ZIA-UD-DIN Versus SUPERITENDENT, CAMP JAIL, LAHORE

Facts leading to this habeas corpus petition under section 491, Code of Criminal Procedure, 1898 are as follows :-

Petitioner's brother Siraj Din alias Saja son of Allah Rakha is an under trial prisoner in some cases in Courts at Lahore. He was lodged in the custody of the Superintendent, Camp Jail, Lahore, respondent No. 1. On 16-8-1975, he was transferred from Camp Jail, Lahore to the custody of Superintendent, Central Jail, Sahiwal, respondent No. 2. By the time this petition came to be filed on 25-8-1975, it is stated that the detenu had to be produced before Courts at Lahore on 20th and 22nd of August 1975, but he was not brought to Lahore and produced in the Courts. In this petition, it is urged that the transfer of the detenu from Camp Jail, Lahore to Central Jail, Sahiwal is without lawful authority, tie be released from wrongful confinement of the authorities of the Central Jail, Sabiwal, respondent No. 2 and dealt with according to law.

2. Learned counsel for the State appearing on behalf of the respondents bas submitted that the detenu is a bad character under-trial prisoner. He along with three other under-trials and a convict had been transferred from the Camp Jail, Lahore to the Central Jail, Sahiwal on the sanction of tae Inspector-General, Prisons, Punjab, dated 6-8.1975 with the concurrence of the District Magistrate, Lahore dated 7-8-1975 for administrative reasons. Therefore, it is submitted that the confinement of the detenu in the Central Jail, Sahiwal is not unlawful and this petition has no force.

3. The question that calls for determination in this petition is as to whether the detenu lodged in the Camp Jail, Lahore as an under-trial prisoner to stand his trial in Courts in Lahore can be transferred from the Camp Jail, Lahore to the Central Jail, Sahiwal by the Inspector-General, Prisons, Punjab with the concurrence of the District Magistrate, Lahore for administrative reasons, if the later be valid.

4. For a decision of the above point, it would be useful to refer to relevant provisions of law at this stage. Section 344 of the Code of Criminal Procedure, 1898 lays down as follows :-

"If from the absence of a witness, or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of, or adjourn any inquiry or trial, the Court may, if it thinks fit, by order in writing, stating the reasons therefor, from time to time, postpone or adjourn the same on such terms as it thinks fit, for such, time as it considers reasonable, and may by a warrant remand the accused if in custody Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time."

Now, when an under-trial prisoner is, by a warrant, so remanded, he is to be detained by an officer-in-charge of the prison under section 3 of the Prisoners Act, 1900 which is to the following effect :-

"The officer-in-charge of a prison shall receive and detain all persons duly committed to his custody, under this Act or otherwise, by any Court, according to the exigency of any writ, warrant or order by which such person has been committed, or until such person is discharged or removed in due course of law."

Section 4 of the aforesaid Act, provides for return of the warrant in the following terms ;-

"The officer-in-charge of a prison shall forthwith, after the execution of every such writ, order or warrant as aforesaid other than a warrant of commitment for trial, or after the discharge of the person commit ted thereby, return such writ, order or warrant to the Court by which the same was issued or made, together with ,a-certificate, endorsed thereon and signed by him, showing how the same has been executed. or why the person committed thereby has been discharged from custody before the execution thereof."

Part VI of the Act deals with "Removal of Prisoners" and section 29 lays down as follows:-

"29.-(1) The Provincial Government may, by general or special order. provide for the removal of any prisoner confined in a prison-

(a) under sentence of death, or

(b) under, or in lieu of, a sentence of imprisonment or transportation, or

(c) in default of payment of a fine, or

(d) in default of giving security for keeping the peace or for maintaining good behaviour; to any other prison in the Province, or, with the consent of the Provincial Government concerned, to any prison in the other province or, with the consent of the Central Government to any prison main tained by it or under its authority in any part of Pakistan.

(2) Subject to the orders, and under the control of the Provincial Government, the Inspector-General of Prisons may, in like manner, provide for the removal of any prisoner confined as aforesaid in a prison in the Province to any other prison in the Province.

(3) The Central Government may, by general or special order, provide for the removal of any prisoner or class of prisoners confined in any prison to any other prison in Pakistan maintained by or under the authority of the Central Government or of a Provincial Government with the consent of the Provincial Government concerned."

Chapter 7 of the Punjab Jail Manual deals with Transfer of Prisoners pursuance of the provisions of the Prisoners Act, 1900. para. 148 is relevant for this case. It is to the following effect:-

"The transfer of prisoners from one prison to another within the province shall be directed by the Inspector-General subject to the orders and control of the Government."

5. From the above statutory and other provisions, it follows that an, officer-in-charge of a prison is to keep in custody a prisoner sent to him in accordance with a warrant of a Court. The prisoner may be transferred. by the Government or the Inspector-General, Prisons, as the case may be, under the authority of section 29 of the Prisoners Act, 1900, from one jail to another. Now, section 29 ibid. it may be noted, deals with specified: types of prisoners and does not provide for transfer of under-trial prisoners.

6. A survey of reported cases might not be out of place at this stage.. In the case of Nazar Muhammad and others v. Crown P L D 1949 Lah. 494, the question arose as to whether the Officer-in-charge of Central Jail, Lahore, could keep in custody a prisoner committed to him by a warrant by the Court of Session at Karnal after the latter Court had ceased to be part: of Pakistan, wherein the Central Jail, Lahore was situated. The learned: Division Bench bearing the case held that the warrant had not ceased with the cession of the Court and the Officer-in-charge of the Central: Jail, Lahore would be entitled to retain the custody until the prisoner was discharged or removed in accordance with law. In the case of Jumma, Khan Baluch v. The Government of Pakistan and 2 others P L D 1957 Kar. 939 one of the: questions raised was that the alleged foreign nationals who had been committed to the custody by the District Magistrate and Civil Authority.. Mekran to Tubrak lock-up in exercise of powers under Foreigners Order, 1951 could be transferred by him to the District Jail, Quetta pending disposal of their case. Their Lordships hearing the case held that "it is only a matter of internal arrangement as to how prisoners sent from Mekran would be received and detained at Quetta. This objection was not raised in the writ petition or in the rejoinder of the petitioner, yet we inquired from Major Muhammad afzal, who informed us that he had sent the detenu along; with a letter and has pointed out that copies of the order dated 4th April 1957, were also sent to the Political Agent and District Magistrate, Quetta as is indicated, at the bottom of the order itself".

7. It may be noticed that in both these cases, the retention or transfer for detention was authorized by a competent Court or a tribunal as the case may be. In the case of Lt: Col. G. L. Bathacharya v. The State and 2 others P L D 1964 S C 503 their Lordships of the Supreme Court of Pakistan held that under the Prisoners Act, an officer-in-charge of a prison is to obey a writ,, warrant or order according to its exigency in relation to each prisoner entrusted to his custody. The question of transfer was, however, not. involved in the case. Two cases directly dealing with the question of transfer of under-trial prisoner, as is the question in the case in hand,. decided by two legal celebrities may now be referred to. The first is Sardar Ataullah Mengal v. The State and others P L D 1962 Kar. 320,, decided by Mr. Justice A. S. Faruqi. In this case, while adjourning a case, a learned Magistrate, under section 344, Cr. P. C., committed the accused upon a warrant to Central Jail,. Karachi. Thereafter, the Provincial Government shifted him from Central Jail, Karachi to Central Prison, Bahawalpur. It was contended before his Lordship that the custody of an under-trial prisoner had to be in accordance with the warrant issued by the Court and the Provincial Government bad no overriding powers in this regard under any law. The contention found favour with his Lordship and it was held that the power of the Provincial Government to remove a prisoner is laid down in section 29 of the Prisoners Act, 1900 and is exerciseable only in cases mentioned in clauses (a) to (d) of subsection (1) of the section and that no such power was conferred upon the Government with regard to the removal of the under-trial prisoners. To the same effect is the judgment in the case of Ali Mahmood v. The State 1974 P Cr. L J 249, by a noble and lamented Chief Justice, Mr. Justice Tufail Ali A. Rehman. In this case, too, after an order of remand by a learned Magistrate, the prisoner was by a warrant, committed to the custody of an Officer-in-Charge of Karachi Central Prison. He was shifted under the order of the Provincial Government to Dadu Jail for administrative reasons. When the learned Magistrate was requested to relodge the prisoner at the Central Jail, Karachi, he declined to do so on account of the aforesaid order of the Provincial Government. The learned Chief Justice observed that an under-trial prisoner could not be shifted from Karachi Jail to Dadu Jail by the Provincial Government. His Lordship set aside the order of the Magistrate and directed that the prisoner shall be kept in custody in the Karachi prison pending his trial subject to release on bail by a competent Court. A question like the one under discussion was raised in: the case of Malik Ghulam Mani v. Government of Pakistan and others P L D 1976 Lah. 38 Writ Petition No. 1630 of 1973 decided on 30-4-1975 but no law on the point was quoted on behalf of the petitioner. Reference to the case of Jumma Khaw Baluch v. Government of Pakistan P L D 1957 Kar. 939, was made wherein prisoners were removed from Mekran levies lock-up to the District Jail, Quetta and detention, at the later place was upheld. It may be noted that the transfer was under the warrant of the District Magistrate and it was not a transfer by an extraneous authority. Their Lordships dealing with Malik Jillani's case concluded that "it appears to us that where an accused person is remanded to judicial custody; there is no fetter on the power of the detainer, subject to the provisions relating to the reception and detention of prisoners and the exigencies of the warrant,, as to the place where he might be detained". From this, it would follow that their Lordships were of the clear view that the power of the detainer is subject to the exigencies of the warrant. Therefore, if a warrant does ,not provide for removal or transfer, the detainer cannot override the warrant, or overreach the warrant issuing authority i.e. the Court or the Tribunal, as the case may be. The rationale of the two reported decisions referred to above is that an under-trial prisoner committed to the custody of an officer-in-charge of a prison by a warrant is to be kept; by the latter because of the obligation cast on him by section 3 of the Prisoners Act, 1900 unless the prisoner is discharged or removed in due course of law. It is quite plain that this discharge or removal cannot come about except by . an order of a Court, because no executive authority can countermand or vary) . an order of a Court, unless there is express legislative authority. A perusal of the relevant statutory provisions quoted above would show that in no . enactment such a power is conferred on the Provincial Government or ford that matter on the Inspector-General of Prisons in the case of under-trial' prisoners. By implication, such a power can neither be claimed, nor, acceded to in derogation of the authority of Courts established by law. The . distinction drawn between the cases of prisoners falling under sub-clauses (al to (d), in clause (1) of section 29 of the Prisoners Act, 1900 and the under-trial ;prisoners, as made in the last two mentioned cases, is not without basis, or, significance. The difference is that in the case falling under sub-clauses (a) 40 (d) clause (1) of section 29 of the Prisoners Act, 1900, a competent Court .has passed final order or judgment and the prisoner is now committed to the custody to undergo or suffer the sentence. The Court has, so to say, done with the case of the prisoner and is to no more deal with him. Now, the _ job is of the administrative authorities, i.e. the officer-in-charge of the prison to effect and implement the order in accordance with law. In the case of an :under-trial prisoner, on the other hand, the Court by warrant commits the ,prisoner to the custody of the officer-in-charge of the prison for the purposes .of keeping him there temporarily so that he is brought before the Court when called upon to stand his trial and be adjudged. Therefore, when the prisoner is so committed to the custody of an officer-in-charge of a prison by -warrant, the officer cannot deal or permit anybody or authority else to deal ,with the prisoner in any manner by which the trial may be hampered, impeded or otherwise not carried on in accordance with day to day orders of the Court .concerned. Moreover, as stated above, the warrant of the Court by which . custody is entrusted to the officer-in-charge of the prison cannot be overridden or varied by any person or authority, other than a superior Court. From all this, it is quite clear that an under-trial prisoner, like the present detenu, cannot be shifted or transferred from the custody of the officer-in-charge of a prison to whom the custody has been given by a warrant to the custody of any other person or authority A word may now be said about the transfer of the present detenu from the Camp Jail, Lahore to the Central Jail, Sahiwal. It is said to have been effected on the sanction of the Inspector-General, Prisons with the concurrence of the District Magistrate, Lahore. No authority for this procedure has been found nor, pointed out by the learned counsel for the State, Moreover, the concurrence of the District Magistrate, Lahore was expressly subjected to the condition that the detenus shall be produced before the Courts at Lahore on each date of the hearing regularly so that their trials do not get inordinately- delayed for their non-production in Courts or their legal rights in any way jeopardised." It is not denied, rather it has been admitted, by the learned counsel for the State, that, in fact, on some occasions, the detenu was not brought from Central Jail, Sahiwal --to Lahore for production in Courts at Lahore where he is being tried. Thus t is obvious that the condition of concurrence for transfer is not being complied with and the same cannot be upheld in part at the cost of expedient administration of justice and holding speedy trial. Moreover, section 491(1)(e), Cr. P. C. provides that any High Court may, whenever it thinks fit, direct that a prisoner within its appellate criminal jurisdiction "be removed from one custody to another for the purpose of trial". It is admitted on all sides that the detenu in this case is being tried in few cases in different Courts at Lahore. Their dates of hearing are, in all probability, going to be different as well. Therefore, it would not be in the interest of the administration and justice that the detenu is virtually made a shuttle-cock between Sahiwal and Lahore indefinitely.

8. In view of all what has been stated above, it is held that the transfer of the under-trial prisoner, Siraj Din alias Saja, from the Camp Jail, Lahore to the Central Jail, Sahiwal is without lawful authority-and it is directed that he be kept in the custody of the officer-in-charge of the Camp Jail, Lahore, from where he would be produced before the Courts holding his trial at Lahore unless, of course, he is released on bail or otherwise by a competent Court.

Petition accepted.