JUDGMENT CH. IJAZ AHMAD, J. I intend to decide W.P. No. 5357/2001 and 6702/2001 by one consolidate judgment having similar facts and law.
The brief facts out of which the present writ petitions arise are that Mst. Farrah Deeba were of Athar Latif d/o Basher Ahmed and Kamran Shaft secured loan amount 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 loaners after obtaining guarantee from Shahid Hussain Qureshi petitioner/detune. Agreements were also executed between the >. Original loaners and respondent Corporation. According to the terms and conditions of the agreement the original loaners had to repay the loan to the respondent-corporation in easy instalments. The original loaners 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 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. 5357/2001 which was fixed before this Court on 2.4.2001 in which notice was issued to that?
Respondents for 3.4,2001. Zahid Hussain Qureshi had made the following statement on 3.4.2001: "The detune is my real brother. I am ready to deposit Rs.75,000/- to respondent No. 2. I also undertakes as under:-
(1) I shall appear before this Court on 20.4.2001;
(2) I also procure the presence of detune before this Court on the said date;
(3) The detune shall not leave the country till the aforesaid date."
The learned Legal Advisor of Corporation had opposed the request of petitioner Zahid Hussain Qureshi and the respondents were directed to release the detune after receiving the aforesaid Rs.75,000/- from Zahid Hussain Qureshi. Zahid Hussain had deposited the amount with respondent No. 2 SBFC. The detune was released by the respondents. The detune after release filed W.P. No. 6702/2001 against the order of detention. Zahid Hussain Qureshi filed C.M. No. 411/2001 on 25.4.2001 for refund of Rs.75,000/- which was deposited by him.
The learned counsel tor the petitioners submit that action of respondents is, without lawful authority. The respondents sent notice to petitioner/detune on 17.7.2000 at the address K-l Chaburji Rewaz Garden Lahore. The report of Process Server at the back of notice reveals that petitioner Shahid Hussain/detune guarantor has left the house and notice was pasted on the outer door of his house. 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/detune Shahid Hussain is bona i.e employee of HBL and is serving as Officer in the HBL Badami Bagh Branch from where he was arrested by the respondents 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 loaners and prepared a false and fabricated record of notices issued under Sections 81 and 82 of the aforesaid Act against the petitioner and original loanee as is evident from Annex E.F.G.H. And J attached with the writ petition No. 6702/2001; that respondents failed to proceed against the original loaners in accordance with law, therefore, proceedings initiated by the respondents against the petitioner/detune which is not sustainable in the eyes of law; that action of respondents is result of mala i.e as, is evident from Annex K attached with the W.P. No. 6702/2001; that respondents sent a letter after arrest of Shahid Hussain petitioner to the Provincial Chief HBL employer of petitioner/detune on 24.1.2001 and copy of same was also forwarded to President HBL and Manager HBL Branch Badami 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:- Pervez Akram's case (1993 MLD 828); Manzoor Ahmed'S case (PLD 1988 Lhr. 627); Muhammad Akram Cheema's case (1984 SCMR 1047); Shehzad Manzoor.
Mr. Shehzad Manzoor, Advocate CC No. 10242 filed Power-of- Attorney in W.P. No. 5357/2001 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 installments; that respondents demanded Rs.3,40,000 from the original loanee vide notice dated 17.7.2001 and subsequently demanded Rs.4038.30/- 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.
3. The learned counsel for respondents raised preliminary objection that petitioner/detune has alternate remedy under the law. Therefore, writ petition is not maintainable; that petitioner-detune stood guarantor of the original loanee, in the year 1995 of his on sweet will. Neither the original loaners nor. The detune had repaid a single penny to the respondent corporation till 3.4.2001; that outstanding liability against e
4. 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 arise if the guarantor is unable to recover from the principal debtor, in support of his contention he relied upon HBL Vs. Asghar Ali (1999 YLR 123).
5. I have given my anxious consideration to the contentions of learned counsel, for die parties and perused the record. 1 would like to decide the preliminary objection first and then proceed in the matter. The respondent's counsel raised preliminary objection, that the petitioner/detune have alternate remedy before the Revenue Officer u/S. 82(8) but the petitioner/detune failed to avail the same; therefore, habeas eorpus petition is not maintainable. The contention of respondents' counsel has a force as the law laid down bv this. Court in Akbari Return 3 case (NLR 1995 Cr Judgment 51). It is also settled principle of law that there is a proper remedy under the law available to the petitioner/detune 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'% case (LD 1975 Kar, 118); Bari Ahmed's case (1994 CLC 273); Ijaz Hassan's case (1994 CLC 275).
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 (NLR 1983 Crl. 215) and the relevant observation is as follows:- "Before parting with the case, it may be observed here that N 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 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 (NLR 1982 Crl. J. 122) 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 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 Interim Constitution Act, 1972".
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 there very nature are purported proceedings under Section 491, Cr.P.C, are summary in character."
It is better and appropriate to reproduce Section 491, Cr.P.C, and Article 199(l)(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.
(i) directing all 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, make 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".
From the aforesaid provisions of law, it is condition precedent to set at liberty the detune under Section 491, Cr.P.C, or Article 199 of the Constitution if the detention is illegally or improperly detained. The petitioners have placed on record warrant of arrest issued by the competent authority as is evident from Annex D 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, is the same as 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 Iqbal's ease (NLR 1985 U.C. Civil 154). 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 i.e petition, I, therefore, find that these petitions have been filed only to avoid from discharging liabilities of the aforesaid amount due against the petitioner/detune. In order to impede course of recovery and hamper due process of law this mala i.e. It is settled principle of law that bona fides of petition have 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,(PLJ 1982 Crl. Cases 241). 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 as the law laid down in Nawabzada Ronac\ Ali's case (PLD 1973 SC 236). The judgment cited by the petitioner's counsel are distinguished on facts and law. In Pervez Akram case the petitioner's counsel relied upon (193 MLD 828) the facts out of which this case arise are that the detune 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 detune appeared before him on 16.11.1992 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 detenue was not a person who had furnished security under sub-section (8) and there was, therefore, no power under sub-section (1) of Section 82 the order of his arrest.
6. The second case relied upon by the petitioners' counsel on Manzoor's case (PLD 1988 Lahore 627) is 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. 16,00/- was paid by the appellant as earnest money at the time of auction, which was subject to the approval of superintendent 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 installments as arrears of land revenue act through the collector."
Keeping in view the aforesaid circumstances, the Hon'ble Supreme Court held that the Revenue Officer, who is present along with 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."
7. Similarly 4th case relied upon by the learned counsel for petitioners 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 i.e suit before the competent Court for resolution of his liabilities.
8. 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 respondent-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 installments 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
9. 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.
10. '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 installment 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 installment was due against defaulter.
11. 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 tiled writ petitions 'but the rich people who had obtained huge loans from the corporation or other financial institutions had not tiled 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 the Article 25 of the Constitution.
12. Iii this view of the matter.' It a copy of writ petition be sent to Secretary. Finance 'Govt, 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 installments. The detune was released on the statement of the brother of petitioner that he was ready to deposit R's.75,000/- and the detune was released in this view of the matter brother of petitioner is not entitled to be reminded all the said amount.
Writ petitions are disposed of in the aforesaid terms.