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Petitioner: Maulana ABDUS SATTAR KHAN NIAZI- Petitioner VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Maulvi Mushtaq Hussain Title: Maulana ABDUS SATTAR KHAN NIAZI- Petitioner vs THE STATE Case No.: Criminal Miscellaneous No. 3205/13 Date of Judgment:1974-03-03 Reported As: PLD 1974 Lahore 324 Result: Order accordingly
JUDGMENT
JUDGMENT The following application was presented to this Court on 17-11-1972 on behalf of Maulana Abdus Sattar Khan Niazi, a former Professor and Head of the Department of the Islamiat Department of Islamia College, Lahore, and President of the Punjab Branch of the Jamiyat-e-Ulemas Pakistan:---- - "(1) That the petitioner above named is the President of the Punjab Branch of a political party known as Jamiyat-e-Ulema-i-Pakistan. He has been a Professor and Head of the Department of Islamiat at the Islamia College, Lahore, and was a Member of the Punjab Legislative Assembly from the year 1946 until its dissolution in 1951. He again successfully contested the election to the Provincial Assembly in 1951 and continued to be its member till the formation of One Unit in October 1958. (2) That in order to propagate the views of the said Jamiat-e-Ulema-e---Pakistan and to make the stand of the party known to the public at large, the petitioner has been addressing public meetings throughout the Punjab and also in other parts of the country. (3) That due to the stand taken by him and his party particularly on important issues like Bangla Desh, the Ruling Party do not Want him to continue his political struggle because they think it is likely to embarrass the Ruling Party. , (4) That during the course of the last six months the petitioner has made round about 70 to 80 speeches throughout the country. It is understood that the present Ruling Party has taken a decision to register a case at every place and for every speech which he has delivered during the last six months.
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(5)' That the Government is planning to confine the petitioner in Police custody indefinitely and does not plan to initiate all the cases at once or in the very near future. Their scheme seems to be to arrest the petitioner for different cases one after the other and initiate pro--secutions in different cases at different places throughout the country so that when the petitioner is released on bail in one case he can be re-arrested in another one. This is amply clear from what the administration has done during the last two weeks. (6) That the petitioner was first arrested irk Lahore in a case registered at Khanewal for a speech that the petitioner delivered there about four months ago, and when the Magistrate Khanewal, granted bail to the petitioner, he was immediately re-arrested in another case registered at Vehari under section 16 of the Maintenance of Public Order Ordinance. Again bail application was then moved before the Assistant Commissioner, Vehari, but the same was rejected by him by an order dated the 11th November 1972, on the ground that the case is of important nature. (7) That on 15-11-1972 the Sessions Judge, Multan accepted the bail application of the petitioner in the Vehari case but the police did not release him and instead re-arrested him in another case relating to another speech at Burewala. (8) That ever since his arrest the petitioner has been in police custody and according to information received from him, he is being tortured by not being allowed to sleep at all and is being kept under continuous questioning by the police, day and night. (9) That according to a statement by Maulana Shah Ahmad Noorani, M. N. A., Acting President of Jamiat Ulema-i-Pakistan, Multan there are reports that the petitioner may be involved in as many as 80 prosecutions. Copy of the statement is Annexure "A". (10) 'Pat in all these cases which have been registered and are likely to be registered against the petitioner, the custody of the petitioner is not at all required by the police. No recoveries are to be effected from him nor a sentence of death is warranted under the offences for which he could be charged in these cases. (11) That the petitioner Abdus Sattar Khan Niazi is being implicated in false cases and is being detained, harassed and tortured only because the Government in power does not wish to permit any body to oppose them. (12) That on account of the speeches which have been delivered by the petitioner as aforesaid there has been no breach of peace or distur--bances at any place, nor are such speeches likely to create chaos in the country.. Most of the speeches were delivered months ago and prosecutions are being started now to stifle the voice of the opposition to the recognition of Bangla Desh about which the Government seems to be determined without even reckoning the moral, con--stitutional, emotional and political cost of doing so. (13) That the petitioner is not aware of the particulars of details of the cases in which he may be arrested and therefore his attempts to move various Courts for bail in individual cases will inevitably be frustrated by arrest in some other case. (14) That there is no remedy available to the petitioner except to move for general bail in all cases in which the State may wish to arrest him. For the reasons stated above, it is most respectfully prayed that the petitioner be enlarged on bail pending the decision of cases launched and to be launched against him. It is further prayed that pending final decision of this petition, ad interim bail be granted to the petitioner." A copy of a news item which appeared on the last page of the Daily Nawa-i-Waqt, Lahore, was also filed with the petition which was to the effect that more than eighty cases had been registered against the Maulana. The news item gave the reason for this large number of cases as the intention to keep the Maulana behind the bars in spite of bail successively granted to him in some of them.
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I passed the following order on this application on 17-11-72; "This case has been presented in Court. Let it be registered. Direct the Advocate-General to furnish this Court with a list of the cases, if any, which, it has been alleged in the application, have been registered against the petitioner within a forthight. The petitioner shall not be arrested meanwhile in any of the cases registered against him till this petition comes up for hearing. He is admitted to bail in the sum of Rs. 5,000 (Rupees five thousand) with two sureties in the like amount to the satisfaction of Officer on Special Duty-II of this Court. This bail shall enure for the cases in which he has been arrested." Aggrieved by this order and without waiting for the final decision of the case by this Court or complying with it by producing the necessary list mentioned in the order the State decided to move the Supreme Court of Pakistan and a petition for Special Leave to Appeal under Article 186(3) of the Interim constitution was presented to that Hon'ble Court. The matter came up before the Supreme Court on 7-12-1972 when Mr. Justice Muhammad Yaqub A.I Khan subjected the order passed by me to the condition that during the pendency of the petition for Special Leave to Appeal the respondent shall not make any speech or do any act which will amount to an offence under the Maintenance of Public Order Ordinance, 1960. The petition for Special Leave to Appeal came up for hearing before a Division Bench of that Court and on 8-3-1973 the learned Judges passed the following order: "The State is aggrieved by an interim order made by a learned Single Judge of the Lahore High Court, on-17th November 1972, allowing anticipatory bail to the respondent, Maulana Abdul Sattar Khan Niazi, in a number of cases, which had been registered against him. It is contended by the learned Advocate-General that the relevant sections in the Criminal Procedure Code do not confer any power on the High Court to pass an omnibus order of this kind, and that the only power is to allow bail in individual cases on a consideration of their merits. We find that the High Court has not yet made any final order in the matter. By the impugned order a direction was made asking the learned Advocate-General, Punjab, to furnish the Court with a list of all the cases which might have been registered against the respon--dent. We are informed that the final hearing of the matter has been postponed by the High Court, owing to the pendency of this petition. After hearing the learned counsel for both sides, we are of the view that it will be proper and expedient if the matter is first finally decided by the High Court. It will be open to the learned Advocate-General to take up before that Court the legal objections which he wishes to urge in support of the present petition. The petition is, therefore, adjourned so as to enable the High Court to pass a final order in the matter. The petition shall be re-fixed only on receiving intimation from the learned Advocate-General." Since the learned Advocate-General had raised questions of far-reaching general public importance before the Supreme Court which he had been advised to press before this Court, I requested Mr. Manzoor Qadir, Ch. Nazir Ahmad Khan, Mr. M. Anwar and Mr. Farooq Azeem Hassan, Advocates to appear and assist the Court. I also called upon the High Court Bar Association to nominate a representative on their behalf. The High Court Bar nominated Mr. Abid Hassan Minto, Advocate. I am grateful to all these gentlemen for assistance in determining the points which had arisen in the case. The grounds contained in the petition for Special Leave to Appeal are reproduced as follows for facility of reference:------ "(4) That the petitioner begs leave to appeal against the above order of the High Court inter alia on the following grounds:-
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(i) That the Omnibus order passed by the High Court without ascertain--ing the number of cases and the offences committed by the accused respondent is illegal and the High Court has exceeded its jurisdiction in passing such an order. (ii) That the petition was presented by Mian Mahmood A.I Kasuri, Advocate, for the accused- respondent directly in the Court of Mr. Justice Mushtaq Hussain who entertained it immediately and passed the order without prior notice to the State. Normally such petitions are submitted in the Registry before they are placed before the Judge. (iii) That no opportunity was given to the State of placing its point of view for consideration of the High Court before granting bail in all cases to the accused-respondent. (iv).That the ordinary procedure of requiring the accused to approach the trial Court in each case separately and if not satisfied to move the High `Court was not followed without any cogent reason. This procedure is contrary to the law of bail laid down by the superior Courts. (v) That there is no provision of law in the Code of Criminal Procedure which empowered the High Court to pass an order of this type whereby bail is granted in all cases registered against a person without the Court being apprised of the facts or the law against which the crimes have been committed. (vi) That if this practice is allowed to go unchallenged, persons charged with heinous crime like that of murder and other anti-State offences may be able to obtain such an order of bail without disclosing the nature of the offence and the facts of each case with which they may be charged. This procedure of granting bail in all cases is not permitted by the law of this land. (vii) The accused under the cover of political speeches have been propagating activities which are prejudicial to the Public safety and 0-1 Maintenance of Public Order and- in that respect a number of cases have been registered against him in the districts of Bahawalnagar and Multan. Five such cases registered under section 16 of the West Pakistan Maintenance of Public Order Ordinance, 1960, for making prejudicial speeches in the districts of Multan and Bahawalnagar are-- ---- (1) F. I. R. No. 277, Dt. 21-8-72, P. S. Khanewal. (2) F. I. R. No. 304, Dt. 6-11-72, P. S. Burewala, Distt. Multan. (3) F. I. R. No. 338, Dt. 6-I1-72, P. S. Vehari, Distt. Multan. (4) F.1. R. No. 420, Dt. 8-10-72, P. S. Sadar Bahawalnagar. (5) F. I. R. No. 234, Dt. 8-10-72, P. S. Minchinabad, Distt. Bahawalnagar. (viii) That the order of the High Court is a composite order of granting bail before arrest as well as bail after arrest in a single application although the principles for bail before arrest and after arrest are quite different. (ix) That the matter--" is of .Public importance and an authoritative adjudication of this Court is necessary as to the power of the High Court to pass such a composite order." My order dated 17-11-72 broadly speaking contains four parts------- (1) The grant of bail to the petitioner in cases in which he has been arrested ; (2) The order to the Advocate-General to furnish a list of cases already registered against the petitioner; (3) The liberty given to the Advocate-General to furnish the list even earlier than the fortnight granted to him and in that case to move for acceleration of the date of hearing; and (4) The ad interim injunction restraining the State from arresting the petitioner in cases already registered which are specifically ascertainable by and only by the State. I may in passing mention that the list of cases referred to above which I directed the Advocate- General on 17-11-72 to file within a fortnight was made available to me for the first time on 4-4-1973, by Mr. Kamal Mustafa Bokhari, Assistant Advocate-General. It was ready in his office on 22-3-73, as would appear from the date on the list. I am mentioning this to show that, in spite of all his
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resources, even the learned Advocate-General was not able to get the information about the cases registered against the petitioner in less than five months. In other words, if the petitioner who could not have resources equal to the highest Law Officer of the Province, had to specify all the cases which had been registered against him he would have in any case been incarcerated in jail for much longer than these five months before the would be admitted to bail. The learned Advocate-General has informed me that he has gone through the F. I. Rs., and he has no objection to the confirmation of bail already granted to the petitioner and to the grant of bail to him in the cases which have already been registered and a list of which has been furnished by him. I need not, therefore, go into the merits of the application for bail. The order granting interim bail is confirmed; it shall also enure for the other cases mentioned in the list submitted by the learned Advocate-- General. 'The first part of the order passed on 17-11-72, therefore, does not require further consideration. The learned Advocate-General admits that this Court has the power to require him to furnish a list of cases and that part of the interim order is, therefore, not being dilated upon herein. The learned Advocate-General does not cavil on the third part of the interim order either. He has, however, grave objection to the fourth part, i.e. The order directing that the petitioner be not arrested in cases which bad already been registered against the petitioner but the nature and number of which was not known to him. Let us, therefore, now go through the relevant provisions of the Code of Criminal Procedure. Section 154 deals with information in cognizable offences and provides that every information relating to the commission of a cognizable offence given to the officer incharge of a police station shall be reduced to writing, shall be signed by the person giving it and substance thereof shall be entered in a book to be kept for that purpose. Section 156 empowers any officer incharge of a police station to investigate any cognizable case without the order of a Magistrate which a Court having jurisdiction over the local area would have power to inquire into. Section 160 empowers the police officer to require attendance of witnesses. Section 161 empowers him to examine such witnesses and provides the duties of a person so examined. Section 167 provides that whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within tire period of 24 hours fixed by section 61 and there are grounds for believing that accusation or information is well founded the officer incharge of the police station shall, firstly, transmit to the nearest Magistrate a copy of the entries in the diary relating to the case and shall at the same time forward the accused to such Magistrate. It is then for the Magistrate to authorise the detention of the accused in such custody as he thinks fit: This power, however, does not authorise extension of the detention for a period exceeding fifteen days on the whole. The Magistrate is further required to record the reasons for so doing. It is significant that Magistrates of the III class and of the II class who have not been specially empowered in this behalf by the Provincial Govern--ment cannot authorise detention in the custody of the police at all. Section 168 requires the subordinate police officer who makes investiga--tions under this Chapter to report the result to the officer incharge of the police station. If it is found that the evidence is deficient, the accused shall be released on executing a bond. Under section 170 the case is to be sent to the Magistrate when evidence is sufficient. Under section 172 every police officer investigating under the Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth, several details mentioned in the section. Any criminal Court can send for these diaries and may use such diaries to aid him in the inquiry or trial though they cannot be used as evidence. Section 173 requires that every investigation under this Chapter shall be completed without unnecessary delay and as soon as it is completed the officer incharge of the Police Station shall
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forward to a Magistrate having jurisdiction a report in the prescribed form setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties. A copy of any report forwarded under this section shall. On application, be furnished to the accused before the commencement of the inquiry. The burden of all these provisions is that whenever a person is arrested on an allegation that he has been guilty of some offence, the police is required to act with all despatch and time limits have been set for the various stages of the case beyond which the police cannot act without any order from the Magistrate. The fact that -a, maximum period of 24 hours is prescribed for the police for producing a person detained in custody before a Magistrate shows teat the liberty of the citizen has been treated as of paramount importance even if there are allegations of the commission of an offence against him. Even a Magistrate is not empowered to authorise the detention of the accused in the custody of the police for a term exceeding 15 days on the whole. It is also meaningful that the power of such detention has been limited only to Magistrates of the First Class and those of the II and III Class have been excluded. The stress throughout is on the completion of the investigation in the shortest possible period and the submission of a report to the Magistrate empowered to take cognizance of the offence, no sooner the investigation has been completed. It has been seen above that the moment it is so completed a copy of the report forwarded to the Magistrate shall be available to the accused. So much importance has been attached to the transmission of the accusation to the accused who is arrested that he is required by the Code to be produced before a Magistrate within 24 hours. If the only purpose of the provision was to get an authority to detain him without his being given any opportunity to appear before the Magistrate and to explain his position after having been informed of the allegations against him, it would have been unnecessary to provide that the accused shall be produced before the Magistrate within that period. The production is for the purpose of enabling the accused to find out from the Magistrate the reasons why he is being detained, to afford to the Police an opportunity to ask for his custody and to make out a case for his custody and detention and to enable the accused to explain his position and ask for bail. The law is thus extremely chary of the deprivation of the liberty of a citizen at the hands of the investigation agencies. It further lays great stress upon the necessity for imparting information to the accused about the allegations against him. Thus armed with knowledge of the accusation against him the accused can move the Court under the provisions for the grant of bail under Chapter XXXIX of the Code. Another aspect of this law thus becomes clear that the duty to furnish to the accused information regarding the allegations against him lies upon the prosecutors and they are required to furnish that information within 24 hours. Can it then be said that it is open to the prosecutors to withhold the information from the accused and still submit that the action taken by them is bona fide and as he is not possessed of the necessary details he should not be allowed to approach a Court of law for the purpose of obtaining bail and that they would succeed in incarcerating him for as long as they wish because after all the information which they expect him to place before the Court is with them and they are in no-mood to furnish it to him. I had sent for the Sub-Inspectors who had been concerned with the cases enumerated in the list by the learned Advocate-General and the following information was elicited from them (a) Khalid Ahmad, S. I., was concerned with the registration of F. I. R No. 420/72, which was registered on 6-10-1972. I enquired from him about the steps taken by him in this investigation. He informed me that he recorded the statements of Shamsher A.I and Ch. Ilam Din on the day when the case was registered and that of Abdul Jabar, Head Constable and Ch. Mohammad Yaqub on
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5-11-1972, i.e., after the passage of about 20 days. He categorically stated that he had not taken any action under sections 169 and 170 of the Code of Criminal Procedure. No further action was taken. (b) Aman Ullah, S. I., Minchinabad investigated the case arising out of F. I. R. No. 234 which was registered on 8-10-1972. He recorded the statement of Karim Bakhsh, Mohammad Hassan and Saleem Head Constables on 8-10-1972. On 12-10-1972, he recorded the statement of Rana Mohammad Afzal Magistrate. He informed me that after that the file was summoned by the office of the Superintendent of Police and it had ever since been lying there. Although the Superintendent of Police made the requisition of the file on 18-11-1972, no action was taken in the 40 days preceding it as according to the S. I. The instructions were that the case was to be registered and only such investigation was to be made as has been stated above. Whereafter the case was to be kept without any further proceedings. I asked him the reason for having done so, his simple answer was that he had acted under instructions. (c) Gul Mohammad A. S. I., Police Station Burewala, registered F. I. R. No. 104 on 6-11-1972. He did not investigate the case but informed me that it was investigated by Rana Abdul Majid, S. I., who recorded the statement of Nazir Ahmad Head Constable, on 3-11-1972 and on this basis the F. I. R. Was registered on 6-11-1972. The statements of Lal Khan and Khalil Ahmad were recorded on the same day. Thereafter Zahoor A. S. I. Recorded the statement of the detenu in the lock-up in Multan on 5-11-1972. The challan in this case was presented to Court on 22-11-1972 after had passed the impugned order and is pending before the Resident Magistrate, Vehari. (d) Nazir Ahmad, A. S. I. Of Police Station Vehari stated that he registered F. I. R. No. 388 on 6-11-1972. He recorded the statement of Ch. Ghulam Rasool, Rasool Bakhsh, Ch. Barkat A.I and Ch. Mohammad Sadiq, S. I. On 6-11-1972. The case was challaned and is being heard by the Resident Magistrate, Vehari. (e) Mohammad Yaqub, S. I. Of Police Station Gulberg, Lyallpur, registered a case under sections 124-A, P. P. C. And 49 of the Defence of Pakistan Rules, vide F. I. R. No. 137 on 16-3-1973. He recorded the statement of Ch. Sultan Ahmad, S. I., Ala-ud-Din and Mohammad Akram on 23-3-1973 while that of M. Akhtar Joseph, City Magistrate, on 24-3-1973. He submitted further that the case has been sent to the Prosecution Branch who has not yet whetted it. (f ) Ghulam Mohammad, S. I.…
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