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Criminal Miscellaneous No. 664/H of 1975, decided on 2nd July 1976.

Criminal Procedure Code (V of 1898)

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---S. 491‑Habeas corpus, writ of‑Prisoner, an Indian national convicted under S. 14, Foreigners Act and after serving out his sentence waiting his deportation to India‑Prisoner, being a mere internee, writ of habeas corpus, held, could not issue, in circumstances. [Habeas corpus].

Cr. Misc. No. 131/H of 1976 rel.

Dilawar Hussain for Petitioner.

Muhammad Ilyas for Respondent No. 2.

Saeedur Rehman Khan, Deputy Attorney‑General for Respondent No. 3.

Syed Ahmadud Din petitioner moved this petition under section 491, Cr. P. C. with the prayer that a writ in the nature of habes corpus may be issued for the early release of the alleged detenu, namely, Syed Mahmud Ali. It is alleged that Syed Mahmud Ali who is an Indian national, came to Pakistan in the year 1970 without having any valid document for entering into Pakistan territory and was arrested by Multan Police. He was prosecut ed under section 14 of the Foreigners Act and was sentenced to four months' R. I. After serving out his sentence, he remained confined in Kot Lakhpat Jail for about four or five years. After 1 years before the institution of this petition, be was produced before the Indian authorities but they refused to accept him on the ground that he was not an Indian national.

2. The learned Deputy Attorney‑General and the learned counsel for the State submit that Syed Mahmud Ali for whose release this petition has been filed, is neither a detenu nor a prisoner but only an internee for the purpose of repatriation to India and his internment was not illegal. The learned counsel for the petitioner concedes that Syed Mahmud Ali is only an internee and not a detenu or prisoner but contends that he cannot be confined in Jail. The learned Deputy Attorney‑General has relied on a judgment of his Lordship Mr. justice Karam Elahee Chauhan passed in, Cr. Misc. No. 131/H/76 in which his Lordship has observed as under: -

"If the detenu himself violated law, entered Pakistan without authority committed offence and chose to suffer its consequences, he should not grudge when the rigour of law applied to him. He is, in view of the overall facts and circumstances of the case, not a detenu within the meaning of this term as generally understood. To be more precise he is simply an internee and should be better advised to await his turn of repatriation especially when powers of deportation vests in the Central Government and not a Court."

The learned counsel for the petitioner has not been able to cite any authority to the contrary. I am in respectful agreement with the above observations. There is no substance in this petition and it is hereby dismissed. The internee shall surrender to his hail bond forthwith.

Petition dismissed.

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