1983 P Cr (PLP)

(3) . bars the jurisdiction of all the Courts to look into the validity of an order passed under the provisions of the Ordinance. In view of this bar, it becomes all the more necessary for the authorities acting under the Ordinance to act fearlessly-and clear of all considerations political, personal or factional. Likewise if an order of detention under the Ordinance is challenged the High Court, in exercise of the powers under section 491, Cr. P. C., must look into its propriety from all angles and particularly it should be seen as to whether the procedure under the Loan Ordinance had been followed strictly. If the authorities under the Loan Ordinance fail to comply with the norms of law in following the procedure laid down in the Loan Ordinance in passing any order, including an order of detention, the order is to be ignored.

11. The executive officers while dealing with the liability of a subject under the executive and administrative law, it has time and again been emphasised, must proceed with utmost caution and strictly in accordance with law. They should take care to see that they do not do anything which might favour injustice or malice through the misuse of the extraordinary powers which are vested in them purely in the interest of the State. They should exercise their powers properly, fearlessly and clear of all considerations political, personal or factional. They all are expected to handle the people within their spheres of administration honestly with benevolence, impressive generosity, vision and skill.

12. After examining the above statement of law regarding the scope of habees corpus Petition under section 491, Cr. P. C. and that of the Loan Ordinance, we now proceed to dispose of the first contention of the learned counsel for the appellant that the principal debtor, Ch. Khadim Hussain, had discharged his liability and as such the proceedings against the appellant are unwarranted. To appreciate the point let us first examine the relevant part of the contract of guarantee (Annexure 'C' on our file) executed by .the appellant. The relevant part of it reads :- Place Mirpur Date

KASHMIR NATIONAL CO-OP. BANK LTD. GENTL MEN: In consideration of your making advances or otherwise giving credit or financial accommodation to Ch. Khadim Hussain (hereinafter called "the Principals") I/We, the undersigned on the basis of the general condi tions hereinafter specified (wherein 1 am/we are referred to as "the guarantors") guarantee jointly and severally the due payment and discharge of all the principals' liabilities to you, whether incurred before or after the date hereof, and whether incurred by the principals alone or jointly with others, and in whatever capacity whether as principals or sureties or otherwise and whether such liabilities has matured or not, and whether they are absolute or contingent, including all liabilities in respect of advances, letters of credit, cheques, hundis, bills, notes, drafts and other negotiable or non negotiable instruments drawn, accepted, endorsed, or guaranteed by the principals, and in respect of interest with periodical monthly cheques rests, commission and other usual or reasonable banking charges and in respect of all costs charges and expenses which you may incur in paying any rent, rates, taxes duties, calls, instalments, legal or other professional charges, or other outgoings whether for the insurance, repair, maintenance, management, realization or otherwise in respect of any property movable or immovable or any chattels or actionable claims of scrip securities or title deeds pledged, mortgaged or assigned to or deposited with you as security for the due payment and discharge of the principals' liability to you." The reading of the guarantee would make anybody to believe that Ch. Noor Hussain, the appellant, made himself liable to make payment of rupees two lacs in the event Ch. Khadim Hussain fails to pay back the debt he was to owe to the Kashmir National Co-operative Bank (dissolved) in his individual capacity. Under law we cannot import any other meaning to this document: The appellant obviously, therefore, in our view, could not be arrested if there remained nothing against Ch. Khadim Hussain so far as his liability regarding his personal accounts was concerned.

13. This now brings us to determine the most important point as to whether the loan advanced to Ch. Khadim Hussain by Kashmir National Co operative Bank, for which the appellant stood surety remained unpaid on the day when the appellant was arrested. If the answer is in affirmative, the arrest may be said to have been valid but if the answer is in negative, the arrest would be illegal. Ch. Khadim Hussain (the principal debtor), the parties are in agreement, maintained six accounts with Kashmir National Co operative Bank Ltd. (dissolved) in two capacities. Annexure G on our file (the parties do not dispute its correctness) proves so. It reads:--" "Our Ref. CO-OP./CELL/16 Dated 12-12-1982 To whom it may Concern As requested by Ch. Khadim Hussain son of Ch. Naik Alam, the following accounts were maintained with Main Branch, Kashmir National Co-operative Bank Limited (Dissolved) and the present position of the accounts as on date is hereunder Name of Accounts A/C No. Debit Balance

1. M/s United Corporation 285 Rs. 23,361,772.07 2. -do- 286 Rs.14,031,225.12 3. -do- 287 Rs. 1,389,733.40 4. -do- 290 Rs. 731,227.18

5. Ch. Khadim Hussain 15 Since adjusted.

6. Ch. Khadim Hussain 62 Since adjusted. (Sd.) Officer Incharge Co-operative Cell National Bank of Pakistan, Mirpur (A. K.)" The above document would show that Ch. Khadim Hussain, in Kashmir National Co-operative Bank (dissolved), maintained six accounts, two, namely, 15 and 62, were in his personal name while the other four accounts, namely, 285, 286, 287 and 290 were in the name of M/s. United Corporation in which he was most probably a partner/sharer. We say 'most probably' because there is nothing on the file to hold so with certainty. This document shows that considerable amount still stands outstanding against M/s. United Corpora tion as against accounts Nos. 285, 286, 287 and 290 but nothing is outstand ing against Ch. Khadim Hussain in respect of his personal account Nos. 15 and

62. Therefore, the appellant, as contended by Mr. Basharat Ahmed Shaikh, could not be arrested for non-payment of the loan advanced to M/s. United Corporation.

14. Let us see how the High Court resolves the controversy. The reading of the judgment of the High Court shows that they subscribe to the stand that the loan obtained by Ch. Khadim Hussain against accounts Nos. 15 and 62 had since been adjusted before the dissolution of Kashmir National Co operative Bank on 8-12-1974 and 17-3-1976 ; but this adjustment in their estimation does not absolve the appellant from the liability under the guarantee (Annexure 'C' on our file). In their view the appellant did not stand surety for repayment of these debts ; rather he was the guarantor for payment of loans advanced to M/s. United Corporation against accounts Nos. 285, 286, 287 and 290 which still remain unpaid. It would be better to quote the learned Judges of the High Court on the point. The High Court observed :- However, the photostat copy of the warrant issued against the petitioner shows that the petitioner stood surety for Ch. Khadim Hussain in respect of loan obtained against Accounts Nos. 285, 286, 287 and

290. No document has been placed on the record to justify the contention that the petitioner stood surety pertaining to the loan obtained against Accounts Nos. 15 and 62 and not against the aforesaid four Accounts Nos., which have been mentioned in the warrant of arrest. There is a presumption that official act has been performed regularly. Therefore, the onus is upon the petitioner to show that he did not stand surety with regard to the loan mentioned in the warrant of arrest. The pre sumption with regard to the regularity of performance of an official act, under section 114(e) of the Evidence Act, cannot be said to have been rebutted, merely by placing a document on the record showing that principal debtor had also obtained loan against two other Accounts numbers i.e. Nos. 15 and 62, especially so, when there is no positive averment in the petition or in the affidavit to the effect that the peti tioner did not stand surety, for the loan which the principal debtor obtained against Accounts numbers mentioned in the warrant of arrest.

15. The reading of the above para. would show that the High Court repelled the contention of the learned counsel for the appellant that the loan obtained by Ch. Khadim Hussain, for which the appellant had stood surety, had been paid by the principal debtor inter alia on the following grounds :- (i) that photostat copy of the warrant issued against the petitioner shows that the petitioner stood surety for Ch. Khadim Hussain regarding loan obtained against accounts Nos. 285, 286, 287 and 290 and some evidence should have been tendered to rebut this document which carries presumption of truth under section 114 (e) of the Evidence Act ; (ii) that the onus lay upon the appellant to show that he did not stand surety with regard to the loan mentioned in the warrant of arrest because presumption of truth would attach to the entries made in the warrant ; and (iii) that there is no averment in the petition under section 491, Cr. P. C., by the appellant to show that the petitioner did not stand surety for the loan which the principal debtor obtained against account numbers mentioned in the warrant, of arrest.

16. With due deference to the learned Judges of the High Court, we are not inclined to subscribe to their views. Our reasons are :- (a) It appears that the High Court has failed to determine the issue in its true perspective. The controversy primarily rests on the nature of guarantee executed by the appellant for making payment of rupees two lacs if his brother, Ch. Khadim Hussain (principal debtor), defaults to repay the financial aid (loans) allowed to him by Kashmir National Co-operative Bank (dissolved). Ch. Khadim Hussain, it may be recollected, had dealings with the Bank in two capacities, one in his personal capacity and the second probably as a partner/sharer of M/s. United Corporation. The question which, therefore, calls for deter mination is about which account the appellant stood surety. i.e., accounts Nos. 15 and 62 which are in the personal name of Ch. Khadim Hussain or accounts Nos. 285, 286, 287 and 290 which stand in the name of M/s. United Corporation. Our answer to the question posed is that the appellant, Ch. Noor Hussain, stood surety for the financial aid given to Ch. Khadim Hussain in his personal capacity. No deep argument is required to hold so. The guarantee itself speaks that it is given for financial accommodation to Ch. Khadim Hussain in his personal capacity and not to M/s. United Corporation. There is no ambiguity in it. The issuance of warrant listing the accounts of M/s. United Corporation has, therefore, no nexus with the guarantee which has given birth to the controversy. The guarantee, we may repeat, is in respect of the personal accounts of Ch. Khadim Hussain and we fail to understand how the warrant issued by the Registrar Co-operative Societies entering the accounts of M/s. United Corporation can change the complexion and character of the guarantee. The guarantee would still remain the same telling us that the appellant had stood surety for Ch. Khadim Hussain for repayment of the loans advanced to him in his personal capacity against accounts Nos. 15 and 62. (b) The learned Judges of the High Court have misdirected themselves to say that there is no positive averment in the petition to show that the appellant did not stand surety for the loan which the principal debtor, Ch. Khadim Hussain, had obtained against accounts Nos. 285, 286, 287 and 290 mentioned in the warrant of arrest. It appears that while holding so para. No. 'C' of the petition under section 491, Cr. P. C., which reads: For that the amount for which the petitioner had stood surety no longer exists as a liability against Ch. Khadim Hussain. A Certificate issued by National Bank of Pakistan Mirpur, which keeps the account of the borrowers and defaulters of the Kashmir National Co-operative Bank Limited (now dissolved), showing that the outstanding amount against the name of Ch. Khadim Hussain stood adjusted even before the dissolution of the said Bank is attached herewith as Annexure 'A'. escaped the notice of the learned Judges. This para., without any ambiguity, when read alongwith the document Annexure 'A', makes a clear averment that the appellant stood surety for Ch. Khadim Hussain in respect of his accounts Nos. 15 and 62 which accounts bad since been adjusted. In this view of the matter the finding of the learned Judges that there is no positive averment in the petition to the effect that the appellant did not stand surety for the loan obtained by Ch. Khadim Hussain against account Nos. mentioned in the warrant of arrest, cannot sustain and bas to be discharged. When the appellant specifically pleads that he stood surety for making the payment in respect of accounts Nos. 15 and 62, we wonder what more is required of the appellant to deny he was not the guarantor for the financial accommodation given to Ch. Khadim Hussain against accounts Nos. 285, 286, 287 and 290 mentioned in the warrant. (c) It appears that the High Court is labouring under a mistaken belief that the onus was on the appellant to show that he did not stand surety with regard to the loan mentioned in the warrant of arrest. This finding is violative of the accepted principles of law of evidence on the subject. Before dwelling upon this point we would like to state that the High Court fell in error to hold that the warrant of arrest would show that the appellant stood surety for the accounts mentioned in the warrant. The warrant of arrest cannot, in any way, be said to prove that the appellant stood surety for making financial accommodation to Ch. Khadim Hussain with regard to the accounts of M/s. United Corpora tion, listed in the warrant. Ch. Noor Hussain, appellant, and Ch. Khadim Hussain were no party to this document. The document had been prepared in the office of the Registrar, Co-operative Societies who is at liberty to prepare any document whether it is factually correct or not. How such a document can bind down any person? To quote an example, suppose the Government writes a letter to B that "you have to pay to the Government rupees two lacs which you have received on different occasions. 'B' denies the liability. Would this document per se be sufficient to hold that 'B' is liable to make the payment? The answer is obviously in negative. 'B' will be saddled with the liability only if the Government proves the liability with some other independent evidence. Let us give a more identical example. Suppose Habib Bank gives a notice to 'B' to make payment of an amount of rupees three lacs which he received as an overdraft against account No. 'S'. 'B' denies to have secured any overdraft against this account number. Would this letter be sufficient to prove the overdraft? The answer is emphatically No. The Bank has to prove the receipt of amount by some evidence. We, therefore, cannot subscribe to the view that mere entry in warrant showing the responsibility of the appellant would prove anything against the appellant. How, therefore, the onus can be cast upon the appellant to show that he did not stand surety with regard to the loans mentioned in the warrant of arrest. This approach to the issue is violative of sections 101, 102 and 103 of the Evidence Act. Section 101 reads "Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person." Section 102 reads :- "The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side." Section 103 reads :- "The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person." It would appear that when a party who desires the Court to give judgment as to any right or liability must prove the facts on which the existence of that right or liability depends. If in such a case the party does not prove the existence of those facts which constitute the right or liability he is seeking to enforce he would fail. Therefore, the burden of proof would lie on him. Again the party who desires a Court to give judgment in his favour is also asking the Court to believe in the existence of facts which entitles him to judgment. The burden of proof, therefore, would also lie on him. Under section 103, Evidence Act, the initial onus of proving a case is always on a party who asserts it. If that party discharges that onus and makes out a case which entitles him to relief then only the onus shifts on to the other part to prove circumstances, if any, which would disentitle the other party to the relief claimed. This proposition of law is so settled that it admits of no departure at all. We are fortified in a case decided by this Court on 24-1-1983 titled Mst. Kubra Begum v. Muhammad Yasin Khan (Civil Appeal No. 22 of 1981). Dealing with somewhat. identical point, it has been observed :- "The reading of these provisions would show that the initial burden of proving a prima facie case is always on the plaintiff; when he gives evidence to support a prima facie case, the onus then only shifts on to the defendant to adduce rebutting evidence to meet the case made out by the plaintiff: As the case continues to develop the onus may shift back again to the plaintiff. It is, however, not easy to decide at what particular stage in the course of the evidence the onus shifts from one side to the other. However, when after the entire evidence has come on record and the Court feels that it cannot make up its mind as to which of the versions is true, the burden of proof attains impor tance and the Court will dismiss the suit and hold that the party on whom the burden lies has not discharged the burden." In view of the settled law, in the instant case, it would be the detaining authority (Registrar, Co-operative Societies) to prove that the guarantee It is, thus, clear that doubt in Islam also, however grave it may be, cannot take place of positive proof and if in a case a slightest doubt arises, it shall be resolved in. favour of the person proceeded against, executed by the appellant was in respect of the unpaid loans outstanding against M/s. United Corporation listed in the warrant of arrest. Without such a proof mere preparation of the warrant with regard to particular accounts would not be sufficient to hold that the appellant stood surety for the loans advanced to M/s. United Corporation listed in the warrant. (d) The finding of the High Court regarding the presumption attached to this warrant, to us, is erroneous and has to be ignored. Illustration (e) to section 114 of the Evidence Act, which reads :- "the judicial and official acts have been regularly performed ;" would allow presumption for regularity of the warrant issued. The Court cannot presume further that entries relating to accounts Nos. 285, 286, 287 and 290, entered in the warrant, are correct. `Regularly done' means done with due regard to form and procedure. Besides the presumption is only permissive and not mandatory. This is so because the presumption is to be made only when the circumstances so warrant. (e) The guarantee, the base of the claim, it is significant, does not bear any date. When the guarantee does not bear a date, how can we link this document to the loans received by Ch. Khadim Hussain as an alleged partner/sharer of M/s. United Corporation. The appellant's stand, therefore, unless otherwise proved had to be believed that the guarantee pertains to the debts received by Ch. Khadim Hussain against accounts Nos. 15 and 62 which bad been adjusted even prior to the dissolution of the non-scheduled Banks., Even otherwise it is golden rule of interpretation that when two possibilities regarding a fact are possible, the possibility which goes in favour of the subject is to be preferred. This important aspect of the case, it appears, escaped the notice and attention of the learned Judges in the High Court and also the learned members of the Bar representing the parties. It is also fundamental rule of Islam that doubt cannot be the basis of condemnation but provides a ground to pardon. It is mentioned by Ibn-i-Maja, the Holy Prophet (peace be upon him) having stated :- (f) There is another very important factor which would go to demolish the whole structure of the case. The notice issued to Ch. Noor Hussain, appellant (Annexure 'D' on our file) on 22-9-1980 enters that at the end of June, 1980 an amount of Rs. 84,46,707.15 remained out standing against Ch. Khadim Hussain (principal debtor) as loan of Kashmir National Co-operative Bank Limited (dissolved). The notice does not bear any account number. But the warrant which was issued practically eight months after issue of the notice, on 17-8-1981, enters that at the end of June, 1981, an amount of Rs. 83,55,545.90 was out standing against Ch. Khadim Hussain against account Nos. 285, 286, 287 and

290. It would thus appear that the amount mentioned in the notice does not tally with the amount reflected in the warrant. The amount in the notice exceeds by an amount of Rs. 91,262 reflected in the warrant. This means that after the notice an amount of Rs. 91,262 was paid back by Ch. Khadim Hussain but this is nobody's case-not even of the Co-operative Societies. Naturally, we cannot link the amount of notice with the amount reflected in the warrant and, therefore, legally it would be said that Ch. Noor Hussain had not been arrested and confined in Civil Jail for the amount listed in the notice rather it would be said that he was arrested for the amount reflected in the warrant for which there is no valid notice under section 5(2) of the Loan Ordinance which i s a condition precedent for proceeding under section 8 of the Loan Ordinance. We cannot lose sight of the fact that it is a wholesome doctrine of law that a party cannot be allowed to play fast and loose, blow hot and cold and approbate and reprobate to the detriment of his opponent and when such position, as the case is before us, is made out naturally the party who puts up the claim becomes on weaker footing. It would, there fore, be said that the warrant, without a prior notice as stipulate under section 5(2) of the Loan Ordinance, is a nullity and has to be recalled.

17. In view of the above discussion we are of the view that the appellant stood surety for the debts secured by Ch. Khadim Hussain in his individual capacity against account Nos. 15 and 62 and these debts, as Annexure `G' on our file shows, had been paid by the principal debtor. In the result we are of the view that the appellant, Ch. Noor Hussain, was illegally detained in civil prison and the learned Judges in the High Court failed to notice settled principles of law in such like cases referred to above in the first part of this report resulting in miscarriage of justice in refusing to set at liberty the appellant in a petition moved by him under section 491, Cr. P. C.

18. Before parting with the case we deem it proper to state that for the reasons in the foregoing paragraphs we have regretfully arrived at the conclu sion that the Registrar, for one reason or the other, has permitted himself to depart from the principles narrated above. To us the case of the appellant has been mishandled and the action of the Registrar Co-operative Societies, in issuing the detention order of the appellant on the basis of which he was arrested and keep in Civil Jail for several months, appears to be not taken in good faith. This action of the Registrar was rightly made subject of serious criticism during the course of arguments by Mr. Basharat Ahmed Shaikh, the learned counsel appearing on behalf of the appellant.

19. The learned counsel for the parties, after having taken us through the various provisions of the Loan Ordinance, consumed considerable time in building up their respective cases for and against points Nos 2 to 5 detention but as we have decided to accept this appeal mainly on the ground that the loan, which was advanced to Ch. Khadim Hussain and for which the appellant stood surety, had since been adjusted and that the arrest is without a legal notice, which renders the arrest illegal, the remaining points thus, in this case, remain of academic interest only and need not be determined. We leave them open to be decided in a case where their decision is absolutely necessary. For the above-stated reasons accepting this appeal we would quash the judgment of the High Court dated 15-11-1982 and declare the detention of the appellant as illegal. The appellant has already, on the basis of our short order, been released from the civil prison. Appeal allowed.