Brief facts out of which the present writ petition arises are that petitioner's brother namely Muhammad Sultan secured a loan from respondent No.3 for doing some business. The loan was sanctioned by respondent No.3 after securing guarantee from father of the petitioner namely Haji Talib Hussain in favour of original loanee. The agreement was also executed between the brother of the petitioner and respondent No.3. According to the terms and conditions of the agreement brother of the petitioner had to re-pay the loan in easy installments. Petitioner's brother could not re-pay the loan to the respondent No. 3 in terms of the agreement. Respondent No.4 on 19-4-2001 visited the house of the petitioner and arrested father of the petitioner. Learned counsel for the petitioner submits that action of the respondents is in violation of the provisions of West Pakistan Land Revenue Act, 1967 as the respondents failed to issue any notice to the original loanee and detenu 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 detenu is without lawful authority inter alia on the grounds that when anything is to be done in a particular manner it must be done in that way and not otherwise. He further submits that respondents are bound to act in accordance with law as is envisaged by Article 4 of the Constitution. Therefore, action of the respondents is based on malice by law as well as malice in facts.
2. Learned counsel for the respondents submits that detenu stood guarantor of the original loanee who secured the loan from the respondents in the year 1996 as is evident from para. 1 of the writ petition. The detenu is also father of the original loanee. He further submits that respondents initiated recovery proceedings against the detenu under West Pakistan Land Revenue Act, 1967 after completing all the legal formalities. He further submits that respondents are competent to recover entire amount as arrears of land revenue by virtue of sections 20 and 22 of Small Business Finance Act, 1972. He further submits that final notice of arrest has been issued by the competent authorities. He further submits that detenu/petitioner has alternative remedy under the law.
Therefore, writ petition/habeas corpus petition is liable to be dismissed.
3. I have heard the contentions of the learned counsel for the parties and perused the record myself. I would like to decide the preliminary objection first. Learned counsel for the respondents raised a preliminary objection, that detenu has alternative remedy before the Revenue Officer under section 82 (8) but the detenu/petitioner failed to avail the same. Therefore, habeas corpus petition is not maintainable. Preliminary objection raised by the learned counsel for the respondents has a force and the habeas corpus petition/writ petition is not the proper remedy as per principle laid down by this Court in Akbari Begum's case (PLD 1985 Lah. 123). It is also settled principle of law that when there is a proper remedy under the law available to the petitioner/detenu then habeas corpus petition/writ petition is not maintainable. In arriving to this conclusion I am fortified by the judgment of the Division Bench of Karachi High Court in Imdad Hussain's case (PLD 1974 Karachi 485), Ghulam Muhammad's case (PLD 1975 Karachi 118) and Bari Ahmad's case (1994 CLC 273) and Ijaz Hussain's case (1994 CLC 275). When the final warrant of arrest has been issued under the provisions of the Land Revenue Act then this Court has no jurisdiction to go I beyond that to find out whether the warrant of arrest issued after fulfilling the legal requirements 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. Or under Article 199 is highlighted in reported judgment Ch. Noor Hussain's case (1983 PCr.LJ 442) The aforesaid proposition of law is also supported" by the following judgments: Arshad Hussain's case PLD 1982 Azad J&K 107. And Nisar Ahmad's case PLD 1997 SC 852.
When the warrant of arrest is issued in accordance with provisions of the 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 the Hon'ble Supreme Court in Sabir Shah's case (PLD 1994 SC 738). Therefore, same is in accordance with law unless and until the same is set aside by any competent Court/forum and the habeas corpus petition/writ petition is not maintainable as is held by this Court in Javaid 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 as per principle p laid down by the Karachi High Court in Sayed Hassan Mahmud's case (PLD 1980 Karachi 37). It is pertinent to mention here that original loanee secured a loan from the respondents after obtaining guarantee from the detenu who is real father of the original loanee. This fact brings the case in the area that petitioner did not approach this Court with clean hands, meaning thereby the facts of this case indicate that the present petition was not bona fide petition. Therefore, I 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 the detenu in order to impede course of recovery and hamper due process of law with mala fide: It is settled principle of law that bona fides of a petition have to be carefully examined so that no one be permitted to abuse the process of law. In arriving to this conclusion I am fortified by the following case.
1972 SCMR 398 (Shaukat A.I's case). coupled with the fact it is condition precedent to set at liberty the detenu if the detention is illegal or improperly detained.
Q.M.H./M.A.K./M-551/L