1979L46 (PLP)

This application under section 491, Cr: P. C. has been filed by Ghulam Abbas son of Siraj Din for the recovery of alleged detenu Mian Siraj Din. It proceeds on the allegations that Siraj Din the detenu was earlier also detained by the respondents. on which Cr. Misc. No. 623/11 of 1978 was filed under section 491, Cr. P. C. which was disposed of by my order dated 9.8-1978 ; that after the disposal of the said criminal miscellaneous the detenu made an application to the Superintendent of Police, Sahiwal with a request that a case be registered against the respondents for having extorted 18 tolas of gold and 60 tolas of silver from him which application wag received in the office of the Superintendent of Police, Sahiwal on 31-8-1978 under diary No. 157-C. C. No action having been taken on the said application the detenu through his Advocate addressed a letter dated 18-9-1978 to the Superintendent of Police, Sahiwal for appropriate action in the matter. No reply to the said communication is stated to have been received by the detenu or his Advocate. The allegation also is that infuriated by the said applications filed by the detenu the respondents have started harassing the family of the respondents of the petition.-r and detenu and arrested his son Muhammad Amin who was the petitioner in Cr. Misc. No: 623-11/1978 in a case F. I. R. No. 19 dated 15-4-1977. In furtherance of their campaign of harassment launched against the detenu and his family it is alleged that the respondents, on 25-9-1978, again arrested the detenu without any warrant and kept him in illegal custody.

2. On 30-9-1978, notice was issued to the respondents to produce the detenu, Mian Siraj Din, if he was in their custody. On 8 10-1978, a reply was filed to the application by the respondents. In the reply, they controverted the allegations made against them m the application and asserted that the respondents had no personal animus against the detenu or his family; that they were "suspects" and, in fact, involved in a large number of cases of theft and house-breaking ; that they were members of a gang of burglars which was operating in the area ; and that they take the stolen jewellery and ornaments and after recasting those sell them off. It was further submitted that in order to hide their crime and to bolster up derence in those cases the detenu and his sons were making these repeated applications. It is also averred in the reply that the allegation that the respondents had extorted 18 tolas of gold and 60 tolas of silver from the detenu, which items were purchased by him from goldsmith Muhammad Ali, is also a concocted story which fact has been so established in an inquiry conducted by the Superintendent of Police, Sahiwal. The illegal detention of the detenu has also been denied and it has been stated that Siraj Din the detenu was required in two cases registered under F. I. R. No. 36/1977 and F. I. R. No. 37/1977 and that since he was absconding and keeping himself out of the way a proclamation was got issued from the Court against Siraj Din on 21-9-1978 and it was only thereafter that he was arrested in the said two cases on 25-9-1978, produced before a Magistrate on 26-9-1978. bodily remand obtained up to 29-9-1978 and thereafter sent to judicial lock-up under orders of the Magistrate dated 30-9-1978.

3. The learned counsel for the petitioner contends that the involvement of the detenu in the cases is mala fide for the reasons enumerated in the application, that in view of the position that earlier also the petitioner was detained and recovered through a Bailiff of this Court it stands established that the respondents in order to give a cover to the factum of extortion of gold and silver from the detenu have involved him in false cases and that the case is fit wherein the statements of the petitioner and the respondents be recorded to ascertain the correct position and if it be found that the cases are mala fide to bold that the detention of the detenu was illegal. In this regard the learned counsel placed reliance on Farooq Badar v. Inspector-General of Police, West Pakistan, Lahore and others (P L D 1969 Lah. 1020).

4. The learned counsel for the respondents, in reply, submitted that the allegations made against the respondents are absolutely false, that in the inquiry held by the Superintendent of Police, Sahiwal in pursuance of the order of this Court dated 9-8-1978 passed in Cr. Mist. No. 623-H/1978 it has been found that the allegation of extortion of gold and silver by the respondents is false, that the detenu and his sons in order to bolster up defence, to the criminal cases in which they are involved have resorted to the filing of these applications under section 491, Cr. P. C., that the arrest of the detenu . having been made in cases registered against him and/ or his sons warrants the dismissal of this application, and that no further proceedings by way of recording of evidence are called for in the attendant circumstances of this case. It is further submitted by him that the detenu was earlier also not recovered from the Police Station as is evident from the file of Cr. Mist. No. 623-H/1978. The learned counsel for the respondents distinguished the case in hand from the case cited by the learned counsel for the petitioner and submitted that the case was of political nature and was, thus, on a different premises. The learned counsel also relied on Qaddr and others v. The State (P L D 1958 Pesh. 38) to contend that even in a case where remand was taken two days after arrest it was held that the detention was subsequently legalized and as such Habeas Corpus petition was rendered infructuous and accordingly dismissed. In the case in hand, he submitted that the arrest was not illegal at any stage and therefore it was all the more reasonable to dismiss this application. He also relied on Alta Muhammad v. Inspector-General of Police, West Pakistan, Lahore and others (P L D 1965 Lah. 734) to contend that the Police is competent to carry out multiple investigations in the same case and that even the submission of a final report under section

173. Cr. P. C. is no bar fresh investigation into the same case. He submitted that the detenu and his sons having been found involved in the cases in question there is no bar to the Police to investigate into the matter despite the lapse of some period after registration of the cases.

5. I have given consideration to the arguments advanced by the learned counsel for the parties. Section 491, Cr. P. C. confers on the High Courts is the power to issue directions of the nature of a habeas corpus to enforce the right of a citizen "to be dealt with according to law" and/or "to be set at liberty". It is thus the illegal detention of a citizen, that is a detention or imprisonment incapable of legal justification which is the basis of jurisdiction of the writ of habeas corpus ad subjiciendum commonly known as the writ of habeas corpus. It necessarily implies that if a person is detained, arrested or kept in custody under a lawful authority, such a detention cannot be challenged under the aforementioned provision. In the case of Farooq Badar v. Inspector-General of Police, West Pakistan Lahore and another cited by the learned counsel for the petitioner, also it is held that ordinarily the registration of a case against the detenu is an answer to the habeas corpus petition. Not only that it has also been the consensus of opinion in a large number of cases that even detention legalized subsequently renders the Petition under section 491, Cr. P. C. infructuous notwithstanding the position that at the time of making the petition the detention was illegal. In Basanta Chandra Ghose v. Emperor (A I R 1945 F C 18) it has been held as under : If at any .time before the Court directs the release of the detenu a valid order directing his detention is produced, the Court cannot direct his release merely on the ground that at some prior stage there was no valid cause for detention. The question is not whether the later order validates the earlier detention but whether in the face of the later valid order the Court can direct the release of the petitioner . . . ." The above principle has been reiterated in Sher Alam v. Commissioner, Hyderabad Division, Hyderabad (1968 P Cr. L J 1663). From the above discussion an! irresistible conclusion emerges that there can be no manner of doubt regarding the principle that registration of a case is a complete answer to a petition for Habeas Corpus.

6. In the case in band, it is established on record that the alleged detenu's arrest was made in a case of theft and his detention with the police was under an order of remand passed by a competent Magistrate. A valid and legal order of detention prima facie passed with jurisdiction in criminal cases like the present cannot be challenged in proceedings under section 491, Cr. P. C.

7. The submission made by the learned counsel for the petitioner that the statements of the petitioner, detenu and the respondents be recorded to ascertain the correct position is also devoid of force in that such al permission would result in the accused in every case charged with a criminal offence to have a petition made to this Court under section 491, Cr. P. C. and level charges of mala fide and have statements recorded just to bolster up defence to the cases against them which would be nothing short of abuse of the process of the Court. The case of Farooq 'Badar cited by the learned counsel in this regard is absolutely on a different premises being a case primarily of political nature and also there being allegation of non-production of the detenus before the Magistrate and non-imparting to the detenus the nature of charges under which they were detained. The cast in hand does not present any of the above features.

8. The detenu, if he has any grievance against the respondents about the alleged extortion of gold and silver from him and if he is dissatisfied with the inquiry held by the Superintendent of Police, Sahiwal, can have resort to the institution of a complaint against, the respondents before the Magistrate concerned. The filing of the petition under section 491, Cr. P. C .I to achieve other gains such as creating a defence in any case is not proper.

9. For the reasons given above, this application is dismissed. s. A. H. Application dismissed.