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Petitioner: KHAN YUNUS KHAN And 2 Others VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Ch. Mushtaq Ahmad Khan Title: KHAN YUNUS KHAN And 2 Others vs THE STATE Case No.: Writ Petition No. 14769 of 1995 Date of Judgment:1995-11-02 Reported As: 1996 MLD 414 Result: Petition dismissed
Judgment ORDER Briefly stated facts of the case out of which this petition has arisen are that for the last about two months, in various newspapers of Pakistan news--items/press reports appeared, which reflected divergent versions regarding reasons of arrest of certain members of the Armed Forces and private persons, who have been arrested/detained by the competent Army Authorities, on the basis of the allegations of illicit trafficking/possession of arms and ammunitions etc. Influenced/confused by the aforementioned news items/press reports/statements made by various persons, Messrs Khan Yunus Khan, Naeem Raza Khan and Bishop Rt. Revnd. Kenneth Leslie, who are citizens of Pakistan, are of the opinion that the aforementioned arrest/detention, by the Army Authorities was made just for the purpose of making the tour of the Prime Minister of Pakistan to United States of America a success and is the result of a speech delivered by Mirza Tahir Ahmad, Head of the Quadiani sect and, as such, is illegal. 2. Without obtaining instructions from the real affectees, the petitioners have filed this Constitutional petition in the nature of habeas corpus with the prayer that all the arrested/detained persons whose arrest/detention according to them is illegal as even if the allegations levelled against them, which are reflected in the newspapers are correct, they were indulging in a noble cause of 'Jihaad', which is a duty cast upon every Muslim as ordained by Injunctions of Islam as contained in Holy Qur'an and Sunnah which is the Supreme Law (Supra- Constitutional) of this country as per provisions of Article 2A of the Constitution of Islamic Republic of Pakistan, 1973, hence, they have committed no offence on account whereof they could either be arrested or kept under detention. It is, as such, prayed that the said persons may be brought before this Court and set at liberty.
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3. The writ petition was placed before me on 23-10-1995 for motion hearing, on which date I directed that a copy thereof shall be handed over to the learned Deputy Attorney-General of Pakistan at Lahore as well as learned Advocate-General, Punjab, who shall seek instructions and assist the Court and the case was ordered to be fixed for motion hearing today. In the interest of justice and keeping in view the sensitive nature of the issues, which have been agitated in this petition, with consent of the petitioner, publication of the petition as well as the proceedings taken therein was ordered to be stopped, till further orders. 4. Today, Messrs Khan Yunus Khan, Naeem Raza Khan and Bishop Rt. Revnd. Kenneth Leslie have appeared in person alongwith their learned counsel Mr. Rashid Murtaza Qureshi, Advocate, whereas Mr. Faqir Muhammad Khokhar, learned Deputy Attorney-General of Pakistan and Mian Abdus Sattar Najam, learned Advocate-General, Punjab assisted by Mr. Nasim Kashmiri, Additional Advocate-General and Rana Naeem Sarwar, Assistant Advocate-- General have appeared on behalf of the State. Khan Yunus Khan petitioner has addressed arguments in person, whereas. Bishop Rt. Revnd. Kenneth Leslie has submitted his arguments in writing which have been placed on the file of this case. Mr. Rashid Murtaza Qureshi, Advocate, learned counsel for the petitioners has also addressed arguments in support of this petition, certain pamphlets and newspapers etc. Have also- been added to the file today. Learned Deputy Attorney-General and Advocate-General have addressed arguments on behalf of the respondent. 5. In support of this petition, the petitioners and their learned counsel have reiterated the points/pleas mentioned in the petition which have been taken note of in earlier part of this order, hence, need not be reproduced at the cost of repetition. Learned counsel for the parties have also addressed arguments regarding the competency of this Constitutional petition in the light of bar of jurisdiction as contained under the Article 199(3) of the Constitution of Islamic Republic of Pakistan, 1973 as well as section 491(1)(d) and (3), Cr.P.C. Which are reproduced as under: -- "(I) Constitution of Islamic Republic of Pakistan, 1973:-- Article 199. Jurisdiction of High Court.---(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,-- (a) ....................................................................................... (i) .................................................................................... (ii) (b)------------------------------------------------------------ (i) .................................................................................... (ii) ................................................................................... (c) ....................................................................................... (2)------------------------------------------------------------------ (3) An order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of 'Pakistan or as a person subject to such law." (II) Criminal Procedure Code 1898:-- '491.--(1) Any High Court may, whenever it thinks fit, direct-- (a)--------------------------------------------------------- (b)................... (c).............................................................. (d) that a prisoner detained as aforesaid be brought before a Court-martial or any Commissioners for trial or to be examined touching any matter pending before such Court-martial or
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Commissioners, respectively'. (e) ...................... (f)------------------ (2).................................. (3) Nothing in this section applies to persons detained under any law providing for preventive detention." 7. Khan Yunus Khan, the petitioner has contended that the action of the respondent being mala fide; this Court has jurisdiction to entertain this petition in spite of the bar of jurisdiction as contained in Article 199(3) of the Constitution. In support of his contention, he has placed reliance on the cases of Hussain Ali Chagla v. District Magistrate, Lahore and another PLD 1966 (W.P.) Lah. 309, Ex-Capt. Muhammad Akram Khan v. Islamic Republic of Pakistan through the Secretary to the Government of Pakistan, Ministry of Law and Parliamentary Affairs, Islamabad PLD 1969 SC 174, Saifuddin Saif v. Federation of Pakistan acid 3 others PLD 1977 Lah. 117 R.I Haftezullah Tariq v. Deputy Martial Law Administrator, Sargodha and another 1981 SCMR 940, Muhammad Siddiq v. Government of Pakistan 1981 SCMR 1022 and R. v. O./C. Depot Battalion, R.A.S.C., Colchester. (All England Law Reports, Vol. I, K.B.D. p.373. In case of Hussain Ali Chagla (supra), where a person has been detained under the Defence of Pakistan Rules, 1965, it has been held that as provisions of section 16(1) of Defence of Pakistan Ordinance, 1965 cannot in any manner be construed to exclude or curtail the writ jurisdiction of the High Court under Article 98 of the Constitution of Pakistan,. 1962 and the High Court will step in to grant redress if any order purporting to be under the Ordinance or the Mules framed thereunder transgresses any provision of law or is otherwise mala fide. It has further been held that the order of detention passed on fictitious and colourable satisfaction and without care or circumspection commensurate with gravity of cases affecting liberty of citizens cannot be sustained. In case of Ex-Capt. Muhammad Akram Khan (supra), wherein similar provisions as contained in Article 199(3) of the Constitution of Islamic Republic of Pakistan, 1973 came under consideration, it has been held that the bar provided by clause (3)(a) of Article 98 of the Constitution of Pakistan, 1962, is not a general bar against the entertainment of any application moved by or in relation to a member of a Defence Service of Pakistan and it operates only in respect of an application made by or in relation to such a person if the application is in respect of the matters specified therein, namely, (a) the terms and conditions of his service, or (b) any matter afising out of his service, or (c) any action taken in relation to him as a member of the service. A member of a defence service is also a citizen of the State with rights and obligations as such a citizen, therefore, a distinction has to be necessarily drawn between his dual capacities and, therefore, the action referred to in clause (3)(a) of Article 98 must be confined strictly to action which is only relatable to a person in his capacity as a member of a defence service and not to any other capacity. Therefore, according to the learned counsel, keeping in view the facts and circumstances of the case as the allegations against the arrested/detained army officers pertain to the performance of their religious duty as enjoined upon them by Holy Qur'an and Sunnah and also by their oath of office, hence, the jurisdiction of this Court is not ousted to grant the relief as prayed for. In case of Saifuddin Saif (supra), it .Has been held that by virtue of ouster clause under Pakistan Army Act, 1952, the jurisdiction of the High Court shall be ousted only when the person detained is subject to the law applicable to the Armed Forces at the time when he is taken into custody and not in' case of a person who was not subject to the Army Laws prior to his detention or arrest, therefore, at least to the extent of the private persons, this Court shall be competent to entertain the writ petition. In case of R.I Hafeezullah Tariq (supra), wherein the petitioner had been orderged to be detained by the Martial Law Authorities and the High Court passed an order that the petitioner shall
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surrender to Deputy Registrar of the High. Court, who will further inform the Martial Law Headquarter of his having done so, it was held that such an order is lawful as it would be interpreted to mean that the Martial Law Authorities will be informed that the petitioner has surrendered to the Deputy Registrar. Arguments of the learned counsel is that even in cases cognizance whereof had been taken by the Martial Law Authorities, the High Court did exercise the jurisdiction in favour of a citizen. In case of Muhammad Siddiq (supra), wherein the question arose as to whether the jurisdiction of the superior Courts extends to the Tribal Areas or not, it was held that the ouster of the jurisdiction of the superior Courts is not to be lightly assumed, and the plain meaning and intention of the ouster clause appears to be to exclude the jurisdiction of the Supreme Court and the High Courts only in those matters, which are exclusively concerned with Tribal Areas, and that the ouster clause cannot be interpreted so as to exclude the jurisdiction of a superior Court in matters in which any part of the cause of action accrues, or any effective action or step is taken or performed in, or at, a place outside the Tribal Area, affecting the life, liberty or property of a citizen of Pakistan, or any other person for the time being in Pakistan, and having the right to be governed by the ordinary law of the land and in accordance with the procedures obtaining thereunder. In case of O/C. Depot Battalion (supra) a writ of habeas corpus was issued and on the return it was submitted that the arrest and subsequent detention of the applicant by the military authorities was illegal because he was arrested in Belgium contrary to Belgain law and his arrest was not in compliance with the provisory of section 154 of the Army Act. It was also contended that the delay in bringing the applicant to trial was oppressive. It was held in the case that if a person is arrested abroad and is brought before a Court in this country charged with an offence which that Court has jurisdiction to hear, the Court has no power to go into the question, one that person is in lawful custody in this country, of the circumstances in which he may have been brought here, but the Court has jurisdiction to try him for the offence in question, and, therefore, in the present case the Court-martial had jurisdiction to deal with the applicant and the-High Court would not interfere. It was further held that if in military proceedings.' there had been such delayin bringing. a man to trial as to amount to oppression the Hi g1h Court could interfere and admit him to bail. 8. Mr. Rashid Murtaza Qureshi, Advocate, learned counsel for the petitioners has made a reference to an Article from the Reader's Digest published in the month of August, 1989 and has contended that in fact the western countries do not like Muslim fundamentalists, therefore, the arrest of the Army Officers in fact aims at pleasing of the said countries, although the officers, even if the allegations are correct, were working for a noble cause of "Jihaad", which is neither a sin nor an offence; as per provisions of Article 2A of the Constitution of Islamic Republic of Pakistan, 1973 read with various Articles which contain principles of policy guaranteed by the Constitution as well as the provisions of Article 260 of the Constitution wherein the definition of "Muslim" has been given and has also made a reference to the Oath taken by the Army Officers as prescribed in the Third Schedule of the Constitution. His point of view is that the questioned arrest/detention is mala fide, therefore, this Court has jurisdiction to issue a writ as prayed for. He has also made a reference to the case of the Daily Ehsan PLD 1949 Lah. 282, wherein a discussion has been made regarding Agha Khanis and Quadianis. 9. Mr. Faqir Muhammad Khokhar, learned Deputy Attorney-General of Pakistan has contended that as the alleged detenus have been detained in Attock, which falls within the territorial jurisdiction of the Rawalpindi Bench of this Court, therefore, the petition is not maintainable at the Principal Seat of this Court, as such, is liable to be dismissed for want of territorial jurisdiction. Refer case of Malik Muhammad Qasim and another v. The Province of the Punjab through the Secretary, Home Department, Civil Secretariat, Lahore PLD 1973 Lah. 473. He has further contended that the Army Personnel as well as their conspirators from the public have been taken into custody by the Army
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Authorities and are being dealt with in accordance with the laws applicable to the Armed Farces, therefore, no writ in the nature of habeas corpus as prayed for by the petitioners can be issued by this Court as per bar of jurisdiction as contained in Article 199(3) of the Constitution and section 491(1)(d) & (3)', Cr.P.C. According to which the High Court has no jurisdiction to issue a writ of habeas corpus, as prayed for. Referring to the Article 8(3)(a) of the Constitution of Islamic Republic of Pakistan, 1973, which is reproduced as under: -- "8. Laws inconsistent with or in derogation of Fundamental Rights to be void.--(1) Any law, or any custom or usage having the force of law, in so for as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void. (2) ....................................................................................... (3) The provisions of this Article shall not apply to-- (a) any law relating to members of the Armed Forces, or of the police or ofsuch other forces as are charged with the maintenance of public order, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them. " It is contended that the members of the Armed Forces do not enjoy the protection of this Article. Reliance has also been placed in this behalf on the cases of Brig. (Retd.) F.B. Ali and another v. The State PLD 1975 Lah. 999, Allah Ditta v. The State through Secretary, Ministry of Defence, Islamabad PLD 1976 Lah. 823, Muhammad Khurshid Butt v. Government of Pakistan PLD 1983 SC 92, Abdul Ghaffar Lakhani v. Federal Government of Pakistan and 2 others PLD 1986 Kar. 525, Squardon Leader (Retd.) Mushtaq Ali Tahirkheli v. Chief of the Air, Staff, Pakistan Air Force, Peshawar and 3 others 1989 CLC 2038, Hakim Khan and 3 others v. Government of Pakistan through Secretary Interior and others PLD 1992 SC 595, Mst. Kaneez Fatima v. Wali Muhammad and another PLD 1993 SC 901, Federation of Pakistan v. Mst. Tahira Begum and others 1994 SCMR 1740, Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others 1994 SCMR 2142, Muhammad Mushtaq' v. Federation of Pakistan 1994 SCMR 2286, a brief resume whereof, is as under: -- In case of Malik Muhammad Qasim (supra), it has been held that the High Court has no jurisdiction to entertain a habeas corpus petition if the detenu is not detained within its territorial limits. In case of Brig. (Retd.) F.B, Ali (supra), a question arose as to whether the Ex-Army Officer, who was accused of seducing the Army Officers or against the Government could be tried under the Army Act as per provisions of sections 2(1)(d) and 59(4), it has been held that a careful perusal of the aforementioned provisions will show that an ex-Army Officer who is accused of seducing the Army Officers from their duty or against the Government becomes subject to the Army Act and, hence, even if he is guilty of any civil offence the same too can be tried under the Army Act under section 59. Judgment rendered by the High Court in the above-referred case was challenged in the Supreme Court of Pakistan and was upheld. Refer case of Brig. (Retd.) F.B. Ali and another v. The State PLD 1975 SC 506, wherein it has been held that even a private person, who commits an offence in collaboration with the Army personnel, who are subject to the Army Act, shall become subject to the said Act and shall be triable under the same alongwith his co-accused. In case of Allah Ditta (supra), it has been held that vide Notification No.3/75, dated 3-1-1975, all Army Personnels have been held to be on active service within the meaning of sections 7 and 8(1) of the Pakistan Army Act, XXXIX of 1952. In case of Muhammad Khurshid Butt (supra), it has-been held that where a writ petition had been filed in the High Court by a member of the Defence Services in relation to his retirement from service, the writ petition was dismissed by the High Court as being barred under the provisions of Article 98(3)(a) of the Constitution, the judgment was upheld by their Lordships of the Supreme Court, as-being unexceptionable.
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In case of Abdul Ghaffar Lakhani (supra), it has been held that Constitutional jurisdiction of this Court under Article 199 of the Constitution would not extend to a member of Armed Forces of Pakistan or to a person who was subject to any law relating to those forces and that such jurisdiction would also be barred, where matter or question was in respect of such person's terms and conditions of service or same arose out of his service or was, in respect of any action taken in relation to him as a member of Armed Forces of Pakistan or as a person subject to such law and that the Chief of Army Staff being a member of Armed Forces of Pakistan would be immune from Constitutional jurisdiction of High Court. It has further been held' in this judgment that the High Court being A Court created by the Constitution itself has to act within the limits,-if any provided by the Constitution and has neither claimed to be above the Constitution nor could , it claim a right to strike down any provision of the Constitution. In case of Squradon Leader (Retd.) Mushtaq Ali Tahirkheli (supra), where entire controversy raised related to the terms and conditions of service of a member of the Armed Forces, although he stood retired at the time of filing of the writ petition, it was held that bar of jurisdiction as contained in Article 199(3) was fully applicable to the case, therefore, the writ petition was dismissed. In case of Hakim Khan (supra), it has been held that the Constitution has to be read as a whole and the Court is bound to-- have `recourse to the whole instrument in order to ascertain the true intent and meaning of any particular provision, and where any apparent repugnancy appears to exist between its different provisions, the Court should harmonise them if possible. It has further been held in this judgment that' in the Islamic State of Pakistan, all the tree limbs of the State, namely, Executive, Legislature and Judiciary in Islamic Polity can exercise the delegated functions of the divine sovereignty within their respective. Spheres and the reference in the Holy Qur'an to the obedience of-----is equally applicable to the members of the judiciary. Regarding applicability of the provisions of Article 2A of the Constitution, 'it has been held that the Court's primary duty is to adjudicate by reference to positive law in a manner to lend certainty, clarity and precision to the application of law to concrete question of law and fact necessarily required to be decided. The Court should not undertake examination of theoretical and academic questions nor should ordinarily look for anomalies in the Constitution with a view to suggest to Parliament amendment or improvement in the Constitution: Even if the introduction of Article 2A 'of the Constitution as a substantive provision of the Constitution does not by itself authorise the Court to adopt it .As a test of repugnancy with regard to the other Constitutional provisions it would .Be better for the superior Courts not- to undertake this exercise or to record opinions on merits with regard to such repugnancy. That would be a commitment not conductive to the purely judicial functions that the Courts are required to perform under the Constitution. In case of Mst. Kaneez. Fatima. (supra), it has been held that provisions of Article 2A of the Constitution cannot be pressed into service for striking down any provision of the Constitution on the ground that it is not self-executing and also that another provision of the Constitution cannot be struck down being in conflict with any provision-of the Constitution. In case of Mst. Tahira Begum (supra), which case had arisen out of a dispute relatable to Talaq, High Court had held that the provisions relatable to Talaq being violative of the Injunctions of Islam, are not valid deriving jurisdiction under the provisions of Article 2A of the Constitution. In appeal their Lordships of the Supreme Court of Pakistan set aside. The said portion of the judgment holding that there was no occasion to consider the validity of the Ordinance while deciding the question of Talaq in this case. In case of Brig. (Retd.) Imtiaz Ahmad (supra), it has been held that the power of judicial review enjoyed, by the High Court under the provisions of Article 199 of the Constitution is a great weapon in the hands of the Judges, but the Judges must observe the Constitutional limits set by the Parliamentary system on their exercise of this beneficial power, namely, the separation of powers
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between the Parliament, the Executive and the Courts, hence, the power should remain strictly judicial and in its exercise, Judges must take care not to intrude upon the domain of the other branches of Government and further judicial restraint is so essential to the continuance of rule of law, for the continued public confidence in the political impartiality of the judiciary and the voluntary respect for the law as laid down and applied by the Courts. In case of Muhammad Mushtaq (supra), where a relief was sought in exercise of the Constitutional jurisdiction of this Court in relation to member of the Armed Forces, their Lordships of the Supreme Court of Pakistan have held that the relief regarding fundamental rights is included in sub-Article (1), which is clearly barred under Article 199(3) with reference to sub-Article (1), therefore, the High Court had no jurisdiction in the matter, hence, the order of dismissal of the writ petition passed by the High Court was upheld on this score. 10. Mian Abdus Sattar Najam, learned Advocate-General, Punjab has contended that the petition has been filed without any instructions from the arrested/detained persons, therefore, the petitioners, have no locus standi to file this petition; that neither the names of the detenus have been mentioned in the petition nor the petition is drafted with exactitude, hence, the same is vague, therefore,…
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