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Petitioner: AMER HABIB VS Respondent: SENIOR SUPERINTENDENT OF POLICE and others
Court Name: Lahore High Court Judge(s): Ch. Mushtaq Ahmad Khan Title: AMER HABIB vs SENIOR SUPERINTENDENT OF POLICE and others Case No.: Writ Petition No, 9330 of 1994 W.P. No, 3304/90 Date of Judgment:1994-08-15 Reported As: 1995 CLC 29 Result: Petition dismissed
JUDGMENT
JUDGMENT ' Amer Habib petitioner son of Ch. Habib Ullah Goraya, has filed this Constitutional petition, in the nature of habeas corpus. On the basis of allegations that Ch. Habib Ullah, a former Secretary of Punjab Assembly, was illegally taken into custody by a contingent of the police party of Lahore on 11-8-1994 at 6-15 p.m. From his house and is being detained by the said officials illegally and without a lawful authority, hence it is prayed that a direction may be issued to the S.S.P. Lahore to produce alleged detenu before this Court and that he may be set at liberty. This writ petition was presented before me at my residence on 12-8-1994 at 11-10 p.m. After hearing preliminary arguments, I had ordered that a copy of writ petition be handed over to learned Advocate-General Punjab, who shall seek instructions/informations in the matter and enter appearance and assist the Court on 15-8-1994. In pursuance of the aforementioned order, writ petition has been fixed for hearing today. 2. M/s. Maqbool Elahi Malik, Ch. Muhammad Ashraf, Mr. Muhammad Sadiq and Mr. Muhammad Zaman Qureshi, Advocates, have appeared on behalf of the petitioner whereas Mian Abdul Sattar Najam, Advocate-General Punjab., Mr. Manzoor Alamgir Qazi, Assistant Advocate-General Punjab, and Mr. Pervaiz Inayat Malik Advocate have appeared on behalf of the respondents. Mr. Abdul Rauf Dogar, DSP, CIA and Abdul Rashid Inspector CIA Staff Cantt., Lahore, are also present with record. Learned Advocate-General, Punjab under instructions from respondents and after perusal of the record has made a statement that Ch. Habib Ullah, the alleged detenu is an accused person in case F.I.R. No, 496/94 dated 11-8-1994 registered at P.S. Qila Gujar Singh under sections 120-B, 124-A, 161, 166, 172, 173, 174, 465, 468, 469 and 471, P.P.C. Read with section 2 of the High Treason Punishment Act, 1974 framed in pursuance of Article 6 of the Constitution of Islamic Republic of Pakistan 1973;
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that he was arrested in the said case on 11-8-1994 at 10-00 p.m. And that he was produced before Mr. Riaz Mahmood, Duty Magistrate Cantt. On 12-8-1994 at about 1-00 p.m., who granted his physical remand up to 17-8-1994, and, therefore, arrest and custody of Ch. Habib Ullah being lawful, this writ petition in the nature of habeas corpus is misconceived and is liable to be dismissed. In view of the statement made by the learned Advocate-General, Punjab, learned counsel appearing for the petitioner state that this Constitutional Petition has ceased to be competent. Hence, they do not press the prayer as contained in the main petition. However, they state that after verification of facts, if it is found that the same are false, the petitioner reserves his right to approach this Court again. Mr. Maqbool Elahi Malik, Advocate, learned counsel for the petitioners has prayed that this Constitutional petition may be converted into a bail application and the accused may be admitted to post-arrest bail. He has pointed out that he has already appended an application containing the abovementioned prayer alongwith the main petition. Learned Advocate-General has opposed this prayer and has vehemently argued that there were absolutely no circumstances justifying conversion of Constitutional Petition into bail application, entertainment and decision thereof by this Court directly, therefore, he prays that the writ petition may be dismissed. 3. In support of their prayer regarding conversion of the Constitutional petition into a bail application and entertainment thereof directly by this Court, learned counsel for the petitioner has pointed out regarding abduction of Ch. Habib Ullah even earlier a case F.I.R. No, 118 was registered on 29-5-1993 at P.S. Race Course Road, Lahore, in relation to which case he appeared before this Court in re: Cr. M. No, 182-B/93, and made a detailed statement to the effect that he had not been abducted by anybody, whereafter the then learned Advocate-General, Punjab made a statement to the effect that the Government is not interested in the prosecution of that case. It is further pointed out that proceedings of the trial of the said case pending in the Court of learned Special Judge, suppression of Terrorist Activities, Lahore have been ordered to be stayed by this Court vide order dated 26-7-1993. It is next pointed out that in the aforementioned case, Sh. Ejaz Ahmad, MPA, Sialkot was admitted to bail in Constitutional Petition No, 5864/93 after the same was converted into bail application whereas 22 others MPAs who were cited as co-accused with him were also allowed bail by this Court and further that the question of abduction or otherwise of Ch. Habib Ullah was a matter in issue before a Full Bench of this Court in a writ petition seeking restoration of the Provincial Assembly. After pointing out the aforementioned facts, learned counsel has raised the following contentions:-- (i) that a part of the controversy has already been dealt with by this Court, hence it is a fit case for conversion of the habeas corpus petition into a bail application and direct entertainment thereof by this Court without requiring the accused to approach the Lower Courts first; (ii) that the case in hand is politically motivated and keeping in view the serious rift between the two big rival political parties of the country, it is in the interest of justice that this bail application is dealt with by this Court at the apex of the judiciary in the Province. (iii) that the accused is an old infirm person and has been a Grade 21 Officer and hence is a respectable citizen, therefore, keeping in view the status of the accused and political implications of the case in hand, propriety demands that the petition is converted into bail application and heard and decided directly by this Court. ' In support of their contention, learned counsel has placed reliance on the following cases:-- (1). Ch. Muhammad Anwar Samma and another v. The State (1976 SCMR 45). (2) Mst. Fitrath Ilyas v. The State (PLD 1975 Lahore 1096). (3) Farooq Bedar v. Inspector-General of Police, West Pakistan, Lahore and others (PLD 1969 Lahore 1020), (4) The State v. Malik Mukhtar Ahmad Awan (1991 SCMR 322), (5) Sh. Zahoor Ahmed v. The State (PLD 1974 Lahore 256), and
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(6) Government of Sinjh through the Chief Secretary, Karachi and 4 others v. Raeesa Farooq and 5 others (1994 SCMR 1283). 4. In reply to the arguments addressed by the learned counsels for the petitioner, learned Law Officers have argued that although there is no cavil with the proposition as laid down in the judgments cited by the learned counsel for the petitioner that it is discretionary with this Court to convert the Constitutional Petition into a bail application and entertain the same directly without asking the accused first to have resort to the Lower Courts, yet the judgments are distinguishable on facts and in view of the facts and circumstances of this case, it is not a fit case where the discretion should be exercised by this Court in favour of conversion and direct entertainment and decision of the bail application. They contend that propriety demands that like other accused persons in the country Ch. Habib Ullah accused should also have recourse to the Lower Courts first. ' Elaborating their arguments, learned counsel have explained that the accused has been making different statements on different occasions namely that he made a statement before the A.C. Islamabad, as well as before this Court that he had not been abducted by anybody, but while in police custody in the case in hand, he has made a statement in writing which is duly signed by him that he was abducted at the behest of and by certain political leaders and that the previous statements which he had made were obtained under coercion. (Learned counsel has placed on record a photostat copy of the said statement and a copy of the complaint on the basis where F.I.R. Has been registered. They further contended that in the case relating to the dissolution of Provincial Assembly by the Governor of the Punjab, Ch. Habib Ullah was Star witness but he intentionally failed to appear before this Court in spite of the fact that he was ordered to appear through Press, Radio and Television and was assured full protection of life and liberty. He intentionally absented himself and disobeyed the order of this Court, therefore, he besides being an ordinary accused person in the present, case, has also been a fugitive at law and hence is not entitled to the exercise of discretion in his favour, hence they pray that the request made by the learned counsel for the petitioner for conversion of the Constitutional Petition into a bail application and direct entertainment thereof may be refused. 5. Before embarking upon the-discussion and decision of the matter in issue raised in this case, it is necessary to keep in mind ratio of the case-law on A the subject and other relevant considerations. Resume of the case-law as well as other relevant considerations which are to be kept in mind while deciding this case are mentioned as under:-- RESUME OF CASE-LAW. ' In case of Farooq Bedar v. Inspector-General of Police, West Pakistan, Lahore and others (PLD 1969 Lahore 1020), in a habeas corpus petition after finding that registration of the case and arrest of the detenu was under fishi and doubtful circumstances, this Court allowed bail to the accused person in the facts and circumstances of the said case. ' In case of Mst. Fitrath Ilyas v. The State (PLD 1975 Lahore 1096), where the accused had been admitted to bail in a previous case by the High Court but was again arrested in other similar case, a habeas corpus petition filed under Article 199 of the Constitution of Pakistan was treated as a bail petition and the accused was allowed bail in special circumstances of the case. ' In case of Sh. ZahoorAhmed v. The State (PLD 1974 Lahore 256), it has been held that a petitioner must first move the Lower Court if the remedy of bail is available before the Lower Court. However, when there are exceptional circumstances, the bail application can be directly entertained by the High Court. While discussing the exceptional circumstances, the learned Single Judge of this Court has held that exceptional circumstances, in which petitions might directly be entertained in the High Court would depend upon several factors which might be general type or those relating to a particular case. The general factors might, amongst others, include war, natural disasters and calamities, general political unrest including riots and socio-economic upheaval which might
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further include disturbance of lawful authority or temporary failure thereof. At page 265 of the report special relevant factors to be considered have been enumerated as under:-- "After carefully considering the legal objection raised by the learned Assistant Advocate-General and going through the case-law on this point and taking note of the recent trend followed by this Court, I am of the view that a petition, relating to any matter in which a lower Court has concurrent or same jurisdiction under the Criminal Procedure Code, shall not ordinarily be entertained directly by this Court. The exceptional circumstances, in which petitions might directly be entertained in the High Court would depend upon several factors which might be of general type or those relating to a particular case. The general factors might amongst others, include war, natural disasters and calamities, general political unrest including riots and socio-economic upheaval which might further include disturbance of lawful authority of temporary failure thereof. These general considerations from their very nature, it is clear would be relevant and material only very rarely. In ordinary times, the factors relatable to particular circumstances of each case would have to be considered in order to find out whether it (case) is so exceptional as to warrant to direct move, by petition, in the High Court. All of these factors cannot be enumerated nor can they be laid down with any exact specification. But it will not be out of place to visualise some broad outlines in this behalf, for example:-- (a) Where the High Court has earlier dealt with any matter which has direct relevancy to the subject-matter of the petition (for bail, revision, etc.) filed in the High Court, the petitioner might not be compelled to first move the lower Court of concurrent jurisdiction; (b) where the Presiding Officer of the lower Court is not available and his substitute it is either difficult to locate or even if locatable is unable to give substantial relief in a matter; as sometimes, it happens when the Sessions Judge is on leave and the District Magistrate is exercising some of his powers under the Criminal Procedure Code; (c) where the Presiding Officer of the lower Court for any personal disqualification is unable to deal with the matter and during the-time that the matter goes before another Presiding Officer or coordinate jurisdiction, there might be likelihood of irreparable damage or loss to the petitioner; (d) where the petitioner is physically incapacitated to go to the Court concerned and seek redress; e.g., if a person is ill or under genuine fear of bodily harm and travel up to the lower Court concerned is not without serious peril to his person he may move the High Court directly; (e) if there is serious and genuine apprehension of political victimisation at any level and the atmosphere at the lower Court level is so vitiated against the petitioner that the lower Court would be embarrassed or prevented from giving relief, the High Court may be moved directly instead of an approach to the lower Court; (f) where the case is such that it combines several questions in some of which the High Court and the lower Court have concurrent jurisdiction but in others, the lower Courts have no jurisdiction; e.g., if the matter requires- exercise of jurisdiction under any specific provision of Criminal Procedure Code as also under the inherent power of the High Court under section 561-A the matter may directly be moved in the High Court; (g) where cases are spread over several districts and/or there is dispute or doubt about jurisdiction. ' As earlier emphasized, the above situations are neither of general application nor they exhaust the list. In a particular case, even if prima facie any one of these consideration is attracted, its peculiar circumstances might still not justify filing a direct petition in the High Court. It is further clarified that the above attempt at giving certain examples should not and cannot be treated as laying down the conditions to be applicable to every case. In each petition in these matters to be filed directly in the High Court, it would be for the party and the counsel to give reasonable and acceptable explanation in the circumstances of that case for not moving a lower Court in the first
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instance. In this behalf I cannot do better than refer to the following observations by their Lordships of the Supreme Court in bail matters;-- "Of late, we have witnessed a growing tendency of applications for bail and anticipatory bail being brought in the High Court and the Supreme Court almost as a matter of routine. As repeatedly laid down by this Court, grant or refusal of bail in non-bailable cases is a matter of discretion with the primary Court, which is inquiring into or trying the case." ' See Nisar Ahmad v. The State (1). It is unfortunate that in some cases the above observation, which can also be treated as a warning, is not being paid full attention by some parties and their learned counsel while moving the petitions for bail before or after arrest. ' In case of The State v. Malik Mukhtar Ahmad Awan (1991 SCMR 322), where an order granting bail in a directly entertained application was challenged before their Lordships of the Supreme Court, it has been held that practice of requiring the accused to first move the Court of Sessions in pre- arrest bail before approaching the High Court is a requirement of propriety and not of law. As the High Court had exercised discretion in the facts of the case, the order was not interfered with. ' In case of Government of Sindh through the Chief Secretary, Karachi and 4 others v. Raeesa Farooq and 5 others (1994 SCMR 1283), when the bail was granted by the High Court in a habeas corpus petition under Article 199 of the Constitution, Hon'ble Supreme Court did not cancel bail so granted by the High Court. The bail in this case was granted as the High Court, came to the conclusion that genuineness of the cases registered against the alleged detenu were doubtful and the arrest was mala fide. It has further been observed in this case that the alleged detenu was released on furnishing of surety bond leaving prosecution free to make further investigation, if necessary. Hence, the order passed by the High Court in exercise of its Constitutional jurisdiction was not interfered with by the Hon'ble Supreme Court of Pakistan. ' Similarly in case of Ch. Muhammad Anwar Samma and another v. The State (1976 SCMR 45), an application for grant of pre-arrest bail was ordered to be directly entertained by the High Court in a case where various high personalities some even holding high judicial Officers were reported to be linked up with the complainant's name. ' In case of Mrs. Saeeda Ahsan v. The Province of Punjab through the Chief Secretary, Punjab and another (W.P. No, 3304/90), a learned Single Judge of this Court converted habeas petition into bail petition by following the law laid down, in case of "Sh. Zahoor Ahmad" (supra) and bail was allowed under special circumstances of that case. ' In case of Ali Muhammad alias Ali Ahmad v. Mahbub Ahmad and others (1987 SCMR 1263), it has been held that conversion of one type of proceedings into another is discretionary with the Courts. ' In case of Shabbir Hussain and others v. Chief Settlement and Rehabilitation Commissioner, Lahore and others (1970 SCMR 44), it has been held that revision petition can be converted into a writ and vice versa. ' In case of Syed Qamar Ahmad and another v. Anjum Zafar and others (1994 SCMR 65) and case of Wealth Tax Officer and another v. Shaukat Afzal and others (1993 SCMR 1810), it has been held that where a statutory remedy is available before the lower forums, entertainment of a Constitutional Petition without avail thereof is not approved, and the Courts should be loath to entertain such petitions. OTHER RELEVANT FACTORS AND CONSIDERATIONS. (i) Pakistan is a Muslim State. Society in this country has to be shaped and dealt with in accord with the injunctions of Islam, Constitution of Islamic Republic of Pakistan, 1973 and the laws. In Islam every human being is equal and is entitled to equal treatment of law including the right of access to seek justice. Every person is bound to submit to the jurisdiction of Courts of competent jurisdiction how highsoever he may be and cannot ask for discrimination in matter of choice of the Court. Every Human being is equal irrespective caste, colour or creed except "TAQWA". The above
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Injunction of Islam is contained in the last sermon delivered by the Holy Prophet MUHAMMAD (pease be upon him) on Nineth Day of Dhul-Hijah 10 A.H. On the occasion of Hijjahtul Wida, which is the first international Charter of the Human Rights. Above referred injunction is reproduced as under:- {{URDU TEXT}} ' The concept of equality of Citizens of Pakistan regarding their equal treatment before law and Law Courts is also guaranteed by the Constitution of Islamic Republic of Pakistan, 1973. As per paragraphs Nos. 5, 8 and 9 of the Objectives Resolution which has now become substantive part of the Constitution by virtue of Article 2-A thereof, all the Muslims in this country are to be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Qur'an and Sunnah and fundamental rights including equality of status, of opportunity and before law, social, economic and political justice are to be guaranteed subject to the law and public morality; independence of the judiciary has also to be secured. Similarly, as per provision of Articles 4, 9 and 25 of the Constitution of Pakistan, every citizen of Pakistan is entitled to the equal treatment before law and a free and indiscriminatory access to justice. ' Right of equality before law all the human being is also guaranteed by the charter of human rights adopted by the United Nations. Dialating upon the concept of equality before law and fundamental rights of access to get justice by the citizen of Pakistan, their Lordships of the Supreme Court of Pakistan in case Government of Balochistan through Additional Chief Secretary v. Aziz Ullah Memon and 16 others (PLD 1993 SC 341) at page 358 of the report held as under:-- "The equal protection clause was also considered in Zain Noorani v. Secretary of the National Assembly of Pakistan PLD 1957 Kar. 1. In Malik Muhammad Usman v. The State and another PLD 1965 Lah. 229 sections 8 and 11 of the Frontier Crimes Regulation providing for reference of proceedings to a Jirga were held to offend against Fundamental Right No, 15 of 1962 Constitution for the reason that the. Commissioner and the Deputy Commissioner were given uncontrolled discretion to select particular cases and even particular accused in the same case for the discriminatory procedure which was not governed by any settled principle. The observations made in Jibendra Kishore and Waris Meah were reiterated in East and West Steamship v. Pakistan (PLD 1958 SC 41) that "where a statute is not ex facie discriminatory but is capable of being administered in a discriminatory manner, the party challenging its constitutionality has to show that it has actually been administered in a discriminatory manner". Thus, where the statutory functionary acts mala fide or in a partial, unjust, oppressive or discriminatory manner, his action can be challenged for violation of equality clause of the Constitution. In F.B. Ali's case PLD 1975 SC 506 the challenge to amendments in Pakistan Army Act and Ordinance IV of 1967 was made inter alia as violative of equality clause of 1962 Constitution. This Court repelled it on the basis of principles laid down in Waris Meah's case and observed that in this case if the Foreign Exchange Regulation Act had set up a Tribunal of exclusive jurisdiction, with a procedure different from the Code of Criminal Procedure, the challenge would not have succeeded as the offenders under the Foreign Exchange Regulation could validly and reasonably be considered a different class from the offenders under the ordinary law. Fauji Foundation's case PLD 1983 SC 457 ruled that legislation in regard to an individual can be made provided it is not discriminatory. In IA. Sherwani's case 1991 SCMR 1041 after considering the judgments in F.B. Ali's case PLD 1975 SC 506, Abdul Wali Khan's case PLD 1976 SC 57, Aziz Begum's case PLD 1990 SC 899, Shirin Munir and others v. Government of Punjab PLD 1990 SC 295 and several judgments of the Supreme Court of India, the following principles were deduced:-- (i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be
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treated alike; (ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis; (iii) that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standing, and persons accused of heinous crimes; (iv) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances; (v) that a law applying to one person, or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25; (vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed; (vii) that in order to make a classification reasonable, it should be based.... (a) on an intelligible differentia which distinguishes…
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