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Petitioner: Asif Kamal VS Respondent: The Judge Accountability Court, Multan, etc
Court Name: Lahore High Court Judge(s): Anwaarul Haq Pannun, Sadiq Mahmud Khurram Title: Asif Kamal vs The Judge Accountability Court, Multan, etc Case No.: Writ Petition No.1646 of 2019 Date of Judgment:2019-03-18 Reported As: 2020 P Cr. L J 1, 2019 LHC 2803 Result: N/A
Judgment Anwaarul Haq Pannun, J.- Pithily, the facts constituting background for institution of instant writ petition are that the petitioner , being an accused, is facing the trial, simultaneously in the below mentioned three Nab references:- i) Accountability References No.03/2018 pending before Judge Accountability Court at Multan ; (ii) Accountability References No.71/2018 pending before Judge Accountability Court-III, Lahore (iii) Third case of similar nature filed by NAB authorities at Rawalpindi and the petitioner is under judicial remand of the learned Judge Accountability Court at Rawalpindi . 2. The case of the petitioner as portrayed, in the writ petition is to the effect that the petitioner , as a result of his alleged involvement as an accused in the reference mentioned at serial No.1, was arrested on 05.04.2018 and since then, he has been confined in District Jail, Multan. The petitioner is also allegedly involved in Accountability References mentioned at serial No.2 and 3 pending before the respective Accountability Courts at Rawalpindi and Lahore. The petitioner is legally bound to be produced before the said courts on the dates fixed for hearing. The Government machinery responsible to produce the petitioner in the courts referred above, has failed in doing so on various dates, causing delay consequently in his trial without any fault on his part. The petitioner is permanent resident of Lahore. As a result of his confinement at a distant place i.e., Multan, he is facing hardships in materializing his right of visitation with his family members including his unmarried daughter and a son. The petitioner is also unable to avail of the legally permissible facilities like home-made food to which he is entailed to seek. The petitioner moved an application before the court/respondent No.1 seeking transfer of his custody from District Jail, Multan to Camp Jail at Lahore. It was dismissed vide order dated 14.11.2018. Once again, as a result of excessive hardships to the petitioner, his dependents since facing financial constraint moved an application to I.G. (P) and Secretary Home Department, Government of the Punjab for transfer of custody of the petitioner, as aforesaid from Multan to Lahore. The office of I.G.(P), accorded the requisite permission, subject to the
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concurrence of the concerned Accountability Court, for shifting the custody of the petitioner as prayed for, vide his letter dated 17.12.2018. Once again, the concerned authority moved to the learned court for seeking concurrence for transfer of the petitioner's custody as aforesaid which has been dismissed vide order impugned dated 03.01.2019. The petitioner, in the above background has made through instant petition the following prayer:- a) The impugned orders passed by the respondent No.1 dated 14.11.2018 and 03.01.2019 may kindly be set aside and declared illegal, unlawful, void ab-initio resultantly allowing the petitioner to be shifted to Jail in Lahore. b) The concurrence as desired by the office of the Inspector General of Prisons through its letter dated 17.12.2018 may kindly be accorded, in the wider interest of justice. 3. In response to the notice, the learned respondent No.1 has submitted his parawise comments, the crux of which is that it is the duty of the jail authorities to produce the petitioner from jail. In case the petitioner's custody is shifted to Camp Jail, Lahore, the expenses will have to be borne out of the exchequer . Further , that in the subject Reference Hon'ble Supreme Court of Pakistan vide order dated 14.02.2018 in CPLA No.5133-34 passed a direction to decide the case within three months. However , Reference could not be decided within the stipulated period because when the direction was received, no reference was even pending in this court. Reference was submitted on 15.02.2018, thereafter , charge was framed on 27.03.2018. During shifting of Asif Kamal, petitioner/accused, to Lahore by the NAB for investigation in another Reference and for investigation by the NAB at Rawalpindi, the case in hand remained pending. Ahsan Rafique, accused, was arrested later on. Supplementary Reference to his extent was awaited which was received on 10.12.2018. In the meanwhile, request was sent to the Hon'ble Supreme Court of Pakistan for extension of time for disposal of the Reference. Then Humayun Nabi Jan, accused did not appear and his non-bailable warrants of arrest were issued. On 02.11.2018, Ahsan Refique and Asif Kamal, accused were not produced from Jail due to Law and Order situation. On the same date, learned defence counsel remained busy in the Hon'ble High Court. Humayun Nabi Jan, accused, after necessary proceedings was declared PO vide order dated 26.11.2018. In view of supplementary reference, amended charge was framed on 17.12.2018 against the accused and on 07.02.2019, examination in chief of PW-1 has been recorded and on the request of learned defence counsel, case has been adjourned to 13.02.2019 for cross examination on PW -1. 4. While reiterating his contentions, based on the grounds urged in the writ petition, learned counsel for the petitioner while relying upon the case-law reported as Muhammad Tufail Khokhar v. The Inspector-General of Prisons Punjab, Lahore and 3 others (PLD 1980 Lahore 162), Zia-ud-Din v. Superintendent, Camp Jail, Lahore and another (PLD 1976 Lahore 93) and Shahabudin v Home Secretary , Home Department Punjab Lahore and 4 others (2005 YLR 1902 ) submits that due to the incarceration of the petitioner at Multan, excessive hardships have accrued to the petitioner's dependents i.e., un-married daughter and a son. The petitioner has failed to avail the right of visitation due to financial constraints. The petitioner is also unable to avail the facility of home-made food etc. The petitioner may, while setting aside the impugned orders, be ordered to be shifted to Camp Jail at Lahore. He further submits, that since the petitioner is also required to be produced before Accountability Courts at Lahore and Rawalpindi, besides court at Multan, therefore, Lahore being in the midth of both the courts, the shifting of the petitioner is more feasible and quite in the interest of justice. 5. On the other hand, it has been maintained by the learned Special Prosecutor NAB that since the petitioner has been remanded by the court to jail under section 344 Cr.P.C., therefore, unless the trial is completed, the jail authorities, without the concurrence of court, have no power to shift the petitioner , to any other place from District Jail, Multan. He has reiterated the contents of the reply and prayed for dismissal of the writ petition. 6. The arguments advanced by the learned counsel for the parties have been heard and record perused. 7. For the sake of reference and conve nience, it is pointed out that the relevan t legal instruments, in force, to establish and regulate the af fairs of the prisons and the prisoners respectively , are; (i) THE PRISONS ACT,1894 (ii) THE PRISONERS ACT, 1900 (ACT IX OF 1894) (ACT III OF 1900)
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(iii) THE PRISON RULES 1978 (iv) Rules and Orders of the Lahore High Court, Lahore, Volume II, Chapter 27, Judicial an Police Lock-ups. {To be called as The Prisons Act, The Prisoners Act and Prison Rules and High Court Rules hereinafter) According to Oxford Advanced Learner's Dictionary, word prison" means:- "a building where people are kept as a punishment for a crime they have committed, or while they are waiting for trial." As per Black's Law Dictionary , meanings of word " jail" have been provided as under:- "A local government' s detention center where persons awaiting trial or those convicted of misdemeanors are confined ." 8. In order to advance the discussion over the subject of {the bearing of concurrence of court for transfer of custody of an under trial prisoner from one jail to another } progressively moving towards its conclusion, some excerpts out of the related provisions, of the above mentioned statutes, shall be quoted, at appropriate places. The term jail or prison has also been defined under above mentioned statutes. Under subsection (1) of Section 3 of The Prisons Act, 1894 is reproduced hereunder:- Section 3(1) of The Act provides the meaning of word " Prison" as under:- "Prison" means any jail or place used permanently or temporarily under the general or special orders of a Provincial Government for the detention of prisoners, and includes all lands and buildings appurtenant thereto, but does not include -- (a) any place for the confinement of prisoners who are exclusively in the custody of the police; (b) any place specially appointed by the Provincial Government u/s 541 of the Code of Criminal Procedure, 1882; or (c) any place which has been declared by the Provincial Government by general or special order to be a subsidiary jail." Similarly , under section 2 of The Prisoners Act, 1900 , the term Court' and Prison' have been defined as under:- (a) "Court" includes a Corner and any officer lawfully exercising civil, criminal or revenue jurisdiction; and (b) "Prison" includes any place which has been declared by the (provincial Government), by general or special order to be a subsidiary jail. 9. From the above definitions, it spells out that both the words i.e. "prison" & "Jail" can interchangeably be used to denote and describe a building, under general or special order of the Provincial Government where people are detained either as a punishment for a crime, they have committed or where they are housed waiting for their trial. There may be persons detained in it, who, although have not committed any offence but detained under any order of some authority competent to pass such order . (i) THE PRISONS ACT,1894 (ACT IX OF 1894) Ac act to amend the law relating to Prisons. Preamble: "Whereas it is expedient to amend the law relating to prisons in Pakistan and to provide Rules for the regulation of such prisons." 59. Power to make rules....The Provincial Government may make rules consistent with this Act.... (1)............................................. (11) as to the food, bedding and clothing of criminal prisoners and of civil prisoners maintained otherwise than at their own cost; (17) for the classification and the separation of prisoners; (28)..... (ii) THE PRISONERS ACT, 1900 (ACT III OF 1900) "An Act to consolidate the law relating to PRISONERS CONFINED BY ORDER OF A COURT" Preamble : "WHEREAS it is expedient to consolidate the law relating to prisoners confined by order of a Court: THE PRISON RULES 59 Power to make Rules under this Part---(1) The (Provincial Government) may make rules:"
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(a) For regulating the escort of prisoners to and from Court in which their atten dance is required and for their custody during the period of such attendance. (b)... (c)... (iii) THE PRISON RULES 1978 CHAPTER 15 Undertrial Prisoners (Rules 365 to 399) 10. It may be observed that both the instruments i.e. The Prisons Act, 1894 and The Prisoners Act 1900 were enacted/legislated during the colonial rule. These pieces of legislation like many other laws have been adopted. It may also be mentioned that the perusal of preamble of the Prisons Act would shed light on the objectives behind its enactment. It clearly says that the laws relating to prisons have been amended through this Act, to provide rules for the regulation of such prisons. Besides various other provisions meant to regulate the affairs of the prisons, through section 59 of ibid the rule making powers has been vested in the Provincial Government. Similarly, the preamble of The Prisoners Act 1900 sets it out that through this Act, the laws relating to prisoners confined by order of the court have been consolidated. It may also be of interest and relevant to say that the power for rule making had also been delegated to the Provincial Government. The Provincial Government has framed, in pursuance of delegated powers, the Prisons Rules, 1978 to maintain and regulate the affairs of the prisons and the prisoners besides their ancillary matters. 11. After describing hereinabove the dictionary meanings and legal definitions of the term jail or prison under the relevant statutes, which means a building or place used permanently or temporarily under general or special order of Provincial Government for the detention of the persons required to be detained by operation of law. It may be relevant to state, under Pakistan Prisons Rules, 1978, the classification of the prisons, into four kinds, is given below:- Classification of Prisons , Pakistan Prisons Rule,1976 Rule 4. Prisons shall be classified into four kinds namely , Central Prisons, Special Prisons, District Prisons and Sub-Jails. CENTRAL PRISONS. Rule 5. (i) Central Prisons shall have accommodation ordinarily for more than 1,000 prisoners irrespective of the length of sentences. There shall be a Central Prison in each division of a Province. (ii) The Provincial Government may, in its discretion, declare any Special Prison or District Prison to be a Central Prison. SPECIAL PRISONS. Rule 6 (i) The provincial Government may, from time to time, declare any prison to be Special Prison or establish a Special Prison at any place. (ii) No prison shall be deemed to be a special Prison, within the meaning of these rules, unless, it has been declared to be so or established as such under clause (i). (iii) Women's Prisons, Open Prisons, Borstal Institutions and Juvenile Training Centers shall be deemed to be special Prisons under this Rule. DISTRICT PRISONS. Rule 7. All Prisons, other than Central Prisons or Special Prisons shall be deemed to be District Prisons. CLASSES OF DISTRICT PRISONS. Rule 8 (i) There shall be three classes of District Prisons:- First class, having accommodation ordinarily for 500 prisoners or more with sentences upto 5 years; Second class, having accommodation ordinarily for 300 prisoners or more but less than 500 with sentences up to 3 years; and Third class, having accommodation ordinarily for less than 300 prisoners with sentences up to one year; (ii) The class to which any District Prison shall be deemed, during any year, to belong and the term of sentence for confinement in each prison shall be determined by the Inspector-General in the
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month of July in each year, in accordance with the average number of prisoners confined in such prison during the preceding year ending on the thirtieth of June. CENTRAL PRISON MA Y ALSO BE A DISTRICT PRISON. Rule 9. The Provincial Government may declare any Central Prison to be for all or any purposes, also a District Prison. 12. It may also be relevant to state that the prisoners have also been divided into various classes. This classification is important for the reason that every class of prisoners under the law and rules had been placed under some restrictions and had also been allowed certain privileges. According to Subsections (2), (3) and (4) of Section 3 of The Prisons Act, 1894, following are the main kinds of prisoners:- Section 3(2) "criminal prisoner" means any prisoner duly committed to custody under the writ, warrant or order of any Court or authority exercising criminal jurisdiction, or any order of a Court-martial; Section 3(3) "convicted criminal prisoner" means any criminal prisoner under sentence of a Court or Court- martial, and includes a person detained in prison under the provisions of Chapter VIII of the Code of Criminal Procedure, 1882, or under the Prisoners Act, 1871; Section 3(4) "civil prisoner" means any prisoner who is not a criminal prisoner; Rule 224 of Prison Rule, 1978 also provides following types of prisoners:- (i) a criminal prisoner , which includes (a) A convicted prisoner, and (b) An un-convicted or under-trial prisoner : (ii) A civil prisoner; or (iii) A state prisoner detained under Regulatio n III of 1818, or a person ordered to be detained in prison without trial under any law relating to the detention of such person. Rule 225 further classifies convicted prisoners as under: (a) superior class; (b) ordinary class; and (c) political class. Superior class is further classified into A and B class prisoners. Ordinary class comprises of prisoners other than superior class. Under said Rule Political class comprises of prisoners who commit crimes not for personal gain but for political motives. This class is not criminal and does not require reformative or correctional treatment. Rules also classify convicted prisoners according to quantum of their sentences and also as casual and habitual. Similarly Rule 229 provides classification of under trial prisoners such as (a) Committed to Sessions (b) Committed to other Courts 13. Let's revert back to examine that how and under what circumstances, a person is sent to jail or prison. In order to explain the legal position, the following legal provisions are relevant; hence the same are being reproduced in a chronology . Article 10 of the Constitution of Islamic Republic of Pakistan, 1973 is reproduced hereunder:- Article:10 of the Constitution of Islam ic Republic of Pakistan, 1973 provides Safeguards as to arrest and detention (1)... (2) Every person who is arrested and detained in custody shall be produced befor e a Magistrate within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the nearest Magistrate , and no such person shall be detained in custody beyond the said period without the authority of a Magistrate. Section 61 Cr.P.C. No police-of ficer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court. A Magistrate to whom an accused is forwarded under section 167 Cr.P.C., whether or not he has the jurisdiction to try the case, authorize his detention in such custody as he deems fit for a term not exceeding 15 days in whole. Section 167 of the Code of Criminal Procedure, 1898 reads : 167. Procedure when investigation cannot be completed in twenty four hours : (1) Whenever any person is arrested and detained in custody , and it appears that the investigation cannot be completed within the period of
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twenty four hours fixed by Section 61, and there are grounds for believing that the accusation or information is well founded, the officer incharge of the police-station or the police-of ficer making the investigation if he is not below the rank of the sub-inspector , shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has no jurisdiction to try the case, from time to time, authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole. If he has no jurisdiction to try the case or [send] it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction; Provided that no Magistrate of the Third Class, and no Magistrate of the Second Class not specially empowered in this behalf by the Provincial Government shall authorise detention in the custody of the police. (3) A Magistrate authorizing under this section detention in the custody of the police shall record his reasons for so doing. (4) The Magistrate, giving such order shall forward copy of his order , with his reasons for making it, to the Sessions Judge. (5) Notwithstanding anything contained in Sections 60 and 61 or hereinbefore to the contrary , where the accused forwarded under subsection (2) is a female, the Magistrate shall not, except in the cases involving Qatl or Dacoity supported by reasons to be recorded in writing, authorise the detention of the accused in police custody , and the police officer making an investigation shall interrogate the accused referred to in subsection (1) in the prison in the presence of an of ficer of jail and a female police of ficer. (6) The officer in-charge of the prison shall make appropriate arrangements the admission of the investigating police of ficer into the prison for the purpose of interrogating the accused. (7) If for the purpose of investigation, it is necessary that the accused referred to in subsection (1) be taken out of the prison, the officer incharge of the police station or the police officer making investigation, not below the rank of sub-inspector , shall apply to the Magistrate in that behalf and the Magistrate may, for the reasons to be recorded in writing, permit taking of accused out of the prison in the company of a female police officer appointed by the Magistrate: Provided that the accused shall not be kept out of the prison while in the custody of the police between sunset and sunrise." Section 344 of Code of Criminal Procedure, 1908 is regarding the postponement of proceedings by the courts during trial of a case, which reads as under:- "Power to postpone or adjourn proceedings. (1) If, from the absence of a witness or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of or adjourn any inquiry or trial, the Court may, if it thinks fit, by order in writing, stating the reasons therefore from time to time, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody: Remand. Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time. (2) Every order made under this section by a Court other than a High Court shall be in writing signed by the Presiding Judge or Magistrate. Let us now draw a synthesis from the above quoted provisions. 14. Arrest: A police officer or other person making an arrest shall actually touch or confine the body of the person to be arrested unless there be a submission to the custody either by word or action. It may also be pointed out that Article 10(2) of the Constitution of Islamic Republic of Pakistan safeguards to ensure that every person who is arrested and detained in custody shall be produced before a Magistrate within a period of 24 hours of such arrest, excluding the time necessary for journey from the place of arrest, to the court of nearest Magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate. Moreover, it may be observed that a police officer making an arrest without warrant, shall without unnecessary delay, subject to the
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provisions relating to bail, or send the person arrested before a Magistrate having jurisdiction in case or before the court incharge of a police station. No police officer as aforesaid thereafter shall detain in custody an arrested person without warrant for a longer period than under all circumstances of the case, which is reasonable and such period shall not in absence of any special order of a Magistrate under section 167 Cr.P.C. exceeds 24 hours exclusive of the time necessary for journey from the place of arrest, to the Magistrate's court. Thereafter, it may further be pointed out that in case of a person required in a criminal case for the purpose of investigation, when produced before the Magistrate under section 167 Cr.P.C. and the Magistrate is of the opinion that the investigation cannot be completed within a period of 24 hours, and there are grounds for believing that accusation or information is well-founded, the incharge of the police station or the police officer making investigation, not below the rank of Sub Inspector, shall forthwith transmit with the nearest Magistrate, a copy of the entries in diary hereinafter prescribed relating to the case and shall at the same time forward such accused to the Magistrate. The Magistrate will authorize the retention of physical custody of the accused for further investigation. In nutshell, an accused has to be produced before a Magistrate within 24 hours of his arrest either for his physical remand or for his detention in judicial lock up. No person shall be detained by any investigating police officer in custody after the expiry of 24 hours fixed by section 61 Cr.P.C. unless authorized by any Magistrate…
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