2000 PLP 2661 (YLR)

Mehmood Ahmad Abbasi Respondent No.

1. Date of hearing: 17th July, 2000 Hameedullah petitioner has brought the instant petition praying that his father Muhammad Nawaz is in improper and illegal detention of the respondents.

2. Petitioner admitted in this petition that his father took loan from respondent No. l for purchasing tractor, trolley and fertilizers and paid some instalments but all of a sudden on 8‑7‑2000 Muhammad Nawaz his father was taken in custody by respondent No. l on his failure to pay the balance loan amount. Respondent No. I i.e.. Manager, Agricultural Development Bank was directed to produce the detenu in Court alongwith complete papers.

3. Learned counsel for respondent No. l contends that Muhammad Nawaz was taken in custody on 8‑7‑2000 after having recoursed to relevant provisions of Punjab Land Revenue Act, 1967 and that such a procedure was countenanced in the eyes of law. On Court query it was admitted by the learned counsel that property of Muhammad Nawaz lies mortgaged with the Agricultural Development Bank and another remedy by way of tiling a suit for recovery before the Banking Court is available to the petitioner. However remedy of detention and persuading the detenu to pay the amount being the most efficacious remedy was resorted to. Conversely learned counsel for the petitioner has stated that liberty being the most cherished right of every citizen, can only be curtailed or deprived if after exhausting the other remedies the loan cannot be recovered. Argument is not only attractive but has a force in it.

4. Admittedly the detenu took loan for the purchase of tractor amounting to Rs.3,24,000 and Rs.75,000 to purchase trolley and lastly Rs.2,20,000 for the purchase of fertilizers. He has paid Rs.2,65,000 and the balance to be paid come to Rs.3,50,

000. Property measuring 25 acres of land belonging to the petitioner is mortgaged with the bank. Remedy under the Banking Laws is available to respondent A No.1, who instead of resorting to the said remedy before the Banking Court, resorted to detain him, which should have been the last resort after a decree having been obtained from the Court and following, recovery from the mortgaged property. I see eye to eye with the submission made by the learned counsel I for the petitioner that instead of resorting to other proceedings for due determination respondents straightway jumped at the conclusion by putting the old man behind the prison persuading him to pay the amount. Taking the argument to its logical conclusion that detention is for limited period and it detenu fails to pay the amount the respondent shall have no other alternative but to fall back upon the remedy of filing of suit. I failed to understand as to why this remedy was not taken up in the first instance. The answer is very simple and that is the detention was being used as a leverage to persuade the detenu to pay the amount. This remedy could only be resorted if the mortgaged property was not valuable enough to pay the loan and some balance after sale of the mortgaged property is left could be recovered. At present the detenu is not in a position to pay the whole amount taken from the respondent, in the proceedings under consideration. Curtailing freedom and liberty of the detenu is declared to be illegal in the presence of other remedies described above which could have been taken up in the first instance. Habeas corpus petition succeeds and the detenu is set at liberty. However respondents may have recourse to file a suit for recovery before the competent Court of law. N.H.Q./H‑18/L Petition accepted.