ABDUL SHAKOOR PARACHA, J.---This habeas petition has been filed to challenge the validity of the arrest and detention of the detenue namely Tufail Khan son of Amal Khan by army authorities under the Pakistan Army Act, 1952. On 23-2-2005 while hearing Writ Petition No,1945 of 2004, learned D.A.-G. Stated before the Court that Tufail Khan has been taken into custody by the Army authorities under section 2(1)(d)(i) of the Pakistan Army Act, 1952.
2. Report and parawise comments from the respondents were called for. On behalf of respondent Nos.1 & 2 learned AJAG filed report and parawise comments. In preliminary objection, it is stated that in the instant case the detenu has been apprehended for his alleged involvement in Anti- State, including terrorist activities and carrying out such activities and acting in a manner prejudicial to the Defence of Pakistan and activities, attracting subjection under provision of section 2(1)(d) of Pakistan Army Act/Security of Pakistan Act, 1952. It is further stated that interrogation is in progress, and custody is held under provisions, of section 73 of the Pakistan Army Act. It is further stated that section 11-EEE of Anti-Terrorism Act 1997 read with section 3(1) of Security of Pakistan Act 1952, an detenu can be kept in custody for 24 months.
3. At the outset, learned counsel for respondent contends that Court is debarred from interference in such-like cases under Article 199(3) of the Constitution of Islamic Republic of Pakistan, 1973 and Article 4(5) of the Constitution has not been violated by the respondent for detaining the detenu under the Army Act. Reliance has been placed on the case reported as Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others (PLD 1996 SC 632)
4. Learned counsel for petitioner contends that neither the order of arrest of the detenu has been passed by the Army Authorities nor any material has been placed by the respondent on the file of this Court to examine the vires of the detention of the alleged detenu; further that detenu has been detained in violation of provision of Articles 4 and 10 of the Constitution of Islamic Republic of Pakistan, 1973 and he has not been informed of the ground of his arrest; lastly, that jurisdiction of the superior Court cannot be taken away except by express words or necessary implication thus Court has the jurisdiction under Article 199(3) of the Constitutionof Islamic Republic of Pakistan, 1973 to examine the case where order/judgment is based upon mala fide, without jurisdiction or corum non judice. Reliance has been placed on cases reported as Brig. (Retd.) F.B. Ali and another v. The State (PLD 1975 SC 506) and Mrs. Shahida Zahir Abbasi and 4 other v. President of Pakistan and others (PLD 1996 SC 632).
5. On the other hand, learned AJAG of JAG Branch vehemently opposed the arguments of the learned counsel for petitioner and contends that detenu has been arrested under Army Act on the mandate of Article 10(5) of the Constitution, it would be against public interest to disclose the facts and national interest demands that same may not be disclosed as the same would endanger security and defence of the country. However, he has made his willingness on the behalf of the Federal Government to present material before this Court in chamber to satisfy this Court.
6. I have heard the arguments of the learned counsel for parties on the question of maintainability of the present writ petition and perused the record with their assistance. Article 4 of the Constitution provides right of individual to be treated in accordance with law which envisage as under:-- Article 4:
(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever, he may be, and of every other person for the time-being, within Pakistan.
(2) In particular.
(3) No action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.
(4) No person shall be prevented from or be hindered in doing that which is not prohibited by law, and no person shall be compelled to do that which the law does not require him to do."
7. Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 further states that all citizens are equal before law and are entitled to equal protection of law.
8. The question arises whether the detenu has not been treated equally in accordance with law Article 5 of the Constitution envisages that:-- "(1) Loyalty to the State is the basic duty of every citizen.
(2) Obedience to the Constitution and law is the obligation of every citizen wherever he may be and of every other person for the time being within Pakistan."
9. It is pertinent to mention here that first duty of the citizen of the country is loyalty to State and if a person commits any offence against the State, then he is not entitled to the protection of fundamental rights and is liable to be prosecuted and dealt with in accordance with law enforced for the purpose. Article 8 of the Constitution deals with the fundamental rights which says that:-- "Article 8:
(1) Any law, or any custom or usage having the force of law, insofar as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void.
(3) The provisions of this Article shall not apply to---
(a) any law relating to members of the Armed Forces, or of the police or of such other forces as are charged with the maintenance of public order, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them; or
(b) any of the ----
(i) laws specified in the First Schedule as in force immediately before the commencing day or as amended by any of the laws specified in that Schedule;
(ii) other laws specified in Part-I of the First Schedule.
10. Learned counsel for petitioner argues that written order of arrest which was necessary has not been passed or placed on the file of this Court and detenu has not been produced within 24-hours before the Magistrate for remand and non-compliance of this vitiate the whole proceedings of detention. This point was dealt with in case of Mrs. Shahida Zahir Abbasi (Supra). In this case, Hon'ble Judge of the Supreme Court, observed, "the Act is self-contained code, which provides for all matters relating to arrest, detention and trial of a person accused of an offence under the Act.
Section 73 of the Act provides for custody of an offender charged with an offence under the Act.
This section provides that any person may be ordered into military custody by any superior officer except in the case of a person subject to this Act as an officer, by any superior officer except in the case of a person subject to this Act as an officer, by any member of the military, navel or air force police. This section further provides that an officer may be ordered into military custody of any other officer though he may be higher in rank who is engaged in a quarrel, affray or disorder. Note 2(b) appended to this section states that the arrest may be open or close and it may be Ordered verbally or in writing except in cases of officer and Junior Commissioned Officers which should always be in written order would not invalidate the arrest. Section 74 of the Act casts a duty on the Commanding Officer of a person arrested, to ensure that he is not detained in custody for more than 48 hours after the committal of such person into custody without charge being investigated, unless it appears to the Commanding Officer that the investigation is not possible within that period. The case of a person detained in custody beyond 48 hours is required to be reported by the Commanding Officer to the Officer to whom application is to be made to convene a General or District Court Martial for the trial of the person charged. In reckoning the period of 48 hours, this section provides that all public holidays will be excluded, section 75 of the Act provides that in every case when a person is arrested under section 73 of the Act and he is not on active service, if he is detained in custody for a period longer than 8 days without Court Martial for his trial, a special report giving reasons for the delay is to be made to the Commanding Officer in the prescribed manner and such a report is to be forwarded regularly at intervals of each 8 days until the Court Martial assembled or such person is released from custody. Army Regulation A.R.(R) No,269 deals with the open and close arrest of an offender under the Act. A.R.R. 270 provides that where a person is committed into custody of another officer then the officer committing the custody will deliver at the time or if that is not practicable, within 24 hours to the officer in whose custody the accused is committed, a report preferably in writing and signed by himself stating the alleged offence. If such a report is not received by the officer in whose custody the accused is committed, he is required to report the circumstances to the Commanding Officer or other competent authority who will, if considered that the arrest does not appear to be justified, order release of the accused without prejudice to his re-arrest in the case. It is also provided under this A.R.(R) that a person in whose custody the accused is committed will at the request of the accused inform him of the rank, name and unit of the person by whom he is alleged to have committed the offence and given him a copy of the charge report when received. A.R.(R) 296 provides that if a person arrested remains in custody for a period longer than 32 days without being brought to the trial, he will have a right to petition to the Judge Advocate-General, GHQ, against his continued detention and on the petition being filed, the Judge Advocate General will examine the petition along with the comments of the formation concerned and advise release of the accused person, if it is found justified. The petition in such a case is to be treated as "immediate" at all levels. The punishment for irregular confinement of a person who has been detained without lawful excuse is provided under section 51 of the Act". From the above discussion, it appears that for arresting a person accused of an offence under the Act, a written order of arrest is not necessary though it is preferable. The Act does not provide that a person arrested for an offence under the Act must be produced before a Magistrate for remand within 24 hours of his arrest as required by Article 10(2) of the Constitution. The custody of a person accused of an offence under the Act, after his arrest, is regulated in accordance with the provisions of sections 74 and 75 of the Act which do not provide for production of the accused before a Magistrate for remand within 24 hours of his arrest. Therefore to this extent the provisions of the Act do not conform to Article 10(2) of the Constitution. However, the provisions of the Act are protected under Article 8(3)(a) of the Constitution from being challenged on the ground of inconsistency with the fundamental rights contained in Chapter I, Part II of the Constitution, therefore, non-compliance of the provisions of Article 10(2) of the Constitution could not invalidate the arrest and detention of accused officers under the Act. I am, therefore, of the view that non- production of the accused officers within 24 hours of their arrest before a Magistrate in accordance with the provisions of Article 10(2) of the Constitution for obtaining their remand was of non- consequence. Similarly, the absence of a written order of arrest as according to the contention of respondents, the accused officers were arrested under an oral order of C.O.A.S. Which is permissible under the Act though not preferable. Learned counsel for petitioner contends that after the arrest, the detenue was required to be produced before the Commanding Officer concerned as required by section 74 of the Pakistan Army Act, the concerned Commanding Officer (C.O.) of the accused is required to see that a person under his command is not detained in custody for more than 48 hours without the charge being investigated and in case of delay in the investigation beyond 48 hours, the C.O. Is required to report the reasons for delay to the officer to whom application is to be made to convene a Court for the trial of the accused.
11. It is admitted position that the detenu has been arrested under the Army Ad and there is no reasons to disbelieve this statement as it is sufficient to infer that the detenu has not been arrested except in due course of law and the matter relating to the members of the army force are immune from scrutiny of this Court in view of. Sub-Article (3) of Article 199 of the Constitution except where the judgment is mala fide, without jurisdiction or corum, non judice. Reliance has been placed on the case of Ex-Lt.-Col. Anwar Aziz v. Federation of Pakistan through Secretary Ministry of Defence, Rawalpindi and 2 others PLD 2001 SC 549. In case of Mst. Naheed Maqsood v. Federation of Pakistan and 4 others 1997 CLC 13 it has been observed that where Clauses (3) and (5) of Article 199 of the Constitution are attracted, the ouster of jurisdiction, D if any, is absolute and it is not conditional upon the existence of some circumstances. The same principle had been laid down by the Hon'ble Supreme Court in case of Muhammad Mushtaq v. Federation of Pakistan 1994 SCM R 2286 which envisages that the relief regarding fundamental rights included in sub-Article (1); which is clearly barred under Article 199 of the Constitution with regard to Sub-Article (3) thereof. The matter has lastly been dealt with by the Hon'ble Supreme Court in case of Mst. Shahida Zahir Abbasi and 4 others (supra) as earlier referred in the preceding paragraph.
12. Though the detenu in this case has not been an Army personnel but he has also been arrested under the Army Act, therefore, this case is also covered with the bar as contained under' Article 199(3) of the Constitution of Islamic Republic of Pakistan, 1973.
13. For the forgoing reasons, I find that this Court lacks the jurisdiction to entertain this petition, hence being not maintainable, the same is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.