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Petitioner: BEGUM SHAMIM AFRIDI VS Respondent: THE PROVINCE OF PUNJAB THROUGH THE JUDGMENT
Court Name: Lahore High Court Judge(s): Shamim Hussain Qadri, Muhammad Siddiq Title:BEGUM SHAMIM AFRIDI vs THE PROVINCE OF PUNJAB THROUGH THE
JUDGMENT
Reported As: PLD 1974 Lahore 120 Result: Petition accepted Judgment JUDGMENT SHAMIM HUSSAIN KADRI, J.-Begum Shamim Afridi has challenged the illegal detention and illegal manner of the custody of her husband Lieut.--Col. (Retired) Abdul Alim Afridi and her brother Muhammad Tariq Khan by Writ Petition No. 705 and Writ Petition No. .815 of 1973 respectively. The third Writ Petition No. 740 of 1973 is moved by Begum Jamila A.I wife of Brigadier (Retired) Farrukh Bakht A.I practically on the same grounds, challenging the illegal detention and illegal manner of detention of her husband. This order will dispose of the second prayer of the Writ Petitioners, namely, the illegal manner of detention of the detenus. 2. We directed the production of the detenus by our order dated 27th April 1973. They were produced by an army captain and their statements were recorded. Col. Abdul Alim Afridi stated that he was arrested from his house on 30th March 1973 by contingent of police headed by a D. S. P. His house was searched. During the search the D. S. P. Was very keen to look at his personal papers. He took a bundle of files and handed over the same to one of his assistants who after scanning through them remarked "yeh hain ji woh". These were the two drafs prepared by Mr. M. Anwar Advocate a few weeks before for filing defamation suit which he intended to file against the Government and some other functionaries challenging the manner of his retirement. He was taken to Lahore Cantonment Police Station the same day at about 4 or 5 a.m. At about 6 p.m. He was produced by the D. S. P. Before a Magistrate on duty at the Army Stadium who remanded him to the custody for 24 hours for his onward journey to Rawalpindi. He was then taken to Rawalpindi in prisoners large van where they arrived at about 3 a.m. On 31st March 1973. He was kept sitting in the Police Office in the Cantonment Police Station, Rawalpindi the whole night. The detenu told the Duty
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Officer of the Police Station that he had to be produced before a Magistrate, but to his query no satisfactory reply was given. Since then he did not see any person till 30th April 1973 when his statement was recorded in this Court except the personnel who interrogated him. 3. He further explained the miseries of his detention. At about 8 a.m. On 31st March 1973 he was handed over to a party of Army Officers who took him to a Unit known as Field Intelligence Unit in Station Headquarters, Rawalpindi. He was straightaway taken to a torture cell 25 feet below the ground with Electronic Torture Equipment fitted on the walls. According to him there was blood splattered on the walls and floor which was rubbed. There was a dark passage leading away from the cell into a tunnel, which he believed to be meant for disposal of dead bodies. There was a crucifying post in the shape of door post meant for hanging individuals upside down. He was constantly under glaring lights of eight bulbs of 100 watts each and was not permitted to sleep, as somebody would come and wake him up and walk into the room every hour. 4. An interrogation team of two officers visited him after three or four days. On one occasion he wanted to go to toilet but he was denied the facility for two hours till he raised hue and cry. He narrated the first interrogation conducted by two Majors of the army, one of them being Major Aurangzeb who told him that they knew everything but they wanted him to make a confession and if he failed to do so they had authority from the highest in the country to go to any extent. The detenu was kept in this cell for 5/6 days. He used to be brought out of the cell to answer the call of nature. On 5th or- - 6th day Lieut.-Col. Afzal again of the Intelligence Department came and made similar demand of revealing everything. The detenu told him that he had not slept for many days and that he was under considerable mental pressure. He requested him to take him out of the cell in order to save himself from the indignity of the mental torture of the equipment which was there. He decided to answer the leading questions like: "Did it not happen like this"; "did it not happen like that"? In order to come out of the cell the detenu stated that he had to admit. Specific question was asked about manhandling or beating while he remained in the cell to which he replied that there were repeated threats but no actual beating took place since he obliged them to give the answers the way they wanted. He was brought out of the cell on the 6th or 7th day and was kept in prisoners' cell measuring 10' x 7' within the same premises. It was 7' high and was very hot. He was not permitted to talk with anyone, read anything or even to sleep. In answer to a Court question he replied that he was provided ~t bed and a cot but he was kept under the crucification post. 5. One Brigadier Anjam told the detenu that he was over all incharge of the total investigation. He told him that he will have sympathetic treat--ment if he co-operated with him. The detenu stated that he had nothing more to add to what had already been extracted. Brigadier's behaviour was insolent in telling him that he was not telling the truth and was keeping something hidden. On 9th April 1973 he was taken to Attock Fort which is another institution of the Army. He was given in the charge of one Col. Aziz. He took him to a cell which is a barrack and has a barbed wire and steel gates. The copy of Quran which he carried with him was snatched to which he protested but he was told that he could not be permitted to keep any book in the cell. The detenu deposed that though there was no physical atrocity committed but he was kept in solitary confinement and had to go to the toilet in the same room. The place was infested with flies during the day and during the night glaring lights and mosquitoes disturbed him. There was no fan and mosquito not. He, however, stated that he was given normal food. He weighed 174 lbs. When he was brought in Attock Fort. He was also weighed when he was brought to this Court. According to him he lost 14 lbs. 6. Periodically he was taken out of the cell for interrogation and was handcuffed on both hands, blind-folded, pushed and made to walk in a particular direction. In spite of repeated requests that it was not necessary for him it was done. He was not provided any reading material but a few days before when he was brought to this Court he was given copy of the Holy Quran. For one week he was not permitted even to pray.
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He made repeated requests that he being a civilian should be produced before a Magistrate and permitted to see his lawyer, but he was refused. In the beginning lie was not permitted to write to his family. According to him he wrote 4/5 letters to his wife and one to his lawyer. Letter written by him on 10th April 1973 (marked Exh. A. 1) was shown to him. This he despatched in the envelope marked (Exh. A. 2) which bears the Lahore postal stamp dated 21st April 1973. Portion of letter Exh. A. 1 which is dated 10th April 1973 is reproduced :---- "Still alive and kicking This is open letter, so has to be formal. I know you have mountains of courage and will live up to expectations. Please don't do anything rash. Consult the lawyer in every thing you do or say. . . Past 12 days a memorable and unique experience. I suppose a lot more is yet to come. I am rather worried about you and your temper. Please remember your responsibilities towards Aalya and Tina as well. I would hate if you allowed yourself to get into the grip of Government." ' The detenu contradicted the affidavit sworn by Major Aurangzeb to the effect that he took him in Military custody on 31st March 1973 at 10 a.m. 7. Col. Afridi was the Chief Instructor of War course in the National Defence College, Rawalpindi during the Indo-Pakistan War of 1971. On 9th December he was posted as Chief of Staff of a corps called the Army Reserve North. He served in that capacity till 1st January 1971 when he was sent back to his job. He stated that he appeared before Hamoodur Rahman Commission, for two reasons, firstly to tell about the conduct of war and secondly to describe his role in the happenings of 19/20-12-1971 which resulted in the exist of Ex-President General Yahya Khan. He was awarded "Sitara-e-Jurat" after 1965 Indo-Pakistan War. 8. In cross-examination by the Advocate-General the detenu replied that he was provided a bed, chair and a tepoy. The food was served in the following manner: Every thing was put in one plate and some Chapattis were provided along with it. Answering the question whether he was medically examined every week during his stay in the Fort the detenu stated that he suffered from acidity and on one occasion medicine was not given to him at all although he kept asking for it till 10 o'clock in the night and eventually he gave up the pursuit. He described the incident of the taking of his watch at Police Station but denied to have made any shriek since according to him it was an insult for him to have shrieked. 9. We would now refer to the statement made by Muhammad Tariq Khan. The detenu is brother of Air-Marshal (Retired) Asghar Khan, and his sister Mst. Shamim petitioner is married to Col. Abdul Alim. Afridi. He joined as Cadet in the Air Force in 1953. He was however, boarded out on medical grounds because he was suffering from pleurisy and had spent a year in the hospital. He was declared permanently unfit for the Commission. He was present at the house of his brother---in- law Col. Abdul Alim Afridi, at Lahore Cantonment on 30th March 1973. He stated the circumstances under which he surrendered before the District Magistrate, Hazara. According to him on 3rd April 1973, he was informed by his sister on telephone that a notice has been posted--on his door calling him to appear before the District Magistrate under the Defence of Pakistan Rules. His wife arrived in Lahore on the evening of 4th April 1973. He pondered as to whether he should present himself before the District Magistrate, Lahore or go to Hazara. On 5th ultimately he decided to leave for Hazara, on the 30th of April 1973, and. Reached Abbottabad the same evening. On the following day he presented him--self before the District Magistrate who sent him with police escort to Haripur Jail, where he was kept in solitary confinement till 14th April 1973. The cell at Haripur Jail was 8' x 10' wide and full of mosquitoes. He could not sleep. He was kept under Guard of three murderous convicts. On 14th the Superintendent of Jail sent for him. He was shown a letter (Exh. A. 1) dated 13th April 1973 of the Central Government revoking his detention under the Defence of Pakistan Rules. Thereafter the D. S. P. Appeared inside the Jail and he was told that he had orders to take him to Rawalpindi. The detenu asked him to show him the authority under which he wanted to arrest him
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again. According to him he was not produced before any Magistrate at Haripur nor he was permitted to contact hi& family members or a Lawyer. During his stay in Haripur Jail he was not provided good food. He was given mostly dal and roti and occasionally meat was provided. He was permitted to go out of the cell for a week and, he had the toilet facility at a distance of 50 yards from his cell. At Rawalpindi he was kept at Cantonment Police Station and according to him he was not produced before any Magistrate and was driven to, Attock in Police jeep. 10. At Attock Fort he was kept in a cell which had just one bed, .One commode lying in the corner, it had no ventilation and no windows. 7here was no fan and he was not permitted communication with anyone. The cell, according to him, is 10' x 25 . Occasionally he was taken out of the cell for interrogation blind-folded and handcuffed with four soldiers keeping guard over him. This continued for 10 days. He used to be interrogated for 6 to 7 hours a day. On his arrival at Attock Fort he was weighed after 3 or 4 days. His weight was 154 lbs. On his being weighed again when he was brought to this Court his weight was 153 lbs. Before he entered Haripur Jail he was 176 lbs. Since 7th April 1973 up to the date of his appearance in this Court he lost about 21 lbs. There was lot of fes in the room. He could not sleep during the day and at nights lot .Of mosquitoes also joined the flies in keeping him awake. Light used to be dept on throughout the night. He was not permitted any reading material. He wrote four letters to his relations but received no answer, for anyone of them. For three days he was not provided any chair or table in the cell. He had to eat his food by putting it on the commode which he used as a table. He did not know the reason why he was kept in custody. He wrote letters Exh. A. 2 and A. 3 in which he mentioned some of his problems and requirements. In one letter he complained that he had reduced round the waist considerably. He said that he was suffering from pleurisy and had not recovered fully even uptill now. In Attock Fort he had some breathing difficulty and he had to send for the doctor on a number of occasions who gave him sleeping pills which had no effect on him since he was kept in miserable condition. Out of 15 days he could hardly sleep for two hours. It was suggested that he absconded before be was arrested. He denied and disclosed that on the information of the pasting of notice in front of his house he proceeded to Hazara and surrendered before the District Magistrate. In cross--- examination by the Advocate-General he denied that he was shown any warrant of arrest by the D. S. P. He also denied that he was produced before a Magistrate at Rawalpindi on 14th April 1973. 11. Brigadier Farrukh Bakhat A.I stated that he was arrested on 30th March from his residence in Karachi in the morning. He was arrested by the S. S. P., Karachi who had a large number of Police Officers accompanied by two army officers. The S. S. P. And Lt.-Col. Fakhfoor took him to Clifton Police Station where he was kept for half an hour and from there he was driven to Drigh Road Airfield by Major Bajwa. He was put in Air Force Plane, handcuffed and blind-folded. The plane presumably landed at Rawalpindi from where he was taken to Attock Fort. He was placed in a cell where he was kept in solitary confinement till the day he was brought to this Court. His cell was 20' X 10'. He was taken out of this cell for interrogation. He was kept totally cut off from the rest of the world and practically had no human contacts. The .Only people he used to see were his guards passing outside the iron bar. He could not speak even to the guards. He received no news from his family. After a fortnight of his stay in Attock he was told that he could write to his family. He wrote 6/7 letters but received no reply. He was given proper food in proper manner like other ranks in the cell. He was provided with a bed, but was not allowed any reading material. He complained that though he was not subjected to physical torture he was reduced to the level of an animal in the zoo. He had a commode in the corner of his room and a bucket of water. . He was interrogated thrice in order to make a statement. He had no fan, no mosquito not and no reading material. The light was kept on in his room throughout the night. In answer to the question were you kept in custody in a manner befitting the status of a Brigadier? What, according to the usages of service, are the modes and manners of keeping an officer in custody? He replied he had not been kept in
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custody in anything remotely resembling the normal manner in which an officer is kept in custody. The usage of the service is that officer under close arrest is confined to his living quarters and an escort of his own or higher rank stays with him in his quarter. This is laid down in the Army Code. He was not taken out of his cell for a walk or exercise. He was not permitted to see anybody or talk with. He denied to have known the accusation against him and also refuted the sugges--petition that he was ever produced before the Magistrate for obtaining remand. The Advocate-General was given an opportunity to cross-examine the detenu but he declined. 12. On 4th May 1973, the Advocate-General made a statement that certain facilities have been provided to, the deterius namely, mosquito nets, fans reading material and the articles given by the relatives. He stated that from now onward officers will keep company of the detenus according to the convenience of the prisoners. The Advocate-General further submitted that he would like to make a statement about the meeting of the wives, other family members and further details on 7th May 1973. It was argued, however, by learned counsel for the petitioners that the detenus have not been kept in lawful manner and they were subject to torture even if facilities have been provided to the detenus for future. On 10th May 1973, Advocate-General submitted a document in the form of written statement accompanied by a certificate from C. O. Special Detenu Camp and the letter addressed by the Commander to him dated 28th April 1973 which have been placed on the file. This document mentions :- 1. (i) Ceiling fans have been installed in all the rooms ; (ii) All the accused were asked in writing whether they need mosquito nets and those who wanted it have been provided with it ; (iii) Reading material supplied by the relatives and other reading material have also been made available to them. (iv) Radio and transistors if any sent by the relatives of the accused have been given to them. 2. Apart from the above facilities the following other facilities have also been provided to the accused :- (i) Wives and the near relations of the accused can see them and have also been seeing them at the detention camp. (ii) The complaint of the accused that the commodes have been kept in their rooms has been removed and the commodes are no longer in the same room. (iii) They axe provided with a bed, table and a chair. (iv) Officers are allowed to keep their company whenever they desire it. (v) The food from the officers' mess is being supplied to them and it is the same food which all other officers stationed at the camp take and many a times the menu is made after consulting the accused. 13.----(3) Medical facilities are available and in fact all the accused are thoroughly examined by the Medical Officer every Monday. (4) Interrogation of the accused is practically over. The delay in recording the formal summary of evidence was necessitated because the first concern of the authorities was to find out how far the entire army was contaminated so that all such officers who were in that conspiracy should be segregated from others and now these investigations are over. (5) The alleged torture cell mentioned by Col. Aleem Afridi in his statement before, the Court are actually operational underground apartments which are used by Officers of the Army during emergency and war day and night. There are no torturing instruments or, electronic devices kept in the operation room. (6) The accused were being kept properly in a lawful manner, and have been provided with all possible amenities under the circumstances. The learned Advocate-General has- not produced any evidence in rebuttal of the allegations made except the above documents.
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14. Considering that a question of great public importance has arisen in regard to the lawful manner of any custody in Pakistan we have heard Mr. Manzoor Qadir, Ch. Nazir A4mad Khan and Mr. S. M. Zafar as amicus curiae in addition to the counsel for the parties. (2) Subject to this Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law- (b) on the application of any person, rake an order- (i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner. Article 98 of 1962 Constitution equivalent to the above Article has been the subject-matter of interpretation in Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969SC 14). At page 30 it was observed :- "Whilst in the first case the direction is limited to the making of an order for doing or refraining from doing that which the law permits or does not permit, as the case may be, in the case of detention the High Court is enjoined upon to "satisfy itself" that the person is not being held in custody (a) without lawful authority or (b) in an unlawful manner." This Court has, therefore, to satisfy under Article 201 of the Constitution two things, namely, whether the custody was without lawful authority or in an unlawful manner. In examining the question before us anything which is not done in accordance with law would be an act of unlawful manner. Mr. Manzoor Qadir relying on Shorish Kasbmiri's case argued that the custody could be of two kinds i.e. One with the Army and the other with the Civil Authority. Dealing with Civil Custody he referred to Prisons Act, 1894 and different chapters of the Punjab Jail Manual. Section 3 of the- Act defines `prison', `criminal prisoner', `convicted criminal prisoner' and `civil prisoner'. Section 29 deals with solitary confinement and section 31 relates to maintenance of certain prisoners from private sources. It reads :- A civil prisoner or an un-convicted criminal prisoner shall be permitted to maintain himself, and to purchase, or receive from private sources at proper hours, food, clothing, bedding or other necessaries, but subject to examination and to such rules as may be approved by the Inspector- General." Chapter XV of the Punjab Jail Manual, 1955 deals with under-trial prisoners: Paragraph 368 thereof deals with medical examination, page 370 with periodical weighments, para. 372 permits the wearing of his own clothes and use of his own bedding. Para. 374 relates to maintenance of prisoner from private sources, namely, permission for the under-trial prisoners by the Superintendent to purchase or receive from private sources, food, clothes, bedding and other necessaries subject to the restrictions placed thereon. The under-trial prisoners can receive money from their friends or relatives to purchase articles permissible under the rules by virtue of para. 376. Para. 380 concerns the employment of the under-trial prisoners on any unproductive labour inside the jail if they so desire. Para. 383 deals with any special directions given by the Magistrate regarding the separation of an under-trial prisoner. Such separation should not be accompanied by irksome conditions, except those necessary to secure the object in view, namely to prevent him from communicating directly or indirectly with other prisoners concerned in the same case. Para. 386 provides that under trial prisoners may be allowed to use their own books approved by the Superintendent up to a reasonable limit in addition to those available in the jail library. They should be allowed to' read at their own cost, magazines and newspapers on the approved list. Chapter 21, paras. 476 to 514, deals with diet of prisoners. Para. 478 gives power to the Medical Officer to vary the diet of the prisoner if he considered it unsuitable or insufficient for reason of his health. Para. 479 and para. 480 deal with morning and midday and evening meals and the scale of the various meals to be provided to the prisoner. Chapter 22 deals with clothing. Chapter 23
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concerns writing letters and interviews. Chapter 26 relates to prisoners in cells. Para. 633 dealing with section 28 of the Prisons Act empowers the Superintendents to confine convicted criminal prisoners either in association or individually in cells, or partly in one way anti partly in the other. If any convict is confined in a cell under that section, he should, if circumstances permit, be treated in all other respects like ordinary prisoners confined in association. He should be locked up and unlocked at the same hours and allowed to work and have meals in association with other prisoners. The prisoner is kept in a cell because it is considered expedient to confine him there and not because he has been given this confinement as a punishment. Chapter 32 deals with sanitation in jail. Para. 758 of this chapter deals with ventilation of wards and cells. Para. 759 lays down that newly constructed ward, barrack or cell, shall be occupied by any prisoner until the Medical Officer shall have certified that such ward, cell or other compartment is in all respects fit for occupation. Para. 761 deals with sleeping berths. Para. 762 lays down that no cell shall be used for solitary confinement…
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