2004 PLP 855 (SCMR)

Date of hearing: 2nd April, 2003. MUNIR A. SHEIKH, J.‑‑‑The petitioner seeks leave to appeal against the judgment dated 19‑3‑2003 of the Lahore High Court whereby Criminal Miscellaneous Application filed by him under section 491, Cr.P.C. in the nature of habeas corpus has been dismissed.

2. The father of the petitioner was convicted on a charge of Qazf under Hadood Ordinance by the trial Court and sentenced to 2 years R.I. In appeal, the Federal Shariat Court, upheld the conviction but reduced the sentence to one year R.I. He was on bail during the pendency of the said appeal. Criminal petition for leave to appeal was filed in this Court. The office declined to entertain the said petition on the ground that he should first surrender to the police authorities.

3. A learned Judge of this Court in Chamber passed an order for entertainment of the said petition by relaxing the rules regarding attestation of Wakalatnama by the jail authorities of a convict (petitioner's father) for at that time, he had not been arrested in pursuance of the judgment of the Federal Shariat Court. It was also observed in the said order that the father of the petitioner may apply for bail after entertainment of the said petition for leave to appeal. The said petition was entertained, registered and has not yet been fixed before the Shariat Appellate Bench of this Court alongwith the application for suspension of the sentence or grant of bail.

4. The police arrested the father of the petitioner in implementation of the judgment of the Shariat Court against which the petitioner filed the above mentioned criminal petition under section 491, Cr.P.C. before the High Court alleging that in view of the said order of the learned Judge in Chamber of this Court dispensing with the rules of attestation of Wakalatnama by the jail authorities, his arrest and detention in jail was unlawful and improper.

5. The said contention did not find favour with the learned Judge in Chamber of the High Court, therefore, the said petition has been dismissed through the impugned order dated 19‑3‑2003 against which leave is sought.

6. In our view, the learned Judge in Chamber of the High Court has taken a correct view of law. The suspension of rule of this Court as regards attestation of Wakalatnama of a convict who at that stage had not been arrested did not operate of its own as prohibition against arrest by law enforcing agency in implementation of the judgment of the Federal. Shariat Court, as such, his detention in jail was neither unlawful nor improper, therefore, this petition is dismissed and leave refused.

7. Learned counsel for the petitioner says that after earning remissions under law and the remission granted on 23rd Republic Day, the father of the petitioner has already undergone the sentence but the jail authorities are not releasing him merely on the ground that his criminal petition for leave to appeal against the judgment of the Federal Shariat Court is pending before the Shariat Appellate Bench of this Court.

8. The concerned Superintendent Jail shall look into this complaint as to under what law if the convict had already undergone the sentence after earning the remissions, if any, is being detained in jail merely because his petition is pending. Criminal Petition No.34(S) of 2002 alongwith bail application shall be fixed before the Bench on 10‑4‑2003. M.B.A./Z‑130/S Petition dismissed.