CH. IJAZ AHMAD, J.- The brief facts out of which the present writ petition arises are that the petitioner was an employee of the Food Department and was holding the post of Food Grains Inspector. The petitioner's services were terminated besides imposing penalty of Rs.2,92,759/- in the year 1991. The petitioner being aggrieved find Service Appeal No. 94/1993 before the Punjab Service Tribunal which is still pending adjudication. The respondent No. 1 arrested the petitioner and confined him to the lock-up of Lahore Tehsil in connection with the recovery of aforesaid amount.
Subsequently, the petitioner was transferred to Kasoor with the direction that the petitioner be confined to Hawalat for 10 days and afterwards the petitioner was sent to District Jail, Kasoor.
2. The learned counsel of the petitioner submits that the action of the respondent is without lawful authority as the matter qua the penalty imposed by the respondent at the time of termination of his services is still pending adjudication before the Service Tribunal. He further submits that the matter has not been finally decided by the Service Tribunal, therefore, respondent has no authority under the law to recover the amount in question from the petitioner. He further submits that respondent imposed penalty in the impugned order which is not prescribed under the Punjab Civil Servants (E&D) Rules, 1 975, therefore, the impugned order qua the imposition of penalty by the respondent is not sustainable in the eye of law. He further submits that notice under Section 82(1) of the West Pakistan Land Revenue Act, 1967 was not served upon the petitioner. He further submits that the provisions of West Pakistan Land Revenue Act, 1967 are not attracted to recover the disputed amount as Land Revenue on the ground that the Punjab Civil Servant Act, 1 974 and Punjab Civil Servant (E&D) Rules, 1975 do not empower the Departmental Authority to recover the disputed amount as arrears of Land Revenue: He further submits that the disputed amount imposed upon the petitioner is not arrears of Land Revenue in view of Section 114 of the West Pakistan Land Revenue Act, 1967. He summed-up his arguments that the action of the respondent is in violation of mandatory provision of West Pakistan Land Revenue Act, 1967 coupled with the fact that the competent authority has also not issued any notification to recover the amount in question from the petitioner as arrears of Land Revenue under Section 3(1) of West Pakistan Government Dues Recovery Ordinance, 1962.
3. The learned Addl. Advocate-General submits that respondents are competent to recover the entire amount as arrears of land revenue from the petitioner. Under the law the competent authority has passed the order against the petitioner and requested the District Collector to recover the amount in question from the petitioner as arrears of Land Revenue. The District Collector accepted the request of the respondent department in accordance with law. The petitioner is detained by the respondent after completing all, the legal formalities. He further argued that final notice of arrest has been issued by the competent authority. He further argued that the petitioner has alternate remedy under the law, therefore, writ petition/babeas corpus petition is liable to be dismissed. He further argued that the petitioner is detained by the respondent under the law, therefore, habeas corpus petition is not maintainable.
4. 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 respondent raised a preliminary objection that detenue has alternative remedy before the Revenue Officer under Section 82(b) but the detenue/petitioner failed to avail the same. Therefore, habeas corpus petition is not maintainable. Preliminary objection raised by the learned counsel for the respondent 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 (NLR 1995 Crl. Law Judgments 51). It is also settled principle of law that there is a proper remedy under the law available to the petitioner/detenue then habeas corpus petition/w/it 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 ljaz 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 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 (NLR 1983 Crl. 215). The aforesaid proposition of law is also supported by the following judgments:- NLR 1982 Cr.LJ. 422 (Arshad Hussain's case)
PLD 1997 S.C. 852 (Nisar Ahmad's case).
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 S.C. 738). Therefore, same is in accordance with law unless and untill 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 (NLR 1985 U.C 154). It is the discretion of the authority under the Land Revenue Act to adopt any mode. Of execution as per principle laid down by the Karachi.7 High Court in Sayed Hassan Mahmud's case (PLD 1980 Karachi 37). It is pertinent to mention here that petitioner had given undertaken to the respondent at the would re- pay Rs.24,600/- to the respondent till 15.6.1993 and the remaining amount Rs.24,6000/- should be paid by his younger brother and the balance amount would be paid within three months. Copy of the statement of the petitioner dated 7.6.1993 is at page 119 of the original file, therefore, petitioner is a defaulter by virtue of Section 7 of Punjab Land Revenue Act, 1967. 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 indicates that the present petition was not bona fide petition. Therefore, I find that this petition has been find only to set up a defence to avoid from discharging his liabilities of the aforesaid amount due against the detenue 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 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 Ali's case) coupled with the face it is conditioned precedent to set at liberty the detenue if the detention is illegal or improperly detained. The respondent being detained the petitioner under provisions of Land Revenue Act after issuing notice to the petitioner under the provisions of the Land Revenue Act and warrant of arrest was issued by the respondent on 30.9.2001 under Section 82(1) of West Pakistan Land Revenue Act, 1967. In this view of the matter, this habeas corpus petition is not maintainable as per principle laid down in PLD 1958 Peshawar 38 Re: Qadir v. The State. I have perused the original record produced by the respondent which reveals that the action has been taken by the respondent after completing all the legal formalities under the provisions of West Pakistan Land Revenue Act, 1967.
In view of what has been discussed above, the petition is not maintainable and the same is dismissed. The petitioner has a right to avail his proper remedy under the law before the competent forum who shall decide the same strictly in accordance with law without being influenced by the observation of this Court.
With these observations, this petition is disposed of.