Mst. SHAMIM AKHTAR Versus FIELD INVESTIGATION UNIT (FIU) through Incharges
ORDER
SHUJAAT ALI KHAN, J.-- -By virtue of this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973; the petitioner has prayed for recovery of Muhammad Sarwar, husband of the petitioner, from the illegal detention of respondents Nos.2 to 5 and 10. It has also been prayed that impugned detention of the detenu be declared as without lawful authority.
2. Briefly, the facts, as spelt out from the instant petition, are that on 30-5-2011 Muhammad Sarwar (husband of the petitioner) along with his brother Muhammad Anwar were kidnapped by Field Investigation Unit (FIU) with the help of local police and respondent No.9 who has long-standing litigation on civil and criminal side with husband of the petitioner. Brother of the husband of the petitioner succeeded to escape from the detention along with handcuffs. The petitioner filed a petition under section 491, Cr.P.C. before the learned Additional Sessions Judge, Depalpur, on 4-6-2011, in which a report was called from the local police in which it was stated that the detenu, Muhammad Sarwar, was not in their detention and it might be the action of Ranger Officials. The learned Additional Sessions Judge disposed of the habeas corpus petition without procuring production of detenu. Thereafter the petitioner filed a petition for the self same relief in this court in which report was called from Rangers and they replied that neither any Ranger official is involved in this case nor the abductee was required by them and the petition was disposed of accordingly. Thereafter, on coming to know that husband of the petitioner is in custody of FIU, filed another petition before this court and a report was called from Ministry of Defence wherein it has been reported that detenu was not in their custody. This petition was disposed of with a direction for registration of a criminal case and consequently F.I.R. No.7 of 2012 was registered at Police Station Mandi Ahmed Abad Tehsil Depalpur District Okara for offence under section 365, P.P.C. Being dissatisfied with the investigation of said F.I.R. the petitioner filed a complaint before the Inspector-General of Police Punjab Lahore. Thereafter, the respondent/FIU managed the production of the detenu before the local Police of Ahmed Yar Police Station District Pakpattan in the cross version of a previously registered F.I.R. No.62 of 2011 and he was sent to judicial lock up on 27-2-2012 by the learned Judicial Magistrate concerned. On 28-2-2012, Officer Commanding, Detachment 326, Intelligence Battalion Okara Cantt. (respondent No.10) requested the learned District and Sessions Judge, Okara, for a direction to the learned Magistrate concerned to hand over the custody of the detenu to him for being involved in espionage/anti-state activities. The said application was entrusted by the learned District and Sessions Judge, Okara, to the Illaqa Magistrate concerned for its disposal in accordance with law. On the same day, the learned Illaqa Magistrate directed the Superintendent Central Jail, Sahiwal, to hand over custody of the detenu to the Officer Commanding subject to the undertaking that custody of the detenu would be handed over to the said Superintendent Jail for his appearance in other criminal cases. According to the petitioner, the detenu is still in the custody of the Army and has not been produced before any court of law; hence this petition.
3. Learned counsel for the petitioner contends that when it has been established that the detenu is in custody of the Army personnel, the respondents are bound to produce him before this court; that the arrest of the detenu by the FIU is in clear-cut violation of the undertaking given by the Ministry of Interior in the earlier petition filed before this court; that the petitioner is not involved in any anti-state activity rather he is being detained by the Army personnel at the behest of respondent No.9 with whom the detenu has long-standing civil as well as criminal litigation and that in case the detenu is not produced before this Court, there is strong apprehension that either he will be done to death or he will be involved in false criminal cases.
4. Conversely, learned Assistant Advocate-General while opening his arguments submits that in view of the provisions of Article 199 (3 and 5) of Constitution of Islamic Republic of Pakistan, 1973, this petition is not maintainable; that the custody of the alleged detenu was got by the Intelligence Battalion Okara Cantt. after adopting due procedure; that a perusal of order dated 28-2-2012 passed by the learned Illaqa Magistrate makes it clear that the Commanding Officer Intelligence Battalion Okara Cantt. is bound to hand over the custody of the detenu to the Superintendent Central Jail, Sahiwal, for his production in other criminal cases and that the detenu would be proceeded against in accordance with the provisions of relevant law and the apprehension of the petitioner that he will be bumped off or would be involved in other false cases, is without substance.
5. I have heard the learned counsel for the petitioner as well as the learned Assistant Advocate-General at considerable length and have also gone through the documents appended with this petition.
6. Before dealing with the arguments advanced by the learned counsel for the petitioner, I venture to have a glance over Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 which reads as follows:--
"199. Jurisdiction of High Court.---(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law--
(a) on the application of any aggrieved party, make an order--
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or
(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect ; or
(b) on the application of any person, make an order--
(i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or
(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or
(c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter-1 of Part-II.
(2) Subject to the Constitution, the right to move a High Court for the enforcement of any of the Fundamental Rights conferred by Chapter-1 of Part-II shall not be abridged.
(3) An order shall not be made under clause (1) on application made by or in relation to a member of the Armed Forces of Pakistan in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan.
(4) Where--
(a) an application is made to a High Court for an order under paragraph (a) or paragraph (c) of clause (1), and
(b) the making of an interim order would have the effect of prejudicing or interfering with the carrying out of a public work or of otherwise being harmful to the public interest [or State property] or of impeding the assessment or collection of public revenues, the Court shall not make an interim order unless the prescribed law officer has been given notice of the application and he or any person authorised by him in that behalf has had an opportunity of being heard and the Court, for reasons to be recorded in writing, is satisfied that the interim order--
(i) would not have such effect as aforesaid ; or
(ii) would have the effect of suspending an order or proceeding which on the face of the record is without jurisdiction.
(4A) ...........................................................................
(5) In this Article, unless the context otherwise requires,-- "person" includes anybody politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or Tribunal, other than the Supreme Court, a High Court, or a Court or Tribunal established under a law relating to the Armed Forces of Pakistan; and "prescribed law officer" means--
(a) in relation to an application affecting the Federal Government or an authority of or under the control of the Federal Government, the Attorney-General, and
(b) in any other case, the Advocate-General for the Province in which the application is made."
A perusal of the afore-quoted Article brings it to light that this Court is competent enough to direct a person for production of a person who is in unlawful custody under clause (b)(i) ibid. The word 'person' has been defined under sub-Article (5) according to which, a person means anybody politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or Tribunal except the Supreme Court, a High Court or a Court or Tribunal established under a law relating to the Armed Forces of Pakistan. Thus, the Field Investigation Unit being under the direct control of the Armed Forces, any person in their custody cannot be ordered to be produced before this Court. Even otherwise, the jurisdiction of this Court has been totally ousted by virtue of sub-Article (3) ibid where-under this Court has no power to make an order qua a person who is member of Armed Forces or is seeking any relief against them. This question has already been determined in the cases reported as Mrs. Naheed Maqsood v. Federation of Pakistan and 4 others (1999 SCMR 2078), Muhammad Tufail Anwar v. Federation of Pakistan and 6 others (2008 PLC (C.S.) 1098), Messrs Nusrat Elahi and 41 others v. The Registrar, Lahore High Court, Lahore and 68 others (1991 MLD 2546), Ex. Lt. Col. Anwar Aziz (PA-7122) v. Federation of Pakistan and 2 others (PLD 2001 SC 549), PA-33286 Captain Iftikhar Ahmed v. Federal Government, Ministry of Defence, Rawalpindi (2001 YLR 2679), Muhammad Idrees v. Federation of Pakistan (2010 YLR 2895), Federation of Pakistan and others v. Raja Muhammad Ishaque Qamar and another (PLD 2007 SC 498), Sepoy Farmanullah Hashmi v. Government of Pakistan and 4 others (1998 MLD 1883), Group Captain Syed Muhammad Fazal v. Federation of Pakistan (PLD 2012 Lahore 7), Ex. PA 33756 Lieut Muhammad Asjid Iqbal v. Federal Government Secretary-General Ministry of Defence Rawalpindi (2005 PCr.LJ 632). In the case of Muhammad Mushtaq v. Federation of Pakistan (1994 SCMR 2286) the august Supreme Court of Pakistan has inter alia, held as follows:--
"The High Court was approached under Article 199 for grant of a relief under sub-Article (1) thereof. The relief regarding Fundamental Rights is included in sub-Article (1); which is clearly barred under Article 199(3) with reference to sub-Article (1) thereof. The High Court had no jurisdiction in the matter. Hence the impugned order cannot be assailed on the ground that the High Court failed to exercise a jurisdiction vested in it without any legal justification. Thus leave to appeal is refused."
A glance over the afore-quoted portion of the judgment passed by the august Supreme Court of Pakistan it is established that the jurisdiction of this Court is totally ousted.
7. Insofar as the apprehension of the petitioner that the alleged detenu would be done to death or would be en-roped in some other false cases at the behest of respondent No.9 is concerned, suffice it to observe that the said stance of the petitioner is not only premature but also the same has no worth in absence of any material in that regard.
8. It is important to observe that according to the documents annexed with this petition, the alleged detenu was taken into custody by the Federal Investigation Unit in due process of law and this Court is confident that he will be treated strictly in accordance with law in future as well.
9. As a necessary corollary to the discussion made in the foregoing paragraphs, I am of the view that since the alleged detenu is in custody of respondent No.1 which is under the control of Armed Forces, this Court's jurisdiction for his recovery and production is totally ousted. Consequently, this petition is dismissed with a direction to the petitioner to approach the concerned authorities for redressal of her grievance.
MH/S-99/L Petition dismisse