' SALEEM AKHTAR, J.---The petitioners have filed this petition for leave to appeal challenging the order of the learned Judge in Chamber, which reads as follows:-- "In pursuance of direction bailiff raided the concerned Police Station and recovered the alleged detenu, Muhammad Ali. According to the report he was lodged in the police lock-up. On inquiry he was informed that the alleged detenu was required in a case bearing F.I.R. No,616, dated 3-12-1993, under section 324/148/149, P.P.C. On verification the bailiff found that his arrest and detention had not been incorporated in any register therefore he handed over the custody of the alleged detenu to Khan Muhammad petitioner on the assurance that he would produce the alleged detenu. The I.O. Also stated that the alleged detenu Muhammad Ali was required for purpose of investigation.
After hearing both the sides, it is directed that Muhammad Ali son of Noor Muhammad may be taken into custody after completing the formalities. No ground for bail at this stage is made out.
Petitioner may move an application before the concerned Magistrate at the first instance. Petition is sposed of. The amount of security deposited by the petitioner shall be refunded to him."
2. This order was passed on the habeas corpus petition filed by petitioner No,1 in the High Court against the illegal detention of petitioner No,2. The learned Judge while hearing the petition deputed a bailiff who recovered detenu from the custody of respondent No,2 on 15-12-1993. The bailiff submitted his report stating that the detenu was confined in a lock-up. On inquiry Habibur Rehman, S.I. Informed that he was required in case registered under F.I.R. No,616/93 dated 3-12-1993 under section 324/148/149, P.P.C. Which was being investigated by respondent No,2. The bailiff also reported that the arrest of detenu Muhammad Ali was not shown in the Roznamcha nor he had been nominated in F.I.R. No,616/93. The learned Judge thereafter passed the afore stated order.
3. After hearing the learned counsel for the petitioner, we had issued notice to the Advocate- General, Punjab. Mr. Nemot Khan, Advocate Supreme Court alongwith respondent No,2 has appeared. On query they have stated that there is nothing on record to show that petitioner No,2 is involved in any case nor any investigation is pending against him. He is not in the custody of the police. The learned counsel for the petitioners contended that while exercising jurisdiction under section 491, Cr.P.C. And hearing the petition for habeas corpus, the learned Judge had no jurisdiction to direct the detenu to be taken into custody after completing the formalities on the vague statement of the I.O. That he was required for purposes of investigation. From the report of the bailiff and the statement of the learned counsel made today, it is clear that neither the petitioner is required in any case nor any investigation is pending against him. The statement made by the I.O. In the Court was vague and unspecific without referring to any F.I.R. Or any particular case in which the detenu was required as an accused. The detention was not shown in the police record. In these circumstances and on the basis of such statement which now seems to be completely incorrect no direction could have been given to take into custody Muhammad Ali "after completing formalities". It is now clear that the detenu was not kept in lawful detention and the statement made by Investigation Officer was merely to justify the illegal act and divert the course of justice. The Courts which are the custodian of personal liberty of persons must not be led away by such statement which was advanced to justify illegal actions. With respect we may observe that as the detenu had been detained in police station at Lahore without any entry in the daily diary and without any legal justification the learned Judge should have taken a serious note of such illegal act and the least could be done was to direct I.-G. Police to take departmental action against delinquent police officers. To overlook the actions which impinge personal liberties is to encourage such violations of law.
4. The petitioner had filed a habeas corpus petition which remedy is provided under law against deprivation of personal liberty without legal. Justification. It is a summary remedy restricted to the illegal detention and not for deciding substantive issues. Once the Court comes to the conclusion that the detention is without legal justification, it must set the detenu free. If any investigation independent of the case in hand is pending then it should be allowed to take its own course and no such direction as in the impugned order can be given. The police authorities should be left free to make investigation according to law. How can a direction be given to take a person in custody after completion of investigation because it is possible that the Investigating Officer may come to the conclusion that the accused/suspect is innocent. Such directions are bound to lead to serious consequences resulting in injustice.
' After hearing the parties we convert the petition into appeal and set aside the impugned order.
The petitioner is not in detention and hence no further order needs to be passed. The appeal is allowed.