THE STATE/DISTRICT MAGISTRATE, LAHORE vs HAMZA SHAHBAZ SHARIF and

ORDER

' A Full Bench of the Lahore High Court, Lahore passed the impugned order in Criminal Miscellaneous No,1862-H of 1999, which reads thus: "In this habeas corpus petition in response to the direction given by this Court, learned Advocate- General has placed on record four documents, which show that two of the detenus, namely, Hamza Shahbaz Sharif and Capt. Safdar, have been detained under the Maintenance of Public Order Ordinance, while with respect to other two detenus, namely, Abbas Sharif and Hussain Nawaz, the warrants of arrest were issued by the National Accountability Bureau, which have been produced. At the request of the petitioner, Mrs. Kalsoom Nawaz, she as well as Saira Hussain Nawaz were also allowed to address the Court. Saira Hussain Nawaz stated that they have not been allowed to see Hussain Nawaz Sharif, Abbas Sharif, Hamza Shahbaz Sharif and Capt. Safdar, the four detenus since 12th of October, 1999 till date. They also complained that they were being improperly detained.

"Presently, we would direct the learned Advocate-General to produce the orders pursuant to which warrants of arrest of Hussain Nawaz and Abbas Sharif were issued under the National Accountability Ordinance, 1999. Learned Advocate-General shall also make a positive statement whether there was any order of any Authority authorizing the detention of these two detenus after their arrest and further as to whether and in what manner are these two detenus being confined.

The learned Advocate-General requests time for this purpose.

"So far as the two other detenus, namely Hamza Shahbaz and Capt. Safdar are concerned, in order to examine whether their detention under M.P.O., 1960 was justified and also to determine whether the manner in which they were being kept in custody was proper it is directed that both of them be produced before this Court on the next date of hearing.

"As regards the prayer for allowing interviews/ meetings of the detenus with the members of the family, we feel that it would be in the interest of justice that the family members of each one of the above mentioned four detenus be permitted to meet them. These family members of each detenu shall be permitted to meet the respective detenu once in every week for two hours, and first such meeting shall be arranged on 11-12-1999 at 11-00 a.m. The family members permitted to meet the respective detenus shall mean the mother, the wife and the children of the respective detenus.

Learned Advocate-General is directed to ensure compliance of this order, who shall inform the family members as well for this purpose.

"As one of us (Malik Muhammad Qayyum) is proceeding on ex-Pakistan Leave from today, therefore, this petition shall now be listed for hearing on 3-1-2000 at 11-00 a.m."

2. Mr. Maqbool Elahi Malik, learned Advocate-General, Punjab has objected to the very jurisdiction of the High Court to direct the production of respondents--Hamza Shahbaz Sharif and Captain Muhammad Safdar in order to examine their detention under section 3 of the Maintenance of Public Order Ordinance (No,XXXI of) 1960. He has also pleaded lack of jurisdiction with the High Court particularly when an alternate and adequate remedy of filing a representation to the Home Secretary against the order of the District Magistrate was available to the respondents. He has referred to Ch. Abdul Qadir v. Lahore Commercial Bank Ltd. And 7 others (1980 SCMR 280, Mst. Aisha v. Manzoor Hussain and others (PLD 1985 SC 436), A. Habib Ahmed v. M.K.G. Scott Christian and 5 others (PLD 1992 SC 353) and Wealth Tax Officer and another v. Shaukat Afzal and 4 others (1993 SCMR 1810) to contend that the High Court could not make the impugned order in view of the above judgments of this Court. Finally, he contended that the High Court failed to appreciate the law laid down in Abdul Hamid Khan v. The District Magistrate, Larkana and 2 others (PLD 1973 Karachi 344); Muhammad Siddiq Khan v. District Magistrate (PLD 1992 Lahore 140), Syeda Shamim Akhtar v. The Government of Pakistan and 3 others (1996 PCr.LJ 326) and a Full Bench judgment of the Lahore High Court itself, in Writ Petition No,14839 of 1994 titled Sheikh Rashid Ahmed v. District Magistrate, Rawalpindi, while passing the impugned order.

3. Leave to appeal is granted to consider the above pleas.

4. Meanwhile, the operation of the impugned order to the extent of production of respondents Hamza Shahbaz Sharif and Captain Muhammad Safdar before the High Court on the next date of hearing is suspended.

5. In view of the importance of the case, the appeal shall be listed before a larger Bench after obtaining requisite orders in that behalf from the learned Chief Justice.