2001 P Cr (PLP)

Asim Akram for Petitioner. Brief facts out of which the present writ petition arises are that detenu Siraj Khan son of Sarfraz Khan is a tent mechanic and is running tent repairing/manufacturing business in the name of Al‑master tent Mechanic at Punjab Small Industrial Estate, Lahore since 1990. Detenu was broker at Fruit and Vegetable Market Ferozpur Road, Lahore during the period 1983 to 1990. The detenu used to conduct his business from Shop No.49 in the said market which was owned and rented out by the Market Committee as is evident from Annexure "A" attached with the petition. Detenu received a legal "notice from the respondents in the month of April which reveals that amount of Rs.4,24,080 is outstanding against the detenu of the respondent for the period of May, 1993 to October, 1993 in respect of Telephone No.5835990 which was allegedly installed in the name‑of the detenu in Shop No.52 in the said market. Thereafter. Director, Revenue Recovery‑ of the respondents sent a letter dated 21‑6‑2000 to the detenu to repay the outstanding of the respondents amounting to Rs.42,40.080 within three days. Learned counsel for .the petitioner submits that the detenu was tenant in Shoh No.49 whereas the respondents demanded the outstanding from the detenu qua the Shop No.52 as is evident from letter of Director Recovery of the respondents dated 21‑6‑2000. He further submits that Muhammad Ashiq son of Ibrahim was owner of the Shop No.52 at the relevant time where the said telephone was installed. The detenu challenged the vires of the outstanding of the respondents by filing a civil suit before the Civil Court. The said suit was fixed before the Civil Judge who passed the restraining order in favour of the petitioner by the Civil Court vide order, dated 31‑7‑2000. The suit was ex parte decreed on 23‑10‑2000. The respondents filed an application for setting aside the ex parte decree which is pending adjudication before the Civil Judge 1st Class, Lahore. The respondents arrested the detenu on 19‑4 2001. Petitioner, approached the respondents for release of the detenu but the respondents failed to release the detenu. Petitioner being aggrieved filed this petition.

2. Learned counsel for the petitioner submits that action of the respondents is without lawful authority. Suit filed by the detenu against the respondents was decreed and the respondents have no authority to initiate proceedings against the detenu.

3. Learned counsel for the respondents submits that petitioner approached this Court with unclean hands. The detenu filed a suit against the respondents before the Civil Judge, Lahore who granted restraint order against the respondents on 13‑7‑2000. The same was ceased to exist after six months automatically by virtue of Order 39, Rule 2, (2‑B) and Rule (4‑A), on 13‑1‑2001. The respondents sent legal notice to the detenu for the recovery of outstanding on 15‑1‑2001. The respondents detained the detenu after completing all legal formalities. He further submits that petitioner has mentioned in paras.4 and 5 of the writ petition that suit filed by the detenu was ex parte decreed vide judgment and decree, dated 2'i‑10‑2000 whereas the order, dated 23‑10‑2000 reveals that ex pane proceedings had been taken against the respondents by the learned trial Court on 23‑9‑2000 as is evident from Annexure "F" and application filed by the respondents for setting aside the ex parte proceedings under Order 9, Rule 9 read with section 151, C.P.C. He filed parawise comments in Court. The telephone connection was sanctioned by the respondents in the name of detenu in Shop No.49 as is evident from application filed by the detenu before the respondents. Demand notice was issued in favour of detenu qua the telephone in question or. 21‑5‑1985. The detenu submitted an application before Divisional Engineer for transfer of the telephone in question from Shop No.49 to Shop No .52 The detenu also filed affidavit alongwith his application for transfer of the telephone in question. The contents of the para. No.2 of the affidavit also reveals that at the time of application for the telephone connection my address was Shop No.49 Fruit Market, Kot Lukhpat, Ferozepur Road, Lahore which now has been changed due to shifting of my shop from the former place ‑to present i.e. 52‑D, Fruit Market Kot Lukhpat, Ferozepur Road, Lahore. He summed up his arguments that action of the respondents is in accordance with law. 4. 1 have given my anxious consideration to the contents of the learned counsel for the parties and perused the record myself. In case the contents of writ petition and parawise comments are put in a juxtaposition then it brings the case in the area of factual inquiry and this Court has no jurisdiction to decide the disputed questions of fact in habeas corpus petition by recording of evidence as per principle laid down by the Honourable Supreme Court in Nasir Muhammad's case PLD 1997 SC

852. It is also settled principle of law that restraint order passed by the learned trial Court ceased to exist in field or to expire automatically after six months as is envisaged by Order 39, Rule 2, (2‑B) and Rule (4‑A) of C.P.C. In arriving to this conclusion I am fortified by the following judgments:‑‑ Noor Silk Mills Ltd.'s case 1984 CLC 2048, Federation of Pakistan v. United.Sugar Mills PLD 1977 SC 397, Raja Talat Mehmood's case 1999 SCMR 2215 and Zahoor Textile Mills' case PLD 199) SC

880. It is also settled principle of law that if the detention is regularised subsequently, the habeas corpus petition is not maintainable as per principle laid down by the Honourable Peshawar High Court in Qadir's case PLD 1958 Pesh.

38. Petitioner has alternative remedy under the provisions of the West Pakistan Land Reverue Act. Therefore, habeas corpus petition is not maintainable as per principle laid down in Ghulam Muhammad's case PLD 1975 Kar. 118 and Imdad Hussain's case PLD 1974 Kar.

509. In view of what has been discussed above, the habeas corpus petition is not maintainable as per principle laid down by this Court in Basma Tabassum's case 2000 PCr.LJ

898. Therefore, same is dismissed. H.B.T./A‑219/L Petition dismissed.