The petitioner has invoked the extraordinary jurisdiction of this Court under section 491, Cr.P.C.
Against S.D.M. And Ass1stant Superintendent of Police, D.I. Khan for the production of his son Muhammad Umair Rehman allegedly being illegally detained in police and also made an alternative prayer for his release on bail detained in case F.I.R. No. 101 dated 5-3-1993 under section 365, P.P.C. Read with sections 120-B/109, P.P.C., Police Station, Cantt. D.I. Khan.
2. The major portion of the petition is covered by his (petitioner's) introduction and the approach of the police headed by SDM to his house and then the various steps taken for search of the house of the petitioner by the said party and by alleging that the detenu was arrested by the police and on his pers1stent efforts he came to know that his son has been allegedly involved in the abovementioned case and was arrested in that case after which he immediately applied for the bail of the detenu and the hearing on which application was fixed for 24-4-1994. However, the petitioner was told that the detenu has been remanded to police custody but he was not allowed to see the detenu in the police custody, approached this Court for issuance of the direction in the nature of the Habeas Corpus on the ground that the detention is illegal, without any justification, mala fide, detenu being never involved in any criminal case, the charge against the detenu is unfounded one, the remand order is unjustified and describing the Presiding Officer (who is respondent No.2) as incompetent could not hear the bail matter as he was supervising the raiding party.
3. The notice was given to the respondents who furnished their comments raising preliminary objection on the maintainability of the petition according to the comments-- "the detenu was arrested in accordance with law on 15-4-1994 having been involved in the commission of the aforementioned abduction for ransom case which ultimately resulted in the cruel death of Arshad," the abductee.
Refuting other allegations of the petitioner with regard to the action taken as being mala fide, illegal, with ulterior motive, the respondents contended that the petitioner and his son, the detenu played delaying tactics to retard the legal process of arrest of another co-accused Amir Rehman, another son of the petitioner in order to enable him to escape who was involved in the said abduction case of Arshad the son of Chaudhary Muhammad Akram, lodger of the F.I.R. Mentioned above. The investigation further disclosed that despite the receipt of ransom amount of Rs.15,00,000 the abductee was brutally murdered and Amir Rehman who with the help of the petitioner and the detenu succeeded in escaping at the time of arrest by the police party headed by the SDM, was later on arrested on Pak-China border through law enforcing agencies while fleeing abroad.
4. Respondents 2 and 3 were present in person with the Ass1stant Advocate General. The Ass1stant Advocate-General raised a preliminary objection of the maintainability of the. Instant petition and with a special reference that the alleged detenu had been arrested through a legal process in a legal and lawful manner and he has been dealt with in accordance with law as he has been involved in a criminal case, the proper course for the petitioner is to persue and prosecute the bail application of detenu already submitted to the forum concerned.
5. After hearing the learned Ass1stant Advocate-General and the comments furnished by respondents, supplemented by various Annexures showing the lawful arrest of the detenu in a criminal case with a proper judicial remand order, the copies of which have already been furnished to the counsel of the petitioner, he was asked that whether he would still be ins1sting on the hearing of this petition after having perused the comments with Annexures and when a proper bail application has been submitted and which pending adjudication and if he had any grievance against the Mag1strate/SDM for not deciding the bail application impartially, he could submit the same before the Sessions Judge or can file an application for transfer I of the case from his Court, but the petitioner ins1sted on the hearing of the petition and also attributing the mala fide and ulterior motives to the respondents present in the Court. His main thrust was with regard to the alleged illegal search of the house as no warrant for the search had been obtained and also referring to various conversation ensued between the petitioner and respondents 2 and 3. I do afraid that such-like points would be matters for consideration in. The petitions under section 491, Cr.P.C. As the purpose of such petitions is to set at liberty the persons illegally and improperly detained, but here the admitted facts of the case are that the detenu has been shown to have been arrested in a criminal case has made a judicial confession, after which he was remanded to the judicial lock-up and on the day of hearing he was in the judicial lock-up. The reg1stration of the case and the subsequent 'proceedings in respect of the detenu by remanding him to police custody as well as judicial custody and confessing his guilt as evident from one of the annexure of order passed by remanding him to the judicial lock-up and in such circumstances this application seems to have been filed to bolster up defence to the cases against the detenu, which is nothing, short of abuse of the process of Court. In the circumstances of the case and specially when the bail application submitted before the lower forum pending adjudication, such like applications seem to be an interference in the function and the duty of the executive authorities to maintain law and order and the law should not be utilized for such ulterior motives and for personal aggrandisement.
The petitioner has utterly failed to discharge the burden of proof which had been shifted to him on furnishing the return by the respondents annexed by various documents showing the arrest as a legal and lawful one and the detention or restrain of the petitioner's son was not illegal. Finding this application turned out to be motivated and totally unjustified, seemingly to take revenge from tire respondents who conducted themselves in accordance with law of the annoyance felt by petitioner, by their approach at his door for the purpose of inquiry/investigation in a criminal case of the nature mentioned above. Consequently this petition is dismissed. However, the petitioner is ordered to pay a sum of Rs.1,000 to each of the respondent 2 and 3 by dragging them in the Courts through such-like baseless and incompetent application under section 491, Cr.P.C. In order to involve them of defending themselves in such application filed against them and to divert their attention from further progress in the investigation of the case and by ins1sting the hearing of this frivolous application till last by levelling various charges of ulterior motives etc. Against the public functionaries in the discharge of their official legal duties to which the presumption of regularity is attached.