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Petitioner: Mrs. IFRAH MURTAZA and another VS Respondent: GOVERNMENT OF PAKISTAN and others
Court Name: Lahore High Court Judge(s): Malik Shahzad Ahmad Khan, Mirza Viqas Rauf Title: Mrs. IFRAH MURTAZA and another vs GOVERNMENT OF PAKISTAN and others Case No.: Writ Petition No. 251566 of 2018 Date of Judgment:2019-04-24 Reported As: PLD 2019 Lahore 565 Result: Petition allowed
JUDGMENT
JUDGMENT MALIK SHAHZAD AHMAD KHAN, J.---This petition has been filed on the ground that husband of Mrs. Ifra Murtaza petitioner No,1, namely , Murtaza Amjad/petitioner No,2 has illegally been detained in Dubai (U.A.E) by the Interpol on the basis of red notices/warrants of arrest issued against him on account of alleged illegal proceedings conducted against Murtaza Amjad by the N.A.B, Lahore, as well as, in pursuance of wrong decisions passed by the Accountability Court, Lahore. 2. As no power of attorney of Murtaza Amjad petitioner No,2 is available on the record and as this constitutional petition in the nature of habeas corpus has been filed by Mrs. Irfah Murtaza petitioner No,1 regarding stated illegal detention of her husband, namely , Murtaza Amjad (petitioner No,2) therefore, Mrs. lrfah Murtaza petitioner No,1 shall, hereinafter , be called as 'the petitioner' and Murtaza Amjad petitioner No. 2 shall hereinafter be called as 'the detenu'. 3. This constitutional petition under Article 199 of the constitution of Islamic Republic of Pakistan was filed when the detenu Murtaza Amjad was detained by the Interpol /C.I.D (Investigation), Dubai U.A.E and thereafter he was under restricted custody. It is claim of the petitioner that Murtaza Amjad detenu is absolutely innocent and he has falsely been implicated in the N.A.B inquiry which was subsequently upgraded to N.A.B Investigation i. e. , Investigation No, 1(9)HQ/1835- NAB-L. It is further averred in this petition that right from the beginning the proceedings of the N.A.B against Murtaza Amjad detenu were based on mala fides because the date for appearance of Murtaza Amjad before the N.A.B in the call up notice dated 18.04.2018, issued by the N.A.B under Section 19 of the National Accountability Ordinance, 1999, was fixed for 25.04.2018 but two days earlier to the above-mentioned date, the N.A.B issued warrant of arrest of the detenu on 23.04.2018 which speaks of mala fides of the N.A.B/respondent. Similarly, subsequent proceedings initiated against the detenu for issuance of proclamation and declaring the detenu a proclaimed offender, as well as, regarding the attachment of his
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property have also been carried out in violation of the law on the subject and as such, the same are not sustainable in the eye of law. It is further averred in this petition that the order regarding the placement of the name of Murtaza Amjad detenu in the Exit Control List (E.C.L) is also an illegal order, which has been passed by respondent No,1 in a mechanical manner therefore, order dated 12.09.2018 of the learned Accountability Court, Lahore, whereby Murtaza Amjad detenu has been declared a proclaimed offender, order dated 27.09.2018 of the learned Accountability Court, Lahore whereby perpetual warrant of arrest of the detenu were issued, order dated 14.11.2018 of the Accountability Court whereby application filed by the petitioner for recalling of the abovementioned orders dated 12.09.2018 and 27.09.2018 was dismissed and order/warrant of arrest dated 23.04.2018 issued by the Chairman N.A.B for the arrest of Murtaza Amjad detenu and memorandums issued by respondent No,1 dated 14.06.2018 and 20.11.2018 whereby the name of Murtaza Amjad detenu was placed on the E.C.L and proceedings initiated by the N.A.B through respondents Nos, 1, 4 and 5, Interpol Crime Police and Ministry of Interior for the execution of red notices and warrants of arrest dated 23.04.2018 and 12.09.2018, due to which, Murtaza Amjad detenu has been illegally detained in U.A.E and proceedings of extradition of the detenu, as well as, the above-mentioned order dated 14.11.2018 passed by the learned Accountability Court, Lahore may be declared to be illegal and void as the same have been passed without lawful authority, jurisdiction and of no legal consequences and resultantly, the same may be set aside. 4. On the other hand, as per case of the N.A.B, parents of Murtaza Amjad detenu were owners of various projects of Eden Housing and Developers Ltd. Murtaza Amjad detenu later on also became a Director of Eden Housing and Developers Ltd. On 11.01.2018, N.A.B initiated an inquiry against the owners/management of Eden Housing and Developers Ltd because statedly different complaints were received from the general public against the abovementioned Housing Schemes. Chairman N.A.B delegated powers to the D.G, N.A.B, Lahore to authorize inquiry . The N.A.B Lahore, statedly issued different Call Up Notices against Murtaza Amjad detenu under Section 19 of the N.A.B Ordinance, 1999 and on account of his non-appearance, his warrants of arrest were also issued. As warrants of arrest of Murtaza Amjad detenu could not be executed at his local address, because he was residing in Canada therefore, proceedings under Section 87 of Cr.P.C were initiated against him. Proclamation as envisaged under Section 87 of Cr.P.C was issued against him by the Accountability Court, Lahore and as he did not appear before the said Court, therefore, he was declared a proclaimed offender . Proceedings for attachment of his moveable and immoveable properties were initiated. His name was put on the E.C.L. by respondent No. 1 and his red notices/warrants of arrest were also issued in order to arrest him through the Interpol. Consequently , Murtaza Amjad detenu was arrested in Dubai, U.A.E through Interpol/C.I.D, Dubai and he was kept under restrained custody in Dubai (U.A.E) due to the red notices/warrants of arrest issued against him, whereupon, wife of the detenu, namely , Mrs. Ifrah Murtaza (petitioner) has filed the instant constitutional petition before this Court which is not maintainable and the same is liable to be dismissed being meritless. 5. It is contended by learned counsel for the petitioner that Murtaza Amjad detenu is absolutely innocent and he has malafidely been implicated in this case by the N.A.B; that proceedings initiated by the N.A.B/respondent against Murtaza Amjad detenu are based upon ulterior motives; that mala fides of the N.A.B are apparent from the fact that vide Call Up Notice under Section 19 of N.A.O, 1999 dated 18.04.2018, Murtaza Amjad detenu was asked to appear before the N.A.B, Lahore on 25.04.2018 in order to produce document/evidence (in his defence) but before the said date i,e, 25.04.2018, the Chairman, N.A.B issued warrant of arrest of Murtaza Amjad detenu on 23.04.2018 meaning thereby that the N.A.B was out to arrest the detenu even before giving him an opportunity of hearing and to produce evidence in his defence; that mala fides against the detenu are also apparent from the fact that the respondent/N.A.B filed an application under Section 87 of Cr.P.C for issuance of proclamation against Murtaza Amjad detenu and the learned Accountability Court No, V, Lahore without recording any evidence as .envisaged under the above-mentioned provision of law (Section 87 of Cr.P.C), straightaway allowed the said application vide order dated 26.06.20.18; that the learned Accountability Court did not bother to pass order dated 26.06.2018 on any order sheet of the Court rather the said order was written on the last page of the application submitted by the N.A.B; that order dated 26.06.2018 of the learned Accountability Court No, V, Lahore is a non-speaking order and the same is not sustainable in the eye of law;
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that order for issuance of proclamation under Section 87 of Cr.P.C was passed against Murtaza Amjad detenu on 26.06.2018 but, the proclamation was issued on 13.07.2018 wherein the date of appearance of the detenu before the Accountability Court No, V, Lahore was fixed for 26.07.2018 and as such, period of thirty days has not been provided to the detenu as envisaged under Section 87 of Cr.P.C; that although the Accountability Court can dispense with any provision of the Code of Criminal Procedure, 1898, as provided under Section 17(c) of the N.A.O, 1999 but for this purpose, the Accountability Court was bound to record its reasons for doing so but no reason whatsoever has been mentioned in the impugned orders for dispensation of provisions of the Code ibid; that the petitioner filed an application before the Accountability Court No. V, Lahore for recalling of order dated 12.09.2018 whereby the detenu was declared a proclaimed offender and order dated 27.09.2018 whereby perpetual warrants of arrest of the detenu were issued, while pointing out the above-mentioned illegalities in the earlier orders of the Accountability Court but the said application of the petitioner has illegally been dismissed vide the impugned order dated 14.11.2018 of the learned Accountability Court, Lahore; that name of Murtaza Amjad detenu has been put on the E.C.L by the Ministry of Interior, Government of Pakistan, Islamabad (respondent No,1) without application of its own independent mind and merely on the recommendation of N.A.B, Lahore and the detenu was not given any opportunity of hearing before putting his name on the E.C.L and as such, the orders of putting the name of Murtaza Amjad detenu on the E.C.L are also not sustainable in the eye of law; that the impugned orders have been passed in clear violation of the law/rules on the subject and the same are tainted with mala fides therefore, the same may be declared as illegal and void and consequently, the said orders may be set-aside. 6. On the other hand, this petition has been opposed by the learned Deputy Attorney General for Pakistan, as well as, by the learned Special Prosecutor for N.A.B on the grounds that the instant petition is not maintainable because Mrs. Ifrah Murtaza (petitioner) cannot file the instant petition regarding the orders issued against her husband, namely, Murtaza Amjad because the detenu is not in Pakistan and the petitioner Mrs. Ifrah Murtaza is not an aggrieved person in this case; that initially Murtaza Amjad was arrested by the Interpol at Dubai, U.A.E, on account of red notices/warrants of arrest issued against him, in pursuance of the impugned orders but later on, Murtaza Amjad detenu has been released by the Interpol/authorities at Dubai therefore, on account of release of Murtaza Amjad detenu, this petition has become infructuous. Insofar as, the merits of the case are concerned, it is commended that Murtaza Amjad detenu has rightly been implicated in this case by the N.A.B as there was ample evidence against him which connects him with the alleged offence; that repeatedly Call Up Notices were issued against Murtaza Amjad detenu by the N.A.B, Lahore but he did not appear before the N.A.B authorities, whereupon, his warrants of arrest were also issued by the Chairman, N.A.B and thereafter, proceedings under Section 87 of Cr.P,C were initiated against him; that after completion of all codal formalities, Murtaza Amjad (detenu) was declared a proclaimed offender in this case by the Accountability Court No,V, Lahore .and proceedings for attachment of his moveable/ immoveable properties were initiated; that as Murtaza Amjad detenu is an accused in the above-mentioned case of N.A.B. therefore, the N.A.B. recommended for putting his name on E.C.L and the Ministry of Interior, Government of Pakistan, Islamabad (respondent No,1) has rightly put his name on the E.C.L and in this respect, the detenu has alternate remedy of filing a review petition under Section 3 of the Exit from Pakistan (Control) Ordinance, 1981 before respondent No,1; that there is no substance in this petition therefore, the same may be dismissed. 7. Arguments heard. Record perused. 8. First of all we take up the preliminary objection raised by learned Deputy Attorney General for Pakistan, as well as, by the learned Special Prosecutor for N.A.B regarding the maintainability of the instant constitutional petition on the ground that as Murtaza Amjad detenu was not in Pakistan at the time of his arrest in Dubai U.A.E, as well as, at the time of filing of this constitutional petition therefore, this petition is not maintainable and on the ground that as the impugned orders have been passed against Murtaza Amjad detenu therefore, the impugned orders can only be challenged by him and not by his wife (Mrs. Irfah Murtaza petitioner). The next objection regarding the maintainability of this petition is that as Murtaza Amjad detenu has subsequently , been released by the Interpol and authorities at Dubai (U.A.E) therefore, on account of his release from custody , this petition has become infructuous.
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We have noted that this petition has been filed by Mrs. Irfah Murtaza petitioner on the ground that her husband, namely , Murtaza Amjad (detenu) has illegally been detained at Dubai, U.A.E by the Interpol on the basis of illegal orders and warrants of arrest issued against him by the N.A.B authorities, as well as, by the Accountability Court No, V, Lahore. At the time of filing of this petition, Murtaza Amjad detenu was admittedly hi restrained custody in Dubai on account of red notices/warrants of arrest issued against him (as this fact has been admitted by the respondents in their report and parawise comments) therefore, this petition has been filed by his wife, namely , Mrs. Ifrah Murtaza (petitioner). As the instant petition has been filed in the nature of habeas corpus therefore, we are of the view that this petition has validly been filed by the wife of Murtaza Amjad detenu. It is by now well settled that a constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, in a matter of habeas corpus, or petitions of writ of quo-warranto can be filed by any person and it is not necessary that the said person should be an aggrieved person. The Hon'ble Supreme Court of Pakistan in the case of 'Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan ' (PLD 1977 Supreme Court 657) at page No, 675 was pleased to observe as under:- "Clause (1) (c) of Article 199 does indeed contemplate that an application for the enforcement of Fundamental Rights has to be made by an aggrieved person. Now, it is true that in the case before us the petitioner is not alleging any contravention of her own Fundamental Rights, but she has moved the present petition in two capacities, as wife of one of the detenus and as Acting Chairman of the Pakistan People's Party , to which all the detenus belong. In the circumstances, it is difficult to agree with Mr. Brohi that Begum Nusrat Bhutto is not an aggrieved person within the meaning of Article 199. In more or less similar circumstances in Manzoor Elahi v. State (1) this Court entertained, a petition unde r Article 184(3) of the Constitution although it was not moved by the detenu himself but by his brother . I consider , therefore, that both the preliminary objections raised as to the maintainability of the petition have no merit." It is also true that subsquent to the filing of this constitutional petition, Murtaza Amjad detenu has been released from the custody by the Interpol/concerned authorities at Dubain, U.A.E, statedly on the ground that no convincing evidence/material was produced against him and this fact has been brought on the record by the learned counsel for the petitioner by placing on the record through C.M. No,01 of 2019, letter dated 26.12.2018, issued by the Technical Office of the Attorney General, Government of U.A.E. which is in Arabic language and English translation is attached therewith. This fact has also been frankly conceded by the learned Deputy Attorney General for Pakistan, as well as, by the learned Special Prosecutor for N.A.B that Murtaza Amjad detenu has subsequently been released from the custody by the concerned authorities in U.A.E. Now the question for determination before this Court is that as to whether this petition has become infructuous, merely , on account of release of the detenu from the custody and as to whether this Court cannot see the legality of the impugned orders on account of which the detenu was arrested and kept in confinement for several weeks. In this respect, in our humble view, this petition has not become infructuous merely on account of the release of the detenu from the custody and we can see that as to whether the impugned orders on the basis of which the detenue was kept in confinement were issued in accordance with the law or not. In this respect, the reliance is placed on the case of 'Malik Ghulam Jilani v. (1) The Government of West Pakista n, through the Home Secretary , Lahore and (2) The Deputy Commissioner , Lahore' (PLD 1967 Supreme Court 373). In the said case, question regarding the illegality or otherwise of detention orders of three persons, namely , Malik Ghulam Jillani, Sardar Shaukat Hayat Khan and Nawabzada Nasrullah Khan came under discussion before the Hon'ble Supreme Court of Pakistan. The objection raised before the Hon'ble Supreme Court of Pakistan was that as the detenus had been released from the custody therefore, their appeals had become infructuous, The Hon'ble Supreme Court of Pakistan held that though the detenus were already released from the custody but even then the Court can determine the legality of the orders whereby they were kept in confinement. Relevant part of the said judgment at page 400 reads as under:- "It remains to mention that during the course of the hearing of these appeals all the three detenus were released by the Provincial Government. In the ordinar y course, such release would have had the effect of causing the appeals to abate, but in these cases, learned counsel urged that since in each case the detention had exceeded a period of nine months, the detenus had thereby incurred disqualification in respect of their right to stand for elections to
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representative offices, by the effect of section 53 of the Electoral College Act and section 106 of the National and Provincial Assemblies (Elections) Act. Each of them was a politician of standing and was gravely prejudiced by this result in respect of his future political career and each of them was therefore, interested to establish that his detention was illegal. The court was therefore asked to record a decision as to the legality of the detention order of the 16th February , 1966. ...................I would hold that the detention of Newahzada Nasrullah Khan under the Deputy Commissioner's order of the 16th February 1966, was illegal, but as to Sardar Shaukat Hayat Khan and Malik Ghulam Jilani, I would hold that the detentions were made in accordance with the law and under lawful authority . The two appeals relating to Nawabzada Nasrullah Khan should accordingly be allowed and since his detention was bad ab initio, he should have his costs in the appeal filed by himself. The appeals relating to Sardar Shaukat Hayat Khan and Malik Ghulam Jilani should he dismissed with no order as to costs." Moreover , we daily appoint Bailif fs in different petitions of habeas corpus, for the recovery of the alleged detenus from the custody of the police and though in the case of illegal detention of any person by the police, Bailif f takes the custody of the said person and releas es him with the direction to appear befor e the Court on the next date but even then the Courts determine the question of legality of detention of a person by the police and if it is established that the detention of any person was illegal then orders of imposition of fines, departmental actions and even registration of FIRs are passed by the Courts against the delinquent police officials, inspite of the fact that the detenu had already been released from the custody . Reference in this context may also be made to the cases of 'Zafar lqbal v. The Province of Sindh and 2 others' (PLD 1973 Karachi 316) and Ali Ahmed v. Muhammad Yakoob Almani, Deputy Suprintendent of Police, Qasimabad, Hyderabad and 5 others' (PLD 1999 Karachi 134). 9. Now coming to the last objection regarding the maintainability of this petition that as Murtaza Amjad detenu was not in Pakistan at the time of filing of this petition therefore, this petition is not maintainable. In this respect, we have noted that the proceedings against the detenu, on account of which he was eventually arrested, were initiated by the D.G, NAB, Lahore. Different orders were passed against the detenu by the learned Accountability Court No, V, Lahore in execution whereof, the detenu was first declared a proclaimed offender then his perpetual warrants of arrest were issued on the basis of which his red notices were issued by the Interpo l and he was arrested in Dubai, U.A.E. It is therefore, evident that the cause of action has arisen in this case at Lahore, Pakistan, therefore, the instant petition is maintainable before this Court. We have noted that in different cases, the Hon'ble Supreme Court of Pakistan entertained petitions in the matter of habeas corpus, though the detenus of the said cases were out of the country . In the case of 'Human Right Case No, 1356 of 2009 decided on 8th October , 2010 PLD 2011 SC 17, the Hon'ble Supreme Court of Pakistan has categorically held that while exercising the jurisdiction under Article 199 the Constitution of Islamic Republic of Pakistan, 1973, the question of illegal/improper detention of a person in a foreign country can validly be decided by the High Courts in Pakistan. Relevant part of the said judgment at page No,107 reads as under:- "5. This Court do experience variety of the cases where violation of fundamental rights of the citizens are noticed and the efforts are made to grant them relief but the more painful cases in this behalf belong to the category where police authorities show their inability to extradite the minors from outside the country; may be for some strong reasons in exceptional cases but ordinarily the lower Courts enjoying equal jurisdiction for enforcing the orders i,e,, to make direction for bringing back the minors from outside the country either under section 491, P.P.C. or under Article 199 of the Constitution, if the matter is brought before learned Sessions Judges or the High Courts respectively , despite exercising jurisdiction the result are not achieved for not any other reason except that the law enforcing agencies abstain from involving itself fully with the commitment in ef fecting recovery of the minors.", Similarly in the case of 'Suo Motu Case for Recovery of Minor Kids of Mst.T ahira Jabeen' (2010 SCMR 1804 ), the question of illegal/improper detention of a minor was decided, though the said minor was in a foreign country at the relevant time and eventually he was brought back to Pakistan and handed over to his mother. It is therefore, clear that if the cause of action has arisen in Pakistan then inspite of the presence of the detenu in a foreign country, this Court can validly entertain and decide a constitutional petition filed in the matter of habeas
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corpus, in order to determine the legality or otherwise of his detention. Moreover, it is not understandable that when the N.A.B, Lahore can get arrested Murtaza Amjad detenu in a foreign county on the basis of orders issued from Lahore, Pakistan then why this constitutional petition in the nature of habeas corpus cannot be filed at Lahore, Pakistan. If the above-mentioned objection of the learned Law Officers is accepted to be correct then the N.A.B may get any person arrested in a foreign country through Interpol, on the basis of orders issued by the N.A.B/Courts in Pakistan and the said person may languish in the jail of foreign country for indefinite time or for several years or he may even die there, but this Court would be unable to see the legality of orders of his detention, issued by the N.A.B/Courts in Pakistan, merely on the ground that the detenu is not in Pakistan. We are therefore, of the view that there is no substance in the above-mentioned objections of the learned Law Officers and the instant petition is maintainable before this Court. 10. Now coming to the merits of this case, we have noted that first Call Up Notice under Section 19 of the N.A.O, 1999 was issued against Murtaza Amjad detenu on 04.04.2018.The last Call Up Notice under Section 19 of the Ordinance ibid was issued against Murtaza Amjad detenu on 18.04.2018. In the said second Call Up Notice, the date of appearance of the detenu before the N.A.B, Lahore was fixed for 25.04.2018 but two days prior to the above-mentioned date i,e, on 23.04.2018, the Chairman N.A.B issued warrants of arrest against Murtaza Amjad detenu. It is not understandable that when the N.A.B. itself issued Call Up Notice to the detenu to explain his position and provide information/evidence to the N.A.B in his…
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