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Petitioner: SAIFUDDIN SAIF VS Respondent: FEDERATION OF PAKISTAN AND 3 OTHERS
Court Name: Lahore High Court Judge(s): Muhammad Afzal Zullah Title: SAIFUDDIN SAIF vs FEDERATION OF PAKISTAN AND 3 OTHERS Case No.: Writ Petition No, 1095 of 1971 Date of Judgment:1977-06-09 Reported As: PLD 1977 Lahore 1174 Result: Petition accepted
JUDGMENT
JUDGMENT ' This constitutional petition under Article 199 relates to the arrest and detention by Army Authorities of Mr. Ahmad Faraz, Project Director, Academy of Letters in the Federal Ministry of Education, which post as asserted in the petition is "comparable to that of a Joint Secretary". 2. The detenu is a poet of Urdu language. The petitioner claims to be a friend of the detenu. It is averred in the petition that before the impugned arrest on 26-5-77 at about 8 p m., when the petitioner was staying with the detenu, it was learnt that "certain persons in the Government were trying to oust him (the detenu) from his job and were trying to involve him in some kind of frame- up". In this connection, the detenu, it was further asserted, informed the petitioner that even "the Army Intelligence was reported to be making investigation about his activities, his views about the Government and the Armed Forces particularly with reference to their involvement in past and present civil situations". The petitioner further asserted on personal information that "sometime ago also the detenu was under clouds. A Federal Minister, with the assistance of some newspapers, attempted to make a scandal of the detentes views and was almost successful in getting the services of the petitioner terminated." Although the name of the Federal Minister was not disclosed in the petition, during the course of hearing at limine stage, he did disclose the same and it has subsequently been mentioned in the other petition moved under section 491, Criminal Procedure Code. The allegation is in respect of Maulana Kausar Niazi, a Minister in the Federal Government. In Para. 2 (c) of the petition, it was specifically asserted that at the time of arrest of the detenu in presence of the petitioner, "a group of persons in plain clothes appeared outside the detenu's office and made enquiries about him. The detenu and the petitioner came out and, found an official jeep standing in dark outside the main gate of the house, one or two armed men in uniform in the gate
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and about four persons in plain clothes. One of the members of the party told the detenu, after the latter introduced himself in reply to the former's query, that he was to be arrested. The detenu asked if there were any warrants of his arrest and was told that there were but was not shown any. Nor was the detenu told about the cause of his arrest. The patty in plain clothes took the detenu along in the jeep to some unknown destination." It was subsequently learnt that the detenu was being kept in a Military Camp at Mansar, District Campbellpur. The arrest and detention was challenged on various grounds including malice, lack of authority and unlawful maoner. Prayer was made for the production of the detenu in Court so as to give him opportunity "to explain the background of his arrest and detention". The main prayer was that he be set at liberty after examining the question of authority to detain him. 3. When the case came up before me in motion hearing, the petitioner, as noted in the order passed on 1-6-1977, was questioned "on various aspects of the averments made in the petition". It was also noted that he was present when the detenu was taken into custody-in other words, that he is an eye-witness. He had then explained that although the persons who came to arrest the detenu gave out "that the arrest was under proper warrant but they despite the demand by the detenu did not let him read a paper held by one of them in his hand "which" purported to be the so-called warrant". After the aforenoted due questioning and "in view of the allegations made in the petition which is supported by an affidavit", the petition was formally admitted to regular hearing with a direction for notice to issue to the respondents who at that stage were the Federal Government, the Commander Mansar Army Camp, the Provincial Government and the D. I. G. Police, Rawalpindi. After this formal order of admission and notice, it was directed that a bailiff should recover the detenu from Mansar Camp by contacting respondent No, 2 (Commander thereof) for production in this Court on the next date i,e, 2-6.77, by 1 o'clock so that he might "be dealt with in accordance with law". The bailiff submitted a detailed report on 3-6-77 showing his inability to produce the detenu in Court on account of failure of the Military Authorities to hand the detenu over to him. He also indicated that the Adjutant-General, Pakistan Army was concerned in the mater. On the same day, in view of the bailiff's report, two applications of the petitioner were allowed-one, for impleading the Adjutant-General of the Pakistan Army as a respondent and the other, for directing a superior official of this Court for contacting the Adjutant-General of the Pakistan Army. However, in order to avoid formalities, the learned Advocate-General, as officer of the Court, was asked to enquire as to whether the Military Authorities were facing any difficulty in producing the detenu. He, it is apparent from the proceedings, did make efforts in this behalf but without any success. He ultimately conveyed information on 6-e-197 through one of his Assistants that "an appeal has been filed by the Federal Government against the order dated 1-6-77 of this Court, which is fixed for hearing tomorrow (i e. 7-6-77)". The proceedings on this petition accordingly were adjourned ''to await the decision of the Supreme Court in appeal". It appears that special leave to appeal not having been allowed, it was decided by the concerned authorities to produce the detenu in this Court. 4. When the case came on 8-6-1977, although the detenu was in attendance, learned counsel for the Federal Government objected to his examination as noted in the order dated 8-6-77 "even for a limited purpose, namely, the initial manner of arrest and the present manner of custody". But a Lt.- Colonel in the J. A. G. Branch of the Army, namely, Mr. Muhammad Akram who was assisting the learned counsel for the Federal Government and at the relevant time represented respondent No, 2. It was further noted in the order, bad "no objection to the examination of the detenu in so far as the present manner of custody is concerned". After hearing all concerted, I overruled the objection of the learned counsel for the Federal Government and directed the examination of the detenu 'for the limited purpose of seeing whether the manner of his present custody is unlawful and is mala fide", Earlier, Lt.-Col. Muhammad Akram had verbally explained the circumstances in which the
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detenu was arrested. He also produced for examination of the Court some material on the basis of which the initial arrest took place. It consisted of two copies of a poem with some endorsements, but the officer sought permission not to place them on the record for the time being. They were returned to him. The other evidence "so far collected" was not produced "for the time being" for the examination of the Court. Three documents relating to the prima fade authority to arrest and keep in custody the detenu were produced for examination of the Court. They also, on the request from the respondents' side, were returned after perusal though the same were subsequently formally placed on record as respondents' documents. A reference to them would be presently made. 5. The detenu made the following statement on the limited questions noted above Statement of Ahmad Faraz, detenu. (The detenu has been asked some preliminary questions about his education and his status and background so as to put him at ease. He has also been told that he should feel free without any influence whatsoever to make the statement in this Court.) Q.-Are you under any pressure to make a statement in this Court which is not true? Q.-Are you under any physical pressure/torture? A.-Not now, but for the first two days I was put under physical pressure (J....1 Q.-Give the details of the physical pressure? A.-I was blind-folded tightly. I was taken into a cellar. There was no ventilation in that cellar. There was only one door which was closed from outside. The air was so heavy that I could not easily breathe. Some rotten food was brought to me which I refused to take. I was not provided with any regular bedding. Only a rotten blanket was given to me for the night. Next morning, 1 was again blind-folded and was taken to bath-room and brought back to the same cellar. 1 asked for cigarettes which were provided. T was again blind-folded at about 1 O'clock and put in a carriage and was taken to a place which after the fold was removed from my eyes, I discovered was a quarter-guard. But I did not know what locality it was. I originally guessed that either it was Kharian or Attock side but subsequently I discovered it was Mansar. At Mansar, at 5 O'clock in the afternoon I wanted to answer the call of nature. I was handcuffed and taken to a tree instead of a bath-room. On the next day, I was shifted to a reasonably good room. During the previous night I was kept in a room which was horrible. There was no proper bedding although I could breathe easily in that room. Q. -You have described the room as horrible but the description you have given does not appear to he so. A.-It was my impression. There is nothing spacial. It was on the next evening that I was shifted to the aforementioned better place though I was taken to that place in a blind-folded condition. The new place was quite comfortable. I was lodged in that new place and remained there till I was removed from there tier taking me to the High Court yesterday. On the way to Lahore, the persons who brought me were cooperative and nice. The torture that I underwent is solitary confinement since the day I was arrested. Even in the aforementioned better place, I am kept in solitary confinement. No one was allowed to see me. Even the guards were not allowed to talk to me. Q.-Have you been told as to what is the accusation against you ? A.-No, Q.-Daring this entire period of custody, has anybody told you that you have been kept in custody for seducing or attempting to seduce any person who is subject to the Army Act from his duty or allegiance to the Iovernment? A. - No, (The question has again been repeated to the detenu with a warning that if he insists he can be put under oath and if he tells a lie he will be prosecuted under section 476, Cr. P. C , which might entail serious consequences). Q.-Are you sure that you were not told during this entire detention period about what was the accusation against you?
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A.-These people did no tell me anything about the accusation during this period. However, before the arrest, at a lunch which l had with Secretary, Interior (Mr, M. A. K. Chaudhry), he told me that some poem is "roamed abaui." and that my name was being mentioned as the author of that poem. I told him that although I bad seen the poem bat it is not my poem, meaning thereby that I was not its author. This is what I assessed and guessed later on after arrest, might be cause for my arrest and detention. (Lt.-Col. Muhammad Akram, who is present in Court, has been pointed out to the detenu also then he is asked the question). Q.-Have you seen Lt.-Col. Muhammad Akram prior to today's proceedings in Court during the period of your detention? 4.-No, I am seeing him for the first time. Q.-Did you ever see Lt.-Col. Muhammad Akram prior to your arrest ? A.-I do not remember. (Question on suggestion from the learned counsel for the Federal Government). Q.-Has any facility been refused to you which you might have asked for during the period of detention ? 4.-Yes. They reused me the permission to see my visitors, relations and friends. Q.-State any other facility, e.g., food which might have been denied to you ? A. --No such facility was deified. (Lt.-Col. Muhammad Akram has been afforded opportunity to put questions to the detenu with regard to the statement he has so far made, He says he does not want to put any question). (On suggestion from learned counsel for the petitioner). Q.-Do you get newspaper and other communication facilities, e.g., writing letters to your friends and relations ? A.-It was last week that they started giving me newspaper and couple of books also have been provided to me and that also during the last week. Although I did ask for facility to write letters to my relations but I was not allowed this facility." ' Although at an earlier stage, when the documents relating to arrest and investigation were shown, it was not thought necessary by the learned counsel for the petitioner to examine Lt.-Col. Muhammad Akram, yet after the examination of the detenu the Court thought it necessary to seek clarification "from Lt.-Col. Muhammad Akram who, it appears from the documents already shown by him, is at present the Investigation Officer." His statement reads as follows :- "Statement of Lt -Col. Muhammad Akram of the J. A. G. Branch. Q.-Are you the Investigation Officer in this case ? A.-I have been ordered to record summary of evidence in this case against the detenu. Q.-The detenu has, in our presence, made a statement that throughout the period of custody I e. About 12 days, he has not been told as to what he is accused of. Is this coma ? A.-This is correct that he has not been informed about the allegation. But according to the procedure under the Army Act and rules made thereunder, an accused person can be given a copy of the abstract of evidence or summary of evidence prior to his being arraigned but not less than 24 hours prior to being arraigned and then he is given an opportunity with the caution that he is not bound to make a statement, and if he desires to do so that may be used against him. Q.-Are you aware that the detenu has not been allowed to meet anybody and has also not been allowed to talk even to the persons who keep guard on him, as alleged by him in your presence ? A.-I am not aware of the factual position. But according to the procedure and as held in the case of F. B. All and Aleem Afridi, it had been accepted that during the period the case is being investigated, the accused is not permitted to contact his defence counsel and a reasonable
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restriction can he placed upon him for some time for communicating with hip friends end family members. Q.-Do you want to volunteer any other intement ? A.-if the Court seeks any clarification, I would like to make the same but there is nothing that I would like to volunteer as a statement." 6. A controversy arose during the arguments, namely, whether it was necessary for the authorities to inform the detenu as to why he was being, proceeded against under the Army Act and as Lt.- Col. Muhammad Akram made mention of the warrant of arrest, question arose whether the detenu was not informed about the contents of the warrant at the time of his arrest. That being so, the contention of the learned counsel for the Federal Government that "no question be asked from the detenu with regard to the initial arrest" was repelled and the detenu was directed to be "re- examined on the question whether he was shown any warrant of arrest and whether he was allowed to read it". He then made the following statement :- 'Re-examination of Ahmad Faraz detenu. Q.--Were you shown any warrant of arrest by the person(s) who came to arrest you ? A.-Ono person out of several came and he showed a paper saying whether I am Ahmad Faraz. I answered, "Yes". Be Showed paper from distance saying that it was my warrant of arrest. I requested him for reading the paper which was in his hand but he refused to permit me to read it. (The warrant of arrest has been shown to the detenu from a distance and be has been asked whether the paper which was shown to him was of its size. He states that it was of lesser size tan this paper). (Opportunity afforded to learned counsel for the Federal Government, Lt.-Col. Muhammad Akram and Mr. Marto for putting questio as with regard to the above answers given by the detenu. Mr. Najafi states that he has not enough instructions at present stage to put any questions in this behalf. Copy of warrant of arrest produced in Court for the second time for putting the above questions to the detenu has been again returned to Lt.-Col. Muhammad Akram)." 7. On the next day, i,e,, 9.6-1977 an affidavit sworn by Major Muhammad Matlub Khan was submitted from the respondents side along with separate written preliminary objections. It reads as follows : "Affidavit of P. A. 6790 Major, Muhammad Mutlub Khan, Officer Commanding, 706-Field Intelligence Unit, Rawalpindi. ' I, the ahovc-named deponent do hereby solemnly affirm and declare as under :- ' That deponent is Officer Commanding, 706-Field Intelligence Unit. Rawalpindi. ' That on 25th May 1977 at 8.00 p.m. I received warrant of arrest of Mr. Ahmed Faraz, Director- General Academy of Letters, issued by Brig. Tassadiq Hussain, Commander Logistic Area, Rawalpindi. ' That in compliance of the order of arrest, the deponent reached office/ residence of aforesaid Mr. Ahmad Faraz where he was not available. ' That again on 26th May 1977 at 8-15 p.m. I went to the office/residence of the aforesaid Mr. Ahmed Faraz for the compliance of the order of arrest and found him there. I explained him the warrant of arrest-and read out the same to him. ' That as I was apprehending that the said Mr. Ahmed Faraz may tear the warrant of arrest, I did not hand over the same to him but showed him the same and read it including the sections under which he was being arrested, and the allegations upon which he was being arrested. ' That after arresting the aforesaid Mr. Ahmad Faraz, he was brought to my Unit at Rawalpindi where be was served with cold drink and tea. Thereafter he a as given proper dinner. ' That at night he was kept in the Unit at Rawalpindi in an under. Ground cell which is meant for lodging of the Senior Army Officers under arrest. This room is of normal size, has a Dari as matting,
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table and chain, with proper lighting arrangements. He was provided a proper bedding as well as a Table Fan. The room was equipped with exhaust fan for the purpose of ventilation. ' That on 27th May 1977, the aforesaid Mr. Ahmed Faraz was served with proper breakfast and at mid-day he was given the lunch while he remained in the same room where he was lodged at night. ' That the deponent visited the aforesaid Mr, Ahmed Faraz twice while he was lodged in the aforesaid room and inquired if he had any trouble or difficulty whereupon he expressed the desire for a newspaper and a packet of cigarettes. In compliance with his wishes he was provided with The Pakistan Times, and a packet of cigarettes. ' That after lunch the aforesaid Mr. Ahmad Faraz was sent to Mansar Camp under an escort. ' That from the time of arrest till his being sent to Mansar Camp, the aforesaid Mr. Ahmed Faraz remained under my custody and I took every precaution that he was provided with all facilities more than he was entitled." ' After the submission of the aforequoted affidavit, the contents whereof to some extent contradicted the statement made by the detenu, the Court expressed surprise and anguish on these contradictions mainly for the reason that two educated persons were not agreeing on questions of fact. It was an unfortunate situation. What further surprised me was that tee learned counsel for the petitioner wanted to cross-examine the Major on the very question whether he himself was present at the time of arrest while the learned counsel for the Federal Government wanted to add something more to the contents of the affidavit by submitting another affidavit which was to include some more averments with regard to the same incident of arrest not included in the earlier submitted affidavit. I had, on the previous day when examining the detenu, given him a warning that if he would not tell the truth he might be proceeded against by this Court under section 476, Cr. P. C. By way of abundant caution and on account of the fact that a Military Officer of the rank of Major and that too, from its Intelligence Department was involved, I gave similar warning this time but in camera. After some discussion on the contents of the affidavit which had already been filed from the respodents side, both the learned counsel made formal statements-one, stating "as at present advised" not to cross-examine the Major and the other, not to produce the additional affidavit. Both the learned counsel made statements with regard to another controversy as to what had happened before the Supreme Court with regard to the production of the documents which for the first time were produced in this Court. Copies of aforementioned three documents were formally placed on record. They are - (I) The direction dated 25-5.77 from the Federal Defence Secretary to the Chief of the Army Staff, to the effect that Mr. Ahmad Faraz had written a poem (copy ware enclosed) which he read out to a serving Army Officer and some other persons and later handed over a typed copy of the same. "This is a case of clear cut seduction. He has a reputation which supports his seditious outlook. If deterrent action is not taken against him immediately, it, may encourage others to follow his lead. And we may be faced with a spate of subversive poetry". It was, accordingly, thought imperative that Mr. Ahmad Faraz might be "dealt with and tried in accordance with the provisions of the Pakistan Army Act." He was ordered to be "taken into Military Custody and investigation startei forthwith". (ii) The warrant of arrest dated 25-5-77 issued by Brig. Tassadeq Hussain Authorised Officer Commanding 706 Field Intelligence Unit to arrest Mr. Ahmad Faraz from his residence on the complaint of seducing Armed Forces Personnel. Reference was made in the warrant of sections 2 (1) (d) and 59 of the Pakistan Army Act. (iii) A letter issued by the A. G's. Branch of the Army General Headquarters making Lt.-Col. Muhammad Akram of J. A. G. Branch available to Headquarters 10 Corps for the purpose of
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recording the evidence against Ahmad Faraz. It is mentioned in this letter that relevant papers pertaining to the case were also handed over to Lt. Col. Muhammad Akram. 8. On the same 'day, 1 e. 9`6-77, one of the learned counsel for the respondents undertook to submit written statement by next day, i,e,, 10-6-77. Learned counsel for the petitioaer had, at an earlier occasion, given a verbal notice that he would also rely on section 491, Criminal Procedure Code for seeking the same relief as prayed for in the writ petition ; of which, request the learned counsel for the respondents had taken due note. Learned counsel for the petitioner; however, was told that unless a written application in this behalf is made, no submissions would be entertained under section 491, Criminal Procedure Code. That written application has been presented formally in due course. It is Criminal MiEC No, 310/H of 1977. This petition which is also supported by a detailed affidavit includes the same formal averments as in the 'writ petition as also further additional averments and grounds presumably in view of the information laid before the Court during the proceedings en the writ petition. As mentioned in an earlier part of this judgment, the name of the Federal Minister has been formally disclosed in this second petition. The grounds in this new petition are more precise an by and large represent the main arguments raised from the petitioner side. 9. The written statement filed from the respondents side contains elaborate preliminary objections. The arguments from the respondents side also followed the line taken in these objections. On merits, "the insinuation towards a 'Federal Minister' as made in paragraph 2 (b) of the petition was denied in the written statement as baseless and incorrect. With regard to the manner and incident of arrest, reliance was placed on. The contents of affidavit sworn by Major Muhammad Matlub. The allegation in the writ Petition that the arrest and detention was a result of bad faith was also denied in the written statement. With regard to the claimed innocence of the detenu, reliance was placed from the respondents side on the circumstances leading to arrest and detention, already referred to, as also the provisions of law in that behalf, namely, section 31 read with section 2 (1) (d) of the Pakistan Army Act. 10. Learned counsel from both the sides addressed lengthy arguments. In fairness to the Army Authorities, I also afforded ample opportunity to Lt.-Col. Muhammad Akram of the J. A. G. Branch to address the Court on various aspects of…
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