CAPT. RAZA ALI, S. Q. A. vs MUKHTAR HUSSAIN AND Another

1. MUHAMMAD GUL, J.--This appeal by Special leave is directed against the order of a learned Single Judge of the late High Court of West Pakistan at Lahore, in a petition for habeas corpus under section 491/561-A, Cr. P. C. Whereby appellant herein, who was one of the respondents, was ordered to pay, out of his own pocket, Rs. 500 as cost of the rule which was made absolute. By the same order, notice was also issued to him to show cause why his case should not be forwarded to the Provincial Government for the withdrawal of his judicial powers as District Magistrate.

2. Leave was granted to consider whether the appellant, who at the relevant time was the District Magistrate, Jhang, and who made an order for the detention of one Mst. Anwar Bibi, purporting to be in exercise of his power under section 552, Cr. P. C. And against which the rule was issued, was not protected under the Judicial Officers Protection Act, 1850 as respects payment of costs of the proceedings before the learned Single Judge.

3. The facts giving rise to the present appeal, briefly are that an application under section 552, Cr. P.

4. C. Was moved before appellant by one Mst. Fateh Bibi alleging that her daughter Mst. Anwar Bibi had been abducted by Mukhtar Hussain, respondent No. 2 herein, with the help of certain others for illicit purpose and to cover up the offence the abducted had been forcibly married to Mukhtar Hussain. Mst. Fateh Bibi was examined on oath and a search warrant under section 552, Cr. P. C.

5. Was issued by the appellant, return--able on 8-9-1969, when a fresh warrant was issued for 22-9- 1969 because Mst. Anwar Bibi could not be traced. In execution of the second warrant, she was produced on 12-9-1969 before the appellant, who directed her detention by Assistant Superintendent District Jail, Jhang to be produced again on 22-9-1969. It appears that it was represented by Mst. Fateh Bibi that Mst. Anwar Bibi will not be able to make a free and voluntary statement against Mukhtar Hussain, from whose custody she has been recovered, because her minor son still remained in the custody of Mukhtar Hussain and that if Mst. Anwar Bibi were to depose against Mukhtar Hussain, the safety of her minor son would be in serious jeopardy.

6. Accordingly, the appellant issued a warrant for the production of the child also in Court on 22-9- 1969.

7. At this stage Mukhtar Hussain alleging himself to be the husband of Mst. Anwar Bibi moved petition for habeas corpus under section 491 read with section 561-A of the Cr. P. C. For the production of Mst. Anwar Bibi and setting her at liberty. In petition, the appellant herein and the Assistant Superintendent Jail, Jhang were cited as respondents. Persuant to a warrant issued for the search of the woman, she was produced before a learned Single Judge on 12-9-1969 by a Bailiff of the High Court from the custody of the Assistant Superintendent Jail. Before the learned Single Judge, Mst. Anwar Bibi deposed that she was living with Mukhtar Hussain as his lawfully wedded wife, when she was taken into custody in execution of the warrant earlier issued by the appellant, and who also ordered her detention by the Assistant Superintendent Jail, Jhang.

8. It was conceded by the learned counsel for the appellant that the point on which leave was granted to the appellant, namely, whether in the instant case the appellant while acting in purported exercise of his power as District Magistrate under section 552 was protected under the Judicial Officers Protec--petition Act, 1850 does not arise in the case. Section 1 of the Act affords protection to officers acting judicially for their official acts done in good faith only in respect of a suit in any civil Court. The section reads : "No Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially shall be liable to be sued in any civil Court for any act done or ordered to be done by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction: Provided that he at the time, in good faith, believed himself to have jurisdiction to do or order the act complained of and no officer of any Court or other person, bound to execute the lawful warrants or orders of any such Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially shall be liable to be sued in any civil Court, for the execution of any warrant or order, which he would be bound to execute, if within the jurisdiction of the person issuing the same."

9. The protection, on the plain reading of the section would not, therefore, extend to the costs imposed by the learned Single Judge, under rule 10 of the aforesaid Rules, which has been framed by the High Court in exercise of its powers under section 91(2) of the Code of Criminal Procedure, 1898. The rule reads "In disposing of any such rule, the Court may, in its discretion, make an order for the payment, by one side or the other, of the costs of the rule."

10. The learned counsel for the appellant did not dispute that order under appeal was competently made by the learned Single Judge. The argument however, was that the appellant was not given an opportunity to show his bona fides and that he learnt about the order requiring him to pay Rs.

11. 500 as costs, through the press report. It was submitted that if a separate notice had issued to the appellant to show cause against payment of costs by him, he would have appeared personally to explain the circumstances under which he made the order for the detention of Afst. Anwar Bibi, pending the produc--petition of her minor son.

12. We are not impressed by the argument for not only the appellant w duly served as respondent in the proceedings for habeas corpus, he had also instructed the Advocate-General to appear on his behalf, and who in fact appeared and made submissions on his behalf, which however, did not satisfy the learned Single Judge, as to the bona fides of the order made by the appellant.

13. The matter being entirely discretionary with the learned Single Judge and falling within the ambit of his jurisdiction under rule 10 is unexceptionable. The appeal is accordingly dismissed, However, in the circumstances of the case, we make no, order as to costs.