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Petitioner: Ch. ZAHOOR ILLAHI VS Respondent: THE STATE AND 4 OTHERS
Court Name: Lahore High Court Judge(s): Shafi-ur-Rehman Title: Ch. ZAHOOR ILLAHI vs THE STATE AND 4 OTHERS Case No.: Writ Petition No. 1616 of 1974 Date of Judgment:1975-06-05 Reported As: 1975 P Cr. L J 1413 Result: cases decided
JUDGMENT
JUDGMENT The petitioner Mr. Zahoor Elahi, a Member of the National Assembly of Pakistan, has moved this petition under Article 199 of the Constitution of Pakistan, read with section 491 of the Criminal Procedure Code, in respect of the detention in prison at Bahawalpur of Sher Muhammad Marti, also known as Sheroo Bajarani Marti and, more recently, a9 Sheroff, a Sardar of the Marti Tribe and resident of Kohlu, then a part of District Sibi of Baluchistan. The reliefs sought for by the petitioner in respect of the detenu are the following :- "(a) not to remove the detenu out of the jurisdiction of this Hon'ble Court till the final disposal of this writ petition and 30 days thereafter ; (b) to allow the legal advisers of the detenu and the petitioner to inter--view him immediately, so that the detenu may be able to give instructions about his defence, including his right to seek bail ; (c) to allow immediate medical examination of the detenu so as to assure his safety from physical violence and elimination ; (d) to allow the detenu to receive food, wearing apparel and bedding from his friends and family ; (e) to meet his relatives so as to reassure them that the detenu is getting his legal rights and is not being subjected to torture and worse ; (f) order the respondent to immediately lodge the detenu in "A" Class keeping in view his social and political status in life." These reliefs have been sought in addition to the main relief mentioned at the end i.e. "the production of the body of the detenu before this Hon'ble Court so as to satisfy itself that he is not being held in custody without lawful authority or in a unlawful manner" and "to set the detenu at
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liberty by quashing the orders of his arrest and his subsequent detention and for the interim period direct that the detenu be released on bail. 2. This petition came up in motion on 2-9-1974 when, while asking for the comments through the Advocate-General, it was ordered that the detenu shall not be removed except after taking permission of this Court. 3. The petition was admitted on 10-9-1974. The case of the petitioner, as also of the detenu, as sought to be made out at the hearing was that the detenu is a high ranking Sardar of the Marti Tribe, a close relative of Khair Bakhsh Marti, another detenu from Baluchistan kept in this Province and that on account of his political differences with the Prime Minister the petitioner was arrested by an Army Officer without warrant of arrest on the 1st of March 1973, from Kohlu and removed to Karachi within twenty four hours. He was kept under constant interrogation by one of the police officers from the Punjab and was sent to jail on the directions of the Sind & Baluchistan High Court when for the benefit of detenu a Constitutional petition was filed. It was then disclosed to him that detention was under the Defence of Pakistan Rules and was preventive in character. While the proceedings challenging such detention were still pending and eleven months had elapsed in such detention, the order under the Defence of Pakistan Rules was rescinded and hardly the detenu had come out of the prison when on the 25th of January 1974, he was re-arrested and taken to Central Jail, Machh Baluchistan where he was kept upto the 5th August 1974, when be was removed to Bahawalpur Jail in the Punjab on the 6th August 1974. It was not denied by the detenu that after he had been brought to Bahawal--pur he was being regularly produced before a Magistrate for his remands and his grievances are that he was not informed of the grounds of his detention or charges on which he was awaiting trial. His requests written as well oral for permission to establish contact with a lawyer and relatives remained unattended and elicited no response from either the Magistrate who passed the remand order or the District Magistrate to whom an applica--petition was made through jail. The petitioner also complains that he had been suffering physical ailments for which he was attended while in deten--petition in Karachi but has not been at all attended since he was removed to Bahawalpur. 4. The case of the Baluchistan Government as well as of the Federa--petition is that the petitioner was arrested from Kohlu under a valid and proper order under the Defence of Pakistan Rules and that his detention at Karachi was preventive in nature and under the defence of Pakistan Rules which order was subsequently rescinded and the petitioner was involved in two criminal cases registered as far back as 1965. He was arrested in these cases under the warrants of District Magistrate, Sibi as the criminal cases in which he was involved related to District Sibi and had been referred by the Deputy Commissioner for trial to a Jirga constituted under Frontier Crimes Regulation. It was also the case of these two Governments that the detenu had all along remained an absconder and proclaimed offender in these tyro cases and while the trial of those who were arrested had taken place and ended in their conviction and sentence, the petitioner could be apprehended in those cases only in January 1974, and not earlier. It was stated that the detenu has been detained throughout under legal and valid orders of remand obtained from competent authorities. As regards his removal from Central Jail Machh to Bahawalpur is contended that the same took place earlier to the order dated 22-8-1974 passed under section 2 of the Removal of Accused Persons Act 1973 by the Federal Government but his detention in Jail at Bahawalpur was under the orders of the Federal Government under that law. 5. The Home Secretary of the Government of Baluchistan by an affidavit dated 11-4-1975 informed that the law and order situation in the Marri area was so much disturbed that it was impossible for the Courts to function, that in August 1974, Sher Muhammad Marri was transferred to Bahawalpur Central Jail and that the conditions having suitably improved by now Sher Muhammad Marri will be tried as soon he is transferred back to Baluchistan.
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6. The petitioner at the concluding stages of the proceedings i. e. On 20-12-1974 filed an application under section 498, Cr. P. C. Claiming that "the detenu may be released on bail in all the cases so far registered against the detenu in Pakistan". On the same day notice was issued to the Govern-- ment of Baluchistan and it was ordered to be taken up after the copies of reports in all the cases till then registered were made available to the Court. Even during the course of the arguments in March and early April 1975, the Advocate-General Baluchistan stated that there were only the afore--mentioned two cases both of the year 1965 in which the detention of the detenu was required. After the conclusion of the arguments, on 29-4-1975, the Home Secretary, Government of Baluchistan under his signatures sent a list of cases pending against the detenu. The statement made available contained the following recital of cases :- "List of criminal cases pending against Sher Muhammad alias Sheru son of Saidhan, Bijarani Marri. (1) F I R No. I of 1965-Thana Police Kahan, dated 27-1-1965. State v. Muhammad. Din Muhammad. Jee Muhammad, Sher Muhammad etc. Under sections 307, 435, 440, 120-B, 148, 149 and 109, P. P. C. (Burning of Government Tractor and firing etc.) (2) F. I. R. No. 3 of 1965-Thana Police Sibi dated 26-1-1965. Case under sections 302, 307, 120-B, 148, 149, 435, 440, 34, P. P. C. (Murder of Mir Doda Khan and others and causing injuries to Haji Bungul Khan etc.). (3) State through Lashkar Khan v. Sher Muhammad alias Skeru Marri and 4 others. Case under sections 302/34, 395/511, P. P. C. Dated 1-dr1975. (4) Jadda son of Iddo v. Sher Muhammad alias Sheru Marri and three others. Case under sections 307/395/511, dated 1-4-75. " 7. As the list was not very expressive of the two cases mentioned at items 3 & 4, the Home Secretary was called upon through the Asstt. Advocate-- General Punjab to place on record copies of reports in these two cases as well which was done on 12-5-1975, to make the record complete. 8. To make the narration of events complete. F. I. R. No. 1/1965 P. S. Kahandated 27-1-1965 under sections 307, 435, 440, 120-B, 148, 109, P. P: C. Relates to an occurrence which took place on the 5th/6th of December 1974, wherein a tractor used in the construction of road was burnt by a group of persons which allegedly included Sher Muhammad Bijarani Marri detenu who was named in that report. This case in respect of the offenders appre--hended was proceeded against under Frontier Crime Regulations and ended in their conviction on 14-4-1966. The detenu was named as one of the absconders in that case and it was recommended by the Jirga disposing of that case that on the apprehension of absconders in that case they should be tried for the offences. 9. F. I. R. No. 3 of 1965 dated 26-1-1965 under sections 302, 307, 120-B 148, 149, 435, 440, 34, P. P. C. Related to an occurrence which had taken place on 21-1-1965 wherein Mir Doda Khan. Muhammad Khan. Rehzan, Abdul Asia were shot dead and a few others were seriously injured. The detenue was not named in the F. I. R. A report was drawn up by the Naib Tehsildar who had in his report suspected and named Sher Muhammad Bijarani Marri but the Tehsildar and the Extra Assistant Commissioner had implicated Mir Qaiser Khan and Allah Bakhsh Marri in their forwarding notes for getting a case registered. 10. The third case was registered under sections 302/34, 395/511, P. P. C. On a complaint filed in writing on 1-4-1975 by one Lashkar Khan addressed to District Magistrate Kohlu. It related to an occurrence which took place nine years before the making of the complaint. In that occur--rence allegedly the father of Lashkar Khan was killed and his cattle forcibly taken away. The delay in lodging the complaint was sought to be explained by stating that the occurrence was reported to Extra Assistant Commissioner, Kohlu who then happened to be the brother of the detenu Sher Muhammad and in view of his influence and that of the accused he had to remain quiet about the case.
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11. The fourth case has also been initiated on a written complaint of Jadda Khan under sections 307, 395, 511, P. P. C. Made on 1-4-1975 to the District Magistrate, Kuhlu. It also related to an occurrence nine years old in which Sher Muhammad detenu alongwith 3 others allegedly fired ineffectively at the complainant. He also explained the delay by stating that he reported the incident to the Extra Assistant Commissioner, Kohlu who was a brother of the detenu and he put the complainant it in the jail and on getting out of it he was in a position to make the complaint. 12. The arrest of the detenu which forms the basis of his present detention had taken place tinder an order passed by District Magistrate Sibi. The warrant of the arrest of the detenu is dated 24-1- 1974. It was addressed to the Police in Karachi and after having been arrested the detenu was produced before the District Magistrate, Sibi on 26-1-1974 and remanded to judicial custody by him and thereafter by the Assistant Commis--sioner, Machh. 13. After having kept the detenu at Machh, he was brought to Bahawalpur Jail on 6-8-1974 and on the expiry of his remand as finally granted by Assistant Commissioner, Machh, on 19-8-1974, he was produced before a Magistrate at Bahawalpur and periodical remand orders were obtained thereafter from him. On 22-8-1974 came to be passed the order of the Federal Government under the signatures-of Mr. Zia Hussain, Deputy Secretary, whereby in exercise of the powers conferred by section s of the Removal of Accused Persons Act, 1973 the Federal Government ordered that the detenu shall be transferred to the Province of Punjab and kept in custody therein. 14. The petitioner claims that he orally made three requests to the Magistrate passing remand orders. Firstly, he requested for permission to consul a lawyer and engage one. Secondly, that his relatives be permitted to meet him and thirdly, that he should be informed of the charges on which his dention had been ordered. He was advised by the Magistrate to move the District Magistrate in respect of the first two requests and as regards the third, it is stated that a list of the Penal Code offences under which he was charged was made known to him, which made no sense to him. As regards the other two requests he did move through the jail the District Magistrate in the matter but the request remained unattended. 15. This background of facts explains the institution of the petition of habeas corpus by Mr. Zahoor Elahi. 16. The legal grounds on which the arrest, the detention and the transfer of the detenu arid his continued detention at Bahawalpur is challenged are the following :- (1) The arrest, the manner of detention, and the proposed trial of the detenu under Frontier Crimes Regulations is violative of constitutional guarantees available to him. (2) The arrest of the detenu in 1974 in cases registered in 1965 is mala fide. (3) The transfer of detenu from Machh to Bahawalpur on 6-8-1974 with a view to deny jurisdiction to the competent Magistrate was unlawful and the order passed under Removal of Accused Persons Act on 22-8-1974 did not validate such wrongful removal. (4) The Removal of Accused Persons Act, 1973 is ultra vires the Federal Legislature. (5) In any case the detenu is entitled to bail in all cases so far registered against him. 17. The first legal ground taken up on behalf of the detenu, is that his apprehension, detention and proposed trial under the Frontier Crimes Regulation for offences said to have been committed in 1965 or earlier is violative of Article 4 (right of an individual to be dealt with in accordance with law), Article 9 (not to be deprived of life or liberty save in accordance with law), Article 10 (grounds of arrest to be communicated, consultation with a legal practitioner not to be denied), and Article 25 (equality) of the Constitution. So far as the right to be dealt with in accordance with- the law is concerned, it is submitted that Frontier Crimes Regulation does not satisfy the necessary requirement to be classed as law, that it is highly dis--criminatory in character and that a trial under it is no trial in law. On the other hand, the law officers of the provinces have drawn attention to cases already decided holding that once a case is withdrawn for trial by a Jirga under the
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Frontier Crimes Regulation, the ordinary Courts set up under the Criminal Procedure Code lose seisin of the matter, and cannot scrutinize the facts, and cannot even grant bail or regulate the custody of an under-trial, 18. I do not consider it necessary or otherwise proper for numerous reasons to decide these questions, relating to Frontier Crimes Regulation. Firstly, the arrest of the detenu has taken place for offences defined in the Penal Code. His detention at Bahawalpur is not under Frontier Crimes Regulation nor could it be, for Frontier Crimes Regulation is not in force in that part of the Punjab. The authorities who administer that law do exist in this province but have not been conferred any such jurisdiction. The detenu is being kept in the Punjab under provisions of Removal of Accused Persons Act, 1973 and that Act. Does not empower the Federal Government to inject the law of one province into another simply by trans--ferring an accused from one province to another. His detention in Punjab is to be regulated by the laws applicable to under-trials in this province unless the detenu is able to show that he enjoys any vested right which cannot be overridden by such transfer or in applying the local law for regulating the custody of an under-trial. 19. Secondly, a trial under the Frontier Crimes Regulation is an event of the future, to happen only when the detenu is taken outside the jurisdic--petition of this Court and not as long as he is held in custody in this province. This Court will not, therefore, in these proceedings undertake examination of the validity or regularity of a hypothetical situation which may arise in future and outside its territorial jurisdiction. 20. Finally, it is more appropriate that the Constitutionality and reasonableness of the Frontier Crimes Regulation is adjudicated at a place where that law is administered and by Courts which are called upon to administer it and not in this province which has not been-Mlly introduced to the "virtues" of the Frontier Crimes Regulation. 21. In this background, the Constitutional guarantees referred, to do not appear to have been denied to the petitioner so far as his arrest is concerned. The manner of detention is a matter which shall be considered subsequently. A report lodged in January 1965 relating to an occurrence of 5/6-12-1964 contains the name of the detenu. Others so named and then ap--prehended were tried. Convicted and sentenced. The order of the Jirga con--cluding the trial showed the detenu as an absconder and directed his trial when apprehended. Similarly the report drawn up by the Extra Assistant Commissioner in 1966 showed his implication in both the cases. The District Magistrate, Sibi who had then jurisdiction over the cases had issued warrants of his arrest and he was arrested in execution of that warrant. His custody in Machh Jail was shown to be under the authority of a Magistrate. It is also shown that he was regularly produced before a Magistrate for remand. 22. In order to demonstrate the mala fide of the detaining authority, or those above him, it was submitted at length that the detenu had serious political differences with the Prime Minister that he had received threats and cajolements from various quarters and that he had been actively negotiating with the Provincial Administration. Whatever may be the complexion of the differences and their gravity, the facts about the cases registered and the reports submitted as early as 1965 and 1966 cannot be denied. Therefore, it is of no consequence that the detenu had been kept engaged in political parleys with those who mattered, or that he was not for long periods in fact treated as an absconder, or that his trip abroad was blessed by the Government itself or that some others similarly charged are still basking in the sunshine of Government patronage. This may all have happened in spite of his implication on the charges levelled against him. 23. As regards the manner of detention there is certainly more to it. The District Magistrate, Sibi had passed an order directing that remand order should be obtained from Assistant Commissioner Machh and one such order of remand was obtained from the Assistant Commissioner on 4-8-1974 which was to last upto 19-8-1974. It is during this period that the petitioner was removed from the jurisdiction of Asstt. Commissioner Muchh, and that of the District Magistrate, not with a view to
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keep him at a particular place outside the jurisdiction during the period of remand but in this case, in anticipation of an order under Removal of Accused Persons Act and with a view to deny the authorities having jurisdiction over the accused of their jurisdiction. If such removal had lasted only the period of remand, that is from 4-8-1974 to 19-8-1974 and the detenu had been produced before the Magistrate having jurisdiction in the matter there would have been on illegality in view of the decision in Jumma Khan Baluch v. Government of Pakistan (PLD 1957 Kar. 939). However, such removal and detention outside the jurisdiction and in violation of the order of remand from 19-8-74 to 21-8-74 was without lawful authority, as neither the plenary powers pertaining to the custody of an accused, nor an order of the Federal Government under the Removal of Accused Persons Act was available to justify such a detention outside the jurisdiction of the authorities seized of the matter. 24. Article 10 of the Constitution provides "No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds of such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice". Provision has been made by means of instructions reproduced in the High Court Rules and Orders (Vol. III, Chapter 11-B) for ensuring the observance and enforcement of this constitutional guarantee fn the following words :- "12. (i) The following instructions have been issued by the Punjab Government for the guidance of Magistrates in regard to remands (Punjab Government Circular Letter No. 6091-J.-36/:19829 (H. Judl.), dated the 19th December 1936, to all District Magistrates in the Punjab) (a) Before a remand is granted is any case, the Magistrate should inform the accused that he is a Magistrate and that a remand ha been applied for, and he should ask the accused whether he has any objection to offer to the remand. The order granting the remand should be written at the time it is announced, in the presence of the accused. (b) If the accused wishes to be represented by counsel, the Magistrate should allow time for counsel to appear and argue the matter before him. He may grant a temporary remand in such circumstances until arguments have been heard. (ii) The Punjab Government have issued the following instruction in regard to the right of accused to access to counsel and friends :-An accused person should not be removed to a place which is either inaccessible or unknown to his friends or counsel. Information, regarding his place of confinement should at all times be given to hi friends on their application, and the prisoner himself should be informed that he is entitled to have the assistance of counsel and to communicate with his relations and friends." 25. The instructions and the law so far as they provide for production of the accused before a Magistrate having jurisdiction to try the case, or the prohibition against his removal to a place which is either inaccessible or unknown to his friends or counsel are overridden by the Removal o: Accused Persons Act 1973 as the latter takes effect "notwithstanding any--thing contained in any other law for the time being in force". 26. The detenu has stated that when he enquired about the grounds of his detention he was told of the bare sections of the law under which he was charged and these made no sense to him. Going by the experience gained in obtaining the First Information Reports of occurrences in which the detenu was implicated, and there being nothing to rebut this statement of the detenu, I am inclined to believe that the Magistrate at Bahawalpur passing remand orders had no better information of the grounds than the bare sections of the Penal Code. Where an accused is charged for offences committed in one province, and that too ten years before his apprehension and is kept away from the scene of offence, and the Magistrate having territorial jurisdiction, such a communication of the sections of the Penal Code does not satisfy the requirement of disclosure of grounds of arrest. The detenu also complains that the publicity given to his apprehension in the
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Press, Radio and Television contained almost every imaginable charge against him, except of course the ones on which he was apprehended and detained. 27. Some guidance on this issue can be obtained from decisions from Indian Jurisdiction in Vinial Kishore Mehrotra v. State of Uttar Pradesh (AIR 1956 All. 56) and Madhu Limaye v. State (AIR 1959 Punj. 506). In both a recital of the sections of the penal law applied for arresting and detaining a person was considered insufficient compliance with such a Constitutional requirement. It is true that the disclosure may be oral or in writing but it must be sufficient to give an indication to the detenu of the broad facts forming the basis of his apprehension and trial. The extent of disclosure of the grounds may vary from case to case and from individual to individual, depending upon the attending circumstances, and the media available to the detenu for acquainting himself with facts. 28. As regards the facility of consulting a lawyer, in corroboration of the statement of the detenu, his application to the District Magistrate dated 22-8-1974 has been placed on record. It was forwarded by the Superinten--dent New Central Jail Bahawalpur on 23-8-1974. In this application the detenu made it clear that when he was produced before a Magistrate for remand on 19-8-1974 he made a request for arranging a lawyer for him but the Magistrate referred him to the District Magistrate on which he prayed 29. This application elicited no response ever from the District Magistrate. Even if there…
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