1999 PLP 2924 (MLD)

S. 491

Small Business Finance Corporation Act (XXIX of 1972), Ss. 20 & 22

Habeas corpus petition

Dentenu stood surety for borrower who borrowed amount from Small Business Finance Corporation

Borrower who failed to pay loan to Corporation as per terms of agreement was proceeded against under law- -Borrower having disappeared, Corporation apprehended detenu/surety who was sent to civil prison for non-payment of loan by borrower

Validity-- Corporation should have apprehended borrower and in case of non-satisfaction of loan money, property of borrower should have been forfeited, but Corporation had not taken such action against borrower whose responsibility was to return loan

Responsibility of detenu/surety being secondary, he should not have been sent to civil prison unless efforts for recovery of loan amount against borrower had finally failed

Dentenu/surety was admitted to bail with direction to Authority to proceed against borrower and in case of non- satisfaction of repayment of loan, Authority would be at liberty to proceed against detenu/surety. Malik Muhammad Aslam for Petitioner. (Sarmad Jalal Osmar) Nasar-ud-Din Ghouri for Respondents. The petitioner moved the instant habeas petition for the recovery of his brother Inam Bari alleging that he is under the illegal detention of the respondents. In fact Inam Bari stood surety for Saleem Akhtar Loanee who borrowed a sum of Rs.50,000 from the Small Business Finance Corporation, Rahimyar Khan. He failed to pay the loan as per the terms of agreement and was accordingly proceeded against under the law. The borrower disappeared. The Corporation was, therefore, constrained to apprehend Inam Bari (surety) who was consigned to Civil Prison for the non-payment of loan by said Saleem Akhtar.

2. In all fairness, the Small Business Finance Corporation, Rahimyar Khan and its functionaries should have apprehended the loanee (Saleem Akhtar); his property should have been forfeited and in case of non-satisfaction of loan money, the Corporation should have taken action against the surety. There is no doubt or dispute that Inam Bari, stood surety for loanee but I am at pains to note that the Corporation has not taken any action against him. It was his responsibility to return the loan money. The responsibility of the surety being p' secondary, he should not have been sent to Civil Prison unless efforts for the recovery of the loan amount against the loanee had finally failed, S.B.F.C. Rahimyar Khan and its functionaries were fully competent to apprehend Inam Bari and his conviction cannot be stamped illegal. However, the department has put the cart before the-horse. I, therefore, admit Inam Bari/surety to bail in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of Assistant Commissioner, Sadiqabad. The respondents and, its fucntionaries are directed to proceed against the loanee and in case of non-satisfaction of repayment of loan, they shall be at liberty to proceed against the surety.

3. With this direction the petition stands disposed of. H.B.T./J-63/L Order accordingly