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Civil Appeal No.52 of 1987, decided on 26th November, 1988.

(On appeal from the order of Special Tribunal Co operative Banks, dated 31 10 1987)

S. 491 Habeas corpus jurisdiction of High Court to be invoked on satisfaction of High Court that a person within its jurisdiction was detained illegally or improperly.

Section 491, Cr.P.C. confers jurisdiction on the High Court to direct that a detenu may be brought before the Court so that he may be dealt with according to law. An action under section 491, Cr.P.C. was taken when the High Court was satisfied that a person within its jurisdiction was detained illegally or improperly. In the proceedings, under this section, summary notice of the facts leading to detention was taken to ascertain the lawful authority of detention. On taking the tentative view, if it was found that the detention was without lawful authority the detenu was set free. Conversely, when the detention was found legal, the proceedings were dropped.

Manzoor Hussain v. Manzoor Hussain P L D 1974 Lah. 202 and Muhammad Khurshid v. The State P L D 1963 SC 157 ref.

Ss. 40 to 43 Azad Jammu and Kashmir Co operative Banks (Recovery and Repayment of Loans) Act, 1977, S.5(2) Repayment of loan Service of notice under provisions of S.5 (2) of the Act Relevancy of judgment, order or decree other than those described in Ss.40, 41 & 42, Evidence Act, 1872 Such judgment order or decree would be irrelevant unless existence of that judgment, order or decree was a fact in issue; or was relevant under some other provision elf Evidence Act Judgment of Supreme Court in Habeas Corpus petition of appellant wherein it had been tentatively held that notice under S.5 (2) of Recovery and Repayment of Loans Act had been served upon such appellant, could not form basis of disposal of appeal by Special Tribunal as such point was not deeply enquired into by the Supreme Court Order of Special Tribunal based on tentative appreciation of factum of notice in habeas corpus matter was set aside and case remanded for decision on merits.

Captain Mahmood Jan v. Madad Khan 1981 S C M R 474 and Muhammad Khurshid v. The State P L D 1963 SC 157 ref.

Basharat Ahmed Shaikh, Advocate for Appellant.

Agha Ashiq Hussain, Advocate for Respondents.

The appeal "is addressed under section 5 C of the Cooperative Banks (Recovery and Repayment of Loans) Act, against the order of Special Tribunal Cooperative Banks, passed on October 31, 1987, whereby the appeal preferred by the present appellant against the order of Deputy Registrar Cooperative Societies on July 4, 1987, was dismissed.

2. Raja Zar Khan, appellant, opened his Account No. 156 in Kalyal Industrial Co operative Bank, Chakswari. The appellant, it was claimed, borrowed an amount from the said bank. On the dissolution of Cooperative Banks in Azad Kashmir, in January, 1977, it was found that the amount of loan in the sum of Rs.1,45,616 was outstanding against the appellant. By December, 1983, when the action was initiated, the amount of loan enhanced to Rs.3,45,410. In compliance with the provisions of section 5 (2) of the Recovery of Loans Ordinance, a show cause notice was issued to the appellant but no step was taken in response to that effect. On failure to adjust the loan, appellant was arrested and sent to civil prison. This action of the respondents was challenged in the High Court through a habeas corpus petition under section 491, Cr.P.C. Release of the appellant was ordered on bail, on acceptance of the habeas corpus petition, on December 14, 1985. On appeal to this Court order of the High Court was discharged as in view of the Court the provisions of bail were not found contemplated in habeas corpus petition. Subsequent to this" the Government provided a special forum for an appeal against the order of Registrar relating to the recovery of loans. The appellant availed the remedy provided under special law and preferred an appeal before the Special Tribunal, Cooperative Banks, on July 4, 1987. The Special Tribunal dismissed the appeal on October 31, 1987, as in its view one of the points, namely, the service of notice under section 5(2), was already settled by the Supreme Court in its order passed on March 4 1987.

3. Mr. Basharat Ahmed Shaikh, the learned counsel for the appellant, contended that the finding of this Court relating to service of notice under section 5(2) of the Recovery of Loans Ordinance, was not relevant to the point at issue in appeal before the Special Tribunal, Cooperative Banks, as such it could not be looked into for disposal of the appeal. The learned Member was wrong to dismiss the appeal on that ground. It was emphasised that in habeas corpus proceedings, the question of fact relating to service of notice, was not deeply inquired into as no evidence was led to that effect. Expression of opinion of this Court on the point, should have been deemed as tentative appreciation. He cited Manzoor Hussain v. Manzoor Hussain P L D 1974 Lah. 202, Muhammad Khurshid v. The State P L D 1963 SC 157 and Captain Mahmood Jan v. Madad Khan 1981 SCMR474.

4. Section 491, Cr.P.C. confers jurisdiction on the High Court to direct that a detenu may be brought before the Courts so that he may be dealt with according to law. An action under section 491, Cr.P.C. was taken when the High Court was satisfied that a person within its jurisdiction was detained illegally or improperly. In the proceedings, under this section, summary notice of the facts leading to detention was taken to ascertain the lawful authority of detention. On taking the tentative view, if it was found that the detention was without lawful authority the detenu was set free. Conversely, when the detention was found legal, the proceedings were dropped. In present case it is evident from the orders passed in the matter of habeas corpus that question of service of notice under section 5(2) of the Recovery of Loans Ordinance was not equally inquired into as no evidence was recorded at any stage. Likewise finding of this Court rested on no evidence. The relevant part of the order, is reproduced.

"It is on the record that the respondent was served with a notice to put up his appearance before the Registrar and contest his liability to pay the loan but he did not choose to appear before the Registrar. It was after considerable time that the warrant of arrest was issued against him. If a borrower iv duly served with a notice but he does not choose to contest his liability within the period fixed under subsection (3) of section 5 of the Ordinance, or within the period subsequently extended by the Registrar, it would be deemed that the borrower concerned does not deny his liability to pay."

5. It is evident from the aforesaid observation of this Court that the service of notice allegedly effected on the appellant, was determined in tentative manner on the basis of copy of the notice placed on the file of this Court. Suffice it to say that in absence; of any inquiry and deep appreciation of the state of facts, the finding described above cannot be termed conclusive", inviting the application of the principle of res judicata".

6. Section 43 of the Evidence Act postulates that judgment, order or decree, other than those described in sections 40,41 and 42, are irrelevant unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provisions of the Act. Here in this case, the previous judgment of this Court may, be relevant only to ascertain the question of loan. The fact "P remains that the point at issue, viz. the service of notice under section 5(2), was not finally deter tined. It is nobody"s case that the previous judgment was covered, either by sections 40, 41 or 42 of the Act. In the circumstances, the finding of this Court describe above was not relevant, to the fact at issue viz. that notice under section 5(2) wigs served or not. The Special Tribunal was competent to enquire into the, matter independent of that order.

7. An identical situation arose in Manzoor Hussain v. Manzoor Hussain P L D 1974 Lah. 202. In that case the habeas corpus petition was addressed wherein it was alleged that Mst. Aziz Fatima, alleged wife of the petitioner was kept in illegal custody. On appearance in the Court, the woman made a statement in support of the allegation on which she was set free by the learned Judge in the High Court. The real husband of the woman made a report to the police containing allegation of adultery and stealing of the jewellery. The accused Petitioner sought quashment of the criminal proceedings containing the allegation of adultery in the light of the previous decision of the High Court recorded in habeas; corpus petition. The learned Judge in the High Court declined to accept the contention as in his view, the order passed in the habeas corpus petition was not conclusive as such the principle of res judicata was not, in any form attracted in that situation. It was observed that the proceedings under section 491, Cr.P.C were summary in character. Controversies raised thereunder were not tried nor evidence was recorded under ordinary substantive and procedural laws. In such proceedings, it was held that questions relating to the divorce by her previous husband, and validity of second marriage with the petitioner, in that case, were not likely to be resolved conclusively. The contention in support of quashment of criminal proceedings was turned down.

In Muhammad Khurshid v. The State P L D 1963 S C 157 Mr. Justice Hamoodur Rehman, the eminent Judge, observed:

"We are in entire agreement with the High Court that the fact in issue in this particular case was as to whether the appellant was found in possession of the arms and ammunition said to have been recovered from him which were not covered by a proper licence issued for their possession. In the cases under section 4 of the Pakistan (Control of Entry) Act none of these facts were relevant or in issue. Hence it is difficult to appreciate how any assistance could be derived from those previous judgments to show that the existence of these facts was improbable, if those judgments are admissible only for the purposes of proving as to who were the persons being prosecuted in those cases; what where the charges against them and what were held."

It was a case in which different offences arising out of common action, were tried separately. The first trial of the accused was held under the Pakistan (Control of Entry) Act, for illegal entry into Pakistan wherein the accused was acquitted; on second trial the accused was convicted under the provisions of Arms Act. The previous judgment was sought to be admitted for acquittal in the subsequent trial but this was refused by the trial Court as in its opinion the evidence in that case and finding arrived at upon the evidence, were not relevant for deciding the second case. The learned Judge in the Supreme Court recorded is approval of the finding of trial Court and refused to allow the admission of the previous judgment in the subsequent trial.

8. In this case the learned Special Tribunal failed to take into consideration the effect of the previous order of this Court, in the light of aforesaid principle. This has obviously resulted in error in exercise of jurisdiction conferred on the Special Tribunal. The appeal, therefore, succeeds. The order of Special Tribunal is set aside and the case is remanded for its decision on merits.

A.A./234/S.C.A. Case remanded.

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