' Syed Maqbool Hussain Shah, petitioner has filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan seeking direction in the nature of habeas corpus for the recovery of Syed Manzoor Hussain and Ghulam Abbas Shah, both sons of the petitioner from the illegal custody of respondents Nos.2 and 3 with further request that they may be set at liberty.
2. Both the alleged Menus have been produced in Court. Sub-Inspector Ashiq Ali is also present in Court. The main grievance of the petitioner is that after cancellation of bail before arrest by the learned Special Judge (Central) on 16-2-1995 the detenus were taken into custody by respondent No,1 and were then handed over to respondents 2 and 3 on 16-3-1995. It was alleged that during all this period the detenus were neither produced before any competent Court nor their remand was obtained. On these premises, it is submitted that detention of the detenus is illegal and they may be set at liberty.
3. The alleged detenus arc accused in case F.I.R. No,48, dated 27-1-1995 registered with Police Station Lower Mall, Lahore for offences under sections 409, P.P.C. Read with section 5 of Act II of 1947 for alleged misappropriation of Rs,13,04,872.05. Maqbool Hussain, one of the alleged detenu, was an employee at the Utility Store from where the amount has been misappropriated. Learned Law Officer states that pre-arrest bail application of the petitioners was twice rejected by the learned Special Judge, first on 16-2-1995 on account of failure to appear and the second on 21-2-1995 and that too in Milne as is evident from the order of the learned Special Judge, dated 21-2-1995.
Therefore, according to the learned Law Officer, there was no question of arresting the accused on 21-2-1995 and keeping them in illegal custody. He has further stated that as the complainant was not satisfied with investigation of the case by the local police, as such on his request the investigation was transferred to respondent No,2 on 15-3-1995 who in turn marked the same to respondent No,3 and the accused were taken into custody only on 21-3-1995. The police official has shown in Court a written request of the police for getting physical remand of the detenus.
3. At this juncture, learned counsel for the petitioner by refuting the version of respondents submits that if no counter-affidavit to rebut the contentions of the petitioner is filed on behalf of the police official then it would be presumed that the allegations so levelled are true. In support of his submission, learned counsel relied on the case of Muhammad Umer v. Government of Sindh and others PLD 1995 Kar.
59. The learned counsel also prays that by converting this petition into a bail application, the alleged detenus may be ordered to be released on bail.
4. I have heard Malik Saeed Hassan, learned counsel for the petitioner as well as the learned Law Officer at length and have gone through the police file produced by S.I. Ashiq Hussain, respondent No,3. In view of the very fact that the alleged detenus are accused in a criminal case for alleged misappropriation of an amount of Rs,13,04,.872.05, this petition has become infructuous. It was so held in the case of Ghulam Abbas v. Farooq Khan PLD 1979 Lah.
188. In the precedent case, it was observed as under:-- "It is thus the illegal detention of a citizen, that is a detention or imprisonment incapable of legal justification which is the basis of jurisdiction of writ of habeas corpus and subjiciendum commonly known as the writ of habeas corpus. It necessarily implies that if a person is detained, arrested or kept in custody under a lawful authority, such a detention cannot be challenged under the aforementioned provisions. In the case of Farooq Bedar v. Inspector-General of Police West Pakistan, Lahore and another reported as PLD 1969 Lah. 1020 cited by the learned counsel for the petitioner, also, it is held that ordinarily the registration of a case against the detenu is an answer to the habeas corpus petition. Not only that it has also been the consensus of opinion in a large number of cases that even detention legalized subsequently renders the petition under section 491, Cr.P.C. Infructuous notwithstanding the position that at time of making the petition the detention was illegal. In Basanta Chandra Ghose v. Emperor AIR 1945 FC 18 it has been held as under:-- `If at any time before the Court directs the release of the detenu, a valid order directing his detention is produced, the Court cannot direct his release merely on the ground that at some prior stage there was no valid cause for detention. The question is not whether the later order validates the earlier detention but whether in the case of the later valid order the Court can direct the release of the petitioner..'
' The above principle has been reiterated in Sher Alam v. Commissioner, Hyderabad Division, Hyderabad and another reported as 1958 PCr.LJ 1663. From the above discussion an irresistible conclusion emerges that there can be no manner of doubt regarding the principle that registration of a case is a complete answer to a petition for habeas corpus."
5. In the present case it is admitted that the alleged detenus were arrested in a case of misappropriation of large amount and as such their detention cannot be termed as illegal. I am also afraid that prayer of the petitioner with regard to converting this petition into bail application cannot be granted. It is settled principle of law that Superior Courts always prefer to know the views of the learned Courts below and the petitioner at first instance should approach the Court of competent jurisdiction. The detenus if have any grievance against the respondents about the alleged torture by the police, they can have resort to the institution of a complaint against the respondents before the competent forum.
6. In view of the guidelines given in the case of Ghulam Abbas (supra) and the circumstances of the case in hand there is no force in this petition and c it is dismissed accordingly.