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Petitioner: Malik GHULAM JILANI VS Respondent: THE GOVERNMENT OF PAKISTAN THROUGH THE
Court Name: Lahore High Court Judge(s): Nasim Hasan Shah, K. Muhammad A. Samadani Title: Malik GHULAM JILANI vs THE GOVERNMENT OF PAKISTAN THROUGH THE Case No.: Writ Petition No. 1630 of 1973 Date of Judgment:1975-04-29 Reported As: PLD 1976 Lahore 38 Result: Petition dismissed
JUDGMENT
JUDGMENT NASIM HASAN SHAH, J.-This order will dispose of W. P. No. 1630 of 1973, Criminal Miscellaneous 641/H of 1973 and Criminal Miscellaneous 2953-B of 1974, as these matters have been heard together. 2. On 16-8-1973, Malik Ghulam Jilani, Secretary General, Tehrik-i---Istiqlal, filed a petition under Article 199 of the Constitution and under section 491, Cr. P. C. Through Mian Mahmud Ali Kasuri, Advocate (W. P. 1630 of 1973) alleging that according to his information Mir Ghaus Bakhsh Khan Bizenjo, Sardar Ata Ullah Khan Mengal, Sardar Khair Bakhsh Marri and Bizen son of Mir Ghaus Bakhsh Khan Bizenjo, had been arrested at various places` on account of mala fides and on false and trumped up charges and were lodged in the Lahore Fort; that he was a friend of the detunes and prayed to the Court to direct: (1) The production of the prisoners before it so that it may satisfy itself' that they are not being held in custody without lawful authority or in any unlawful manner; (ii) that the detunes be not removed from the jurisdiction of the Court: till the final disposal of the petition; and (iii) that the detunes be set at liberty. 3. On 17-8-1973, Muhammad Farooq Qureshi, Acting President. Lahore National Awami Party, filed a petition for the issuance of a writ of habeas, corpus under section 491 of the Criminal Procedure Code, read with Article 199 of the Constitution "for the production of the corpus of` Mr. Ghaus Bakhsh Khan Bizenjo, Sardar Ata Ullah Khan Mengal, Sardar Khair Bakhsh Marri and Colonel (retired) Sultan" (Criminal Miscellaneous. 641/B of 1973). This petition was filed through Mr. Rafique Ahmad Khan Banghash, Advocate.
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Both these petitions came up for hearing before a Bench consisting of K. E. Chauhan and Aslam Riaz Hussain, JJ. On 17-8-1973. Three orders, at different hours of the day, were passed on that date in connection with W. P. 1630 of 1973. By the first order the standing counsel for the Central Government was asked to indicate whether the "alleged detunes are within the territorial jurisdiction of this Court". It was further directed that if this was so "they should not be removed out of the jurisdiction of this Court tilt further orders." In the second order it was observed that the information supplied to the Court showed that whereas Mir Ghaus Bakhsh Khan, Bizenjo, Sardar Ata Ullah Khan Mengal and Sardar Khair Bakhsh Marri were detained at various places of the Punjab, Mr. Bezen was not detained anywhere in the Punjab. In this order note was taken of the oral request of Mian Mahmud Ali Kasuri Advocate to see the detunes and the learned Advocate-General allowed time to obtain instructions in regard thereto. In the third order, note was taken of the place where Colonel (Retired) Sultan was lodged (in respect of whom Criminal Miscellaneous 641/H of 1973 was moved) and the statement of the learned Advocate-General to the effect that there was no objection to the various counsel of the prisoners to see them, was taken note of. Two orders were passed in connection with Criminal Miscellaneous 641/H of 1973, which also carne up for hearing on 17-8-1973 at different hours on that day. In the first order it was observed that as W. P. 1630 of 1973 for seekinj liberty of Mir Ghaus Bakbsh Bizenjo, Sardar Ata Ullah Khan Mengal and Sardar Khair Bakhsh Marri had already been filed through Mian Mahmud Ali Kasuri, Advocate, a duplicate petition about the same persons could not be entertained. Hence the said petition was entertained with regard to Colonel (Retired) Sultan only. The same was ordered to come up along with W. P. 1630 of 1973 towards the close of the day when the reply of the learned Advocate-General in regard to the prayer relating to interviewing the prisoners was to be considered. The second order was simply to the effect "same order as in W. P. 1630 of 1973 in this order the place of confinement of Colonel Sultan was noted and permission to see the prisoners by various counsel was allowed." 4. Before taking up the case on the merits, it appears necessary to detail the history of the proceedings of these matters before this Court and to explain why these petitions which were in the nature of habeas corpus petitions and were instituted on 17-8-1973 have taken so much time for their disposal. 5. On 20-8-1973 the written statement on behalf of the Punjab Govern--ment was submitted in Court, stating that the prisoners were held in lawful custody under the valid orders of the competent authority and in this behalf the following details were furnished:- "That the District Magistrate Lasbella on 10-8-1973 issued warrants for the arrest of Colonel Sultan Mohammad Khan and Sardar Ata Ullah Mengal under section 409/122/121-A/120-B, P. P. C. Read with section 5 Act II of the Prevention of Corruption Act, 1947. That said Colonel Sultan Mohammad Khan and Sardar AU Ullah Mengal were arrested by the police from Quetta on the 16th August 1973 and were produced before the Assistant Commissioner and S. D. M., Quetta on the same day. The S. D. M. On 16-8-73--remanded both the accused to judicial custody for 14. Days and further directed that the accused be produced before the Court con-- cerned on 29-8-1973. That on 9-8-1973 the A. C. And Magistrate Ist Class Sibbi issued warrants for the arrest of Sardar Khair Bakhsh Marri under section 302/400/121-A/396 read with sections 109 and 34, P. P. C. That Sardar Khair Bakhsh was arrested by the Quetta Police on 16-8-1973 and produced before the A. C. And S. D. M. Quetta on the same day.. The S. D. M. Remanded Sardar Kbair Bakhih Marri to judicial custody for 14 days and further directed that the accused be produced before the Court concerned on 29-8-1973. That the A. C. And Magistrate Sibbi on 9-8-73 issued warrants for the arrest of Mir Ghaus Bakhsh Bizenjo under sections 302/:100/121-A and 396 read with sections 10)/34, P. P. C.
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That the accused was arrested by the D. S. P. Crimes Quetta at Rawalpindi on 16-8-73 and was produced before the Magistrate 1st Class, Rawalpindi on the same day who granted three days remand to the police so that this accused may be produced before the competent Court which issued the warrants on 9-8-1973. That in the meantime this Hon'ble Court in the above noted writ petition ordered that the accused if within the jurisdiction of the Lahore High Court should not be removed outside the jurisdiction till further orders. That in view of the orders of the High Court the accused was not taken to Quetta, the accused Mir Ghaus Bakhsh Bizenjo was again produced before the Magistrate 1st Class Rawalpindi on 19-8-1973 and was remanded to' police custody till 22-8-1973. The Magistrate further directed that he should be produced before the competent Court on 23-8-1973. That the Government of Baluchistan considered it necessary in the interest of public peace and order that Sardar Khair Bakash Marri. Sardar Ata Ullah Khan Mengal and Colonel Sultan Mohammad Khan be kept out of the Province of Baluchistan during these 14 days of judicial remand. The Home Secretary of the Baluchistan Government, therefore, sent a requisition to the Government of Punjab that the three accused persons are being transferred for confinement within the Punjab Province upto 29-8-1973 when they are to be produced before the competent Court." 6. When the case came up for hearing on 20-8-1973, Mian Mahmud Ali Kasuri, Advocate, (appearing in Writ Petition No. 1630 of 1973) submitted, by invoking the provisions of Article 196 of the Constitution, that the Court was not competent to function as the Chief Justice of the Court had gone out of Pakistan to attend an International Conference and the most senior of the other Judges not having been appointed to act as Chief Justice all proceedings -taken in the Court in his absence would be coram non judice. He was called upon to file a formal application incorporating this objection. This was accordingly done. The Central Government and the Punjab Government duly submitted replies to this application. In the reply submitted to this application by the Central Government, it was inter alia stated that "this objection was raised in a mala fide manner only to get an adjournment to prolong the proceedings of this case for some ulterior reason counsel knew that several criminal cases have been registered against the accused persons mentioned in the writ petition and, therefore, these petitions may not proceed in view of the fact that other adequate remedies are available to the accused persons against their arrest." So far as the validity of the objection itself was concerned, the same was also controverted. In the written statement of the Punjab Government the validity of the objection was also repudiated. Consequently, when the matter again came up for hearing, on 22-8-1973, Mian Mahmud Ali Kasuri withdrew his objection. However, when the Court wished to proceed on merits, Mian Mahmud Ali Kasuri as well as Mr. M. B. Zaman (the then Advocate General) prayed for adjournment of the .Case for a week. The Court pointed out to Mr. Kasuri that "he being .Counsel for the detunes was himself applying for adjournment. But he submitted that he bad some such engagement which he could not avoid." The case was accordingly adjourned. When the matter next came up for hearing, namely, on 31-8- 1973, Mr. Kasuri again asked for adjournment to prepare the case. The adjournment was opposed by counsel for the Central Government on the ground to quote the words of the Bench then attending to the matter "that the petitioner does not appear to be serious about the main case and is trying to get it postponed on one pretext or the other after having once obtained an order that the detunes should not be removed out of the territorial jurisdiction of this Court. Even otherwise, according to the learned counsel for the Central Government, by taking adjournments, learned counsel for the petitioner is creating legal complications in the matter of the detention of the aforesaid persons in this province. "However, in the interest of justice, to enable Mr. Kasuri to prepare the case, the matter was adjourned to 4-9-1973.
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7. On 4-9-1973, Criminal Miscellaneous 641/H of 1973 which was confined to the case of Colonel Sultan, appears to have been taken up first. The said petition was admitted to consider the question as to whether his detention in the Punjab, in the circumstances of the case, could be held to be with lawful authority. In view of this order, W. P. 1630 of 1973 was also admitted and the office was directed to fix a date after the reopening of the Courts, after the Summer Vacation 8. Thereafter W. P. 1630 of 1973 did not come up for hearing before the Court until 25-2-1974 and that too for consideration of a miscellaneous application (Criminal Miscellaneous 3 of 1974) moved by Mr. Kasuri on behalf of three persons desirous of meeting the prisoners, for grant of permission to do so. Before that, a petition seeking a similar relief (Criminal Miscellaneous 2152/M/73) was moved by some relatives of Colonel Sultan in Criminal Miscellaneous No. 64 t /H of 1973, but the same was dismissed by the order of a Division Bench, consisting of Mohammad Akram and K. E. Chauhan, JJ., on 9-11-1973 (the judgment is reported as PLJ 1974 Lah. 237). Accordingly, C. M. 3 of 1974 m W. P. 1630/1973 too was dismissed on 2-4-74 by a Division Bench, consisting of K. E. Chauhan, J: and one of us (K. M. A. Samdani, J.). The applicants challenged the above order by filing a petition for Leave to Appeal before the Supreme Court (C. P. S. L. A. No. 495 of 1974) and leave was allowed by the Supreme Court, vide its order dated 11-7-74 and interim relief was granted. 9. On 15-g-1974 all the for prisoners, namely, Mir Ghaus Bakhsh Khan Bizenjo, Sardar Ata Ullah Khan Mengal, Sardar Khair Bakhsh Marri and Colonel Sultan moved an application for bail under sections 497/498, Cr. P. C. (Criminal Miscellaneous No. 2953-B of 197 4) contending, inter alia, that according to the provisions of subsection (3) added to section 16 of the Criminal Law (Special Provisions) Ordinance, 1968, by Act II of 1972--Criminal Law (Special Provisions) (Amendment) Act, 1972. The petitioners were entitled to bail because they had already been under detention for a period exceeding one year and their trial had not yet commenced and under clause (b) of subsection (3) where an accused was detained for an offence punishable with imprisonment exceeding seven years, he could be released on bail if his detention for such offence exceeded a period of one year and his trial had not concluded. This matter came up for hearing on 16-8-1974 before one of us (Nasim Hasan Shah, J.) and notice was issued to the Attorney General of Pakistan and the Advocate-General of the Punjab for 23-8-1974. Before that date, the learned Advocate-General, Punjab, moved an application (C. M. 4 of 1974) in Writ Petition No. 1630 of 1974) for vacation of the order dated 17-8-1973, whereby the respondents were directed not to remove the detunes out of the jurisdiction of this Court till further orders. In this application it was submitted that the challans against all the detunes had now been put in the relevant Court in the province of Baluchistan and the said Court had taken cognizance of the case, but the said cases could not proceed on account of the absence of the accused. Notice was issued to Mian Mahmud Ali Kasuri for 23-8-1974 in this application the date fixed for the hearing of the bail matter. The Attorney General, however, was not present on 23-8-1974 and both the matters were accordingly adjourned to 26-8-1974 for which date leave was also granted to the Advocate-General Baluchistan to appear and assist the Court. Accordingly, both the matters again came up for hearing on 26-8-1974. Mian Mahmud Ali Kasuri, on this date, submitted an affidavit of Senator Abdul Wahid who had seen Mr. Ata Ullah Mengal in the meanwhile. In this affidavit it was averred that the health of Mr. Mengal was - not satisfactory. In the affidavit allegations of mala fides were, made and it was also averred that the cases against the prisoners were false and fabricated. After hearing the parties, it was considered that the bail petition and the application for vacation of the restraint order should be taken up with the main case. All the learned counsel, keeping in view their other commitments, agreed that the case may be adjourned to 23-9-1974. Meanwhile, the Punjab Government. Was. Directed to arrange for a heart specialist to see Mr. Mengal and report about his health.
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10. When the above mentioned cases came up for hearing in September, 1974 and the matters were heard at some length, a prayer for adjournment was made by the learned Assistant Advocate General, Punjab, in order to place copies of the remand orders in answer to the plea raised on behalf of the prisoners that they had not been remanded to custody under proper and lawful orders. This prayer was not objected to, but a submission was made by Mr. Kasuri that as the case was being adjourned, the detunes may also be ordered to be produced before the Court on the next date of hearing so that they could clarify their point of view. At any rate, they should be brought to and detained in Lahore so that he could easily interview them and obtain instructions from them. The learned Assistant Advocate General, Punjab, with respect to this prayer, requested for time to obtain instructions. The main case was adjourned to 8-10-1974. In the meanwhile, the Provincial, Government informed the Court that it could not make adequate arrange--ments for lodging the under-trial prisoners at Lahore. The Government was then directed, by this Court's order dated 30th September 1974 to produce the. Prisoners in Court on 8-10-1974. The object was to ascertain their point of view on the said date, whereafter the Government could take back to wherever it was considered appropriate. 11. The last mentioned order was, however, challenged by the Federal. Government, the Baluchistan Government, the Punjab Government and the D. I. G. Lahore before Supreme Court and proceedings were stayed in this Court, by the said learned Court. The appeal was accepted by the Supreme Court vide its order dated 14-10-1974 to the extent that this Court's order was "modified so as to permit the detaining authority to produce the prisoners before the High Court at the Sibala Rest House instead of the premises of the Court at Lahore." The case was sent back to this Court for further proceedings with this direction 12. When the matter was taken up again on 25-10-1974, the learned A. A.-G. Punjab informed us that at least two weeks time would be needed by the Government for making necessary arrangements. The case was accord--ingly adjourned to 11th November 1974, for further proceedings at the Sihala Rent House. 13. On 31-10-1974 the Federal Government moved a miscellaneous application (C. M. 7 of 1974) praying for vacation of the restraint order made on 17-8-73. This application came up for hearing on 1-11-1974 and notice was issued to the counsel for the prisoners for 5-11-1974. 14. The Attorney-General, the Advocate-General Punjab, and counsel for the prisoners were heard. In the arguments addressed by the learned Attorney-General the main effort was to persuade us to hold that the order of the Supreme Court dated 14-10-1974 did not imply that this Court was bound to examine the detunes without first deciding the question of its jurisdiction. This petition was dismissed by a detailed order passed on 6-11-1974. This order too was challenged before the Supreme Court, but without success. However, on the request of the Attorney-General, which was not opposed by the other side, the hearing of the case at Sihala was adjourned to 28-11-1974. 15. The statements of the prisoners were recorded at Sihala from 28-11-1974 to 3-12-1974. Thereafter, the case was fixed for arguments on 1,1-12-1974 at Lahore. 16. The arguments for one reason or the other dragged on to 11-3-1975 and the reasons for this appear from the following extracts from some of the interim orders recorded during the course of the proceedings : Order dated 11-12-1974 "The learned Advocate-General Punjab, has stated that the learned Attorney-General is busy in Karachi and prays for an adjournment of the case . . . . . The learned counsel for the prisoners does not oppose the request . . . . . The case is adjourned to 17-12-1974 for further proceedings." Some arguments were heard on 17-12-1974 from Mian Mahmud Ali Kasuri, who also continued to address us on the 18th and 19th December, but although he had not concluded his address on that
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date he, however, prayed for an adjournment. The order passed on that date (19-12-74) which deals with this prayer, may, therefore, be reproduced below :- "Arguments have been heard partly in this case. The learned counsel for the prisoners states that owing to certain pre-occupations it is not possible for him to continue: -his arguments tomorrow, as he has to proceed to Islamabad. He prayed for an adjournment. (2) The learned Attorney-General states that he is not available on 23rd instant as he has to appear before the Supreme Court on the said date. (3) In these circumstances, this case is adjourned to 14-1-1975 for further proceedings." Mian Mahmud Ali Kasuri and Mr. Rafiqua Ahmad Bangash, Advocates, were thereafter heard on 14- 1-1975 until they concluded their address on 17-1-1975, but on this date the learne9 Attorney- General was not available. The order passed on 17-1-1975, whereby the case was again adjourned to, 14-2-1975 is self- explanatory. It reads as under : "The arguments on behalf of the prisoners have now been concluded. The learned Attorney- General informed us on 15-1-75 that owing to his other unavoidable pre-occupations it was necessary for him to proceed to Islamabad and the earliest date on which he could return to Lahore, for making his address was the 4th of February 1975. He, accordingly, prayed that after the address on behalf of the prisoners. Was concluded, he should, be heard in reply on 4th February 1975. It was also pointed out that the Advocate-General, Baluchistan, who had gone for Haj could also be heard, if the case was adjourned to 4-2-1975. The learned Advocate for the prisoners states that he had no objection to the adjournment of the case to 4th February 1975. (2) Although we were most anxious to conclude the hearing of the arguments in the case without interruption, but as neither the Attorney-- General nor the Advocate-General of Baluchistan can appear before 4-2-1975, we reluctantly agree to adjourn the case to 4th February 1975, for further proceedings. Order accordingly." In the meanwhile, on 3-2-1975 the learned Attorney-General of Pakistan moved an application under section 151, C P. C. For the grant of permission to remove Mr. Ata Ullah Mengal out of the Province of the Punjab for the purpose of his medical treatment at the National Institute of Cardio Vascular Diseases, Karachi. This application was granted by our order dated 3-2-75. However, when the case came up for arguments on the date already fixed, namely, 4-2-1975, a request was made by the Attorney-General for adjourn--ment of the case. The relevant part of our order, which deals with this prayer, is reproduced below: "The learned Attorney-General states that owing to his extreme pre---occupations in connection with the Land Reforms cases before the Supreme Court of Pakistan, he has not been able to fully prepare then arguments in this case. He prays for a short adjournment. (2) Mr. Muhammad Ahmad, Advocate-General, Baluchistan, has also made a similar request on the ground that he has just returned from Haj and has, therefore, not been able to study the case. (3) The learned counsel for the prisoners, Mr. Mushtaq Raj, Advocate, has no objection to the adjournment . . . . . To come up for further proceedings on 20-2-1975." The learned Attorney-General, Advocate. General, Baluchistan, and the Assistant Advocate- General, Punjab, addressed us from 20-2-1975 to 26-2-1975, and the learned counsel for the prisoners, Mian Mabmud Ali Kasuri, was to submit his final reply on 27-2-1975. However, when the case came up on the said date, he prayed for adjournment, and the matter was adjourned to 27- 2-1975, with the following observations:- "The address of the learned counsel for the Federal Government, the Government of Baluchistan and Government of the Punjab concluded yesterday. However, on the request of Mian mahmud Ali Kasuri that he may be heard in connection with the final reply on the next day,. The case was adjourned to today.
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(2) When the case was taken up today, Mr. Mahmud Ali Kasuri stated that he was busy in a part- heard murder case and prayed for adjourn--ment. We informed him that this case had already been inordinately delayed on account of the frequent requests of counsel for the parties for adjournments of the case from time to time, with the result that these habeas corpus petitions continued to remain pending. The learned counsel stated that it was in the interest of the prisoners that their counsel should be able to present a full and uninterrupted argument and this could be done when he was free. The delay being caused was, therefore. Not against their interests, but to their advantage. (3) In view of the above, we reluctantly adjourn the case to the next working day of the Court, namely, 4-3-1975. Hearings ultimately concluded on 11-3-75. 17. This somewhat detailed reference to the history of the proceedings shows that the delay in the disposal of the case has been caused largely to accommodate the requests of the learned counsel for the parties. In this connec--tion besides the adjournments granted by the Court to the dates fixed by it, the office was also handicapped in fixing the case on certain dates because the learned counsel for the prisoners, Mr. Kasuri, had obtained orders of general adjournment of all his cases for various periods of time to enable him to attend the National Assembly or to attend to work outside Lahore. More--over, none of the parties was at all keen that the cases be taken up for about a year after their institution. On the expiry of the period of one year of the arrest of the prisoners an application for bail was moved on behalf of the prisoners on 15-8-1974 and a day or so later a counter application was made for vacation of the restraint order. So far as the prisoners were concerned, it appears to have been realized that even if their detention in the…
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