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Criminal Miscellaneous No. 134 of 1982, decided on 17th October, 1982.

‑‑ S. 491‑Habeas corpus‑Petitioner's name and parentage though tallying with those of proclaimed offenders wanted by Police yet record revealing existence of another person of same name and parentage in same village‑Petitioner's age at time of commission of offence either 13 or 15 years‑proclaimed offender's age at time of commission alleged to be 37 years‑Photograph of petitioner affixed on identity card showing petitioner to have not been more than 30 years of age in 1976 while proclaimed offender's age should in such year have been 52 years‑Petitioner's residence and caste also different from that of proclaimed offender‑Petitioner in circum stances, held, not proclaimed offender wanted by Police and arrested and detained in custody illegally and improperly‑Petitioner, held further, cannot be said to have been detained under a valid warrant of arrest, warrant having related to a different person and not petitioner‑‑Petitioner directed to be set at liberty.

Harder Zaman Khan for Petitioner.

S. Ibne All, Addl. A.‑G. for the State.

Date of hearing : 17th October, 1982.

The question which falls for determination in this petition under sec tion 491, Cr. P.C. is as to whether Fazalur Rehman (petitioner) is lawfully detained and he is the same person who is a proclaimed offender in case vide F. 1. R. No. 67 of 1961 registered on 9th August,' 1961 at the Railway Police Station Kotri (Sind) under section 302, P. P. C. The petitioner was arrested by S. H. O. Kot‑Najibullah on 22nd September, 1982 on receiving information that he was proclaimed o8'ender in the aforesaid criminal case. The father .of the petitioner submitted an application to the District Magistrate, Abbottabad requesting for holding an inquiry as his son was not the same person who was wanted in the criminal case mentioned above. The District Magistrate on 28th September, 1982 directed the Assistant Commissioner, Haripur for holding an inquiry and the Assistant Commissioner forwarded the application to the Extra Assistant Commissioner, Haripur for doing the needful. The Extra Assistant Com missioner, Haripur after holding the inquiry vide his report dated 16th September, 1982 came to the conclusion that the petitioner was not the same person who was a proclaimed offender in the aforesaid criminal case as the age of the person charged for the offence did not tally with the age of the petitioner: The Magistrate while holding inquiry, had asked for the description of the proclaimed offender from the Police Station Kotri (Sind) and the requisite information was received by him by letter No. 1069 dated 14th September, 1982 wherein it was mentioned that the age of the accused Fazalur Rehman son of Mir Abdullah at the time of occurrence was 37 years, his caste was weaver and was a resident of village Dera, Police Station Tarbela, Tehsil Haripur. It was also mentioned that the accused had grown beard at the time of occurrence. Keeping in view the aforesaid information the Magistrate found that the petitioner was aged 14/15 years in, 1961 when the offence was committed whereas the offender was stated to be of 37 years of age. Thus, he recommended that the petitioner may be released if security was furnished on his behalf. This report was forwarded by the Assistant Commissioner, Haripur to the. Deputy Commissioner who vi4e order dated 2nd October, 1982 agreeing with the inquiry report directed the Ilaqa Magistrate to take action in accordance with the report of the Inquiry Officer. .

2. No doubt the petitioner's name and parentage tallies with that of the proclaimed offender, but from the perusal of the record it appears that there is another person Fazalur Rehrnan son of Mir Abdullah, resident of Village Dera, Tehsil Haripur whose description is identical with that of the proclaimed offender whose property had been acquired for the cons truction of Tarbela Dam. From the certificate issued by the Land Acquisition Collector in this behalf (Annexure D) it appears that there was a person of the description which tallies with the description of the accused wanted in the criminal case whose property had been acquired. The Identity Card of the petitioner (Annexure C) reveals that he was born in 1946. His School Leaving Certificate (Annexure E) shows that he was born on 3rd November, 1948. In either case the age of the petitioner at the time of the commission of offence could not be 37 years as he was either 13 or 15 years old in 1961 when the offence was committed. From the photo‑ B graph of the petitioner affixed to the Identity Card (Annexure C) issued m 1976, he does not appear to be more than 30 years of age. But the accused of the criminal case who was of 37 years of age in 1961 must have been 52 years old in 1976. The residence of the petitioner is mentioned in the School Leaving Certificate as village Amb' and the learned counsel for the petitioner contends that originally the petitioner belonged to that village and subsequently when the entire village was acquired for Tarbela Dam, the family of the petitioner shifted to village 'Kangra Colony' Tehsil Haripur and that is why the address of the petitioner in the Identity Card is shown as 'Kangra Colony', Tehsil Har1pur.

3. Abdul Qawi A. S. I. Railway Police Station Kotri (Sind) has appeared in Court alongwith the record of the criminal case and he has been examined. He admitted that the age of the accused in the aforesaid case was approximately 37 years at the time of occurrence. He further admitted that the accused's residence in the police record is mentioned as village Dera and his caste is shown as weaver. But it is clear from the facts C stated above that the petitioner was not of 37 years of age in 1961 and he was not a resident of village Dera. The caste of the petitioner is also no weaver as he is stated to be Tanoli by caste.

4. The learned Additional Advocate‑General appearing for the State contended that the order passed in this petition would amount to quash ment of a criminal case pending in a different Province. The petitioner is detained under a valid warrant of arrest issued by a competent Court. That the petitioner would be identified by the witnesses at the time of the trial and if he is not the same person, he would be acquitted/discharged by the trial Court. The proceedings under section 491, Cr. P.C., being of summary nature, are to be confined only to find out if the petitioner detained under a valid order. It may, however be mentioned that the object of a. petitions under section 491, Cr. P. C. is to find out that the petitioner is not illegally and improperly detained in custody. Admittedly the petitioner is arrested and detained in custody within the jurisdiction of this Court and thus in a petition under section 491, Cr. P. C. the Court has the jurisdiction to examine the question as to whether the petitioner is lawfully arrested and detained in connection with the aforesaid criminal case. It is not correct to say that the petitioner is detained under a valid warrant of arrest as it is clear that the warrant of arrest relates to a different person and not to the petitioner. To wait and allow the witnesses in the case to identify the petitioner at the time of the trial would mean nothing but to prolong the illegal detention of the petitioner. No doubt the proceedings in the case are of summary nature but there is nothing in law to prevent the Court from coming to a correct decision as to the legality and propriety of his detention. It cannot be said that even if the Court comes to a finding of illegal detention it should stay its hands till a decision is arrived at by the Court which has to try the case.

5. The documentary evidence available in the case coupled with the statement of Abdul Qawi A. S. I. and the fact that the petitioner has also been exonerated by the Inquiry Officer appointed by the District Magistrate Abbottabad in this behalf, leads to the conclusion that the petitioner is not the same person who is wanted in the criminal case registered at the Railway Police Station Kotri (Sind) in 1961.

6. For the aforesaid reasons, there was no justification for the S. H. O. Kot Najibullah to have arrested and detained the petitioner without satisfy ing himself about the identity of the person wanted in the said criminal case. The arrest and detention of the petitioner being illegal, the petition is accepted with the direction that the petitioner should be set at liberty forthwith.

Petition accepted.

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