1. ' I intend to decide W.Ps. Nos.5357 of 2001 and 6702 of 2001 by one consolidate judgment having similar facts and law.
2. The brief facts out of which the present writ petitions arise are that Mst. Farrah Deeba wife of Athar Latif d/o Basher Ahmed and Kamran Shafi secured loan amounting to Rs,2 lac each (total Rs,4 lac) from SBFC in the year 1995. The respondents sanctioned the loan in favour of the aforesaid original loanees after obtaining guarantee from Shahid Hussain Qurehshi petitioner/ detenu.
2. Agreements were also executed between the original loanees and respondent-Corporation.
3. According to the terms and conditions of the agreement the original loanees had to repay the loan to the respondent-corporation in easy instalments the original loanees failed to discharge their liabilities of the respondent-Corporation. The respondents arrested Shahid Hussain Qureshi on 29- 3-2001 and detained him in Camp Jail, Ferozepur Road, Lahore on 30-3-2001 for 9 days vide order dated 30-1-2001 by Tehsildar Recovery. Zahid Hussain Qureshi brother of Shahid Hussain Qureshi filed W.P. No,5357 of 2001 which was fixed before this Court on 2-4-2001 in which notice was issued to the respondents for 3-4-2001. Zahid Hussain Qureshi had made the following statement on 3-4- 2001: "The detenu is my real brother, I am ready to deposit Rs,75,000 to respondent No,2, I also undertake as under;
(1) I shall appear before this Court on 20-4-2001;
(2) I also procure the presence of detenu before this Court on the said date
(3) The detenu shall not leave the county till the aforesaid date."
4. ' The learned Legal Advisor of Corporation had opposed the request of petitioner Zahid Hussain Qureshi and the respondents were directed to release the detenu after receiving the aforesaid Rs,75,000 from Zahid Hussain Qureshi. Zahid Hussain had deposited the amount with respondent No,2-SBFC. The detenu was released by the respondents. The detenu after release tiled W.P.
5. No,6702 of 2001 against the order of detention. Zahid Hussain Qureshi filed C.M. No,411 of 2001 on 25- 4-2001 for refund of Rs,75,000 which was deposited by him.
6. ' The learned counsel for the petitioner submitted that action of respondents is without lawful authority.
7. ' The respondents sent notice to petitioner/detenu on 17-7-2000 at the address K-1 Chaburji Rawaz Garden, Lahore. The report of Process Server at the back of notice reveals that petitioner Shahid Hussain/detenu guarantor has let the house and notice was pasted on the outer door of his house.
8. The notice was also issued to petitioner-Shahid Hussain Qureshi on the same address by respondent No, 2 on 1-1-2001 under section 81 of the West Pakistan Land Revenue Act, 1967 and the report of Process Server reveals that is exactly similar as was previous. The respondent No,2 also issued warrant of arrest of petitioner on 29-3-2001 under section 82(1) of the aforesaid Act. The aforesaid notices were not served upon petitioner-Shahid Hussain Qureshi. The petitioner/detenu Shahid Hussain is bona fide employee of H.B.L. And is serving as Officer in the H.B.L., Badami Bagh Branch from where he was arrested by the respondent on 29-3-2001. The impugned order of detention is in violation of mandatory provisions of Chapter 8 of West Pakistan Land Revenue Act which is complete Code and prescribed proper procedure to recover the outstanding from any person after availing the procedure prescribed in the said chapter; that it is the duty and obligation of respondents to determine the liabilities against the petitioner then proceed in the matter; that respondents are in league with original loanees and prepared a false and fabricated record of notices issued under sections 81 and 82 of the aforesaid Act against petitioners and original loanees as is evident from Annexure E, F, G, H & J attached with the Writ Petition No,6702 of 2001; that respondents failed to proceed against the original loanee in accordance with law, therefore, proceedings initiated by the respondents against the petitioner/detenu which is not sustainable in the eyes of law; that action of respondents is result of mala fide that action of respondents is result of mala tide as is evident from Annex. K attached with the W.P. No, 6702 of 2001; that respondents sent a letter after arrest of Shahid Hussain-petitioner to the Provincial Chief, H.B.L. Employer of petitioner/detenu on 24-1-2001 and copy of same was also forwarded to President HBL and Manager, H.B.L. Branch, Want; Bagh, Lahore; that action of respondents is not sustainable in the eyes of law as the law laid down by the superior Courts. He relied upon the following judgments:
(1) Pervez Akram's case (1993 MLD 828);
(2) Manzoor Ahmed's case (PLD 1988 Lah. 627) and
(3) Muhammad Akram Cheema's case (1984 SCMR 1047).
9. ' Mr. Shehzad Manzoor, Advocate CC No,10242 filed Power of Attorney in W.P. No,5357 of 2001 on behalf of original loanee Mst. Farrah Azhar he submits under instructions that original loanee. Is ready to discharge her liabilities qua the respondent-Corporation in case the respondent- Corporation allow her to discharge her liabilities in easy instalments; that respondents demanded Rs,3,40,000 from the original loanee vide notice, dated 17-7-2001 and subsequently demanded Rs,4,03,830 vide notice, dated 1-1-2001. The original loanee is ready to discharge all the liabilities of respondent-Corporation mentioned in the notice, dated 17-7-2001, therefore, subsequent demand over and above the said amount vide notice, dated 1-1-2001 is not in accordance with record of the respondent-Corporation.
2. The learned counsel for respondents raised preliminary objection that petitioner/detenu has alternate remedy under the law, therefore, writ petition is not maintainable; that petitioner-detenue stood guarantor of the original loanee in the year 1995 of his own sweet will. Neither the original loanees nor the detenu had repaid a single penny to the respondent-Corporation till 3-4-2001; that outstanding liability against such customer was Rs,4,03,830 in each loan case on 31-3-2001. The respondents had initiated recovery proceedings against the original loanees and the petitioner under the provisions of West Pakistan Land Revenue Act, 1967 after completing all the legal formalities; that respondents are well within their right to recover the entire amount as arrears of land revenue even before the agreed period by virtue of sections 20 and 22 of SBFC Act, 1972; that respondent-Corporation had initiated proceedings against the original' loanee and the guarantor simultaneously in accordance with law; that notice attached with the writ petition are genuine and had been issued by the competent authority and the notices were served upon the addresses provided by the customers and guarantors.
3. The learned counsel for the petitioner in rebuttal submits that guarantor liability is secondary liability in respect of the loan advanced or accommodation made by the creditor to the principal debtor; that it is not an independent and personal liability that the guarantor undertakes; he urged that guarantor liability only arises if the guarantor is unable to recover from the principal debtor. In support of his contention he relied upon H.B.L. v. Asghar Ali (1999 YLR 123).
4. I have given my anxious consideration to the contentions of learned counsel for the parties and perused the record. I would like to decide the preliminary objection first and then proceed in the matter. The respondent's counsel raised preliminary objection, that the petitioner/detenu have alternate 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. The contention of respondents' counsel has a force as me law laid down by this Court in Akbari Begum's case NLR 1995 Crl. Judgment 51. It is also settled principle of law that there is a proper remedy under the law available to the petitioner/detenu then the habeas corpus petition is not maintainable. I am fortified by the judgment of Division Bench of Karachi High Court in Imdad Hussain's case (PLD 1974 Kar. 485), Ghulam Muhammad's case (PLD 1975 Kar. 118), Bari Ahmed's case (1991 CLC 273) and Ijaz Hassain's case (1994 CLC 275).
10. ' It is also settled principle of law that 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. The scope of power under section 491, Cr.P.C. Is highlighted 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 of the disputed facts. I am aggrieved party seeks to invoke the power of this Court, under section 491, Cr.P.C. Such party must come with a prima faice proof that facts relied by such party are true and rebut the presumption of regularity of performance of an official act."
11. ' Similarly, scope of section 491, Cr. P.0 . 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 realized 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 nonpayment of debts due were label to be produced before a Magistrate so as to obtain a remand as required by section 167 of the Criminal Procedure Code read with Interim Constitution Act, 1974."
12. ' The Hon'ble Supreme Court has also considered the scope of habeas corpus petition in Nasir Muhammad's case in PLD 1997 SC 852 and laid down following principle:-- "Legally by their very nature and purport proceedings under section 491, Cr.P.C. Are summary in character."
13. ' It is better and appropriate to reproduce section 491, Cr. P . C . And Article 199 (1)(b)(i) for the purpose of comparison:-- ' Power to issue directions of the nature of a 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.
199. Jurisdiction of High Court.- --(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,
(a) X X X X X X
(i) directing a person, performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do;
(b) on the application of any person, makes an order--
(i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or"
14. ' From the aforesaid provisions of law, it is conditioned precedent to set at liberty the detenu under section 491, Cr.P.C. Or article 199 of the Constitution if the detenu is illegally or improperly detained.
15. The petitioners have placed on record warrant of arrest issued by the competent authority as is evident from Annexure attached with the writ petition. It is settled proposition of law that 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, then 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, the same is in accordance with law unless and until the same is set aside by the competent authority/forum under the provisions of Land Revenue Act and the habeas corpus petition is not maintainable as is held by this Court in Javed lqbal's case 1987 PCr.LJ 681. It is discretion of the authority under the Land Revenue Act to adopt any mode of execution. In arriving to this conclusion I am fortified by the judgment of Karachi High Court PLD 1980 Kar. 37 (Makhdumzada Syed Hassan Mahmud's case). The facts of this case indicate that the present petition was not bona tide petition, 1, therefore, find that these petitions have been filed only to avoid from discharging liabilities of the aforesaid amount due against the petitioner/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 petitioner 1 the to be one is permitted to abuse the process of law. In this behalf I respectfully place reliance on Shaukat Ali's case 1972 SCMR 398 and Muhammad Sharif's case (1982 PCr.LJ 1247). It is settled principle of law that Constitutional jurisdiction is discretionary in character as he who seeks equity must come to the Court with clean hands. The petitioners have not come to this Court with clean hands in view of the aforesaid circumstances I am not inclined to exercise my discretion in favour of petitioners I as the law laid down in Nawabzada Raunaq Ali Khan's case (PLD 1973 SC 236). The judgments cited by the petitioner's counsel are distinguished on facts and law. In Pervaz Akram's case the petitioner's counsel relied upon (1993 MLD 828) the facts out of which this case arises are that the detenu is brother of petitioner who is stated to be defaulter within the meaning of sections 81 and 82 of the Land Revenue Act, 1967. It appears that notice under section 81 of the Land Revenue Act was issued to his brother but he was not to be found. According to the written reply of A.C., the detenu appeared before him on 1611-1992 and made statement before the undersigned that he would deposit the said dues of his father within 15 days failing which being surety he will be held responsible. Keeping in view the aforesaid circumstances this Court held that the detenu was not a person who had furnished security under subsection (8) and there was, therefore, no power under subsection (1) of section 82 the order of his arrest.
16. ' The second case relied upon by the petitioners' counsel Manzoor's case (PLD 1988 Lahore 627) is of similar facts and law as mentioned in Pervez Akram (supra). The 3rd case relied upon Zahid Cheema (1984 SCMR 1047) the facts of which reveal as under: "A sum of Rs,1,600 was paid by the appellant as earnest money at the time of auction, which was subject to the approval of Superintending Engineer. The appellant was neither informed about the approval nor was delivered possession of the lease land. The respondent, however, initiated proceedings against the appellant for the recovery of Rs, 800 on account of first three instalments as arrears of land revenue through the Collector."
17. ' Keeping in view the aforesaid circumstances, the Hon'ble Supreme Court held that "the Revenue Officer, who is present alongwith learned counsel for the respondent admitted that possession of the disputed land was not delivered to the appellant nor was it contended that the disputed amount had been determined or ascertained affording an opportunity of hearing to the appellant".
18. ' Similarly 4th case relied upon by the learned counsel for petitioner that guarantor liability is secondary liability in respect of the loan advanced or accommodation made by the guarantor to the principal debtor. (1999 YLR 123) (supra) is not relating to detention matter for this purpose the petitioners have alternate remedies under the provisions of law to file suit before the competent Court for resolution of his liabilities.
19. ' In view of what has been discussed above, these writ petitions are not maintainable, however, Shahzad Mazhar, Advocate entered appearance on behalf of one of the original loanee Mst. Farah Azhar, who accepted the liability of the respondent-Corporation. In this view of the matter the original loanee is directed to appear before manager of respondents-Corporation on 22-5-2001 to discharge her liabilities in accordance with law, rules and notification read with terms of the agreement who is directed also to .Consider the request of original loanee Mst. Farah Azhar to discharge her liabilities in easy instalments in the interest of corporation and to save the family of original loanee from destruction. The Manager is further directed to determine the liabilities of original loanee strictly in accordance with law, rules and notification. Till determination which of course would be completed till 21-5-2001, the petitioner/ detenue and original loanee shall not be harassed till the aforesaid date qua this loan.
20. ' Qua the liabilities of original loanee Mst. Farah Deeba in view of the statement of her counsel for original loanee Farah Deeba, the impugned detention order is held in abeyance till the aforesaid date. The proceedings against the petitioner qua the other loanee Mst. Mussarat is valid and writ petition is dismissed to that extent.
21. ' It is strange enough to note here that respondent-Corporation has initiated proceedings for the recovery of loan from the petitioner and original loanee in the year 2000. The respondent- Corporation failed to initiate proceedings immediately just after first instalment due from original loanee and guarantors. This fact shows that corporation functionaries also contributory negligent out of which the aforesaid amount of corporation accumulated against the petitioner and original loanee. It is the duty and obligation of the respondent-Corporation to initiate proceedings against defaulter as mentioned above immediately when the first instalment was due against defaulter.
22. ' It is pertinent to mention here that it appears that Corporation functionaries under the direction of their superiors initiated proceedings for recovery through coercive measures from the poor people who have secured/obtained loan for the purpose of business or construction of houses as is evident from last few months that poor people had filed writ petitions but the rich people who had obtained huge loans from the Corporation or other financial institution had not filed any writ petition which brings the situation that possibility cannot be ruled out that the Corporation and financial institutions have not initiated proceedings against the rich people who had obtained loan from the financial institutions. The same is hit by Article 25 of the Constitution.
23. ' In this view of the matter, let a copy of writ petition be sent to Secretary, Finance Government of Punjab and M.D. Of the respondent-Corporation who are directed to look into the matter and constitute a high powered committee to formulate the policy to save the interest of Corporation and also the poor people by making policy so that they may be able to discharge their liabilities in easy instalments. The detenu was released on the statement of the brother of petitioner that he was ready to deposit Rs,75,000 and the detenu was released in this view of the matter brother of petitioner is not entitled to be refunded all the said amount.
24. ' Writ petitions are disposed of in the aforesaid terms.