IJAZ AHMAD CHAUDHRY, J.---Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has prayed for his shifting and transfer from Chung Jail Lahore to New Central Jail, Multan and also seeks a direction to respondent No.5 to finalize the pending case against him in the interest of justice.
2. The brief facts of the case are that the petitioner claims that he is innocent and has been falsely involved in sectarian case F.I.R. No.197 of 2000, under sections 337-D/353 , 186/184 , P.P. C . Read with section 7 of Anti-Terrorism Act registered at Police Station, Lohari Gate, Multan. The petitioner had been facing trial in the above said case before the learned Special Judge, Anti-Terrorism Court No.1, Multan and the prosecution also got examined two witnesses. Thereafter, the case was fixed for recording of the remaining evidence, when through administrative order passed by respondent No. 1 . The petitioner has been shifted to Chung Jail Lahore from New Central Jail, Multan as a result thereof the case at Multan is being adjourned. According to the petitioner, he cannot be kept in jail for an indefinite period without any trial.
3. Report and parawise comments have been filed by respondents Nos.1 to 3 and according to the same 39 sectarian prisoners were confined in Central Jail,Multan, who on the instigation of the petitioner belonging to defunct organization Sipah-e-Sahaba went on hunger strike for their illegal demands on 6-6-2004 and they remained on hunger strike for 20 days, hence the petitioner along with other 10 prisoners were shifted to different jails on administrative grounds. According to the respondent only after such shifting, the remaining prisoners called off hunger strike and as such the impugned action is justified. It is admitted by respondent No.1 that learned Judge, Anti- Terrorism Court, Multan on 14-7-2004 passed an order for repatriation of the petitioner to New Central Jail, Multan but after consultation with the concerned agencies it was not found feasible to shift the petitioner on administrative grounds. Since the parties are represented by their respective counsel and no other formalities are required to be fulfilled, we opted to decide this case on merits as a Pacca/notice case.
4. Learned counsel for the petitioner contends that the petitioner though is involved in an alleged sectarian criminal case but he has a right of early disposal of the cases against him and cannot be kept behind the bars for indefinite period without any fault on his part, but he is not being treated in accordance with law and order of the Home Secretary for shifting of the petitioner on administrative ground without going into reasons for their observing hunger strike is illegal and unlawful, which may be set aside as no valid grounds were available and the impugned action of respondent No.1 also amounts to interference in the judicial functions of the learned Court seized of the trial against the petitioner.
5. Learned Assistant Advocate-General Mr. Muhammad Qasim Khan, on the other hand opposes this petition on the ground that under section 29 of the Prisons Act, 1900 any undertrial prisoner can be shifted from one jail to another jail on administrative side and while observing hunger strike by 39 prisoners on the instigation of the petitioner, law and order situation was created in the jail, which would not be coped up except the impugned action.
6. We have heard the learned counsel for the parties and also perused the report and parawise comments submitted by respondents Nos.1 to 3. It is an admitted fact that the petitioner is involved in a criminal case pending trial before the Court constituted under Anti-Terrorism Act, Multan and statements of two witnesses were already recorded when the petitioner was shifted from New Central Jail, Multan to Chung Jail. On 14-7-2004, as the petitioner was not produced in the Court, the learned trial Judge observing that without his presence in the Court, the trial could not proceed further ordered for his production in the Court and letter was also written to the Home Secretary, but in spite of that he has not been produced in the Court for trial, which fact is even admitted by respondent No.1 in his comments.
7. The Secretary (Home) Government of the Punjab is not above the law and he is bound to obey the orders of the Courts as well. It is strange that the State functionaries are frightened from a prisoner who is confined in jail and they have shown inability to produce him in the Court for trial only for the reason that he along with other prisoners had observed hunger strike without going into reasons therefor which is the last resort, the Secretary (Home) has exercised his powers in an arbitrarily manner and without affording an opportunity of hearing ordered shifting of the petitioner to far-off place depriving him of the right to appear in the Court for trial purpose. Moreover, it has also caused inconvenience for relatives of the petitioner, who have a right under the Prisons Rules to meet him periodically. Even if petitioner and other prisoners had gone on hunger strike, they could not be treated in an illegal manner by the Jail authorities because there is no mention in the Prisons rules to give discriminatory treatment to the prisoners involved in sectarian cases as against the prisoners involved in other cases. Even otherwise section 29 ibid does not provide that the prisoner after his shifting to some other jail is not required to be produced in the Court to face the trial of the case, due to which he has been confined in jail and only the learned trial Court is competent to finally decide about his guilt on conclusion of the trial. In such circumstances the order for shifting of the petitioner on the face of it appears to be illegal.
8. It is also pertinent to observe that the trial against the petitioner along with others was in progress before the learned Judge, Anti-Terrorism Court No.1, Multan and without obtaining permission from the said Court he has been ordered to be shifted by the Secretary (Home), which amounts to interference in the judicial functions of the Court as it has hampered the trial. None of the accused can be confined in jail for indefinite period without any progress in the trial for no fault on his part on administrative ground that the police force and co-related State functionaries have become helpless to produce an undertrial prisoner before the Court for trial in this era of modern technology. It also amounts to shatter the confidence of the people in the Courts.
9. For the foregoing reason, this writ petition is accepted and respondent No.1 is directed to either shift the petitioner in New Central Jail, Multan or to ensure his appearance before the learned trial Court on each and every date fixed by it from the present place of confinement of the petitioner.
The learned trial Court/ respondent No.5 shall conclude the trial within two months after the receipt of this order and S.H.O., Police Station, Lohari Gate shall ensure that the process issued by the learned trial Court is duly served upon the P.Ws.
10. Before parting from this order, we are constrained to observe that the Secretary (Home)/respondent No.1 is prima facie guilty of contempt of Court as he failed to comply with the order dated 14-7-2004 passed by the learned Judge, Anti-Terrorism Court No.1, Multan for production of the petitioner in the Court in spite of its knowledge as per his own narration in the parawise comments. Notice shall be issued to respondent No.1 to show cause that why the proceedings under the Contempt of Court Act may not be initiated against him as the excuse shown by him for not complying with the order dated 147-2004 prima facie was not proper and admitted by law. The written reply shall be submitted within one month through the Additional Registrar of this Bench. The office shall prepare separate file regarding the contempt proceedings and listed out the same in the first week of February, D 2005.