BEGUM NUSRAT BHUTTO Versus CHIEF OF ARMY STAFF AND CHIEF MARITAL LAW ADMINISTRATOR

S. A. NUSRAT, J .‑This order will dispose of application made under section 151, C. P. C. by the respondent No. 2. The petition, in which the application has b.‑en filed, was moved by Begum Nusrat Bhutto challenging the detention of Mr. Abdul Hafeez Pirzada and Mr. Mumtaz Ali Bhutto, bat the same was initially admitted only with regard to the detention of Mr. Mumtaz Ali Bhutto, since another Petition No. 33‑793 of 1977, filed earlier by Begum Sadia Pirzada challenging the detention of her husband, steed already admitted. Mr. Abdul Hafeez Pirsada had also sent a Petition No. D‑800/77 from Central Jail, Karachi. When all these three petitions were put up on 5‑12‑1977, Mr. A. H. Piraada withdrew his own petition and also agreed for tire withdrawal of the petition filed by his wife with the object that the petition filed by Begum Nusrat Bhutto should be too one before the Court. The petition was, therefore, also admitted concerning. the detention of Mr. A. H. Pirzada. Both Messrs A. H. Pirsada and Mamtaa Ali Bhutto were produced before us on 5‑12‑1977, and on subsequent dates I.e. 19‑12‑1977 sad 22‑1‑1978. However, on 31‑1‑1978, the respondent No. 2 moved this application alleging that the detenus had misused the privilege of their production in Court by utilizing the occasions for holding unauthorised meetings with press reporters and political leaders and issuing political statements. Newspaper‑cuttings carrying the statements attributed to the detenus are appended with the application. As ad Interim order was also solicited, we heard the learned Advocate‑General, and ordered notice of the application to the counsel for the petitioner and, in the meanwhile,, directed that the detenus may not be produced in Court.

2. We have heard detailed arguments of Mr. Zahoorul Haq, Advocate -General, Sind, Mr. Ghulam Ali Memon, Advocate for the petitioner and Mr. Sharifuddin Pirzada, Attorney‑ General for Pakistan.

3. The short question falling for determination is whether production of the detenus throughout during the course of hearing of the petition is essential according to Article 19‑4 (1) (b) (i) of the Constitution. Article 199 with the relevant clause is reproduced below :‑

"199.‑(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,

(a)

(b) on the application of any person, make an order‑

(i) directing that a person it& custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being bold in custody without lawful authority or in an un lawful manner."

4. The learned Advocate‑Central contended that in the exercise of power under the aforesaid provision of the Constitution it was discretionary for the Court to direct the production of a detenu and, in any case, once the detenu was brought before the Court, his presence on subsequent hearings. was not essential. According to him this was clear from the use of the word 'may' occurring in the very opening sentence of the Article which empowered the High Court to order for the production of an alleged detenu upon filing of petition under the said Article.

5. The learned Advocate‑General referred to rule 2, Chapter 4‑F, in Volume V of the Rules and Orders of the High Court of Judicature at Lahore, which are applicable to this Court also. Thom rules relate to the procedure to be followed for an order under section 491, Cr. P. C. and by virtue of Rule 1, Part 1, Chapter 4‑J, of the same Volume ape also made applicable to applications for issuance of writs in the nature of habeas corpus. Rule Z in Chapter 4‑F, Volume V, on which reliance has been placed, is as follows :‑‑

"Rule 2.‑Where the Court is of opinion that a prima facie case for granting the application is made out, a rule nisi may be issued calling upon the person car persons against whom the order is sought, to appear on a day to be named therein to show cause why such order should not be made and at the same tune to traduce in Court the body of the person or parsons alleged to be illegally or improperly detained then and there to be dealt with according to law :

Provided that if the Court so orders, production of the body of the person alleged to be illegally or improperly detained may be dispensed with."

The learned Advocate‑General relied upon the proviso to the aforesaid rule which lays down that the production of the body of a person. alleged to be illegally or improperly detained, may be dispensed with. He then referred to the judgment in the case of Federation of Pakistan v. Malik Ghulam Jillani P L D 1974 S C 402. In that case the Lahore High Court on a petition under Article 199 (1) (b) (t) of the Constitution, which was made by Malik Ghulam Jilani, challenging the detention of four persons belonging to Baluchistan, had passed an order on 30‑9‑1974, directing that all the four detenues be produced in Court on 1‑10‑1974 in order to ascertain their pint of view. The Federal Government of Pakistan, Provincial Governments of Baluchistan .and Punjab and Deputy Inspector‑General of Police, Special Branch, Lahore, challenged the said order before the Supreme Court. The High Court had earlier also directed that the prisoners be kept in Jail at Lahore in order to enable their counsel to seek instructions from them but the Provincial Govern ment had expressed its inability to do so in the public interest. The validity of the order of the High Court in directing the detenus to be produced was questioned before the Supreme Court on the ground that the High Court should have decided the question of jurisdiction before directing the production of the detenus. This contention was repelled and the Supreme Court was pleased to bold as under :‑‑

"The Constitution does not make the exercise of this power dependent on the prior determination by the Court of questions relating to its jurisdiction and the validity of the detention, as long as the person detained 9s within the territorial jurisdiction of the High Court concerned. All such questions can in fact be legitimately raised only in the presence of the detenu so that be is in a position to appraise the Court of the facts and circumstances which may be within his peculiar knowledge. Such being the scope of the power conferred by the Constitution on the High Court, we are of the view that the exercise of this power cannot be denied to the High Court on the grounds urged by the learned Attorney‑General.

It, however, goes without saying that once the detenu is produced before the Court, the latter would exercise its discretion judiciously, in the light of all the attendant circumstances of the case, for the purpose of examining the detenu. and ensuring that such examination dues not prejudice the trial, if any, which may be pending nor does it defeat the very object of habeas corpus proceedings by undue prolongation. It is in fact a matter of some regret that in this case the proceedings have not Net concluded even though the habeas corpus petition was instituted nearly fourteen months ago."

6. The Advocate‑General further referred to two cases from Indian jurisdiction, reported in A I R 1951 Hyd. 83, which was a ease under Article 226 of the Indian Constitution, and A I R 1951 Tra.‑Co. 123, which was a decision on an application under section 491, Cr. P. C. He also placed reliance on Halsbury's Laws of England. Volume XI, part. 1477 at page 786. The said para. reads as under :‑

"Application by counsel.‑ The application for a writ of habeas corpus, whether on motion to the Court or at Chambers, should be made by counsel, as the Court will not as a rule allow an applicant to move in person. In exceptional cases, however, applicants have been a heard in person on the ground of extreme urgency."

According to the first judgment referred to under the said paragraph in the case of Re : Greene (1941) 57 T L R 533, D. C. Humphreys, 1. reading the ruling of the Court said, "we think that no applicant for a writ of habeas corpus should be beard in person unless some sufficient ground is shown for a departure firm established practice ; and the mere fact that an applicant prefers to act as his own Advocate should not be regarded as good ground". another case, Re: Newton (1855) 16 C B 97 where although the Court refused to bear a motion by a father for a writ on behalf of his son. it was stated by Jervis, C. J., that the Judges did not lay down any inflexible rule, but merely held that in the particular circumstance it would be better for the motion to be made by counsel.

7. The learned Advocate‑General dealing with facts, referred to press reports containing the statements of the detenus purportedly made by them on the dates when they were produced in this Court in connection with this petition and also the statement made by Mr. A. H. Pirzada when he was produced in this Court in connection with a contempt matter, and it was alleged that the detenus had misused the privilege by utilizing the facility of their production in Court for the purpose of making political. statements. However, we do not propose to go Into the nature of the said statements as we think that the larger issue requiring consideration before us relates only to the interpretation of Article 199 of the Constitution.

8. Mr. Sharifuddin Pirzada, the learned Attorney‑General, arguing in support of the application, also placed reliance upon the Judgment of the Supreme Court in the case of Malik Ghulam Jillani, referred to above, and pointed out that examining the question of jurisdiction of the High Court under Article 199 of the Constitution, the Supreme Court had held that the Court undoubtedly had the power to require the production before it of a detenu, alleged to be detained without lawful authority, and that once the detenu was brought before the Court, it bas to exercise its discretion judiciously in the light of attending circumstances of the case, for the purpose of examining the detenu. He further referred to a decision from the Indian Supreme Court in the case of Kanu Sanyal v. District Magistrate, Darjeeling and others AIR 1973 S C 2684. The said case arose out of a petition under Article 32 of the Constitution of India. In that case it was contended on behalf of the petitioner that he was unlawfully detained in jail in contravention of Article 21 and, therefore, he was entitled under Article 32, to move the Supreme Court for a writ of habeas corpus to enforce Fundamental Right of personal freedom guaranteed to him under Article 21. It was further contended that the right to obtain release by way of habeas corpus was a Fundamental Right of the petitioner and since the production of the body of a person alleged to be illegally detained was an essential feature of a writ of habeas corpus, the petitioner was entitled to claim that he should be produced before the Court before his writ of habeas corpus could be disposed of by the Court. The question that arose for determination, therefore, was as to whether under Article 32 of the Constitution of India, the production of the body of a person alleged to be unlawfully detained was essential before an application for writ of habeas corpus could be finally heard and disposed of by the Court. After tracing the entire history with regard to the law and procedure relating to writs of habeas corpus, as applied rind in Practice in the Courts of England and U. S A. this i9 what the Supreme Court of India had to say on the subject :‑

"There can be no doubt that in enacting Article 32 (2), the Constitution makers meant to give to person illegally restrained of his liberty the Fame kind of remedy, fashioned and developed over the years, which his counterpart enjoyed in England and the United Stator. It would indeed be highly anomalous and strange that when in England and the United States the remedy by way of a writ of habeas corpus is shorn of its superfluous element and made more convenient and effective from a functional view point by dropping the requirement of production of the person detained, are in India should still hold ourselves bound by the old form of procedure and pat homage to a superfluity which has been discarded long ago in those two countries. Why should the ghost of the past‑and that too not ours but that of another country be allowed to continue tee haunt us and cloud pus vision of rationality. It has been held by this Court in T. C. Bayapa v. T. Nogappa (1955) 1 S C R 250 A I R 1954 S C 440 that "in view of the express provisions in our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English law nor feel oppressed by any difference or exchange of opinion expressed in particular cases by English Judges. We can make an order or issue a writ in the nature of certiorari in all appropriate cases and fn appro priate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction In the matter of granting such writs in English law'."

The learned Attorney‑General further referred to a passage from the book, "Law of Habeas Corpus", by R. J. Sharpe at page 211, where discussing about the practice followed in connection with an application for issuance of the writ of habeas corpus, it is said that the Court may order the writ to be issued to that the prisoner may be brought up and formally discharged and that this was unnecessary and was not usually done. Mr. Sharifuddin Pirzada also referred to the judgment of the Supreme Court in the case of Begum Nursat Bhutto P L D 1977 S C 657 and stated that in that cage, the petition was made to challenge the detention of Mr. Zulfikar Ali Bhutto and ten other leaders of Pakistan People's Party but only two of the detenus namely Mr. Zulfikar Ali Bhutto and Mr. Abdul Hafeez Pirsada were allowed to be produced before the Court in order to make their submissions in support of their position, while eight other detenus bad neither filed their statements nor had asked for any personal hearing. Ha stated that the said two detenus were permitted to appear before the Court because they had filed lengthy written statements on the factual aspect of the case setting out their respective versions of the events culminating in the Proclamation of Martial Law on the 5th of July, 1977. The learned Attorney General stated that the detenus bad already appeared before the Court on three dates and their production or; subsequent dates was unnecessary and It was entirely in the discretion of the Court to decide whether their further production was necessary.

9. Mr. Ghulam Ali Memon, learned counsel for the petitioner, however. contended that it was a mandatory requirement of Art. 199 (i)(b)(t) of the Constitution that the detenus should remain present before the Court during the hearing of the petition so long as the Court had not satisfied itself that the detenus were not being bald in custody without lawful authority or in an unlawful manner. According to him, the word "may" occurring in the opening sentence of sub‑Article (1) of Article 199 had relevance only to the initial stage of taking cognizance of the matter under the said Article and once the Court had chosen to exercise its power under the Article that stage was passed and it was essential that the detenus should remain present before the Court until the matter was decided.

Mr. Ghulam Ali contended that Art. 170 of 1956 "constitution was pari materia with Art. 226 of the Indian Constitution but Art. 199 of the Constitution of 1,73 is worded differently and, therefore, the ruling of the Supreme Court of India in the case of Kanu Sanyal had no relevance. According to him, the word "may" occurring in the Art. 199 is to be read as "shall" for all practical purposes. He referred to a judgments. In re Shutter (1960) 1 Q B 142, where the word "may" was interpreted having the force of "shall". The question which fell for consideration in that case was as to whether the word "may" occurring in section 7 of the Fugitive Offenders Act, 18131, which laid down that, "If a fugitive was committed to prison in any part of Her Majesty's dominions to await his return, was not conveyed out of that part within one month after such committal, a superior Court upon application by or on behalf of the fugitive, may unless sufficient cause was shown on the contrary "order the fugitive to be discharged out of the custody". This decision is distinguishable because, the word "may" cam^ to be interpreted together with the words "unless sufficient cause was shown to the contrary" occurring in the relevant section of the statute rind it was held that in order to give natural meaning the provision was to be read as "shall unless sufficient cause is shown to the contrary, order the fugitive to be discharged out of custody". The learned counsel further contended that no mention was made in Art. 199 of the Constitution to classic writs and, therefore, it was not necessary to refer to cases decided in relation to writs of habeas corpus. He relied upon the judgment in Mahboob Ali Malik v. Province of West Pakistan P L D 1963 Lah. 575 wherein it was held that Art. 98 of the Constitution of 1962 was an attempt to reduce into self‑contained propositions that which was regarded as tie substance of four writs of mandamus, prohibition, certiorari and quo warranto. The Court in that case was considering scope of Art. 98 of the 1962 Constitution and it was held that jurisdiction under the said Article stood enlarged in some cages and curtailed in others, in comparison to earlier writ jurisdiction. However, the said judgment does not support the proposition that value of the case. law, which has developed in foreign Courts and in Pakistan in relation to classic writs, has been completely lost. The rich case law which has developed on the subject during centuries it the past is of valuable assistance to the Courts, although we have to first look into our own law and judgments of our own Courts before using such precedents which, even though not binding, are always of immense value. Further reliance was placed on Abdul Aziz v. Muhammad Ali and others P L D 1972 Lah. 762 where also the Lahore High Court held that in some cases the field covered by Article 98 of the 1962 Constitution had become somewhat enlarged; and in others it had become somewhat curtailed. In the same judgment it was also observed that in the course of evolution some distinguishing incidents which carne to be attached separately to four writs namely, mandamus, prohibition, ceriorari and quo warrants, were not incorporated in Article 98 apparently because they were not regarded as being essence of the remedy.

10. Mrs. Ghulam Ali next relied upon Jack Walker v. James A. Johnson 312 U S 275. One of the questions raised before the Court in that case wax as to whether the District Court, on the filing of the petition was bound forthwith to Issue the writ and have the petitioner produced in answer to it. The decision really turned on the interpretation of the statutes of the United States, as referred to in Head Note‑1 of the Judgment, which is reproduced hereunder :-

"The statutes of the United States declare that the Supreme Court and the District Courts shall have power to issue writs of habeas corpus that application for the writ shall he made to the Court of justice or judge authorised to issue the same by complaint in writing, and oath, signed by the petitioner, setting forth the facts concerning his detention, in whose custody he is and by virtue of what claim or authority, it' known. The Court or justice or Judge "shall forthwith award a grit of habeas corpus, unless it appears from the petition itself that the party is not entitled thereto." The writ shall be directed to the person is whose custody the petitioner is detained. The person to whom the writ is directed must certify to the Court or Judge the true cause of detention and. at the same time he makes his return, bring the body of the party before the Judge who granted the writ. When the writ is returned a day is to be set fur the hearing, not ,exceeding five days thereafter unless the petitioner requests a longer time. The petitioner may deny the facts set forth in the return or may allege say other material facts, under oath. The Court or Judge "shall proceed: is a summary way to determine the facts of the caw, by hearing the testimony and arguments and thereupon to dispose of the party as law and justice require."

The judgment is not relevant as it is mentioned therein that the question Was not as to what to ancient practice was of common law and what was the practice prior to 1867, but the question really was as to what the statute required.

11. Mr. Ghulam. Ali Memon lastly referred to they case of Government of West Pakistan v. Agha Abdul Karim Shorish kashmiri PLD 1969 S C 14 and pointed out to the interpretation given in tie judgment to tie words "'in err unlawful manner" occurring in sub‑clause (b) of Article 98(2) In then Constitution of 1962. It was there laid down that in determining as to how and in what circumstances a detention would be detention in an unlawful manner one would inevitably have first to see whether the action was in accordance witty law, if not, than it was action in an unlawful manner. The meaning of the word 'law' was not confined to statute law but is used in its generic sense se connoting all that is treed as law in this country including even the judicial principles laid down from time to time by the superior Courts. The judgment, however, bee no direct bearing upon the proposition advanced before us by the learned counsel. However, their' Lordships were pleased to observe in the same judgment at p. 17 that the scope of enquiry under sub‑clause (b) of Article 98(21 was not in any way tattered by the procedure of writ of habeas corpus or the rules laid down under the various Habeas Corpus Acts.

12. As regards the applicability of High Court Rules teamed counsel contended that the same were framed at the time when the High Court exercised jurisdiction under Articls 170 of the 1956 Constitution and the same, therefore lost their value after enactment of the Constitutions of 1962 and 1973, wherein Articles 98 and 199 were couched in entirely different language without the use of tire names of classic writs.

13. We have given anxious consideration to the contentions raised by the learned counsel and we are unable to accept the arguments advanced by Mr. Ghulam Ali, learned counsel for the petitioner, that presence of detenus is a must throughout the hearing of the petition.

14. The contention of Mr. Ghulam Ali that the relevant High Court Rules are no more applicable because the same were framed at the time when Constitution of 1956 was in force, is am argument which goes against him. The said rules were framed in the face of Art. 170 of the Constitution of 1956, which provided for issuance of a writ in the nature of habeas corpus, and, therefore, the rule` In question are all the more attracted now because of the absence of the use of the word 'habeas corpus' in Act. 199 and the old practice of production of the body of the detenu before the Court, as then followed it, connection with petitioner for writs of habeas corpus, no longer, holds good.

15. This brings us to the consideration as to whether the word 'may' occurring in sub‑Article (1) of Art. 199 of the Constitution is referable only to the stage of entertainment of the petition under the said Article. The Interpretation that the word 'may' should be read as allowing discretions to the Court only in the matter of entertainment of a petition under Article 199 and is not referable to any discretion exerciseable In ordering production of a detenu, is not warranted, as such interpretation would render the exercise of jurisdiction dependent upon bodily presence of the detenus before Court resulting In absurdity.

16 Supreme Court of India in the case of Kanoo Sanial proceeded upon close examination of the history of the writs of habeas corpus, as it obtained in England and U. S. A., and supports the contention of the learned Attroney General that writ of habeas corpus now stands shorn of its superfluous elements and has been made more convenient and effective from a functional view‑point dropping the requirement of production of a detenu. Accordingly If in India, where in dealing with petitions under Art. 228, which specifically empowers the High Courts to issue writs in the nature of habeas corpus, production of detenu is not considered essential there is no reason why we should still feel bound to insist upon the formality of production of detenus while acting under the provisions of Article 199 of the Constitution, in which no mention is made of issuance of a writ in the nature of habeas, corpus.

Cotton L. J., In re : Baker Nichols v. Baker 44 Ch. D 262, in giving the meaning ..of word 'may' observed as follows :‑ "'may' never can mean 'must' so long as the English language retains its meaning; but it gives a power, and then it may be a question in what caves, where a Judge has a power given him by the word 'may', it becomes his duty to exercise that power."

S. A. de Smith in the boot, Judicial Review of Administrative Action, (Third Edition), in his discussion regarding the procedure generally followed in connection with the writ of habeas corpus has said as under :‑‑‑

"If prima facie grounds are shown, the Court or Judge may order that the writ shall issue forthwith to produce the prisoner; the writ must state before whom and when it is to be returnable. The return to the writ, made by the person having custody of the prisoner, must specify the cause of detention. At a hearing on the date named, oral argument takes place; the burden of proving lawful justification for the detention rests can the respondent. If the application is allowed, the prisoner is immediately discharged. However, it is now uncommon to direct that the body of the prisoner be produced before the Court or Judge at all, unless it is feared that he may be removed outside the jurisdiction"

17. It would appear that although the learned counsel for the petitioner contended that the practice followed in connection with old classic writ of habeas corpus was no longer to be followed sad the law which has developed on the subject was no longer to be looked into, but in fact what he seeks is precisely what was followed in earlier days in connection with writs of habeas corpus. the practice of production of the detenu in connection with the writ of habeas is nova a matter of ancient history and is no longer in vogue in modern days either in England or U. S. A.

18. The provisions contained in Article 199(1) (b) (i) fox issuing direction that a person in custody within the territorial jurisdiction of the Court be brought before it is similar as contained in clause (a) of section 491, Cr. P. C. which is as under : ‑

"491. Power to issue directions o/' the nature of a habeas corpus.‑‑Any High Court may, whenever it thinks fit direct‑

(a) that a person within the limits of its appellate criminal jurisdiction be brought tip before the Court to be dealt with according to law."

The scope of the section is of course limited.

Even in connection with the jurisdiction exerciseable under section 491, Cr. P. C.'. the High Court has power only to issue directions of the nature of a habeas corpus and the case must fad within one of the clauses of this section for the High Court to exercise its power under the said section. The question of the jurisdiction of the High Court in India to issue common law writs of habeas corpus under section 491, Cr. P. C. was considered by a Full Bench of the Madras High Court in the case of District Magistrate, Trirand rwn v. K. C. Mammen Mappillai I L R 1939 Mad. 708 and after detailed examination of the enactments of the Indian Legislature from the earliest times it was held that such a writ did not run in India and the only remedy open to the subject was to apply under the provisions of this section. The decision of the Full Bench was confirmed by the Privy Council. Such being the legal position D insistence upon production of the body of a detenu under Article 199 of the Constitution can hardly be insisted upon as an inflexible rule.

18. The authoritative pronouncement of our own Supreme Court in the eau of Federation of Pakistan v. Ghalam Jillani, completely answers the question and clearly supports the contention of the learned Attorney General that once the detenu is produced before the Court, it would be matter of judicious discretion in the light of the attending circumstances of the case as to whether any further presence of the detenu was necessary or not. The object of such production is to enable the detenu to answer the questions of facto and circumstances within his peculiar knowledge and this would always be a matter of discretion for the Court dependent on the facts of each case as to when a detenu should be produced and when such requirement should be dispensed with. The Judgment of the Supreme Court in She ease of Begum Nusrat Bhutto v. Chief Martial Law Administrator and others also supports this view.

19. Wade and, Philips in their Constitutional Law, 8th Edn., at p.492 described the modern practice and procedure followed on an application for a writ of habeas corpus as under :‑

"If prima facie grounds are shown, the Court or Judge ordinarily directs that notice of motion be given or a summons issued. Argument on the merits of the application then takes place on the day named. If the Court decides that the writ should issue, it orders the release of the prisoner or than handing over of the infant to the applicant, and this order is sufficient warrant for the release. Under this practice there is no seed to produce the prisoner in Court at the hearing and no return to the writ is actually made."

20. The upshot of the above discussion is that the practice of production of the body of the dentenu is not being followed even in England and United States, where the writ of habeas corpus originated, and a more pragmatic approach has been adopted which is concerned more with the substance of t the remedy than procedure to be followed in connection with the exercise of jurisdiction in the matter.

21. For the foregoing reasons we would accept the application, subject as aforesaid, and are of the view the presence of the detenus throughout the proceedings is not essential. As regards the other application made by A. H. Pirzada, being Misc. No. 376 of 1978. the same shall be kept pending and suitable order will be passed as and when his presence was considered necessary.

S. A. H. Application accepted.