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Criminal Miscellaneous Application No. 204 of 1977, decided on 16th March 1977.
---Ss. 491 & 561‑A‑Habeas corpus‑Petitioner, a convict in a case of Mianwali and requisition already received for his repatriation to that district, for undergoing sentence‑Contention that petitioner having been discharged in all cases of Karachi, his detention in Karachi Jail was illegal and direction be issued in nature of habeas corpus 'and further that petitioner's period of detention be counted towards Jail sentence awarded to him by Mianwali Court‑Contention, held, misconceived and question one for consideration of convicting Court or High Court of Lahore‑Petition dismissed, in circumstances.‑[Habeas corpus].
Abrar Hassan for Petitioner.
.‑‑The petitioner, Anis Ahmad son of Islam uddin is said to have been arrested at Mianwali on 18‑2‑1973 in a case in F. I. R. No. 10 registered on the same day with Eisakhel Police Station, District Mianwali under section 379/411, P. P. C. He was found guilty in that case by the Illaqa Magistrate, Mianwali, and sentenced to one year R. I. and a fine of Rs. 1,000 in default to undergo R. I. for 3 months. During the pendency of the appeal filed by him, the Sessions Court, Mianwali, released him on bail, and he came to Karachi. Here, he was concerned as accused in about five cases and was lodged as an undertrial prisoner in the Central Prison, Karachi.
His appeal was dismissed by the Sessions Court, Mianwali on 13‑2‑74, and a requisition was received from Mianwali Police for the transfer of the convict to undergo the sentence awarded to him by the Illaqa Magistrate, Mianwali. However, since he was an undertrial prisoner in several cases at Karachi, the Additional District Magistrate (South), Karachi directed, by the order dated 8‑8‑7J, that his custody should be handed over to Mianwali Police after the cases pending against him at Karachi are decided, and an entry be made on the Jail Record that "the accused is required in Mianwali in Crime No. 10 dated 18‑2‑73".
Petitioner has filed this application under section 491, Cr. P. C. with the request that he may be set at liberty as has been discharged in all the cases pending against him at Karachi. Mr. Abrar Hassan, learned counsel appearing in support of the application submits that tile Jail authorities should have transferred the petitioner to Mianwali Jail after he was acquitted on 4‑9‑76, in the last case in which he was required at Karachi, so that he may undergo the unexpired portion of the sentence awarded to him by the Illaqa Magistrate, Mianwali. In this behalf, he further submits that peti tioner's detention from 4‑9‑76 be considered as the period undergone out of the period of the Jail sentence awarded to him by the Illaqa Magistrate, Mianwali. ,
Since on petitioner's own showing, he is yet to remain in custody in connection with the Jail sentence awarded, to him by the Illaqa Magistrate, Mianwali, it is not possible to hold that he is under a wrongful detention. All that petitioner is entitled to seek is the transfer of his custody to the Mianwali Police so that the unexpired portion of the jail sentence awarded to him may be undergone by him. So far as the plea that his detention in the Central Jail, Karachi should be counted towards the Jail sentence awarded him by the Illaqa Magistrate, we do not see how it would be legitimate for this High Court to consider the question, for, the. Court of the Illaqa Magistrate Mianwali is a Court subordinate to the Lahore High Court, and not this High Court, and it is, therefore, for the trial Court or the Lahore High Court to consider whether the sentence awarded to the petitioner is to be reduced to the extent of his detention in the Central Prison, Karachi.
When pointed out these aspects of the case, Mr. Abrar Hassan frankly concedes the position, being correct, and he states that he would be satisfied if a direction is issued that the petitioner's custody should be transferred to the Mianwali Police as has already been directed by the Additional District Magistrate (South), Karachi, by the order dated 8‑8‑74.
The request is reasonable and we, therefore, direct that if the facts stated as noticed by us in this order are correct, and if the petitioner is not required in connection with any other case, his custody should be handed over to Mianwali Police in response to the requisition already received in this behalf.
A copy of this order shall be forwarded to the Provincial Government in the Home Department, and the Superintendent, Central Prison, Karachi for information and compliance.
Subject to the direction above, the application is, otherwise, dismissed.
Petition dismissed.
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