of the detenu, which were entrusted to Talib Hussain, Naib-Qasid, who in execution thereof took the detenu into custody. Resultantly, the detenu was detained in the lock-up wherefrom he was recovered by the Bailiff. Muhammad Ali claimed that the action taken by him was quite in accordance with law. On the other hand, the learned counsel for the petitioner was of the view that the action taken by Naib-Tehsildar against the detenu was illegal. The case was adjourned to 30-5-1990. On 30-5-1990 after hearing the counsel for the petitioner, Muhammad Ali Naib-Tehsildar and going through the record, it appeared to me that since the original defaulter, namely, Ghulam Farid was neither arrested nor was under arrest, when the detenu had allegedly furnished security for the payment of the arrears due to the former, therefore, the Naib-Tehsildar had no legal authority to arrest the detenu and as such the detention of the detenu in Havalat pursuant to the warrants of arrest and the order issued by Naib-Tehsildar was quite illegal, so I set him at liberty. While examining the record of the arrest and detention of the detenu, I found that attempts were made by Muhammad Ali, Naib-Tehsildar, at forgery. So, he was called upon to show as to why he should not be prosecuted for various offences punishable under Pakistan Penal Code and under the Prevention of Corruption Act, 1947. He has not been able to justify the arrest and detention of the detenu. It seems to me that he misused his authority and illegally and dishonestly arrested Naik Muhammad, an innocent person, and detained him for more than seven days, and to justify his illegal act, he prepared false record. So, the S.S.P. Sahiwal will immediately get criminal case under sections 343, 218, 465 and 468 of the Pakistan Penal Code and section 5 of the Prevention of Corruption Act, 1947, registered against him on the basis of complaint marked `A' and will send copy thereof to this Court within three days. He will depute a responsible officer, not below the rank of Inspector, to investigate the case. The office will send complaint mark `A' in original to the S.S.P. and will retain copy thereof on the file of this petition. Copy of this order will also be sent to Commissioner, Multan Division, for departmental action on the charge of misconduct against Muhammad Ali, Naib-Tehsildar, under intimation to the Additional Registrar of this Court. N.H.Q./M-2461/L?????? Petition accepted.