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Petitioner: Agha ZAHEERUDDIN KHAN VS Respondent: GOVERNMENT OF SIND AND ANOTHER
Court Name: Sindh High Court Judge(s): Ajmal Mian, Syed Haider Ali Pirzada Title: Agha ZAHEERUDDIN KHAN vs GOVERNMENT OF SIND AND ANOTHER Case No.: Constitutional Petition No, D-689 of 1983 Date of Judgment:1983-10-12 Reported As: 1984 P Cr. L J 3882 Result: N/A
JUDGMENT
JUDGMENT ' AJMAL MiAN, i.-(1) (a) Since the above nine petitions involve common question of law, we intend to dispose of the same by this common judgment. The petitioners are close relations of the detenus, who have been detained under M. L. 0. 78 (as re-constituted by M. L. 0. 82) and have been lodged at the Central Prison, Sukkur. The detenus in Constitutional Petitions 685/83, 687/83, 744/83, 749/83 and 752/83 are the practising Advocates of the High Court of Sind, whereas the other detenus in the other petitions are men of status as per averments in the respective petitions. The petitioners through these petitions have not challenged any Martial Law detention order or action. The petitioners' grievance is that the detenus have not allowed the facilities, namely proper class, interview with their relations and friends and other facilities admissible under the Jail rules and they have been kept with hardened criminals. In para. 11 of C. P. No, D-752/83, the following allegations have been made :- "11. That all the detenus including Advocates are not only being forced to rigorous labour but are also made to clear the Garbage and dirty filth from the dirty drains of prison. This cruelty on the part of respondent No, 2 is against all canons of law and natural justice (affidavit of the nephew of detenu Mr. Ali Nawaz Awan is appended herewith as Annexure (b) The petitioners have prayed more less for identical reliefs. It may be advantageous to reproduce hereinbelow the reliefs prayed for in Constitutional Petition No, 685/83, which read as follows :- "It is, therefore, prayed that this Hon'ble Court may be pleased to allow :- (a) Daily interview with the detenu by his relatives and counsels.
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(b) Class according to Status. (c) Proper treatment according to law and Jail Manual. (d) Private necessaries including meals, cloth, bedding, cigarettes. (e) Radio, television, and newspaper at the expenses of the petitioner." (c) In Constitutional Petition 685/83, respondent No, 1, namely the Home Secretary, through his letter dated 18th August, 1983 allowed the detenu' three relations named theiein, to have interview under rule 15 of the Detention Rules subject to the instructions of Martial Law Authorities in this connection, if any. It may be advantageous to reproduce hereinbelow the above letter which reads as follows :- ' NO. PRS. 18-122/83 GOVERNMENT OF SIND HOME DEPARTMENT. Karachi, 18th August, 1983. To, ' The Superintendent, Central Prisons, ' SUKKUR. ' SUBJECT: INTERVIEW WITH DETENU Agha Saiftoddin. ' Permission is accorded to the following under rule 15 of Detention Rules, 1962 to visit aforesaid detenu. Detained at Cent ral ' Prison. (1) Agha Iftikharuddin. (2) Agha Zaheeruddin. (3) Agha Rafiuddin. ' Interview may strictly be allowed in accordance with Detenu Rules, subject to instructions of Martial Law Authorities in this connection, if any. (Sd.) SECTION OFFICER (PRISONS) for SECRETARY TO GOVERNMENT OF SIND A copy is forwarded to the applicant. SECTION OFFICER (PRISONS) for SECRETARY TO GOVERNMENT OF SIND HOME DEPARTMENT." (d) When the above petition with some connected petitions had come up for katcha peshi on 1st September, 1983 at Sukkur Bench of this Court a pre-admission notice was ordered to the learned A. A.-G. To assist the Court on the following points (1) Whether the detenu is subject to the Jail Manual while lodged in a Civil Prison or subject to any other rules ? (ii) The reason as to why the order of the Home Secretary was flouted by respondent No, 2 i,e, the Superintendent of Central Prison, Sukkur ? ' The above writ petition alongwith connected petitions came up for hearing, on 4th September, 1983 when the learned A. A.-G. Submitted that the detenus are subject to the West Pakistan Public Order Detenu Rules, 1962 (published in PLD 1963 West Pakistan Statutes page 311). The above petition and other connected petitions were admitted to regular hearing. However, no interlocutory relief prayed for in the interlocutory application, namely, granting of class according to the status and other facilities under the Jail Manual during the pendency of the petition, was granted inter alia for the reason that it would amount to granting of the main petitions. The petitions were ordered to be heard as early as possible, and a reference was made to the learned Acting Chief Justice for referring the matter to a larger Bench in view of the fact that the above writs involved question of public importance, if it was agreeable to the learned Chief Justice. But the learned Acting Chief Justice by an order, dated 12th September, 1983 assigned the above petitions for disposal to this Bench. (d) It may also be observed that all the above petitions canoe up for hearing, on 22nd September, 1983 and were taken up early in the morning when Mr. Sayeed A. Shaikh, learned Advocate- General, Sind submitted that under the Home Secretary's Circular No, Prs./9-65/77 dated 28th March, 1978 issued in pursuance of an order of the M. L. A. Zone 'C' detenus under-trial prisoners and
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convicts confined in jail are subject to the provisions of the Detenus Rules, 1962 and the Jail Manual. However, he requested for time upto the tea-break to find out from the Sukkur Jail authorities as to why they were not implementing the above directive. ' After the tea-break, Mr. Sayeed A. Shaikh, learned Advocate-General submitted that he had been informed that there were some other instructions of the Martial Law authorities. He requested for time on the ground that the Home Secretary was out of station, and therefore, he was unable to obtain the proper instructions. The cases were adjourned to 29th September, 1983 but since the latter date was declared a public holiday on account of the local 'councils elections, the above cases came up for hearing on 4th October, 1983, when Mr. Sayeed A. Shaikh A.-G. Sind produced Circular No, Prs./9-65/77-II, Government of Sind, Home Department, Karachi, dated the September 25, 1983 addressed to the Inspector-General of Prisons, Sind, Hyderabad and copies thereof were endorsed to the various authorities named therein. It may be advantageous to reproduce hereinbelow the above two circulars, dated 28th March, 1978 (hereinafter referred to as the first circular) and dated 25th eptember, 1983 (hereinafter referred to as the second circular) which reads as follows :- 'IMMEDIATE' No, PRS./9-65/77 First Circular From : Confidential GOVERNMENT OF SIND HOME DEPARTMENT ' Karachi, dated March 28, 1978 ' Mr. Kanwar Idris, ' Secretary to Government of Sind. To, ' The I.-G. Prisons, Sind, Hyderabad. ' SUBJECT: MARTIAL LAW U.T. Ps., DETENUS & CONVICTS ' In supersession of all instructions, general or specific issued by any authority, heneceforth all Martial law detenus, under-trial prisoners and convicts confined in Jails shall be governed by the provisions of the Detenus Rules of 1962 and the Jail Manual. ' Please acknowledge and refer any case of doubt or ambiguity to this Department. (Sd.) (KANWAR IDRIS), Secretary to Government of Sind, ' Copy for information and necessary action to all Superintendents of Jails in Sind. ' Copy to H. Qs.-M. L. A. Zone `C' ' Attention : (1) Brig. Abdur Rashid Qureshi for issuing circular instaictions to M. L. Officers and Courts (a copy of the summary approved by the M. L. A. Is enclosed). (2) Secretary to M. L. A. For information. (Sd.) (Kanwar Idris), Secretary to Government of Sind. No, PRS./9-65177-H GOVERNMENT OF SIND HOME DEPARTMENT Karachi, dated the September 25, 1983. To, ' The Inspector-General of Prisons, Sind Hyderabad. Second Circular ' SUBJECT: CLASSIFICATION OF DETENUS/MARTIA LAW CONVICTS AND UNDER-TRIAL PRISONERS ' In partial modification of this Department's Circular No, Prs./9-65/77, dated 28th March, 1978, Prs./9-65/77, dated 3rd September, 1983 and Prs./9-65/77-II, dated 17th September, 1983 regarding
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classification of Martial law convicts, under-trial prisoners and detenus under M. L. C. 12,78, the M. L. A. Zone 'C' has decided as under :- (1) In view of the C. M. L. a 8, all offenders convicted and sentenced to rigorous imprisonmelit under Martial Law Regulations by the Military Courts will be treated as ordinary criminals in 'C' class irrespective of their class or status. ' Such convicts who were granted 'B' class shall be reverted to 'C' class forthwith. (1) Henceforth all detenus detained under M. L. 0. 12/78 reconstituted by M. L. 0. 82, shall in the first instance be placed in 'C' class unless otherwise specified in the detention order itself by the detaining authorities. ' Please acknowledge receipt, make compliance and refer any case of doubt or ambiguity to this Department. (GHULAM ABBAS SOOMRO) DEPUTY SECRETARY-II for SECRETARY TO GOVT. OF SIND HOME DEPARTMENT ' A copy is forwarded to : - (1) The Headquarters M. L. A. Zone 'C' Karachi. (2) The Headquarters D. M. L. A. Karachi/Hyderabad/Sukkur. (3) The Advocate-General, Sind, Karachi with reference to his letter No, A. 041724/83, dated 22nd September, 1983. (4) The Commissioner, Karachi/Hyderabad/Sukkur. (5) All District Magistrates in Sind. (6) All Superintendents Jails/Prisons in Sind. ' The under-trial prisoners of all kind and convicts of criminal -Courts shall continue to be governed by the Jail Manual. (Sd.) (GHULAM ABBAS SOOMRO), DEPUTY SECRETARY-II for SECRETARY TO GOVT. OF SIND HOME DEPARTMENT 2. (a) In support of the above petitions Mr. M. A. Rashid Advocate assisted by Mr. Kasmi Advocate has contended as follows :- (i) That the instructions contained in the second circular, dated 25th September, 1983 are applicable prospectively, and, therefore, it can not be made applicable to the detenus, who were already under detention at the time of issuance of the above instructions. (ii) That since two possible constructions of the above instructions are possible, the construction which favours the detenus should be adopted. (iii) That in any case the above instructions contained in the second circular, dated 25th September, 1983 have modified the aforesaid instructions contained in the first circular, dated 28th March, 1978 to the extent of sub-para. (2) in respect of the detenus detained under M. L. 0. 12/78 reconstituted by M. L. 0. 82, namely, placing them in class 'C' unless otherwise specified in the detention Order itself by the detaining authorities and, therefore, the Jail authorities are bound to follow the West Pakistan Detenu Rules, 1962 and/or the Prisons Act, 1894 and the Jail Manual. (b) On the other hand Mr. Sayeed A. Shaikh, learned Advocate-General Sind has urged as follow. (i) That if a detention order is made by a D. M. L. A. He is bound to pass a consequential order for the custody of the detenu. (ii) That since the jail authorities are acting under the instructions of the D. M. L. A. And as he cannot be arraigned before this Court in a writ petition or otherwise, this Court has no jurisdiction even to issue a writ to the jail authorities, the remedy of the petitioners, if any, is to approach the Martial law Authorities.
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(iii) That this Court has no jurisdiction to interest the instructions contained in the above two circulars, dated 28th March, 1978 and dated 25th September, 1983. (iv) That the second circular, dated 25th September, 1983 also covers the detenus who were already detained prior to the above circular. 3. As regards the first contention of Mr. Sayeed A. Shaikh, learned Advocate-General that if a detention order is passed by a D. M. L. A., he is bound to pass consequential order for the custody of the detenu it may be observed that there cannot be any cavil to the above submission. However, the question in issue is, if the M. L. A. Himself allowed the application of the general law, the West Pakistan Public Order Detenu Rules, 1962 and the Jail Manual etc., whether the jail authorities through a writ can be compelled to follow the above rules. This aspect is dealt with hereinbelow in para. 4. 4. (a) Reverting to the above second contention of Mr. Sayeed A. Shaikh that the Jail authorities are acting under instructions of the D. M. L. A. And as he cannot be arraigned before this Court in a writ petition, or otherwise, this Court has no jurisdiction even to issue any writ to jail authorities, it may be observed that he has referred to sub-clause (d) of clause 5 of Article 15 of the P. C. 0. Which reads as follows :- (5) Notwithstanding any judgment of any Court including any judgment in respect of the powers of Courts relating to judicial review, any Court, including the Supreme Court and a High Court, shall not :- (a) .. (b). (c) . (d) issue any process against the Chief Martial Law Administrator or a Martial Law Administrator or any person acting under the authority of either." ' It may be noticed that under the above-quoted sub-clause, it has been provided that notwithstanding any judgment of any Court including any judgment in respect of the power of the Court relating to judicial review, any Court, including a High Court or the Supreme Court shall not issue any process against the Chief Martial Law Administrator or Martial Law Administrator or any person acting under the authority of either. In other words, the Honourable Supreme Court and High Courts are precluded from issuing any process against the Chief Martial Law Administrator or Martial Law Administrator or any person acting under the authority of either. In our view, in order to press into service the above sub-clause (d) by any person, he will have to show that he is acting under the authority of the Chief Martial Law Administrator or a Martial Law Administrator. It may be mentioned that under M. L. 0. 78 the power to detain was originally given to the Chief Martial Law Administrator or a Martial Law Administrator but by virtue of M. L. 0. 82 issued on 21st September, 1980 by the C. M. L. A. After the words "a Martial Law Administrator" the words "or a Deputy Martial Law Administrator" were added to. The effect the above addition was to empower a Deputy Martial Law Administrator to pass a detention order under M. L. 0. 78. (b) It may be observed that sinse the detenus are detained under the order of the D. M. L. A., respondent No, 2, Superintendent Central Prison Sukkur cannot be directed to release the detenus as he has detained or is acting under the authority of a Deputy Martial Law Administrator. Similarly the factum that a detenu is kept in 'C' class cannot be impugned before this Court in view of the second circular dated 25th September. 1983. But as pointed out hereinabove in para. 1(a) that the petitioners are not challenging the detention order or the factum of detention nor the first and second circulars their grievance is that
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though respondent No, 2 is under statutory obligation by virtue of the Prisons Act, 1894, the West Pakistan Detenu Rules and the Jail Manual to regulate the detemus' custody in accordance with those rules, but he has failed and neglected to discharge the above statutory duty. 5. (a) It may be advantageous to refer to the relevant Act and the rules. It may be observed that the Prisons Act, 1894 (hereinafter referred to as the Act) was made applicable to the Province of Sind by Sind Act No, VIII of 1975. Prior to the above Act in Sind, the Provisions of sections 9 to 16 of Bombay Act II 1874 was applicable. It may further be observed that subsection (1) of section of the Act defines the "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 including 'all, lands and buildings appurtenant thereto, but does not include any place for the confinement of prisoners, who are exclusively in the custody of the police or any place specially appointed by the Provincial Government under section 541 of the Code of Criminal Procedure, 1882 or any place which has been declared by the Provincial Government by general or special order, to be a subsidiary jail. Whereas subsection (2) of section 3 defines "criminal prisoner" means any prisoner duly committed to custody under the writ, warrant or order of any Court or authority exercising criminal jurisdiction or by order of a Court martial. It may further be stated that subsection (3) defines "convicted criminal prisoner" as means any criminal prisoner, who is under sentence of a Court or court-martial, and including a person detained in prison under the provisions of Chapter VIII of the Code of Criminal Procedure, 1882 or under the Prisoners Act, 1871. Furthermore, subsection (4) gives the definition of "Civil Prisoner" as means any prisoner, who is not a criminal prisoner. (b) It may also be observed that section 4 provides that the Provincial Government shall provide, for the prisoners in the territories under such Government, accommodation in prisons, constructed and regulated in such manner as to comply with the requisitions of the Act in respect of the separation of prisoners, section 5 contemplates appointment of an Inspector-General for the territories subject to each Provincial Government, who shall exercise subject to the order of the Provincial Government, the general control and superintendence of all prisons situated in the territories under such Government. Furthermore, section 6 lays down that for every prison there shall be a superintendent and Medical Officer (who may also be the Superintendent) and medical subordinate, Jailer and such .Other Officers as the Provincial Government thinks necessary. It may also be mentioned that section 11 provides that subject to the order of the Inspector-General the Superintendent shall manage the prison in all matters relating to discipline, labour, expenditure, punishment and control. It further provides that subject to such general or special directions as may be given by the Provincial Government, the Superintendent of a prison other than a central prison or a prison situated in presidency-town shall obey all orders not inconsistent with this Act or any rule thereunder, which may be given respecting the prison by the District Magistrate and shall report to the Inspector-General all such orders and the action taken thereon. Furthermore, section 12 imposes an obligation on the Superintendent to keep or cause to be kept a register of prisoners admitted, a book showing when the prisoner is to be released, a punishment book for every entry of the punishment inflicted on prisoners for prison offences, visitors' book for entry of any observations made by the visitors touching any matters connected with the administration of the prison a record of the money and other articles taken from prisoners and all such other records as may be prescribed by rules under section 59. It may be pointed out that sections 13 to 15 of the Act define obligations of the Medical Officer,' whereas sections 16 to 20 define the duties of the Jailor and Deputy and Assistant Jailors. It may also be stated that sections 21 and 22 define the duties of subordinate officers. (c) It may further be stated that section 27 of the Act provides separation of prisoners, namely, females are to be imprisoned in a separate building or separate part of the same building and so also the prisoners under the age of 21. Whereas unconvicted criminal prisoners are to be kept apart
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from convicted criminal prisoners and civil prisoners are to be kept apart from criminal prisoners. It may also be pointed out that section 31 provides that a civil prisoner or unconvicted criminal prisoner shall be permitted to maintain himself and to purchase, or to receive from private sources at proper hours, food, clothing, bedding or other necessaries but subject to examination and to such rules as may be approved by the Inspector-General. It may further be pointed out that section 40 of the Act provides that due provision shall be made for the admission at proper times and under proper restrictions, into every prison of persons with whom civil or unconvicted prisoners may desire to communicate. It further provides that care will be taken so far as may be consistent with the interests of justice, prisoners undertrial may see their duly qualified legal advisers without the presence of any other person. Section 41 empowers a Jailor to demand search of any visitor to the prisoner or may search the visitor before allowing him to see the prisoner and on refusal to allow the search deny the admission. Whereas section 59 empowers the Provincial Government to make rules consistent with the Act on the various subjects mentioned in sub-clauses (1) to (28), which inter alia include framing of rules for regulating food, bedding and clothing of criminal and civil prisoners otherwise than at their own costs, classification, the separation of prisoners etc. 6. (a) It may also be pointed out that in pursuance of the power contained in the Act and in the other relevant enactments, Punjab Jail Manual which is being followed in Sind as well, was prepared containing the said rules. It may also be observed that para. 226 of Chapter 9 of the Punjab Jail Manual provides classification of the prisoners into three categories, namely, criminal prisoner, which includes a convicted prisoner and unconvicted or under-trial prisoner, a civil prisoner and State prisoner detained under Regulation III of 1818. It may be pointed out that Regulation III empowered the Government to detain a person without trial. (b) It may be mentioned that para. 410 of Chapter XVI of the Jail Manual provides that under subsection (4) of section 3 of the Prisoners Act, every prisoner, who is not a criminal prisoner is a civil prisoner and that under section 27(4) of the Act, the civil prisoners are to be confined in civil war outside the jail or in an enclosure inside the jail entirely separate from the enclosures allotted to criminal prisoners. It may further be observed that para. 402 classifies civil prisoners as (i) prisoners committed to civil prison by the order of the civil Court under section 32 of the Code of Criminal Procedure, (ii) persons imprisoned under order of a criminal Court under sections 318, 332 and 514 of the Code of Criminal Procedure, (iii) Revenue defaulters, (iv) persons detained in civil prisons under any other law for the time being in force. ' It may also be stated that para. 404 provides that a civil prisoner shall be permitted to maintain himself and to purchase or receive from private sources at proper hours, food, clothing, bedding or other necessaries but subject to examination and to such rules as may be approved by the Inspector-General. It may further be stated that para. 416 provides that no civil prisoner shall be compelled to labour, whereas para. 417 lays down that civil prisoners shall not be punished with imposition of handcuffs and fetters or by whipping. Furthermore, para. 419 provides that civil prisoners should be allowed books from the jail libraries and they should be permitted to obtain at their own expense any books or newspapers from outside subject to such safeguards against the introduction of improper literature as may be considered necessary. It further provides that civil prisoner shall also be allowed to engage in such indoor games as cards, chess or carom and to occupy themselves in such manner as the Superintendent may consider unobjectionable. (b) It may also be pointed out that Chapter 17 deals with State prisoners. Para. 423 provides that for the purposes of Prisons Act, 1894 and unless the warrant of commitment or order relating to any prisoner confined under the Regulation for the confinement of State prisoners otherwise directs, every State prisoner shall be deemed to be a Civil prisoner and entered in civil Prisoners' Register, whereas para. 424 lays down that if the warrant or order relating to any State prisoner directs that
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he be confined in the criminal jail, he shall for the purpose of the Prisoners Act, 1494 be treated as an unconvicted criminal prisoners. 7. (a) It may also be pertinent to refer to the relevant provisions of the West Pakistan Detenu Rules, 1962, which were framed under section 27 of the West Pakistan Maintenance of Public Order Ordinance, 1960 (XXXI of 1960). It May be observed that sub-clause (a) of rule 2 defines a "detenu" means any person detained in custody under the provisions of section 3 of the Ordinance, whereas clause (b) defines "Deputy Inspector-General, Criminal Investigation Department". Further, clause (c) defines the Director means the Director of prisons incharge of the Region in which any detenu is detained. It may further be…
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