2001 PLP 1444 (YLR)

The brief facts out of which the present writ petition arises are that petitioner and detenu's father was President of Peer Ramay Power Looms Industrial Cooperative Society. The petitioner's father secured a loan from the respondents in the name of the said Society. The petitioner and detenu's father had since been died in the year 1992. The detenu was arrested by the respondents on 23-6-2001 and detained him till date the petitioner approached the respondent. to obtain certified copies of the order, dated 26-6-2001. The respondents failed to supply the copy of the order to the petitioner.

2. The learned counsel of the petitioner submits that the action of the respondents is without lawful authority. The detenu has not secured loan from the respondents and also did not give any surety at the time of sanctioning loan in favour of the said Society by the respondents. He further submits that property of the father of the detenu had already been mortgaged with the respondents. The detenu did not get any property after the death of his father from the assets of his father. He further submits that action of the respondents is in violation of the provisions of West Pakistan Land Revenue Act, 1967 as the respondents failed to issue any notice to the detenu as is envisaged by section 80 and subsequently notice under section 82(1) of the Ladd Revenue Act, 1967, therefore, detention of the detenu is without lawful authority inter alia, on the ground that when anything is to be done in a particular manner it must be done in that way and not otherwise. He further submits that respondents are bound to act in accordance with law as is envisaged by Article 4 of the Constitution. Therefore, action of the respondents is based on malice by law as well as malice in facts.

3. Learned counsel for the respondents submits that decree was passed by the competent Authority on 13-9-1992 in presence of the detenu. The detenu was detained by the respondents in accordance with law. He further submits that respondents initiated recovery proceedings against detenu under West Pakistan Land Revenue Act, 1967 after completing all the legal formalities. He further submits that final notice of arrest has been issued by the competent authorities. He further urged that detenu/petitioner has alternative remedy under the law, therefore, writ petition/habeas corpus petition is liable to be dismissed.

4. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself.

5. I would like to decide the preliminary objection first. Learned counsel for the respondents raised a preliminary objection that detenu has alternative remedy before the Revenue Officer under section 82(8) but the detenu petitioner failed to avail the same. Therefore, habeas corpus petition/writ petition is not maintainable. Preliminary objection raised by the learned counsel for the respondents has a force and the habeas corpus petition/writ petition is not the proper remedy as per principle laid down by this Court in Akbar Begum's case NLR 1995 Crl. LaW Judgment 51 (sic). It is also settled principle of law that there is a proper remedy under the law available to the petitioner/detenu then habeas corpus petition/writ petition is not maintainable. In arriving to this conclusion I am fortified by the judgment of the Division Bench of Karachi High Court in Imdad Hussain's case PLD 1974 Kar. 485, Ghulam Muhammad's case PLD 1975 Kar. 118, Bari Ahmad's case 1994 CLC 273 and Ijaz Hussain's case 1994 CLC

275. When the final warrant of arrest has been issued under the provisions of the Land Revenue Act then this Court has no jurisdiction to go beyond that to find out whether the warrant of arrest was issued after fulfilling the legal requirements under the Land Revenue Act by issuing a notice or not as the same requires inquiry. The scope of power under section 491, Cr.P.C. or under Article 199 of the Constitution is highlighted in reported judgment Ch. Noor Hussain's case 1983 PCr.LJ

442. The aforesaid position of law is also supported by the following judgments:-- Arshad Hussain's case PLD 1982 Azad J&K 107 and Nisar Ahmad's case PLD 1997 SC

852. When the warrant of arrest is issued in accordance with provisions of the Land Revenue Act even in violation of the manner prescribed under the Land Revenue Act, the same cannot be declared illegal through collateral proceedings as is held by the Honourable Supreme Court in Sabir Shah's case PLD 1994 SC

738. Therefore, same is in accordance with law unless and until the same is set aside by any competent Court/forum and the habeas corpus petition/writ petition is not maintainable as is held by this Court in Javaid Iqbal's case 1987 PCr.LJ

681. It is discretion of the authority under the Land Revenue Act to adopt any mode of execution as per principle laid down by the Karachi High Court in Sayed Hassan Mahmud's case PLD 1980 Kar.

37. It is pertinent to mention here that detenu/petitioner alleged that loan was secured from the respondent by the father of the petitioner/detenu but the decree was I passed in presence of the detenu by the competent Authority. This fact brings the case in the area that petitioner did not approach this Court with clean hands meaning thereby the facts of this case indicate that the present petition was not bona fide petition. Therefore, I find that this petition has been filed only to set up a defence to avoid from discharging their liabilities of the aforesaid amount due against the detenu in order to impede course of recovery and hamper due process of law with mala fide. It is settled principle of law that bona fides of a petition have to be carefully examined so that no one be permitted to abuse the process of law. In arriving to this conclusion I am fortified by the following case:-- Shaukat Ali's case 1972 SCMR 398 coupled with the fact that it is conditioned precedent to set at liberty the detenu if the detention is illegal or improperly detained. The detenu was detained by the respondents in accordance with law, therefore, writ petition is not maintainable, however, in the interest of justice and fairplay the respondents are directed to release the detenu after receiving Rs.50,000 from the petitioner. After the release the detenu is directed to appear before the respondent No.1 who is directed to consider the request of the detenu to discharge his liability in easy instalments in the interest of the society and to save the family from destruction. He is also directed to initiate proceedings against the other members of the said society to recover the amount due against them in accordance with law. With these observations the writ petition is disposed of. Q.M.H./M.A.K./M-677/L Order accordingly.