MUSHTAQ Versus STATE

RASHEED AHMED RAZVI, J. --- The petitioner is wife of undertrial prisoner, Maqbool Ahmed -Shaikh who is presently lodged with respondents Nos.4 and 5 in different cases. It is claimed by the petitioner that her husband is the Additional Secretary-General of Pakistan Muslim League (Nawaz Group) for the Province of Sindh and for such political beliefs he has been arrested by the respondent No.l for mala fide and ulterior motives. That, initially the petitioner's husband was arrested vide F.I.R. No.25/96 of Police Station Staurt Gang, Shikarpur for the alleged offence under section 2/3 of the Loudspeakers Ordinance, 1965. A learned Single Judge of this Court while sitting at Sukkur Bench of this Court granted bail to the husband of petitioner on 30th May, 1996. But again he was arrested in some other cases and since then he is in jail.

2. It is further averred in the petition that on 4-7-1996 Advocate of U.T.P. Maqbool Shaikh filed an application (Annexure "E") before respondent No. 1 for grant of better class in jail premises but till this date no order -has been passed. It is claimed in the petition that the U.T.P. Maqbool Shaikh being well-known person, Zamindar/land-owner and an income-tax payer, by his social status and habit of life is accustomed to superior mode of living and is entitled for better class in prison. In support of this plea, the petitioner has filed Certificate from Central Board of Revenue, Government of Pakistan showing National Tax Number of U.T.P. and Certificate from Government Degree College, Shikarpur indicating that he has passed B.A. in the year 1969. In view of this background, the petitioner has prayed for the following relief:--

(i) Declare that the acts of respondents in abstaining from passing any order on the application of the detenu for grant of Better Class is illegal, unlawful and is mala fide.

(ii) Direct the respondents Nos.4 and 5 to produce the detenu before this Honourable Court in order to satisfy this Honourable Court that the detenu is not being subjected to torture, maltreated at the hands of police and also at the hands of respondents Nos.4 and 5.

(iii) Direct the respondents Nos.4 and 5 to immediately provide better class facilities to the detenu.

(iv) Direct the respondents Nos. l, 4 and 5 to immediately get the detenu medically check-up in Hospital and to shift the detenu in Hospital for treatment and medical check up.

(v)

(vi)

3. We have heard Mr. Muhammad Ashraf Kazi, Advocate for the petitioner and Mr. K.M. Nadeem, A.A.-G., Sindh for the respondents. It is contended by Mr. M.A. Kazi that U.T.P. Maqbool Shaikh by his social status, education and habit of life is accustomed to a superior mode of living and, therefore, is entitled for a better class in prison. He has referred to Rules 243 and 248 of Pakistan Prison Rules. He has also referred to the following cases -law:--

(a) Syed Allah Dost v. Haji Muhammad Alam and 12 others PLD 1987 Quetta 235;

(b) Shahid Bawany v. Government of Sindh through Home Secretary and another 1993 PCr.LJ 2528;

(c) Sajjad Ali v. The State PLD 1994 Kar. 31; and

(d) Majeedan Bibi v. Superintendent Jail PLJ 1995 Kar. 1.

4. Learned A.A.-G., Sindh has raised objection to the maintainability of this petition on the ground that an alternate remedy is available. According to the learned counsel, the petitioner has directly -approached this Court without availing remedy before the trial Court. It was next contended by him that it is the Officer Incharge of a police station who is authorised to classify an undertrial prisoner and, thereafter, when such U.T.P. is produced before a Court of law then the trial Court is authorised to classify such U.T.P. subject to the approval of the District Magistrate. Reference was made to Rule 248 of Pakistan Prison Rules. Mr. K.M. Nadeem has also pleaded equality of citizens as guaranteed by Article 25 of the Constitution, 1973 while opposing this petition. On merits, he was not able to dispute or controvert the facts of the petition.

5. Rule 242 has described three classes of convict prisoners. While Rule 248 has defined two classes of undertrial prisoners. It would be advantageous if Rule 248 for the Superintendence and Management of Prisons in Pakistan is reproduced herewith:--

"Rule 248. (i) There shall be only two classes of undertrial prisoners---

(a) better class; and

(b) ordinary class

(ii) Better class will include those undertrial prisoners who by social status, education or habit of life have been accustomed to a superior mode of living and will correspond to "A" and "B" class of convicted prisoners. Ordinary class will include all others and will correspond to "C" class.

(iii) Before an undertrial prisoner is brought before a competent Court, it will be at the discretion of the Officer Incharge of the police station to property classify him. After he is brought before the Court, he will be classified by that Court, subject. to the approval of the District Magistrate. "

6. In the case of Syed Allah Dost, a Division Bench of Balochistan High Court has held that normally High Court would not entertain a Constitutional petition when other equitable and suitable remedy is available under law and that generally question of adequacy is not rule of law barring or limiting the jurisdiction of High Court rather it controls and regulates the same. Therefore, mere availability of alternate rem6dy does not ipso facto debar an aggrieved person from invoking Constitutional jurisdiction. The Balochistan High Court followed the rule laid down by the Honourable Supreme Court in the case of Anjuman-e-Ahmadia, Sargodha v. D.C., Sargodha and another PLD 1966 SC 693, Nagina Silk Mills, LyalIpur v. Income-tax Officer, Lyallpur and another PLD 1963 SC 322, Murree Brewery Co. Limited v. Pakistan and 2 others PLD 1972 SC 279 and Sindh Employees' Social Security Institution v. Dr. Mumtaz Ali Taj and another PLD 1975 SC 450 in this reported case. In the case of Shahid Bawany (supra), the petitioner was facing trial before Special Court-I (S.T.A.), Karachi for offence under section 9/13-E of the Arms Ordinance, 1965. A direct Constitutional petition was filed praying for classification of better class to the prisoner as at the relevant time the trial Court was without Presiding Officer. A Division Bench of this Court granted "B" class to the petitioner on the grounds inter alia, that the documentary evidence on record shows that such petition by his social status was accustomed to superior mode of living. In the case of Sajjad Ali PLD 1994 Kar. 31 another Division Bench extended facilities of better class to the appellant under section 561-A, Cr.P.C. on the grounds, inter alia; that such appellant was an Officer Grade-II in National Bank of Pakistan with no criminal record and was leading decent life. In both the abovementioned reported cases a concession was extended by the counsel appearing for the State, which is not done in the instant case. In the case of Majeedan Bibi PLD 1995 Kar. 1 several provisions of Prison Rules were considered and interpreted by another Division Bench of this Court and some of them were declared to be violative of fundamental rights as well as Injunctions of Islam. However, Rules 243 or 248 were not considered.

7. Mr. K.M. Nadeem, A.A.-G., Sindh has referred to Mst. Aasia alias Sanam Shaikh v. Government of Pakistan and others Constitutional Petition No.D-866 of 1966 and contends that similar petition is pending before this Court wherein identical prayers for better class were refused. We called the case file of Constitutional Petition No.D-866 of 1996 and have gone through the orders passed in the said petition. No order, either allowing or rejecting request for better class facilities for the present U.T.P. was passed by this Court in the said petition. However, Mr. Muhammad Ashraf Kazi has stated at Bar that in the instant petition, he' would like to confine his prayers for better class facilities. Mr. K.M. Nadeem has also referred to Rule 248 of Prison Rules, which provides that there shall be only two classes of undertrial prisoners namely better class (B Class) and ordinary class (commonly known as "C" class). Entitlement of better class is extended to those undertrial prisoners who by their social status, education or habit of life have been accustomed to a superior mode of living. It is further provided in this rule that the better class will correspond to "A" and "B" class of convict prisoners while ordinary class will include all others and will correspond to "C" class of convict prisoners.

8. As far as competence to classify an undertrial prisoner is concerned, it is argued by Mr. K.M. Nadeem that it is the discretion of the Officer Incharge of the police station and thereafter when such undertrial prisoner is produced before the trial Court then it is the trial Court which is empowered to classify him subject to approval by the District Magistrate. In other words, it was argued that this Court has no jurisdiction to grant the relief as prayed by the petitioner. This plea of learned State Counsel appears to be frivolous. It is not denied by the learned State Counsel that the undertrial prisoner is also facing trial before Special Court (S.T.A.) and this Division Bench is also the Appellate Court of the said Special Court (S.T.A.), Karachi. This Court has powers to grant bail to' an accused involved in identical offences as of the present undertrial prisoner and even this Court can set aside a conviction and sentence passed by a Special Court (S.T.A.). It-is now well-settled law that an Appellate Court enjoys powers to grant all such ancillary and incidental relief as of the trial Court. For further reference see the case of Ch. Zahur Illaha, M.N.A. v. The State PLD 1977 SC 273 and the case of The State v. Syed Qaim Ali Shah 1992 SCMR 2192.

9. It is not disputed by the learned A.A.-G., Sindh, that at the time when this petition was filed, the Special Court (S.T.A.), Sukkur was lying vacant. He has only stated during the hearing on 24-7-1996 that a Presiding Officer has now been appointed. It is an admitted position that the husband of the petitioner is involved in more than one case and is facing trial before several Courts including the Court of Special Judge-III (S.T.A.), Karachi and Special Judge (S.T.A.) at Khairpur. It is pertinent to note that undertrial prisoner was involved in several cases after he was granted bail by a learned Single Judge of this Court. We have been told that the detenu has, so far, not been convicted of any offence. In our considered view, he has to be presumed innocent till his conviction is recorded by a competent Court of law. It is also apparent from the record that the undertrial prisoner by his social status, education and habit of life is accustomed to the superior mode of living. No useful purpose would be served if this matter is remanded to the learned trial Court. Here, we would like to observe that in recent past and even during these days we have experienced that several applications for bail and other reliefs are pending before the Special Courts (S.T.A.) for months together without any final order passed thereon. At the same time, we also realise the pressure of work load on these Special Courts which are flooded with the cases and suffers from adequate facilities. Since this case was heard at length, it would be just and proper to dispose of the same.

10. In view of the peculiar circumstances of this case and for the law discussed hereinabove, we grant this petition and direct the respondents Nos. l, 4 and 5 to extend the better class facilities to undertrial prisoner, namely Maqbool Shaikh son of Abdul Rehman Shaikh, pending his trial before the Special Court (S.T.A.), Karachi.

A.A./A-55/K Petition accepted.