PROV. OF BALOCHISTA Versus SHER MUHAMMAD MARRI

MUHAMMAD AKRAM, J. ‑This is an appeal by tie Province of Baluchistan before a Division Bench of this Court against an order dated 3rd of July, 1975 passed by a learned Judge in Chambers in Writ Petition No. 1616 of 1974 releasing the respondent, Sher Muhammad Mari on bail. After hearing the learned Deputy Attorney‑General for the appellant in limine we are of the considered opinion that in the circumstances of the case this appeal from the order passed by the learned Single Judge of the High Court does not lie before a Bench of two or more Judges of the Court under section 3 of the Law Reforms (Amendment) Act VIll of 1972 as amended and is liable to be dismissed on that short ground alone.

2. Briefly stated the relevant facts as they have emerged from the order under appeal are those. The respondent, Sher Muhammad Mari is a resident of Kohlu forming a part of District Sibi of Baluchistan at the relevant time. On, the first March, 1973 he was arrested from his native place and removed. to Karachi where he was detained under the Defence of Pakistan Rules. While the proceedings challenging his detention were still pending in the Sind & Baluchistan High Court the order under the Defence of Pakistan Rules was rescinded. Hardly the detenu had come out of the prison when on the 25th of January, 1974 he was re‑arrested and taken to the jail at Machh in Baluchistan. He was kept there up to 5th August, 1974 and then removed to Babawalpur Jail in Punjab. In that connection the case of the Baluchistan Government as well as of the Federation before the learned Judge in Cham bers was that the respondent was involved in two criminal cases registered, against him as far back as 1965. But that he all along remained an absconder and a proclaimed offender in the two cases‑ While the trial of the co‑accused who were arrested bad taken place and ended in their conviction and sentence, the respondent could be apprehended in those cases under the warrants dated 24‑1‑1974 lawfully issued by the District Magistrate, Sibi for trial on reference to a Jirga constituted under the Frontier Crimes Regulation. After his arrest at Karachi in those cases he was produced before the District;, Magistrate, Sibi on. 26‑1‑1971 and remanded to the judicial custody. After having been kept at Machh he was brought to Babawalpur Jail on 6‑8‑1974 and on the expire of his remand as finally granted by the Assistant Commis sioner ,Machh, on 19‑8‑1974, he was produced before a Magistrate at Baba walpur for periodical remand orders issued by him. On 22‑8‑1974 under the order of the Federal Government' issued under section 2 of the Removal of Accused Persons Act, 1973, the respondent was transferred to the Province of Punjab and kept in custody there.

3. It was in these circumstances that on the 30th of August, 1974, Ch. Zahoor Elabi, a Member of the National Assembly, Lahore filed the Writ: Petition No. 1.616 of 1974 under Article 199 of the Constitution of Islamic Republic of Pakistan read with section 491 of the Cr. P. C. challenging the mode and the orders of the detention of the respondent in the Bahawalpur. Jail in Punjab. In the petition in addition to a number of other reliefs be prayed for "the production of the body of the detenu before this Honourable Court so as to satisfy itself that he is not being held in custody without law ful authority or to any unlawful manner" and "to set the detenu at. liberty by quashing the orders of his arrest and his subsequent detention " It may be stated here that during the course of the proceedings before the learned Judge in Chambers, on the 29th of April, 1975 a list signed by the Home Secretary, Baluchistan was filed in Court showing that at that time the following four cases were pending against the respondent:‑

(1) F. I. R. No. 1 of 1965 Thana Police, Kahan. dated 27‑1‑1.965.

State v. Muhammad, Din Muhammad, Jee. Muhammad, Sher Muhammad' etc. under section 307/435/440/120‑B/148/149/109, P. P. C.

(Burning of Government Tractor and firing etc.).

(2) F. I. R, No. 3 of 1965 Thana Police, Sibi dated 26‑1‑1965.

Case under section 302/307/120‑B/148/149/435/440/34, P. P. C.

(Murder of Mir Doda Khan and others and causing injuries to Haji Bungul Khan etc.).

(3) State through Lashkar Khan v. Sher Muhammad alias Sheru htarrt and 4 others.

Case under sections 302/34, 394/511, P. P. C. dated 1‑4‑1975.

(4) Jadda v. Sher Muhammad alias Sheru Marri and 3 others.

Case under sections 307/395/511, P. P. C., dated 1‑4‑1975.

4. In the background of these facts and after hearing the counsel for the parties, the learned Judge in Chambers for the reasons assigned by him in his order under appeal, did not consider necessary or proper to go into the plea advanced before him to the effect that the apprehension, detention and proposed trial of the respondent under the Frontier Crimes Regulation before the Jirga for the offences said to have been committed by him before 196 were violative of Articles 4, 9, 10 and 25 of the Constitution. He thought it more appropriate that these questions relating to the constitutionality or reasonableness of the Frontier Crimes regulation were left out to be adjudicate at a place whew that law was administered by the Courts which are called upon to administer it. The learned Single Judge, however, proceeded to observe that according to a report lodged in January 1965 relating to an occurrence on 5/6‑12‑1964 the name of the respondent is mentioned as one of the co‑accused. Others named in the report were apprehended, tried and convicted and sentenced. The order of the Jirga concluding the trial showed the respondent as an absconder and directed his trial when apprehended. Similarly the report drawn up by the Extra Assistant Commissioner in 1966 showed his implication in the two cases. The District Magistrate, Sibi having jurisdiction over these cases, lead issued warrants of his arrest and he was actually arrested in execution of those warrants. His custody in Machh Jail was shown to be under the authority of a Magistrate and he was regularly produced before the Magistrate for remand. But the learned Judge in Chambers was not foully satisfied with manner of the continued detention of the respondent. In that connection he further observed that the District Magistrate Sibi had passed an order directing that the remand order should be obtained from the Assistant Commissioner, Machh. On 4‑8‑1974 the Assistant Commissioner granted the remand up to 9‑8‑1974. In the opinion of the learned Judge in Chambers it was during this period that the respondent was removed from the jurisdiction of the Assistant Commissioner, Machh and that the District Magistrate, Sibi, "not with a view to keep him at a particular place outside the jurisdiction during the period of remand but in this case. in anticipation of an order under the Re moval of Accused Persons Act and with a view to deny the authorities having jurisdiction over the accused of their jurisdiction." In these circumstances according to the learned Single Judge this removal of the respondent outside the jurisdiction and in violation of the remand order was "without lawful autho rity as neither the plenary powers pertaining to the custody of an accused, nor an order of the Federal Government under the Removal of Accused Persons Act was available to justify such a detention outside the jurisdiction of the authorities seized of the matter." He repelled the contention advanced before him to the effect that the Removal of Accused Persons Act, 1973 was ultra vires of the Federal Legislation. Nor was this law applied to the respondent in a manner to hold that his detention in Punjab was without lawful authority and of a legal effect. His position was that of an accused under trial having a right to suitably apply for bail in the cases against him registered under the Penal Code. The learned Single Judge repelled the argument advanced by the learned Advocates appearing for the Government to the effect that as cases under the Penal Code have been registered and that the respondent in any case was to be tried for such cases, there was adequate alternative remedy available to him to challenge the legality of his prosecution and trial and also for claiming bail. In his opinion in the peculiar circum stances of this case the alternative remedy available to the detenu was not sufficient and that it is a fit case for the exercise of the jurisdiction under Article 199 of the Constitution. In this connection he observed:‑‑

"I will rather adopt the law laid down in the case of Wasimul Haque. What alternative remedy the detenu has and whether in the circum stances of this case it ii adequate is a question to be considered here. The detenu is being produced for remand orders before a Magistrate who exercises no territorial jurisdiction over the case in which he 114 granting remands. The detenu is being produced before him without the relevant record of the case. The production of the detenu before him on the 19th August 1974 was, as already held, wholly illegal, being in derogation of an order of remand passed by a Magistrate having jurisdiction in the matter. The Magistrate granting the remand was powerless to enforce his orders with regard to production of record of the case and had expressed his inability to deal with such a simple roquest of the detenu as of permission to consult a lawyer and had re ferred him to the District Magistrate who too could do nothing. So where is the alternative remedy to be found for the detenu. Not in this case anywhere. 'Therefore, the jurisdictional fact necessary for the exercise of power under Article 199 is fully established in this case, and on this point alone, this case is distinguishable from every other cited at the bar."

5. On this premises the learned Judge in Chambers then proceeded to admit the respondent to bail in the sum of Rs. 10,000 with two sureties in the like amount to the satisfaction of the Deputy Registrar (Judicial) of this Court, in all the four cases mentioned above. He however, refused to grant general bail in all other cases, if any, against him. The findings in this connec tion are co stained in para. 41 of his ,judgment under appeal reproduced below for the sake of convenience:‑

"The cases in which the detenu has been detained being extremely old, and the manner of his detention being found at more than one stage to be not in accordance with law the relief that can be afforded to him is one of bail in the cases registered against him. He is admitted to bail in the sum of rupees tea thousand with two sureties in amount to the satisfaction of Deputy Registrar (Judicial) of this Court. This order includes and covers the four cases of which mention has earlier been made. A general bail in all other cases, if any. so far registered anywhere cannot on the fact,; of this case be granted to the detenu who is not in the ordinary course amenable territorially to the juris diction of this Court but for the order of removal and that order is confined to two cases. two more having come to light during the proceedings."

6. In this connection the learned Single Judge was of the opinion that the arrest of the respondent on 25‑1‑1974 was not shown to be without lawful aut hority or against law. However, at the same tithe he found that the manner of his detention was not in accordance with la v. His findings in this connection are reproduced below:‑

"The result of the discussion above is that the arrest of the petitioner on 25‑1‑74 is not shown to be without lawful authority or against law.

The manner of his detention is ho never held to he not in accordance with law on at least three grounds or occasions. Firstly, the grounds of his arrest, as required by Article 10 to be disclosed to him were not disclosed. The mere narration of sections of the Penal Code was not sufficient to satisfy the constitutional requirement in this case. Second ly, production of the detenu before a magistrate at Bahawalpur on 19‑8‑74 and his custody there from 19‑8‑74 to 21‑8‑74 was wholly illegal, as it was violative of the order of remand passed by a magistrate having jurisdiction in the case and its object was to deny jurisdiction to an authority possessed of jurisdiction. Thirdly, the detenu has been denied the constitutional guarantee of consulting a lawyer."

To sum up, in the background of the cases registered against the respondent and his arrest being proper, the learned Judge in Chambers allowed the accused the relief for bail and to that extent only he allowed the petition before him leaving the parties to bear their costs.

7. We have reproduced above in extenso from the judgment under appeal before us in order to fully appreciate the contention advanced on behalf of the appellant to the effect that this appeal against the order before a larger Bench of the High Court is competent. In support of this appeal he has merely relied on provisions contained in the operative part of subsec tions 1, t) and (2) of section 3 of the Law Reforms (Amendment) Act VIII of 1972 as further amended by the Law Reforms (Amendment) Act VI of 1975, 'reproduced below:

(1) An appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a Single Judge of that Court in the exercise of "original civil jurisdiction."

(2) An appeal shall lie to a Bench of two or more Judges of a High Court from an older made by a Single Judge of that Court under clause (1) of Article 199 of the Constitution of Islamic Republic of Pakistan, "not being an order made under sub‑paragraph (i) of para graph (b) of that clause."

8. At first the learned Deputy Attorney‑General appearing before us for the appellant made a half‑hearted attempt to contend that this order passed by the learned Judge under Article 199 of the Constitution was an order passed by him in the exercise of "original civil jurisdiction" and was appealable under subsection (l) of section 3 of the Law Reforms (Amend ment) Act. But this contention has no force and need not detain us any longer. The a is a chain of authorities for the contrary view that in disposing of a constitutional period under Article 199 of the Constitution, the High~ Court does not pass the order in exercise of its civil original jurisdiction. Ink" this connection recently a Full Bench of the Sind & Baluchistan High Court in the reported case of Asad Ali array others v. Settlement do Claims Commissioner. Karachi (P L D 1974 Kar 345) held that a judgment deciding a constitutional petition under Article 98 of the Constitution of Pakistan, 19F)2 (corresponding to Article 199 of our present Constitution), is not a judgment passed by the High Court in the exercise of its civil original jurisdiction within the meanings of subsection (1) of section 3 of the Law Reforms (.Amendment) Act, 1974.

9. It was next vehemently contended before us that nevertheless the impugned Single Judge only under Article 199 (1) (a) (ii) of the such was appealable under section 3 (2) of the Law Reform (Amendment) Act, 1972.

He submitted that on the express finding that the arrest and detention of the respondent was not shown to be against law and of no legal effect, the jurisdiction vested in the learned Single Judge under Article 199 (1) (b) (i) came to an end and thereafter in allowing the bail he must be held to have acted in the purported exercise of the powers vested in him under Article 199 (1) (a) of the Constitution. In this connection he laid stress and conversely argued before us that on no hypothesis it could be construed that the order allowing bail to the respondent was passed by the learned single Judge under Article 199 (1) (b) (i) of the Constitution. In developing his argument in this behalf he further maintained that at any rate, except for sub‑paragraph (i) of paragraph (b)of the Constitution, which is not attracted to the facts of this case the impugned order was passed by the learned Single Judge generally under Article 199 of the Constitution and was. therefore, appealable.

10. But on a careful consideration we find that there is no force in any of these contentions for an obvious and very good reason. In the instant case the constitutional petition was filed not by the respondent himself, but by third person, Ch. Zahoor Elahi, Member National Assembly, which was com petent only under Article 199 (1) (b) and not under Article 199 (1) (a) of the Constitution In effect the petitioner before the High Court invoked the powers vested in it under Article 199 (1) (b) of the Constitution. At this preliminary stage the question before us is not as to whether the impugned order was justified on the merits or not and we have adviseably refrained from expressing any opinion in this behalf. The learned Single .fudge has passed the order in the course of the proceedings before him in the exercise or pup ported exercise of the powers vested in him under Article 199 (1) (b) of the Constitution. This. in our opinion would be sufficient to hold that the appeal before a larger Bench of the High Court is not competent under section ? (2) of the haw Reforms (Amendment) Act.

11. Otherwise too the order allowing bail to the respondent cannot be said to have been passed even remotely under Article 194 (1) (a) of the Consti tution. Under it tile High Court, on the application of any aggrieved party, may snake an order (i) directing the competent authority to refrain from doing anything lie is permitted by law to do or to do anything he is required by law to do; or (li) declaring that any act done or proceeding taken by a person performing the affairs of the state hat been done or taken without lawful authority and is of no legal effect. The order passed by the learned Single Judge in himself granting the bail to the respondent in the pending criminal cases, against which the appellant is aggrieved, does not fall under any of the) two clauses of Article 199 (1) (a) of tire Constitution. We, therefore, find no force in this contention advanced before us.

12. The subject of the custody of a party pending hearing of a habeas corpus petition is discussed by Halsbury in his Laws of England (Third Edi tion, Volume II, page 47). He says that upon the return and the production of the party on whose behalf it was issued, the authority under which the original commitment took place is suspended, and, until the case is finally ‑ disposed of, the custody of the prisoner is under the control and direction of the Court to which the return is made, The prisoner is detained not under the original commitment, but under the authority of the writ. Pending the hearing the Court has power, even after the return is filed, to remand the prisoner to the prison where he is in custody or to any other place of commitment and to bring him up from time to time by rule of Court until he is either bailed, discharged, or remanded. The Court also has power to bail the prisoner de die in diem pending the argument as to the sufficiency of the return .to the writ.

Also in that connection Halsbary on page 46 hag pertinently observed: -

"If the writ is returned before a judge and it appears doubtful to him on such examination whether the material facts set forth in the return of any of them are true or not, he may admit to bail the person confined or restrained on recognisance to appear an Court, and he is to transmit into Court the writ and return, together with such recognisance, affida vits, and affirmations, and thereupon the Court ;nay proceed to examine into the truth of the facts set forth in the return in a summary way by affidavit or affirmation, and order and determine touching the discharging, bailing, or remanding the party."

13. In this country directions of the nature of a habeas corpus can be ,issued by the High Courts in exercise of the powers vested in them under section 491 of tree Criminal Procedure Code and Article 199 (1) (b) (i) of the Constitution. In this connection the powers conferred by section 491 (1) (a) of the Code are very wide and it expressly lays down that the High Court may, whenever it thinks fit, direct that a person within the limits of its; appellate criminal jurisdiction be brought up before the Court to be dealt with according to law. Indeed there is yet another ‑way of looking at this matter.

In making the order under appeal, the learned Single Judge had disposed off the petition before him made under Article 199 of the Constitution read with section 491 of the Criminal Procedure Code and also allowed the bail to the respondent in the criminal cases registered against him under section 498 of the Code. In Farooq Badar v. Inspector‑General of Police, West Pakistan and others (P L D 1969 Lah. 1020) two petitions for habeas corpus were moved before the High Court.

At the hearing it transpired that the detenus were accused of offences under sections 141, 307, 432 ere., and criminal cases had been registered against them, The Court observed that their remand was erroneous and improper. In the circumstances the Court passed a somewhat similar order and allowed bail to the accused persons before it. In that connection the Court observed:

"I find that the detention of the detenus was illegal as they. were not informed of the offence with which they had beers charged, and the orders remanding them either to police custody or to judicial custody were passed in utter disregard of the provisions of law on the subject.

Since they have been charged with substantive offences, their trials will take their due course. But in view of the fact that I found that their present detention is illegal, I ordered their release on bail by a short order passed earlier today." 'similarly in Malik Sohrab v. Government of Pakistan (1973 P Cr. L J 102) this Court while quashing detention order against the detenu on a petition .for habeas corpus, also allowed bail to him in the criminal cases registered against him.

14. Needless to add here that in Ch. Manzoor Elahi v. Federatian of Pakistan etc. (P L D 1975 S C 66) the Court observed that a High Court has jurisdiction to grant relief to a person. detained within its territorial jurisdiction although he was arrested illegally outside the jurisdiction. In Muhammad Amin v. The State (1973 P Cr. L.J 661) the High Court granted anticipatory bail to a person residing within iris jurisdiction, for whom warrant of arrest was issued by a Court of another Province. Before parting with this case we wish to reiterate that our above discussion is devoted solely in attempting to establish that this appeal before ,us against. the impugned order is not competent and the observations by us may not be interpreted as any expression of opinion by us on the merits of the order.

15. To sum up the above discussion, we find that viewed from any angle the impugned order passed by the learned Single Judge granting bail to the respondent, whether in exercise of the power vested in him under Article 199 (1) (b).(i) of the Constitution or section 491 or 498 of the Code of Criminal Procedure is not appealable before a larger Bench of this Court under section 3 of the Law Reforms (Amendment) Act VIII of 1972 as amended The appeal is. therefore, dismissed in limine as incompetent and not main tainable.

S .A. H. Appeal dismissed.