' The petitioner has filed this Criminal Miscellaneous with the following prayer:- ' "Under the submissions, it is, therefore, most respectfully prayed that the petition may kindly be accepted and the husband of the petitioner namely Sh. Tabassam Shehzad may kindly be recovered from the illegal, unlawful mala fide and improper custody of the respondents and he may kindly be dealt with in accordance with law and be set at liberty."
' Vide order dated 13-7-1997 the Deputy Commissioner/respondent No,1 was directed to produce the detenue in Court on 14-7-1998.
2. The learned Legal Advisor of the WAPDA stated that WAPDA functionary sent list of defaulters to the Commissioner Lahore Division, Lahore including the name of petitioner Zahoor Ahmad Bhatti, Mehran Paper Mill Muridke/Tabbasam Shahzad LCCHS Lahore Cann. Deputy Commissioner Sheikhupura vide his letter dated 22-6-1998 informed the Superintendent Engineer WAPDA in the following terms:- ' You are hereby informed that sanction under section 115 of the Land Revenue Act, 1967 has been accorded to recover the electricity arrears as arrears of land revenue through your Recovery Tehsildar amounting to Rs,2,20,86,041 and Rs,4,41,721 @ 2% as recovery charges from the 9 defaulters numerated in the enclosed list."
' Vide letter dated 4-7-1998 along with certificate of recovery under section 3(1) No,1 of 1890, the Deputy Commissioner, Sheikhupura requested the Deputy Commissioner, Lahore in the following terms:- ' "A list of ten big defaulters of District Sheikhupura, who are resident at Lahore, is enclosed herewith.
' It is, therefore, requested that recovery proceedings under Land Revenue Act, may please be taken immediately."
' The Revenue Officer issued warrant of arrest on 10-7-1998 under section 82(1) of the Land Revenue Act, 1967 with the following remarks:- {{URDU TEXT}}
42. -jpdAtPlArt4Z,ZD&;(4J14:9:VC-r- ealLiiL-4-.1??) 1, 41,, a"d4 e) atilt; 15 Cif (474/2-:. h_, Lf Ar,t4,5, of, 1, vicrot duiro Lr, -4-CIA UriZJ~c eV/1'#% {{URDU TEXT}} ' Learned Legal Advisor of respondents Nos.6 and 7 contended that outstanding bill of the respondents is recoverable as arrears of Land Revenue by virtue of section 54-A Electricity Act, 1910.
He further contended that certificate was sent to the Collector Sheikhupura for recovery of the same as arrears of Land Revenue amounting to Rs,36,72,529. He further contended that petitioner has alternate remedy under the West Pakistan Land Revenue Act before the Revenue Officer by virtue of section 82(18), therefore, habeas corpus petition is not maintainable. He further contended that statement of account certified by Revenue Officer is the conclusive proof of arrears of land revenue by virtue of section 79 of the Land Revenue Act. He further contended that action of the respondents is in accordance with law. He further contended that sections 80, 81 and 82 of the Land Revenue Act are independent of each other and Code in itself, therefore, by virtue of section 80(b) respondents were justified to arrest the petitioner. He further contended that petitioner is in civil jail at the expense of respondents Nos.6 and 7, therefore, habeas corpus petition is liable to be dismissed.
3. The learned counsel of the petitioner contended that the petitioner has also filed Writ Petition No,6419 of 1980 before this Court with the following prayer: - ' "It is further prayed that during the pendency of the writ petition and during the period when the actual reading is taken and the actual bail is issued to the petitioner the respondents may kindly be restrained from removing the installations from the spot including the electric meter, electric poles, the transformer and the electric wires etc. In any manner whatsoever."
' He further contended that my learned brother Mian Nazir Akhtar, J. Handed over copy of the writ petition to learned Legal Advisor of the WAPDA with the direction to submit report and parawise comments, vide order dated 15-4-1998 and the respondents did not file report and parawise comments as is evident by the order dated 22-4-1998 in the aforesaid writ petition. The respondents issued a list of defaulters published in Daily Jang with the title that defaulters of WAPDA are liable to be fixed very soon and in the News Item the name of the previous owner of the Mill Mr. Zahoor Ahmad Bhatti also mentioned. The petitioner being aggrieved filed another Writ Petition No,12493 of 1998 with the following prayers:- "Under the submissions it is, therefore, most respectfully prayed that the writ petition may kindly be accepted and the list issued by respondent No,1 to the extent of the petitioners showing them the defaulters of a sum of Rs,36,72,529 published in Daily Jang dated 19-6-1998 may kindly be declared illegal, unlawful, ineffective and inoperative against the present petitioner and the respondents Nos.2 and 3 may kindly be directed to refrain from arresting and harassing the petitioners on the basis of this so-called list issued in the newspaper.
' This writ petition was fixed before my learned brother K.N. Bhandari, J. On 25-6-1998 who directed the office that this petition should be heard alongwith the earlier one and by the same Bench vide order dated 25-6-1996. The learned counsel of the petitioner on the basis of the aforesaid writ petitions contended that the matter has already been sub judice before this Court. It is in the knowledge of respondents Nos.6 and 7 who appeared in the aforesaid cases, therefore, respondents Nos.6 and 7 mala fidely sent the case of the petitioner as a defaulter to the Deputy Commissioner, Sheikhupura. He further contended that the action of the remaining respondents is in violation of the Provisions of Land Revenue Act as the respondents failed to issue any notice to the petitioner as is envisaged by section 81 (Notice of Demand and subsequently notice under section 82(1) of the Land Revenue Act, therefore, detention of the petitioner 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 contended that respondents are bound to act in accordance with law as is envisaged by Article 4 of the Constitution, therefore, the action of the respondents is based on malice by law as well as malice in facts. He relied upon (1997 PCr.LJ 845)
Raja Muhammad Ashraf's case and 1997 PCr.LJ 863) Muhammad Jamal Shahid's case. The learned counsel of the petitioner further contended that respondents failed to place on record any Notice as is envisaged by the aforesaid Provisions of the Land Revenue Act.
' The learned Assistant Advocate-General contended that respondents are duty bound to act in accordance with law.
4. The learned Legal Advisor of respondents Nos.6 and 7 contended that no stay order was passed by this Court in the aforesaid writ petitions, therefore, mere filing of the writ petition by the petitioner did not restrain the respondents to demand outstanding arrears against the petitioner. He further contended that the aforesaid outstanding amount was duly certified by the Revenue Officer of the Department and sections 80, 81 and 82 provided different mode of recovery of the said amount, therefore, respondents were justified to adopt any mode of recovery prescribed under the law as it is the discretion of the competent authority to choose any one of the modes prescribed in the aforesaid sections. He further contended that in the given circumstances notice is not required to be issued to the petitioner as. Admittedly the aforesaid amount was certified by the Revenue Officer of the Department. He further contended that the habeas corpus petition is not maintainable as the petitioner has alternate remedy under the normal law. He further contended that the petitioner did not challenge the order dated 10-7-1998 passed by the competent authority under the Land Revenue Act. He further contended that the contents of the earlier writ petitions and the contents of this writ petition clearly reveal that the petitioner knew that he was a defaulter, therefore, he approached this Court with unclean hands.
5. I have given my anxious consideration to the contention of learned counsel for the parties. It is better and appropriate to reproduce the relevant provisions of Electricity Act, 1910, provisions of West Pakistan Land Revenue Act 1967 and Criminal Procedure Code.
Electricity Act.
Section 54-A ' Charges for supply of energy recoverable as arrears of land revenue: (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or in any instrument or agreement, the charges for supply of energy or any other sum outstanding against as consumer under this Act shall be recoverable as an arrear of land revenue.
(2) A licensee, or any person duly authorised by the licensee, may apply, with a certificate showing the amount outstanding against a consumer, to the Collector of the district concerned for the recovery of the said amount, and the Collector shall thereupon proceed to recover the same from such consumer, or his sureties, or from all of them, as an arrear of land revenue.
Land Revenue Act,1967 Section 79 ' Certified account to be evidence as to arrear.---A statement of account certified by a Revenue Officer shall be conclusive proof of the Mode of service of summons. (1) A summons issued by a Revenue existence of an arrear of land revenue of its amount and of the person who is defaulter.
Section 80 ' Process of recovery of arrears.---Subject to the other provisions of this Act, an arrear of land revenue may be recovered by any one or more of the following process, namely:--
(a) -------
(b) by arrest and detention of his person under section 82. Section 81 ' Notice of demand. A notice of demand may be issued by Revenue Officer on or after the day following that on which an arrear of land revenue accrues.
Section 82 ' Arrest and detention of defaulter.---(1) If after lapse of fifteen days of the service of notice of demand under section 81 on a defaulter the arrears of land revenue due from him, or any part thereof, remain unpaid, a Revenue Officer may issue a further notice to the defaulter requiring him to pay such amount, and if after lapse of thirty days of the service of such further notice, such amount or any part thereof still remains unpaid, the Revenue Officer may issue a warrant directing an officer named therein to arrest the defaulter and bring him before the Revenue Officer.
(2) The further notice referred to in subsection (1) shall be served in the manner provided in subsections (1), (2) and (3) of section 24, and a copy thereof shall, wherever practicable, be also forwarded by registered post to the defaulter.
(8) Any defaulter who, under subsection (3) is being kept under personal restraint, or under subsection (5) is being confined in the Civil Jail, shall forthwith be set at liberty---
(a) on the arrears due from such defaulter being paid; or
(b) on the defaulter furnishing to Revenue Officer ordering his arrest, or the Collector security to the satisfaction of the Revenue Officer or the Collector, as the case may be for the payment of the arrears due from him.
Section 24 ' Officer shall if practicable, be served (a) personally on the person to whom it is addressed or, failing him, (b) on his authorized agent or (c) an adult male member of his family usually residing with him.
(2) If service cannot be effected in the manner provided in subsection (1) or if acceptance of service is refused, the summons may be served by affixing a copy thereof at the usual or last known place of residence of the person to whom it is addressed, or, if that person does not reside in the District in which the Revenue Officer is employed and the case to which the summons relates has reference to land in that District, the summons may be served by--- Criminal Procedure Code Section 491, Cr.P.C.
' Power to issue directions of the nature of the habeas corpus.---(1) Any High Court may, whenever it thinks fit, direct---
(b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty.;"
From the aforesaid provisions of law, it is conditioned precedent to set at liberty detenue under section 491 Cr.P.C. If the detention is illegal or improperly detained. The respondents have placed on record warrant of arrest issued by the competent authority under section 82(1) of Land Revenue Act 1967. The contention of learned counsel for petitioner/detenue that respondents failed to issue notice under section 81 and subsequently respondents also failed to issue notice under section 82 in the manner prescribed under section 24 of the Land Revenue Act, therefore, warrant of arrest is without lawful authority. He relied upon Raja Muhammad Ashraf's case (1997 PCr.LJ 845) and Muhammad Jamil Shahid's case (1997 PCr.LJ 863).
' It is pertinent to mention here that facts in both the above quoted cases did not reveal that the respondents issued warrant of arrest and the detention was declared illegal only on the ground that no notice was issued to the detenue under sections 81 and 82 of Land Revenue Act and detention was declared illegal. In the present case, the learned counsel for the respondents placed on record warrant of arrest issued by the competent authority and the learned counsel for the petitioner/detenu did not challenge the same till date as the same was produced before the Court by the learned counsel for the respondents. Petitioner/detenu's counsel only contended that in the absence of notice action of respondents is without lawful authority. The respondents also placed on record certificate issued by the respondents WAPDA duly verified by the Revenue Officer of the respondents and also certificate of recovery under section 3(1) of Act, No,1 (1890) which is conclusive proof of the demand of respondents qua the aforesaid amount as is envisaged by section 79 of the Land Revenue Act.
6. The learned counsel for the respondents raised preliminary objection; that the petitioner/detenu has alternative remedy before the Revenue Officer under section 82(8) but the petitioner/detenu Tailed to avail the same, therefore, habeas corpus petition is not maintainable. Since the petitioner/detenu did not obtain any stay order from any Court, therefore, the certificate issued by the respondents is conclusive and the petitioner/detenu has alternative remedy to invoke before the Revenue Officer under the aforesaid provisions of law. Even otherwise the petitioner/detenu has already availed the remedy qua the amount in dispute in Writ Petition No,12493/98, therefore, petitioner did not approach this Court with clean hands. The petitioner/detenu should have filed an application for amendment of the aforesaid writ petition or to challenge the warrant of arrest before the competent higher forum under the Land Revenue Act or to file writ petition before this Court, therefore, the habeas corpus is not the proper remedy. I am supported by the judgment of this Court in Akbari Begum's case (PLD 1985 Lah 123). It is settled principle of law when there is a proper remedy under the law available to the petitioner/detenu, then the habeas corpus is not maintainable. I am fortified by the judgment of Division Bench of Karachi High Court in Imdad Hussain's case (PLD 1974 Karachi 485), Ghulam Muhammad's case (PLD 1975 Karachi 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 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 provided 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. Is highlighted in reported judgment Ch. Noor Hussain's case (1983 PCr.LJ 442) and the relevant observation is as follows: ' "Before parting with the case, it may be observed here that scope of proceedings, under section 491, Cr.P.C. Is limited and normally, this Court would not embark upon an inquiry or investigation of the disputed facts. If an aggrieved party seeks to invoke the power of this Court, under section 491, Cr.P.C., such party must come with a prima facie proof that facts relied by such party are true and rebut the presumption of regularity of performance of an official act."
' Similarly, scope of section 491, Cr.P.C. Was discussed regarding civil debt in shape of money in Arshad Hussain's case (PLD 1982 Azad J&K 107) and the relevant observation is as follows:-- ' "When a civil debt in shape of money is to be recovered and realised by the process of law such a mode cannot be declared ultra vires of the Constitution. The production of a person before a Magistrate is to deal with the criminal liabilities and the civil liability does not fall within his province and so it cannot be declared that the persons detained conditionally in this case for non-payment of debts due were liable to be produced before a Magistrate so as to obtain a remand as required by section 167 of the Criminal Procedure Code read with section 4(4) 2(2) of the Azad Jammu and Kashmir Interim Constitution Act, 1974."
When the warrant of arrest is issued in accordance with the provisions of 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 Hon'ble Supreme Court in Sabir Shah's case (PLD 1994 SC 738), therefore, the same is in accordance with law unless and until the same is set aside by any competent Court forum and the habeas corpus is not maintainable as is held by this Court in Javed Iqbal's case (1987 PCr.LJ 681). It is the discretion of the authority under the Land Revenue Act to adopt any mode of execution. I am also fortified by the judgment (PLD 1980 Karachi 37). From the aforesaid discussion it is clear that the petitioner/detenu is a defaulter qua respondents Nos.6 and 7 are concerned of heavy amount, therefore, at the time of sending the case of the detenu to the respondent No,1 mentioning the word big defaulter. It is also admitted fact that the demands of WAPDA qua its arrears is part and parcel of public exchequer. It is also settled prevailing situation of the country that the individual are rich qua the Government It is also admitted fact that big defaulters have obtained heavy loans from the Banks PICIC, IDBP and did not repay the same. Similarly, heavy outstanding bills of Electricity and Sui gas are also outstanding against the big citizen of the country. It is also settled principle of law that Courts did not function in a vacuum and must check out into all social and moral environment prevailing in the country for which the law is to be administered. Such being the case, the petitioner/detenu is not / entitled to any relief to avoid to pay heavy amount of public exchequer. The facts of this case indicate that the present petition was not bona fide petition. I therefore, 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 detenu. In order to impede course of recovery and hamper due process of law with mala fide. It is settled principle of law that the bona fides of a petition have to be carefully examined so that no- one is permitted to abuse the process of law. In support of this view, I respectfully place reliance on Shaukat Ali's case (PLD 1972 SC 398) and Muhammad Sharif's case (1982 PCr.LJ 1247).
' Keeping in view the prevailing condition of the Country, national interest is supreme qua that individuals, therefore, technicalities cannot be hindered in the way of national interest. It was in the knowledge of petitioner/detenu qua the arrears of respondents Nos.6 and 7 and petitioner/detenu approached this Court with malice to stop the recovery process from detenu.
' In view of what has been discussed above, this habeas corpus petition is hereby dismissed.