The petitioner filed this writ petition for the recovery of seven detenus namely, Zubair Qayyum, Sultan Qayyum (cousins of the petitioner), Shahid Baig, Shahbaz alias Nikki Butt, Shahbaz alias Fheena and Kamran alias Kami and Moon from the illegal and improper custody of the respondents.
2. The petitioner and Detenus Nos, 1 and 2 are close relatives and they deal in business of iron scrap based at Misri Shah, Lahore. According to the learned counsel for the petitioner, on the night of 17th July, 2005, two young persons drove in, rashly in the Food Street, Old Anarkali, in a vehicle without registration number. Their car struck into the car of Detenus Nos, 1 and 2, bearing Registration No, LRX/532. It was further alleged that car of the said two young persons entered into the Food Street by violating one-way traffic sign. Both parties had a quarrel. However, emergency police arrived at the scene of occurrence who took the detenus and their vehicle to the police station. A case FIR No, 293/05 was registered against the detenus. The detenus also lodged a complaint but no F.I.R. was registered on their complaint. According to the learned counsel for the petitioner, by that time, the identity of two persons was revealed as Lieutenant Najeeb of 4-Northern Light Infantry and Lieutenant Imran of 12-Baloch Regiment.
3. The narrative part of the FIR registered at the instance of one of the above-mentioned army officials, is reproduced as under: "We both Lt. Imran, 12-Baloch Regiment and Lt. Najeeb 4-NLI were going to Food Street for Dinner as we turned towards Food Street, a Corolla Registration No, LRX/532 came out escorted by two gunmen holding AK-47. We were followed by a Rikshaw so we could not take the vehicle back. We said; "wait, we will go back". They took no time and pulled my shirt on gun point while I was sitting inside the car. I rolled up the window of the car. They then fired upon right side of the vehicle and one of them fired in air and ran away. There were five persons in the vehicle. After this, we called 15/Police."
4. According to the learned counsel for the petitioner, on the same night, after registration of the case,, a heavy police contingent, under the command of Dr. Usman/Respondent No, 3, SP City raided the house of the Detenus Nos, 1 & 2 and arrested Zubair Qayyum, Shahid Baig, Shahbaz alias Nikki Butt and Shahbaz alias Fheena. The houses of the detenues were looted and plundered by the persons who were included in the raiding party. According to the learned counsel, licensed arms were taken away besides valuables. The fundamental rights of privacy of home, etc. were violated.
Four vehicles of detenues were also forcibly taken away by Respondent No, 3 and his men.
5. On the following day, i,e, 8th of July, 2005, Sultan Qayyum, after obtaining interim pre-arrest bail from the Court of Sessions alongwith Kamran and Moon appeared before the Respondent No, 2, SSP Investigation, Lahore. Respondent No, 2 detained the above said three persons as well. Since 17th July night, and 18th July afternoon, whereabouts of the above mentioned persons became unknown to the petitioner and families of the detenus. The learned counsel for the petitioner feared that the above-mentioned seven detenus might have been killed in a fake police encounter or by some other illegal means. The learned counsel further apprehended that since two army officers were involved in the matter, detenus might have been taken, by them, into illegal custody and the detenus might have also been caused bodily harm. The learned counsel further submitted that four detenus were arrested by Respondent No, 3 and three of them were produced before SSP Investigation in the presence of dozens of people. Yet the respondent police officials were not ready to tell about their whereabouts. The learned counsel further submitted that fundamental rights guaranteed under Articles 2A, 4, 9, 14 and 25 of the Constitution have been grievously contravened by the respondents and others.
6. In the above circumstances, the present writ petition was filed by the petitioner for the recovery and production of the detenus.
7. This writ petition was fixed for the first time, before my learned brother, Kh. Muhammad Sharif, J., on 3.8.2005. His Lordship directed to the learned Addl.A.G. Punjab to advise Respondent No, 3 to appear himself as well as produce the detenus before this Court on 4.8.2005. On 4.8.2005, Respondent No, 3, SP City appeared before the Court and stated that the detenus were required in a case registered under Section 324 PPC, at P.S. Old Anarkali. He further submitted that a detention order had also been issued by the Home Department. The SP City further 'added that the detenus were not in his custody. The Court directed him to file a reply alongwith his affidavit. Similar direction was also issued by the Court to Shafqaat Ahmad, SSP Investigation and the proceedings were adjourned till 11 a.m., the same day i,e, 4.8.2005. The above-mentioned two police officials appeared before the Court at 11 a.m. and submitted their affidavits to the effect that the alleged detenus were neither with them nor they were aware of whereabouts of the detenus and that even the detenus were not in the police custody. The learned counsel for the petitioner disputed the contents of affidavits and submitted that the Inspector General of Police be directed to produce the said detenus before the Court. The learned counsel further complained that five godowns of the detenus as well as their homes were sealed and the inmates were not being allowed to enter into their houses. The Court directed Capital City Police Officer, Lahore to depute an efficient and honest police officer to recover the alleged detenus from where ever they were available. The case was adjourned for 11.8.2005 to be fixed before any available Bench.
8. On 11.8.2005, the case came up for hearing before me as my learned brother, Kh. Muhammad Sharif, J. left for vacation. The SP Investigation appeared before me as he was deputed by Capital City Police Officer, as investigating officer in this matter. The said officer expressed his complete inability to recover the detenus. The learned Addl. Advocate General Punjab also showed his helplessness. Both of them submitted that whereabouts of the detenus were not known to anybody, despite the fact that four were arrested by SP City, and three appeared before SSP Investigation on 17.8.2005 and 18.8.2005 respectively. Both of them insinuated that the detenus might be in custody of some other agencies as the detenus had a conflict/quarrel with two army officers, on whose application FIR was registered at Old Anarkali Police Station. On this, the learned Attorney General as well as the learned Advocate-General Punjab were noticed to appear on 12.8.2005. The learned Attorney General of Pakistan was noticed as Armed Forces of Pakistan are under the control and command of the Federal Government, as provided under Article 243 of the Constitution. On 12.8.2005, the learned Advocate-General Punjab appeared and stated that whereabouts of detenus were not known to the respondent police officials. The learned Advocate- General Punjab reiterated statement of the police officials as well as the learned Addl. Advocate General made on previous dates. The Court was not satisfied with the answer and recorded that it was unbelievable that police officials were unaware of whereabouts of the detenus. It was observed that it was Constitutional and statutory duty of respondents to find out the detenus and to produce them before the Court. The Court was left with no other option except to summon Principal Secretary to the Governor of the Punjab, and the Principal Secretary to the Chief Minister Punjab, so that authorities at the highest level in the Province must known the facts of the case. The Home Secretary Punjab was also directed to appear. The said officials were directed to appear before the Court on 15.8.2005. The Deputy Attorney General of Pakistan was directed to convey the direction of the Court to the learned Attorney General of Pakistan to appear personally on 15.8.2005.
On 15.8.2005, Mr. Makhdoom Ali Khan, Attorney General of Pakistan appeared with Dr. Danishwar Malik, Deputy Attorney General of Pakistan. The learned Advocate General Punjab alongwith Mr. G.M. Sikandar, Principal Secretary to the Chief Minister Punjab, also appeared. Mr. Hassan Wasim Afzal, Home Secretary, Government of the Punjab, also appeared. The Principal Secretary to the Chief Minister Punjab submitted that the Chief Minister was not in knowledge of the case; he submitted that he would apprise the Chief Minister to take appropriate measures in the matter.
However, the learned Attorney General of Pakistan requested for a short adjournment. The case was adjournment to 16.8.2005. On 16.8.2005, Mr. Makhdoom Ali Khan, learned Attorney General of Pakistan, and Mr. Aftab Iqbal Chaudhary, the learned Advocate General Punjab, appeared before the Court and sought another adjournment till 23.8.2005. The learned counsel for the petitioner conceded to their request.
9. On 23.8.2005, the learned Advocate-General Punjab and Malik Pervez Akhtar, learned Deputy Attorney General of Pakistan appeared alongwith SP City and some other police officials and stated that detenus had been formally arrested in a case registered at P.S. Gulberg, Lahore. The Court directed them that they must produce the detenus before the Court in compliance of orders of this Court. They were further directed to produce the detenus by 1.30 p.m. On this, the proceedings were adjourned till 1.30 p.m. (23.8.2005). At 1.30 p.m., all seven detenus were prdocued.
The learned counsel for the detenus identified them and expressed his satisfaction that all of them were in good health. The "Court asked the detenus if they wanted to make any statement, the detenus chose not to make any statement, against any person. However, all of them expressed their gratitude, that they were produced before this Court, to be dealt with in accordance with law.
10.This habeas corpus petition was filed under Article 199 of the Constitution. The facts narrated above show the peculiar circumstances of this case. The incident took place between the detenus and two Young army officials. The FIR was registered at the instance of one of the said army officers. The SP Investigation raided and arrested, four of seven detenus. Three detenus, themselves, after obtaining bail before arrest appeared before the SSP Investigation, Lahore.
Thereafter, they disappeared from the scene and remained so, for more than a month. They were not produced despite several previous orders, a detail of which has already been related above.
However, they have been produced today before this Court. Despite whatever happened, the detenus are satisfied, that they have been produced in the Court and they do not want to make any statement. The learned counsel appearing on behalf of the petitioner submits that he wants to withdraw this habeas corpus petition as instructed by the petitioner.
11. The fundamental rights of citizens and other persons are guaranteed under the Constitution of Pakistan. Not only that, the framers of the Constitution empowered the Supreme Court and the High Courts of . Pakistan to protect these fundamental. rights. For the same reasons, the Supreme Court and the High Courts of Pakistan have been conferred upon required powers under Articles 184(3) and 199 of the Constitution to enforce the same rights if the infringement of these rights is reported. Likewise, Article 199(2) of the Constitution gives right to citizens of Pakistan an unabridged right to move a High Court for enforcement of any fundamental right guaranteed by the Constitution. In the instant case, prima facie, fundamental rights of detenus under Articles, 9, 10, 14 and 25, to be read with Article 4 have been violated.
12.Under Article 199(1)(b)(0, this Court is under obligation to satisfy itself that a detenu is not being held in custody without lawful authority or in unlawful manner. The said duty has been performed by this Court by ordering production of the detenus as well as getting the orders implemented and by asking detenus if they wanted to record their statements.
13. The Constitution of Pakistan has created no right or duty in vain. Article 9 provides that no person shall be deprived of his life and liberty save in accordance with law. Article 9 is closely followed by Article 10 which requires that when a person is arrested, he shall not be denied the right to consult and be defended by a Lawyer of his choice. Likewise, such arrested or detained person is required to be produced before a Magistrate within a period of 24 hours of such arrest. No person can be detained or kept in custody beyond the said period without the authority of a Magistrate. In case, the above requirements are not fulfilled, the detention/custody would amount deprivation of a liberty guaranteed under Article 9 of the Constitution. The detenus were never produced before any Magistrate; they were not allowed to meet their counsel, therefore, apparently their rights under Articles 9 and 10 were infringed. In addition to that, whether they were in custody of police or with any other agency, the obedience to the Constitution and law is an inviolable obligation of all.
In this regard provisions of Article 5 should be read with provisions of Article 244 of the Constitution.
The language of these two Articles suggests that the command is very clear, and nobody can be relieved of obligation mentioned therein, in any circumstances.
14. The declared and avowed policy of the present Government is to have an enlightened society.
The conduct of the respondents and some others in this case is not consistent or reflective of the said policy. All citizens of Pakistan are entitled to be treated in accordance with law. Similarly, no one is above the law. Therefore, if any person commits an offence, he should be dealt with in accordance with law and by the concerned agencies only. If Government officials of any department or organization will take law in their own hands, how can powerful individuals be stopped from doing the same? Therefore, everything needs to be done within a system, and strictly in accordance with law. It is appreciated that detenus have been produced before this Court and orders of this Court have been complied with.
15. In the past and present, the level of civilization of any Nation is judged from the strength and independence of its Judicial System. Judiciary itself has no force to get its orders executed. It is other organs of the State who have to do it. Therefore, strength of the Judiciary lies in the strength of the Society. Respect and obedience to judicial orders enhances strength of a Nation and a country and brings stability to it. It is in interest of everyone that Rule of law must prevail and it certainly elevates esteem and stature of Government of the day. At this juncture, I may quote a historic incident from history of the British Judiciary. The incident is quoted in my book at page 1370 (Constitutional Law of Pakistan, 2nd Edition Vol. II). A Crown Prince misconducted himself in the Court and attempted to get released his servant who was being tried by the Court. At that point, the Hon'ble Judge addressed/admonished Prince. The words of the Hon'ble Judge, and subsequent events are briefly described as under: "Sir, remember yourself; I keep here the place of King, your sovereign Lord and father, to whom you owe double obedience. In his name, I charge you desist from your willfulness and unlawful enterprise and thereby give good example to those who hereafter shall be your subjects and now for your contempt and disobedience I send you to the prison of the King's Bench where I commit you and direct that you shall remain there until the pleasure of your father, the King, be further known. Upon these words the Prince was abashed and: laying his weapons apart and doing reverence, departed and went to the King's Bench, as he was commanded. His servant felt disdainful at this came and told the King of what had happened, whereupon, in all gladness. The King holding his hand upwards said in a loud voice" "0. Merciful God, how much am I above all other men bound to your infinite goodness, especially because you have given me a Judge who fears not to administer justice and also a son who can suffer and obey justice."
16. As noted above, the learned counsel for the petitioner, on instructions, submits that he is satisfied that detenus have been produced, therefore, wants to withdraw this habeas corpus petition to move for bail or any other relief, under the law, before appropriate fora. The detenus also state that they do not want to proceed any further and want to withdraw this petition. Consequent to the above statements of the learned counsel for the petitioner and detenus, this writ petition is disposed of.
17. Before I part with this order, I want to appreciate efforts made by Mr. Makhdoom Ali Khan, learned Attorney General of Pakistan and other Law Officers. I also appreciate the assistance rendered by Mr. Farooq Amjad Mir and other learned counsels for the petitioner.