' ZAHID KURBAN ALVI, J.--- This Misc. Application has been filed under section 491, Cr.P.C. It is claimed that, the applicant was involved with some dispute with local police with the result that he was involved in numerous criminal cases. He has been arrested and put behind bars since 29-3- 2003. In several cases that were filed against him, he has been acquitted and in other cases, he has been released on bail. The respondent No,1 refused to release the applicant/accused on the ground that the applicant was wanted in a case, which was pending before the Additional Sessions Judge, Sargodha. Challenging the continuous detention, the Constitutional petition was filed, which is 595 of 2003. In that petition, the comments were filed by respondent No,1, who admitted that there cannot be any impediment in releasing the accused except for the fact that, he was required by the Punjab Police. The petition was disposed of with the directions that he shall not be handed over to the Punjab Police without a proper order from the competent Court. This order was passed on 9-9-2003.
2. Thereafter, another petition has been filed on 24-9-2003 stating that the continued detention of the applicant was illegal.
' The learned Addl. A.-G. Filed a statement dated 7-10-2003. With this statement, he has brought on record a letter, dated 6-10-2003 written by the Government of Sindh, Home Department and addressed to the learned Addl. A.-G'. Stating therein that the Home Department, Government of Punjab has been requesting to provide copies of judicial orders in respect of cases pending against accused Sultan Shah. These are still awaited. Another letter, dated 4-10-2003 has been placed on record, which has been addressed to the Home Department, Government of Punjab.
There is also a letter dated 1-10-2003 addressed to the D.P.O. Sargodha by the Superintendent, Central Prison-I, Sukkur. In this last letter D.P.O. Sargodha was directed to give details for sending the accused across and also request was made to the Government of Sindh, Home Department to arrange for police escort. It was also written therein that if proper papers are not available and the arrangements are not made to transfer the prisoner, then he will be released on 7-10-2003 as the continuous detention is illegal.
3. Another statement has been filed whereby a copy of the letter addressed to the Secretary, Home Department, Lahore by Superintendent District Jail, Sargodha. It seems that the applicant/accused is required in two F.I.Rs. Which were registered in the year 1996.
4. I have heard both the learned counsel and I have also looked at certain case-law on the subject.
5. In the case of Muhammad Tufail pokhar v. The Inspector-General of Prisons, Punjab, Lahore and 3 others PLD 1980 Lah.
162. It was observed as follows:- "Prisoners Act (III of 1900), Ss.3, 4 and 29 read with Criminal Procedure Code. (V of 1898), S.344--- Under-trial prisoner--- Subject to conditions of warrant issued for his detention by Court---Officer Incharge of prison, held, cannot transfer such prisoner save with order of trial Court---Person awaiting trial before Courts subordinate to District Magistrate---Transfer or removal of such person by Officer Incharge of prison with approval of District Magistrate justified---Such condition, held further, not applicable to prisoners facing trial in Court of Session---Powers to transfer unconvicted prisoner from one prison to another also not vested with Inspector-General of Prison under S.29."
' In the case of Zia-ud-Din v. Superintendent, Camp Jail, Lahore and another PLD 1976 Lah.
93. It was held as follows:-- "Criminal Procedure Code (V of 1898), S. 344---Read with Prisoners Act (III of 1900), Ss.3 and 29 and Punjab Jail Manual, para. 148---Under-trial prisoner, detention of---Power conferred on Government under S.29 of Act III of 1900 with regard to removal of prisoners---Not exercisable in respect of under-trial prisoners---Under-trial prisoner cannot (save by order of Court) be shifted or transferred from custody of officer-in-charge of prison (to whom custody of prisoner given by warrant issued by Court) to any other person or authority---Under-trial prisoner involved in number of cases pending trial at 1---Transfer of prisoner from jail at L to Central Jail at S on direction of Inspector-General of Prisons with concurrence of District Magistrate---Held: without lawful authority---(Custody)..
' Held: The custody of an under-trial prisoner had to be in accordance with the warrant issued by the Court and the Provincial Government had no overriding powers in this regard under any law."
' In the case of Ali Mahmood v. The Slate 1974 PCr.LJ 249 it was held as follows:-- "A plain reading of section 3 of Prisoners Act, 1900 would make it clear that when an under-trial prisoner is committed to a prison he has to be received by the officer-in-charge in accordance with the warrant issued by the Court. Such Officer is then to detain that person in that prison until he is discharged or removed in due course of law. Once such a warrant has been issued there is no power in the Provincial Government in the case of an under-trial prisoner to order his shifting from one jail to another. There is also no power in the Provincial Government to direct the Magistrate to issue an intermediary' ,warrant so that an under-trial prisoner may be taken to one prison and from there shifted to another. The power of the Provincial Government for the removal of any prisoner confined in a prison is also laid down in section 29, but that power is exercisable only in the cases mentioned in clauses (a) to (d) of subsection (1), that is when the prisoner is under sentence of death or is confined in lieu of a sentence of imprisonment or transportation or in default of payment of fine or in default of giving security for keeping the peace or for maintaining good behaviour. Considering that the power of the Provincial Government for providing for the removal of any prisoner confined in any prison is limited under section 29 to the cases referred to above, it must follow that no such power was intended to be conferred upon that Government with regard to the removal of under-trial prisoners. The case of such a prisoner is to be governed by subsection
(3) of the Act under which the officer-in-charge of the prison is to act according to the exigency of the writ, warrant or order of the Court concerned. Therefore. When a Magistrate adjourns a case under section 344, Cr.P.C. And commits the under-trial accused to prison and specifies the date for re-appearance in Court the prison authorities have to comply with that order and detain the accused in that prison and produce him from there into Court according to the warrant of commitment."
6. In the case of Lt.-Col. G.L. Battacharya v. The. State PLD 1964 SC 503 in which it was observed as follows:- "(c) Prisoners Act (III of 1900), Ss.3 & 17---Duty of Superintendent of Jail to receive and "detain" or to "discharge" or "remove" a prisoner committed to his custody by Court, "according to exigency of any writ, warrant or order"--- "Press note" cannot take the place of such "writ, warrant or order"--- Superintendent of Jail giving effect to a "Press-note" may be held in dereliction of his duty--- Efficacy of a "cypher" message from President of Pakistan questionable."
' In the case of F.A. Khan v. The Government of Pakistan PLD 1964 SC 520 in which it was observed as follows:-- "9. Security of person.--- No person shall deprived of life or liberty save in accordance with law, ' In the case of Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693 it was observed as follows:-- "(d) Constitution of Pakistan (1973), Art. 9 Word 'life' in fundamental right of Article 9 that no one shall be deprived of life or liberty save in accordance with laws. Its meaning and scope explained in judgment. Word 'life' in Article 9 is so wide that exposure as danger from electromagnetic field produced by high voltage transmission lines, would constitute violation of fundamental right guaranteed by Article 9....
(e) Constitution of Pakistan (1973), Arts.14 & 9. Fundamental right under Art.14 that dignity of man and subject to the law, the privacy of home shall be inviolable. Whether a person can be said to have dignity of man if his right to life is below bare necessary for proper food, clothing, shelter, education, health care, atmosphere and unpolluted environment? Quaere."
' It is apparent from the citations given above that a person cannot be detained in Court or even transferred without proper documentation and after following due process of law. It is well-settled now that even the Constitution of the Islamic Republic of Pakistan provides that no person shall be deprived of life liberty save in accordance with law. Indeed the State has to act within the limits of law wherever the life or liberty of a individual is affected.
7. In the case of Ms. Shehla Zia and others v. WAPDA reported in PLD 1994 SC 693, the Full Bench of the Honourable Supreme Court while discussing on the fundamental rights, as enshrined in Article 9 of the Constitution, has held that the word 'life' means that no one shall be deprived of life or liberty save in accordance with the principles of law.
' It was further held that word 'itself' was so wide that even if a person was exposed high voltage transmission line it would constitute a violation of the fundamental rights.
8. I am also relying on the case of Government of Sindh through the Chief Secretary, Karachi and 4 others v. Raeesa Farooq and 5 others 1994 SCM R 1283, in which it has been held that:- "Constitution of Pakistan (1973), Arts. 199, 4, 9, 10 and 14--Provisions of Arts.4, 9, 10 and 14 of the Constitution which confer fundamental rights on a citizen whenever violated and complaint is made to a High Court about that violation, High Court must step into investigate such facts under the discretionary jurisdiction conferred on it under Art.199 of the Constitution and pass such order as may be found just, legal and equitable taking into consideration the facts and circumstances of each case.
' Under Article 4 of the Constitution of Pakistan, 1973 every citizen has an inalienable right to be treated in accordance with law and to enjoy the protection of law. Furthermore, under Article 9 of the. Constitution no person shall be deprived of life or liberty save in accordance with law. Article 10 of the Constitution provides safeguards against arrest and detention. It provides that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest and every person who is arrested and detained in custody, shall be produced before Magistrate within 24 hours of such arrest excluding the time necessary for journey from the place...
' Art.199. Arrest and Detention.--- Constitutional jurisdiction of High Court. High Court has the jurisdiction to examine the facts and information laid before it to determine prima facie that it does not lack bona fides, is not a cooked up or manipulated affair, the detenu has not been illegally detained without a proper and legal remand order where it is required and there appear reasonable grounds for believing that the detenu is involved in the crime charged with. Prosecution in such a situation is duly bound to disclose the material upon which it has acted and High Court is to satisfy itself that such action is lawful and not in violation of law and fundamental rights."
' The petition has been filed earlier and it was disposed of after the respondent No,1 had given a statement that the accused shall not be handed over to the Sargodha Police without proper documentation. I have also noticed that a report of the Superintendent, Central Prison, Sukkur, is also on record, which has been given to this Court on 30-9-2003. All these documents emphasis two aspects:--
(i) That the accused is required in Sargodha in some cases.
(ii) That he is to be shifted after proper arrangements are made, when will the arrangements be finalized or made is the crucial question. Can a person wait indefinitely for some orders to arrive so that he can be released.
9. For all practical purposes, there is no legal justification for the continued detention of the accused in Sukkur Central Jail. Enough time has been given to not only the Home Department but also to Sargodha Police to come up with proper documentation. In case if the accused is really required under the law for a case or in which he is supposed to have been involved. Enough time was given for the concerned authorities to produce proper documentations, which they have failed to do so. A letter, dated 1-10-2003 also clearly states that in case the documentations are not received within the stipulated time then he will be released. Since they have failed to produce any documentation in time upto the writing of this matter therefore, he is to be released forthwith as his continued detention in jail would tantamount to illegal detention.
' Crl. Misc. Application stands disposed of.