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Petitioner: DR. AIJAZ HASSAN QURESHI VS Respondent: WSW GOVERNMENT OF THE PUNJAB THROUGH JUDGMENT
Court Name: Lahore High Court Judge(s): Zakiuddin Pal Title:DR. AIJAZ HASSAN QURESHI vs WSW GOVERNMENT OF THE PUNJAB THROUGH
JUDGMENT
Reported As: PLD 1977 Lahore 1304 Result: Petition accepted Judgment JUDGMENT ' This petition has be, n submitted by Dr. Ejaz Hassan Qureshi, Printer and Publisher, Urdu Digest, Labor; through Superintendent, District Jail, Lahore, Kot Lakhrat, for setting him at liberty, he being in illegal custody of the jail authorities. He Is involved in two cases registered against him vide F. I. R. No, 908, dated 17-12-1975, under sections 49 and 54, D. P. R . . . Lodged with Police Station, New Anarkali, Lahore and F. I. R. No, 651, dated 24-5-.975, under section 49. D. P. R lodged with Police Station, Mozang, Lahore. So far as the latter case is concerned, he has already been granted bail by the Special Tribunal, Punjab, while in the former case vide F. I. R. No, 908, he was granted ball by my learned brother S. Rehman, J. By his order dated 23-12-1975. Simultaneously the petitioner also filed Cr. Misc. No, 752/T-75 in the High Court in regard to Case No, 908 for the purpose of withdrawing the same from the Court of Ch. Nasarullah Khan Cheema, M. I. C., Lahore and trial of the same by the High Court in its original jurisdiction. This petition was disposed of by my learned brother Mr. Gulbaz Khan, J. By his order dated 19-4-1976 holding that since Ordinance III of 1976 had not been made applicable with retrospective effect, therefore, the aforesaid case was liable to be tried by the ordinary Courts and not by the Tribunal constituted under section 8/9 of the said Ordinance. 2. Later on, on account of the amendment introduced in the Ordinance itself the jurisdiction of the ordinary Courts was ousted to try such case?. In the circumstances, the Senior Civil Judge, Lahore, whom the case was transferred for trial by the High Court, sent the file of the same to the High Court stating that on account of the establishment of the Special Tribunal, he had no jurisdiction to proceed with the case. It appears from the record that the said file remained pending in the High
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Court and was requisitioned, for the first time, by the Special Tribunal vide its letter dated 19-4-1977 and was received by the Tribunal, probably, by the end of the same month. The said letter, issued by the Tribunal, shows that the file was requisitioned on the application having been filed by the petitioner for grant of bail in Case No, 908, which could not be disposed of in the absence of the file. After the receipt of the file the said application was rejected by the Tribunal vide its order dated 9- 5-1977, when the present petition was entertained by the Office of this Court the same day having been sent through the Superintendent, District Jail, Lahore. 3. The learned A. A.-G. Has also brought to my notice pendency of Writ Petition No, 3185/75, titled "Ziaur Rehman v. S. H. 0. Mozang etc." challenging the arrest of the petitioner Dr. Ejaz Hassan as well as his brother Altaf Hassan Qureshi, on the ground that they both were arrested in December 1975, without any warrant and thereafter cases were registered against them under rule 49/54/42, D. P. R. It was contended in that case that since the petitioner as well as his brother, both, were arrested without a warrant and the provision as contained in rule 206 of the D. P. R. Ousted the general provisions of the Cr. P. C., the complaint had to be taken cognizance of directly by the Magistrate and no arrest otherwise could take place without a warrant. It was further contended that the Public Officer concerned had to prefer a complaint directly in the Court and no case could be registered ner any challan submitted and the Magistrate having not so received the complaint had not and could not take cognizance of the matter. It was contended that even if he did so he had to issue notice and not to take into custody the detenus who were illegally arrested. An application for grant of bail was submitted in that case by the petitioner but the same was rejected on the ground that on account of the Fifth Constitutional Amendment no ad interim relief could be granted in the exercise of extraordinary jurisdiction under Article 199 of the Constitution. The narration of the above facts would show that the aforesaid writ petition has got nothing to do with the present petition as the facts and respective reliefs prayed for in both the cases are quite different from each other. In the present case the petitioner has challenged his detention being illegal on the ground that his custody to the jail authorities has not been remanded lawfully and as such he should be set at liberty being in custody without lawful authority. 4. The record of Case No, 90/75, summoned from the Special Tribunal as well as that maintained by the jail authorities shows that no order was ever passed committing the custody of the petitioner in Case No 908 to the jail authorities by the High Court when the case was pending there having been sent by the Senior Civil Judge, Lahore, whom it was transferred for trial, nor by the Special Tribunal when it received the file of the case in April 1977. The record maintained by the jail authorities, on the contrary, shows that request was made by them to the Special Tribunal for issue of warrant in Case No, 908 remanding the custody of the petitioner to them, but no order in this behalf was ever passed. The entire aforesaid record shows that the petitioner's custody was remanded in Case No, 651/75 and he was directed to be detained in that case by the jail authorities and not in Case No, 908/75. It is also admitted on record that the remand order in Case No, 651 in relation to the petitioner has been passed on different dates only by a single member of the Tribunal. 5. It has been argued by the learned A. A.-G. That after the record of Case No, 908 was received by the Special Tribunal in April 1977, the petitioner should be deemed to be in lawful custody thereof. He has, however, conceded that before that period there being no order, whatsoever, either by the High Court or by the Senior Civil Judge, Lahore, remanding custody of the petitioner to the jail authorities he may be deemed to be in illegal custody in the said case. He has further argued that remand order passed by the Special Tribunal in Case No, 651 should be deemed to have been passed in Case No, 908. Since, according to him, the petitioner was already on bail in Case No 651, there was no occasion for remanding him to custody in that case.
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6. It is contended that the petitioner has been appearing before the full Tribunal and even if the order was signed by a single member it should be otherwise deemed to have been passed by the whole Tribunal and not by a single member. 7. The learned A. A.-G. Has also submitted that the order dated 9-6-1977 rejecting the bail application of the petitioner should also be deemed to be an order remanding his custody to jail authorities. 8. The learned A. A.-G. Has also relied upon the provision as contained in section 537, Cr. P. C. To the effect that no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVI!, or on appeal or revision on account of-(a) any error, omission or irregularity in the complaint, report by a Police Officer under section 173, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings Under this Cc de, or (b) any error, omission or irregularity in the charge or mode of trial, including any misjoinder of charges, unless such error, omission or irregularity has in fact occasioned a failure of justice. It is conceded by the learned A. A.-G. That though this provision as such applies to the cases in appeal or revision under the Code, but he submits that the principles laid down therein may be applied to the facts of the present case. According to him if any error, omission or irregularity has been committed in the order passed under section 344, Cr. P. C., then the same can be rectified by the Special Tribunal itself by sending the case to the same and not by deciding the case by the High Court itself in view of such error or omission. He has relied upon the judgment delivered by the High Court, in Muhammad Alkbar Batik v. Superintendent fall, 'hang (Writ Petition No, 625/77) on 14-4-1977. In that case, one of the grievances of the petitioner was that the detenus in that case had not been produced before the Magistrate concerned on some occasions when the orders for remand were passed. The statement of Mr. Abdul Wahab Khan, the Magistrate, was recorded by the High Court in relation to the said grievances. He deposed that it was reported by the police at the time when he remanded the custody of a particular detenu that he could not be brought from Jhang where he was imprisoned, on account of law and order situation prevailing at that time and in the given circumstances ho permitted the remand for fourteen days in the absence of the accused. According to the Magistrate, judicial custody in such exceptional circumstances could be granted. It was, however, admitted by him that at the time when detenus were remanded to the custody the relevant record was produced before him. ' All the dotenus involved in the said case were undertrials. They were arrested by the police of Mianwali District on different dates in connection with the movement launched by the Pakistan National Alliance. Under this orders of a Magistrate in the District they were detained in the Central Jail, Mianwall, but thereafter they were transferred to District Jail, Jhang. The transfer order as made with regard to the undertrial prisoners was set aside by the learned Judge and they were directed to be brought back to the judicial lock-up of the Magistrate having jurisdiction in the case at Jhang and produced before him. It was further directed that the said Magistrate would ascertain from them, if necessary, after recording their statements, the illegalities having been committed with a view to regulate their detention and to make it in accordance with the law applicable to the undertrials. ' It has been argued that in view of the aforesaid judgment if any illegality has been committed in remanding the custody of the petitioner to the jail the same can be regulated by the Special Tribunal to whom the matter should be entrusted. 9. The learned A, A.-G. Has lastly contended that since the order of release, if any to be passed by this Court, would be rendered ineffective by the re-arrest of the detenu on the basis of a warrant issued by the Special Tribunal, therefore, the relief as claimed for in the writ petition should not be granted. He in this regard has relied upon Sh. Rehmat Ullah v. The Deputy Settlement
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Commissioner, Karachi (1), Sped Abul Ala Maudoodi v. Government of West Pakistan (2), Ab8u1 Aziz v. Muhammad Ali (3) and Mirza Muhammad Shaft v. Collector, Sheikhupura etc. (4). 10. It is admitted by the parties that the detenu/petitioner was sentenced to undergo imprisonment for two years and to pay a fine of Rs, 10,000 by the Special Tribunal in another case registered against him for an offence under section 49, D. P. R. By its order dated 30-9-76. However, on appeal filed in the High Court against the said order ho was acquitted of the charge on 21-3-77. According to the petitioner and admitted by the Jail authorities, the said order of the High Court was communicated to the Jail authorities on 22-3-1977, but the petitioner was not released tin the ground that he was involved in Case No, 908/75 in which he was not on bail. As mentioned above, at present there are only two cases pending against the (1) PLD 1963 SC 632 (2) PLD 1964 Kar. 478 (3) PLD 1967 Lab. 762 (4) PLD 1968 Lab. 403 petitioner Le., Cases Nos. 908/75 and 651/75. In the latter case he is already on bail granted by the Special Tribunal while in the former case bail has not been granted to him. 11. The main grievance of the petitioner is that after 21-3-1977, when his appeal was accepted and he was acquitted by the High Court in another case in which he was convicted by the Special Tribunal, no order, whatsoever, was passed by the Special Tribunal or any other competent authority remanding his custody to the jail authorities. The argument of the learned A. A.-G. That after the file of Case No, 908 was received by the Special Tribunal in April 1977, from the High Court it took cognizance of the case and as such the petitioner should be deemed to be in lawful custody has no substance in the given circumstances. ' The challan in the case having already been submitted and some evidence having already been recorded by the Magistrate before whom the trial was pending at the initial stage, an order remanding the custody of the petitioner was obliged to be passed under section 344, Cr. P. C. There is nothing on record to show that any such order was ever passed by the Tribunal even after 21.3- 1977, when the petitioner was acquitted by the High Court in another case accepting his appeal. ' The further argument that the order of the Tribunal though passed in relation to Case No, 651/75 remanding the custody of the petitioner to jail authorities should be deemed to have been passed in Case No, 908/75 has also no substance. I have checked up the relevant record, maintained by the jail authorities carefully in the presence of the Deputy Superintendent of Jail as well as the learned A. A.. G. The remand order throughout has been passed in Case No, 651/75 in which the petitioner is admittedly on bail. It is admitted by the respondents that the file of Case No, 908/75 was received by the Tribunal in April 1977, as mentioned above, and before that it was pending in the High Court. I fail to see as to how the aforesaid order can be deemed to have been passed in Case No, 908/75 when the relevant record thereof was not even with the Tribunal. 12. Further, after the record was received by the Tribunal in April 1977, it was necessary to pus the remand order after having applied full mind in the given circumstances of the case. It is evident that no mind was, at all, applied by the Special Tribunal while remanding the petitioner to the jail even after 21-3-1977. If it had been so then at least Case No, 908/75 would have been mentioned in the remand order itself. Since the custody of the petitioner was always remanded to the jail authorities in Case No, 651/75 before 21-3.1977 or April 1977, as the case may be, the Special Tribunal without applying its mind and without looking into the relevant record and without seeing as to whether the remand was necessary to be granted mechanically passed the order remanding the custody of the petitioner in Case No, 651/75. It may be mentioned here that it continued to be so even after the reminder having been given by the jail authorities that no judicial warrant had been issued in Case No, 908/75. In the circumstances the aforesaid orders, though passed after 21-3- 1977, cannot be deemed to have been passed in Case No, 908/75.
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13. According to law, in order to obtain remand under section 344, Cr. P. C. Three conditions are required to be fulfilled : (I) some evidence should be adduced before the Court which should be sufficient to raise suspicion of the accused's guilt and the Court should be sure that further evidence to strengthen the suspicion in the belief is expected to be collected. (ii) a police report in writing of acts constituting the offence must be produced to enable the Court to take cognizance of the offence ; and (iii) if the nature of the case is such that no cognizance of the offence can be taken without the previous sanction, then such sanction should be produced to enable the Court to take cognizance of the offence." ' It has been held in various authorities that proceedings relating to grant of remand are proceedings within the meanings of section 310, Cr. P. C. And during these proceedings an accused has right to be represented by his lawyer and to have access to his relatives for that purpose. 14. According to law, it is obligatory for the Court concerned to record its reasons for ordering detention of a person in custody. Evidence ha to be weighed for deciding whether there is any ground for remanding a person to custody as law views with disfavour the detention of prisoner's detention in custody without good reasons. It is the duty of the Court itsel to weigh, in the given circumstances, whether there is any reasonable ground for passing an order of remand and for that purpose it has to look into the evidence and to determine the sufficiency of the grounds for passing a remand order. ' Under paragraph 12 of Chapter XI-B of the High Court Rules and Orders, Vol. III, when a person is produced before a Magistrate for remand it is the duty of the said Magistrate to inform him about his position as such; that a remand has been applied for and whether the accused has any objection to the grant of the same. The Court is obliged under the law, before granting remand, to study the police diaries to ensure as to the accusations against the accused person and the evidence secured to justify the remand. Since the right of personal liberty is precious one, therefore, the Courts should be jealous to guard the same against any invasion. An accused person cannot be detained on mere expectation that time would show his guilt, or upon the chance of further facts coming to light. ' It has been held in many authorities that a Court while passing a remand order cannot be said to be acting in executive capacity; the remand' proceedings being judicial in nature should be conducted judiciously. 15. I have discussed the aforesaid point in detail in the judgment delivered by me in Writ Petition Nos 1162/77 (Iqbal Ahmad Khan etc. v. State etc.), decided on 7-6-1977. Further reliance in this regard can be placed upon State v. Samiullah Khan rand others (1), Farooq Bedar v. Police, West Pakistan, Lahore and others (2), State v. Wazir Khan (3), Rashid v. State and 2 others (4), lauda Bakhsh v. Crown (5) and Sundar Singh v. Emperor (6). In the present case, mind having not been applied to the facts thereof, reasons having not been given, at all, and the petitioner accused having not been heard in relation to the grounds of remand, it cannot be said that remand order, if ever passed even after 21-3-1977, was passed in accordant (1) PLD 1959 Kar. 157 (2) PLD 1969 Lah. 1020 (3) PLD 1968 Lab. 140 (4) PLD 1970 Lab. 389 (5) 1872 P R 1 Crl. 21 (6) AIR 1930 Lah. 945 with law. If the record of Case No, 908/75 had been examined by the Special Tribunal at the time of remanding the custody of the petitioner then there was no occasion to mention Case No, 651/75 while passing the necessary order. It is evident on record, as mentioned above, that the jail authorities had been reminding the Special Tribunal even after April 1977, that the custody of the
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petitioner had not been committed to them in Case No, 908/75 and necessary order in that behalf might be, passed, but the needful in this behalf was never done. It means that the necessary record of Case No, 908/75 was never examined and was never available with the Tribunal while remanding the custody of the petitioner. As such, the aforesaid contention of the learned A. A.-G. Has no force and the same is hereby repelled. 16. Section 8 of the Defence of Pakistan Ordinance contemplates that the Special Tribunal would consist of three members to be appointed by the Central Government. All the aforesaid remand orders passed by the Tribunal in Case No, 651/75 have been signed by a single member of the Tribunal. It has been argued that since the petitioner has been appearing before the Full Tribunal, therefore, even if the remand order has been signed by a single member it will not invalidate the same. I am afraid, this contention is devoid of any force. It does not appear from the record that the petitioner has been appearing before the Full Tribunal. If it had been so, then the order passed in this behalf would have been signed by all the three members. No doubt that through a notification, not placed on the file, the Tribunal has been authorised to conduct the proceeding even with two members, even this requirement has not been fulfilled in the present case. ' Section 10(2) of the Ordinance provides that memorandum of evidence recorded by the Tribunal may be signed by a member of the same and it shall form part of the record. It has been argued that on this basis the order of remand, though signed by a single member, should be deemed to be valid. This contention has no force. As discussed above, according to law an order of remand being judicial proceeding has to be passed after applying full mind in the given circumstances of the case and after giving reasons therefor; while in the case of recording evidence such application of mind is not required. The provision as contained in section 10(2), therefore, does not help the respondents for the purpose of treating the orders passed by a single member to be valid. ' On this view of the matter also the aforesaid orders of remand, passed by a single member of the Tribunal, being illegal and without jurisdiction cannot be maintained even if they are deemed to have been passed in Case No, 908/75. 17. The contention of the learned A. A.-G. That the order dated 9-6-1977, passed on the bail application of the petitioner dismissing the same, should be deemed to have been passed under section 344, Cr. P. C. Is illogical. As discussed above, the said order cannot be deemed to have been passed under section 344, Cr. P. C. Remanding the custody of the petitioner to the Jail authorities in a lawful manner, as no reasons therefor have been given by the Trtbunal. The operative part of the order says : "After having anxiously considered the argument of the learned counsel for the petitioner we find that no ground for bail has been made out." ' The application for bail was dismissed on that basis. Even the earlier part of the order does not mention as to whether the custody of the petitioner should be remanded to the jail authorities or not. In view of that the said order cannot be deemed to have been passed under section 344, Cr. P. C. Remanding the custody of the petitioner to the jail authorities in a lawful manner. 18. As far the argument while relying upon section 537, Cr. P. C. That since there has been an error, omission or irregularity by referring to Case No, 651/75 and not to Case No, 908/75 while passing the remand order, therefore, the same can be rectified or otherwise cannot be deemed to be fatal so as to invalidate the order, I am Afraid the same without any force. I have already held above that the aforementioned order was never passed in Case No, 908/75. If it had been so then application of the provision as contained in section 537, Cr. P. C. Might have been considered Further, the provision as contained in section 537 envisages an order passed by a Court of competent jurisdiction and if during the course of the proceedings by that Court certain error, omission or irregularity has been committed the same may not be taken into consideration while disposing of the case on appeal or revision, as the case may be. In the present case, as discussed
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above, even if the said order may be deemed to have been passed in Case No, 908/75, the same is not valid having been passed by a single member only who under the law was not competent to pass any such order. Moreover, the illegalities discussed above, committed while passing the said order cannot amount to errors or omissions or irregularities committed by the Court while conducting the proceedings. The vital rule of procedure as contemplated by section 340, Cr. P. C. Has been violated. The reliance placed by the learned A. A .G., while defending the aforesaid order, upon Abdul Subhan Khan and others v. The State (1) is 'of no help to him. It was a case of murder and the appellants before the High Court were involved therein It was contended on their behalf that their conviction under section 302/149, P. P. C. Was not tenable as charge in that behalf had not been properly framed. The only omission or error pointed out by the learned counsel was with regard to the words used- by the trial Court while framing the charge "committed death of Mantazullah. It was found by the High Court that though the charge only to that extent was not properly framed and proper charge would have been to mention in the Vace of aforesaid words, "committed murder by intentionally causing death of Mantazullah". The question which confronted the Court was as to whether the conviction as such was illegal and unsustainable on that account, or whether the aforesaid defect was cured under…
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