Find a Lawyer

Criminal Miscellaneous No. 403‑H of 1984, decided on 20th August, 1984.

‑‑‑S. 491‑‑Habeas corpus‑‑Petition under S. 491, Cr.P.C. for recovery of a buffalo‑‑Not competent‑‑High Court, held, could pass order if any person is illegality or improh rly detained.

Shahadat and others v. State 1968 S C M R 644 ref.

‑‑‑S. 1‑‑General Clauses Act (X of 1897), S. 3(39)‑‑West Pakistan General Clauses Act (VI of 1956), S. 2(47)‑‑Word "buffalo", held, not included in definition of word 'person'.‑‑[Words and phrases].

‑‑S. 491‑‑Habeas Corpus petition brought for release of a buffalo‑ Petition, held, wholly misconceived and dismissed.

‑‑‑S. 491‑‑ 'Person'‑‑Definition‑‑Word 'person', held, does not include animal.‑‑[Words and phrases].

Muhammad Aslam Nagi for Petitioner.

This is a petition under section 491, Cr.P.C. seeking an order/ direction to the respondent S.H.O. Police Station, Tandlianwala that he should hand over the buffalo of the peittioner which was taken in possession by his predecessor Mehr Baqir S.H.O. during investigation of a case pertaining to F.I.R. No. 44, dated 31‑1‑1984 and it was handed over to one Ahmad Yar (not impleaded as party in this petition). No other relief is claimed by the petitioner through this petition.

2. In support of this petition, it is contended by the learned counsel that the buffalo of the petitioner was taken in possession by the Investi gating Officer from the petitioner and handed over to Ahmad Yar without preparing any recovery memo in that respect. It is, therefore, argued that the said buffalo is in the illegal custody of the two respondents. In support of his contention, the learned counsel has placed reliance in Shahadat and others v. State 1968 S C 11 R 644.

3. I have gone through the above‑cited judgment. In the case of Shahadat, the petition under section 491, Cr.P.C. was filed in the High Court not for the recovery from illegal detention of any cattle but for the recovery of Shahadat petitioner and others from the illegal detention of the police. It is correct that the High Court had directed that the detenus should be recovered alongwith their cattle heads but the present case is clearly distinguishable from the case of Shahadat etc. because in this case no person is said to be in the illegal detention of the two respondents. A petition under section 491, Cr.P.C. for the recovery of a buffalo is not competent. The provisions of section 491, Cr.P.C. are reproduced below:‑

"491:‑ (1) Any High Court may, whenever it thinks fit, direct‑

(a) that a person within the limits of its appellate criminal jurisdiction be brought 'up before the Court to be dealt with according to law;

(b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty;

(c) that a prisoner detained in any jail situate within such limits be brought before the Court to be there examined as a witness in any matter pending or to be inquired into in such Court;

(d) that a prisoner detained as aforesaid be brought before a court martial or any Commissioners 1 *** for trial or to be examined touching any matter pending before such court‑martial or Commissioners respectively;

(e) that a prisoner within such limits be removed from one custody to another for the purpose of trial; and

(f) that the body of a defendant within such limits be brought in on the Sheriff's return of cepi corpus to a writ of attachment.

(2) The High Court may, from time to time, frame rules to regulate the procedure in cases under this section.

(3) Nothing in this section applies to persons detained under any law providing for preventive detention."

A perusal of the above provisions would indicate that High Court can pass order if any PERSON is illegally or improperly detained. The word "person" has been defined in section 11 of the P. P. C. as follows

"11. The word 'person' includes any Company or Association, or body of persons, whether incorporated or not.

The word "person" has also been defined in subsection (39) of section 3 of the General Clauses Act, 1897 which is reproduced below:‑

"39. 'Person' shall include any company or association or body of individuals, whether incorporated or not."

The same definition is given in subsection (47) of section 2 of the West Pakistan General Clauses Act of 1956. A perusal of the definition would clearly indicate that the word "person" does not include the word buffalo, an animal. According to Concise Oxford Dictionery Fourth Edition page 889, the word "person" means "individual human being;" "young man or woman;" "a living body of human being". In this view of the matter, it cannot be said the word "person" includes an animal as well. In the case of Shahadat, the order of recovery of cattle alongwith the detained persons was only an incidental/ ancillary one.

4. In view of the above I find that the present petition is wholly misconceived and is accordingly dismissed in limine.

M. Y. H.

Petition dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.