1999 P Cr (PLP)

‑‑‑‑S. 491‑‑‑Habeas corpus proceedings‑‑‑Nature‑‑‑Proceedings in habeas corpus petition were summary in character. Jamshed Burki's case 1996 PCr.LJ 1453 ref. Malik Abdus Sattar Chughtai for Petitioner. The petitioner filed this writ petition for the recovery of the detenu Munir Ahmad. The report of the bailiff revealed that the detenu is involved in case F.I.R. No.568, dated 30‑10‑1998 who was arrested on 30‑10‑1998 under section 457/380/215, P.P.C. The report of the bailiff further revealed that the detenu was arrested vide report No.43, dated 31‑10‑1998 at 4‑00 a.m. He was on physical remand. Learned counsel for the petitioner contended that the detenu is involved in the aforesaid case mala fidely by the respondents. He further stated that complainant has stated in his affidavit that the detenu is not involved in the case of his own but he was mentioned in the F.I.R. on account of the direction of the Inspector. He further stated that the detenu went there to attend the marriage ceremony of his relative on 31‑10‑1998 and, therefore, the detenu alongwith his family members went there on the night of 30th of October, 1998. He further stated that habeas corpus petition be converted into bail petition and the detentr may be granted bail. He relied on Allah Ditta's case 1991 PCr.LJ 408, Sheikh Tariq's case 1993 PCr.LJ 2065, Syed Nazir Hussain's case 1992 ALD

272. The learned A.A.‑G. contended that the petitioner is involved in a case and this petition is filed simply to harass the respondents. He further urged that this petition may not be converted into bail application as detenu has already ready to file bail application before competent Court.

2. I have given my anxious consideration to the contention of the learned counsel for the parties. It is admitted fact that F.I.R. No.568 was registered on 30‑10‑1998 and the petitioner was arrested by the respondents and his arrest was also mentioned in the register of the Police Station vide report No.43, dated 31‑10‑1998. The petitioner has filed this habeas corpus petition on 31‑10‑1998 without disclosing the fact that the petitioner was involved in the aforesaid case. It is pertinent to mention here that the habeas corpus petition was filed on 31‑10‑1998 with the request that the sairie be fixed for 31‑10‑1998. This fact brings the case of the petitioner in the area that the petitioner did not approach this Court with clean hands. In fact petitioner filed this habeas petition mala fidely to abuse the process of law. I am not inclined to consider all those documents relied upon or mentioned by the learned counsel of the petitioner at the time of arguing the habeas corpus petition as the petitioner has alternative remedies available under the Criminal Procedure Code to agitate the same before the competent forum. It is settled principle of law that at the time of issuing the notice in habeas corpus petition the detention of the detenu was illegal but it was subsequently regularised by the competent Court. As such the petition becomes infructuous and calls for no orders. Reference can be made to Qadir's case PLD 1958 Pesh. 38.1 am also fortified by the following judgments:‑‑ (i) Maulvi Shah Muhammad of Turland's case PLD 1950 Pesh. 22 (ii) AIR 1945 FC

18. It is also settled proposition of law that proceedings in habeas corpus petition are summary in character. I am fortified by Jamshed Burki's case 1996 PCr.LJ 1453 and the relevant observation is as follows:‑‑ "In proceedings of habeas corpus controversies are not considered nor entire evidence is recorded under ordinary substantive and procedural laws, civil or criminal; the proceedings are not intended to go beyond the summary consideration of the question essentially relevant to the alleged detention." Reference can also be made to Mst. Yasmin Qamar's case 1997 PCr.LJ

581. The report of the bailiff revealed that F.I.R. being earlier in time than the present application has been filed by way of counterblast and to pressurize the said respondents. Meaning thereby the petition has turned out to be motivated and totally unjustified and baseless. Since the petitioner is involved in the aforesaid case and the competent Court has already granted physical remand to the respondents. Therefore, the petitioner has alternative remedy. I may refuse to exercise my powers under section 491, Cr.P.C. as the petitioner can seek relief under the normal remedies provided by the law. I am fortified by the dictum laid down by the Division Bench of the Karachi High Court in Ghulam Muhammad's case PLD 1975 Kar.

118. Reference can also be made by Imdad Hussain's case PLD 1974 Kar. 485.

3. The contention of the learned counsel for the petitioner that the petition may be converted into bail application has also no force and the case cited by the learned counsel for the petitioner are distinguished on facts and law. In Allah Ditta's case 1991 PCr.LJ

408. Learned Assistant Advocate‑General admitted that remand order was obtained without the accused being produced in the Court m accordance with the previous remand order. Similarly Sheikh Tariq's case 1973 PCr.LJ 2065 is also not relevant in which the report of the bailiff revealed recovery memo. Which was not shown to bailiff at time of raid were forged and were prepared after Police Station was raided. Therefore, recovery memos mentioned in the Roznamcha were found doubtful. Sheikh Nazir Hussain's case 1992 ALD 272(2) is also not attracted in which the Police record showed him to be arrested in a theft case as suspect. In the present case the petitioner was specifically nominated with specific role in the F.I.R. His arrest was shown in the police station in Rozenamcha and physical remand was also obtained from the competent Court. Therefore, the cited cases are distinguished as mentioned above on facts and law and have no relevancy qua the present case. Therefore, I am not inclined to convert the petition into bail petition. Even otherwise the relief under section 491, Cr.P.C. is discretionary in character. I am fortified by Imdad Hussain's case PLD 1974 Kar.

485. Keeping in view the conduct of the petitioner that the petitioner concealed the material facts from this Court that the petitioner was arrested in the aforesaid case and the physical remand was obtained. Therefore, I am not inclined to exercise my discretion in favour of the petitioner as the principle laid down by the Honourable Supreme Court in the following cases: ‑‑ (i) Ronaq Ali's case PLD 1973 SC 236 (ii) 1969 SCMR 141 (iii) Rana Muhammad Arshad's case 1998 SCMR 1462.

4. In view of what has been discussed above the habeas corpus petition is dismissed. H.B.T./S‑276/L Petition dismissed.