' RAJA FAYYAZ AHMAD, C.J.--The brief facts of the case are that an application addressed to the Chief Justice, Balochistan High Court, Quetta by post dated 21-8-2000 was converted into C.P. (Suo Motu) and notice was directed to be issued to the applicant Habib Khan son of Gul Bahar and to learned A.G. In response to the notice Gul Islam Khatak, S.H.O. Police Station, Sariab, Quetta appeared before the Court and filed report to the effect that on receipt of information through police control on 4-8-2000 he reached to the Degree College, Quetta where a Magistrate and law- enforcing agencies were present and he was informed that raid is to be conducted as they have got information, accordingly Army Officers, SP ATF, EACII/Area Magistrate, Quetta along with staff of the ATF conducted raid on the house of Mir Mitha Khan Marri situated behind Burma Hotel and from his house a few rounds of .7MM Rifle/Magazine, telephone like receiving apparatus of wireless and Pajero Vehicle were taken into possession and Mir Mitha Khan Marri and others were taken along by the Army authorities for the purpose of investigation.
2. Petitioner present in Court on 28-8-2000 stated that Mir Mithan Khan Marri, Gul Bahar, Mir Jan and Liaquat All were arrested by the police and it is not known as to in what connection they were arrested and where they have been detained. The learned A.-G. Stated that the above said persons were not arrested by the police and are not in custody of the police, whereas; the S.H.O. Explained he is not aware as to whether any case against these persons has been registered and where they have been confined or otherwise.
3. In view of the above noted position notice was directed to be issued to D.A.-G. To show as to in what connection the above said persons were arrested and they have been detained by the law- enforcing agencies. Notice was also issued to EAC-II, Quetta for 31-8-2000 on which dated statements on oath of Habibullah Khetran EAC-II/MFC, Quetta and Mr. Muhammad Tariq S.-I./S.H.O., Police Station, Sariab were recorded by this Court and opportunity of cross-examination afforded to the learned A.G. And D.A.G. But they did not avail the right and vis-a-vis right of cross- examination was afforded to Mr. Habibullah Khetran and Mr. Muhammad Tariq but they too did not exercise such right. In the light of evidence of the above said officers and the earlier report submitted by the S.H.O., notice was directed to be issued to the D.C. And S.S.P. Quetta for appearance with the further direction to S.P. ATF to produce the detenus apprehended by them during the raid conducted at about 9-30 p.m. On 4-8-2000. Pursuant to the aforesaid direction M/s Athar Hussain Siar, Deputy Commissioner, Quetta, Faqir Hussain, S.S.P., Quetta, Mr. Amir Khan Mandokhel, S.P. ATF appeared in person besides Mr. Tariq, S.I.P., S.H.O. P.S. Sariab and Mr. Muhammad Hassan, I.P. C.I.A., Quetta were also present. In compliance of the order of the Court detenus Mir Mitha Khan Marri, Gul Bahar, Liaquat Ali and Mir Jan were produced by the C.I.A. Police, Quetta before the Court and their statements on oath were recorded with opportunity of cross- examination afforded to the learned D.A.-G., learned A . -G . , D . C/District Magistrate, S. S. P. Quetta, SP ATF and S.H.O. P.S. Sariab, Quetta. Consequent upon; the statements of detenus, the learned A.- G. Stated that the detenus have been arrested by the C.I.A., Police, Quetta on 3-9-2000 in connection with the case Crime No.42 of 2000 registered with Police Station, Sariab Quetta under sections 3/4/5 and 6 of the Explosive Substances Act who have already been produced before the learned S.T.A. Court (Sessions Judge), Quetta on 4-9-2000 and have been remanded to police custody for ten days.
' In the peculiar circumstances of the case Muhammad Hassan, Inspector C.I.A. Police Quetta who produced the detenus before Court, was directed to submit report as to from where and from whom etc., and as to how he was successful in apprehending or taking over the custody of the above said accused, and; Mr. Athar Hussain Sial, D.C/District Magistrate, Quetta and Mr. Amir Khan Mandokhel were also directed to submit their statements in writing, whereas; the detenus who were statedly in the custody of police as accused in connection with F.I.R. No.42 of 2000 were directed to be produced before the Court on 7-9-2000. The Investigating Officer Muhammad Hassan, I.P., C.I.A. Produced the accused being on remand up to 13-9-2000 and on their behalf Mr. M. Aslam Chishti appeared and the learned Advocate was informed that these accused are on remand granted by the competent Court of law, therefore, at the moment the detenus are not in illegal custody, accordingly notice in the nature of habeas corpus was discharged.
' The District Magistrate as well as S.P. ATF filed their respective statements in writing and on the request of the learned D.A.-G. And the learned Advocate-General matter was adjourned for explaining the view point of the Government regarding the initial arrest and detention of the accused until arrested by the police in connection with F.I.R. No.42 of 2000. On the date fixed in the matter, the learned Advocate-General placed on record photostat copies of P.R. Bonds along with photostat copy of extract of Rozmancha of C.I.A. Staff Quetta dated 18-9-2000. In the light of these documents the learned Advocate-General made statement at bar that these accused have been discharged under section 169, Cr.P.C. For want of any incriminating evidence in connection with case Crime No.42 of 2000 registered with Police Station Cantt., who have been immediately thereafter set at liberty.
4. Mr. Mushtaq Ahmed Lodhi filed Wakalatnama for the petitioner and submitted that accused, in fact, were not released from custody of the police rather; have been directly handed over by the C.I.A. Police to the police officers of the Police Station Brewery Road, Quetta and in support of such contention he also filed statement in writing supported by the affidavit of the petitioner. After hearing the learned Advocate-General and the Petitioner's learned counsel following order was passed by this Court on 18-9-2000:-- "Since the above said detenus were subsequently remanded by the competent Court for the purpose of interrogation in connection with case Crime No.42 of 2000 of C . I. A . Police, therefore, as already observed the petition to the extent of habeas corpus has become infructuous but as we wanted to hear the learned Advocate General about the view point of Government of Balochistan with regard to their initial detention, therefore, the matter was kept pending and today it has been alleged categorically by the petitioner that the said accused, in fact, were not set at liberty but have been illegally handed over to the Brewery Road Police. According to Mr. Mohsin Javed for the last more than 45 days the accused are being handed over by one Investigating Agency to another and were also earlier kept for a month in the wrongful confinement, therefore, it is a case of its own nature where this Court needs to exercise extraordinary jurisdiction as being custodian of the rights and liberties of the citizens for the enforcement of the fundamental rights in order to rescue the citizens from being put in wrongful and illegal confinement continuously and from being tortured. Learned counsel also expressed that there is every likelihood that afore-said persons even though discharged of the offence may not again be subjected to inhuman treatment etc."
' Learned Advocate-General taking strong exception in the matter in view of the fact that since the accused have been discharged under section 169, Cr.P.C., therefore, further proceedings in the matter in the light of submissions made today before the Court cannot be taken for the following reasons:- "(a) Suo motu action was initially taken by this Court on the miscellaneous application submitted by the petitioner pursuant to which ultimately detenus were produced before the Court;
(b) The detenus were since required in F.I.R. No.42 of 2000 registered with Police Station Cantt.; and were remanded to the police custody for interrogation, now have been released under section 169, Cr.P.C.
(c) Also P.R. Have been furnished on discharge by the accused copies whereof have been placed on record;
(d) The application/statement in writing filed today in the Court cannot be taken cognizance of and in case the petitioner wants to press the matter, they now being represented by the learned Advocates have to file a separate constitutional petition which should be independently dealt with; ' We have considered the submissions of the parties' counsel and having regard to the facts and circumstances of the instant case, we are inclined to take suo motu action in the light , of the submissions made by the petitioner's learned counsel noted hereinabove.
' Notice to S.H.O. Police Station, Brewery Road and to S.S.P. To produce the above said persons/detenus before this Court on 19-8-2000 along with entire relevant record.
' Notice be also issued to the Advocate-General".
' Pursuant to the direction as contained in the above order detenus Mir Mitha Khan Marri, Gul Bahar, Liaquat Ali and Amir Jan were produced by the S.H.O., Police Station City. The learned Advocate- General, Mr. Ashraf Khan Tanoli submitted that the above said accused persons were discharged under section 169, Cr.P.C. As earlier pointed out by him relating F.I.R. No.42 of 2000 of Police Station Cantt., Quetta and after their release on 18-9-2000, they were apprehended near the National Bank of Pakistan (City Branch) at 5-20 p.m. In connection with F.I.R. No.59 of 2000 dated 24-3-2000 of Police Station City, Quetta under sections 3/4/5 of the Explosive Substances Act and have been produced before the STA Court (Sessions Judge) Quetta and remanded to police custody for two days.
' Keeping in view the facts and circumstances of the case as these emerged since the initial custody and detention of the accused, we enquired from the Advocate-General as to in how many other cases they are required by police or by any other agency for interrogation but no positive answer was given by the learned Advocate-General who however; categorically submitted that in case no evidence incriminating in nature could be procured against the accused they would be let off and assured that no false evidence or fabrication of evidence would be made by the Investigating Officer and such assurance was also given on behalf of the Government of Balochistan. Mr. Mohsin Javed who also appeared for the petitioner strenuously contended that the . Accused were not released after having been discharged in the earlier case under section 169, Cr.P.C. Nor they were produced before the Court while being discharged under section 169, Cr.P.C.
And according to him, the accused were directly handed over by the C.I.A. Police, to Police Station Brewery Road, Quetta and pleas to the contrary put forth before the Court are false and fabricated.
' The learned counsel expressed apprehension that continuously for a period of more than 45 days the accused are detained in different cases one after the other out of mala fide etc. And initially were illegally confined by a law-enforcing agency in respect whereof sufficient evidence is available on record as they were neither produced before any Court nor remanded to the custody any law-enforcing agency, therefore, in the peculiar circumstances of the case appropriate order, needs be passed. Mr. Mohsin Javed also submitted that in such state of affairs it can be legitimately urged that either the accused would be done to death by the police or some other agency on any false pretext or that they will be killed immediately after letting them free or some time thereafter, therefore, this is fit case in which this Court in the interest of law and justice to pass appropriate directions.
6. In the light of the submission made on behalf of the parties and keeping in view the history of the case pertaining to the continuous detention of the accused, we; deemed it fit to again record statements of the accused in open Court with opportunity of cross-examination afforded to the learned Assistant Advocate-General and to the above mentioned police officers who appeared in the matter. Also S.S.P., Quetta was directed to submit statement in writing showing as to whether the accused besides case Crime No.59 of 2000 of Police Station City, Quetta are required by the police or by any other agency for any purpose, interrogation or otherwise. He was further directed to produce the accused before the Court after expiry of the present remand period relating to the above said F.I.R. And in case the accused are required to be discharged for want of evidence they should be produced before the competent Court of law which shall pass order in accordance with law as the facts and circumstances of the case may permit. On the date fixed in the matter S.S.P., Quetta did not file statement in writing as regards to the fact whether the accused are required for interrogation in connection with any other case or otherwise, consequently; order in the following terms was passed by this Court on 21-9-2000:- "Despite specific directions, S.S.P., Quetta has not filed statement in writing showing as to whether Mitha Khan Marri, Gul Bahar, Liaquat Ali and Mir Jan are required for interrogation in connection with any other case or otherwise, by the police or any other agency, rather; an evasive reply has been filed by him, therefore, we direct the S.S.P. To appear in person and explain as to why an evasive reply has been filed and the specific direction of the Court has not been obeyed. Such direction was issued in the peculiar facts and circumstances of the case which necessitated to take appropriate action in the matter, as we noticed that one after the other these persons are being arrested in various cases without any substance or evidence available with the police because earlier, for sufficient time by some unknown agency these persons were kept in illegal confinement and on issuance of rule nisi by this Court, were produced and Court was informed that they have been, now arrested in a criminal case but ultimately discharged under section 169, Cr.P.C. Whereafter again in the instant case they have been arrested.
' Today learned A.-G. Submitted that unnecessarily these persons will not be arrested in connection with any other criminal case. Statement filed today in Court of S.S.P., Quetta indicates that the accused are being arrested in various criminal cases merely because the police wants to trace out the real culprits involved in 'Bomb Blast' cases but such course obviously is not permissible by law and at best the concerned agency can interrogate the citizens but cannot arrest or cause the arrest of any person without there being any incriminating evidence available or reasons to believe of their being involved in the crime or in view of any credible information. This Court has also been informed, as well as pointed out in the statement filed today of S.S.P., Quetta that four days further remand has been granted to the police by the S.T.A. Court, therefore, at the moment the accused are not in illegal custody.
We may observe that all the Courts including S.T.A. Court should be mindful of the fact that remand order is a judicial order and must be passed by a Court on judicial application of mind keeping in view the request for remand and the material produced before the Court justifying for remand of the accused to police custody for the purpose for which such request has been made or to be made.
' Accused have been produced and returned to the custody of police officer producing them as they are on remand granted by the learned STA Court.
' Adjourned to 4-10-2000".
7. On a subsequent date fixed in the matte Mr. Zahid Afaq appeared and stated that accused Mir Mitha Khan Marri, Gul Bahar, Liaquat Ali and Mir Jan on remand with the police relating to F.I.R. No.59 of 2000 registered with Police Station City have been discharged by the learned Sessions Judge/Special Judge, S.T.A. Court, Quetta under section 169, Cr.P.C. On the written report submitted by the Investigating Officer, besides whom, the petitioner, Mir Jan and Liaquat Ali were also present in Court. Mr. Mohsin Javed stated that accused Mir Mitha Khan Marri and Gul Bahar were not set at liberty although discharged under section 169, Cr.P.C. Rather have been handed over in the custody to Sariab Police, Quetta and according to him both these persons now have been detained under M.P.O., for a period of one month. Since none of the above said persons appeared to be in wrongful confinement out of whom Mir Jan and Liaquat Ali were free persons and there was no restriction on their movement, therefore, we kept the matter alive only to consider question as whether these persons were initially confined by any law-enforcing agency, if so what should be the order and as to whether in the given facts and circumstances of the case and as successively these persons was discharged of the accusation in two cases after undergoing period of remand, would be entitled for compensation and as to the person or authority or officer to be responsible in his individti,a1 or official capacity to compensate them. Before dilating upon the above formulated questions, we also deemed it fit to hear the learned D.A.-G., A.-G. And the learned counsel for the above said persons including S.S.P., Quetta, S.P., C.I.A., Secretary Government of Balochistan, Home Department, S.P. Crimes, S.H.O. Police Station Cantt., and Police Station City and;' in the given circumstances of the case it was specifically observed and noted that insofar as the stated detention of Mir Mitha Khan Marri and Gul Bahar under M.P.O. Was concerned, we were not inclined to take suo motu action, therefore, detenus or their counsel or any other person on their behalf can avail appropriate remedy as may be permissible to them by law. Thereafter the matter was adjourned from time to time due to pre-occupation and non-availability of the learned A.-G. And the learned D.A.-G. On various dates and finally they were heard and the learned A.-G. Also appeared on behalf of the above said officers.
8. Syed Ayaz Zahoor contended that on 4-8-2000 the detenus namely Mitha Khan Marri, Gul Bahar, Liaquat Ali and Mir Jan were apprehended and arrested during night hours by the A.T.F., which conducted raid on the house of Mitha Khan Marri and were kept constantly in a wrongful and illegal confinement as well as subjected to third degree treatment almost for a period of one month and ultimately; were arrested as suspects in case Crime No.42 of 2000 registered with Police Station Cantt., Quetta under sections 3/4/5/6 of the Explosive Substances Act and after having been discharged under section 169, Cr.P.C. Again were arrested in connection with F.I.R. No.59 of 2000 registered with Police Station City, Quetta under sections 3/4/5/6 of the Explosive Substances Act, who after undergoing police remand were again discharged for want to evidence under section 169, Cr.P.C., whereafter, Mitha Khan Marri and Gul Bahar were detained for a period of thirty days under M.P.O. And since the detenus were detained for a period of almost thirty days without having been produced before any Court or Magistrate, admittedly in view of the available material were confined illegally until shown as arrested in case Crime No.42 of 2000 deserve to be compensated suitable by the Court. The learned counsel strenuously argued that as a consequence of suo motu proceedings taken by the Court consequent upon the Habeas Corpus Petition having become infructuous on account of the arrest of the detenues; evidence has come on record about the illegal arrest and wrongful confinement of the detenues, therefore, they are entitled to be compensated by the wrongdoers in the light of the questions formulated by the Court on the point.
He also placed reliance on the reported judgments i.e. 1993 M LD 1167, 1997 PCr.LJ 508, PLD 1999 Kar.134 (D.B.) and 1992 PCr.LJ 1387 whereby in identical cases of illegal detention, compensation and costs were awarded to the detenus.
9. On the other hand the learned A.G. Argued that the question of alleged illegal confinement of the detenus has seriously been controverted by the SP/ATF in his written statement filed in Court, however; the learned A.G. In view of the initial report submitted by the Court S.H.O./Police Station Sariab, Quetta conceded that the detenues were arrested on 4-8-2000 on a raid conducted on the house of Mitha Khan Marri as being suspected criminals in the recent bomb blasts but were released/set free after due verification through the source who did not identify them without being detained for a single day in respect whereof necessary information was also conveyed to the Deputy Commissioner, Quetta by the S.P./ATF. The learned A.-G. Seriously repudiated the plea that the detenus were wrongfully and illegally confined by the police or any other agency of the provincial government for a period beyond one day after being apprehended in the raid on 4-8- 2000, therefore, according to him the controversial question of fact relating to the alleged illegal detention of the detenus cannot be gone into or determined in the instant proceedings nor for such reason the detenus can be found entitled for any compensation or costs. Apart from such an aspect of the case, the learned A.-G. Contended that in the given circumstances of the case, the Habeas Corpus Petition on having become infructuous on account of the arrest of the accused in case Crime No.42 of 2000 this Court did not enjoy the jurisdiction to further probe into the matter regarding the earlier alleged detention of the detenus in the exercise of suo motu powers within the purview of Article 199 of Islamic Republic of Pakistan. Hence; the proceedings conducted by this Court and to grant the claimed relief to such persons would be of no legal effect. To supplement his view point be placed reliance on judgment of the Honourable Supreme Court reported in 2000 SCM R 1046.
10. Mr. K.N. Kohli, the learned D.A.-G. Seriously contested that after initial arrest of the detenus by the A.T.F. On 4-8-2000, their custody was handed over to some of the law-enforcing agency of the Federal Government or that any of such agency detained them or either of them for a single day.
He categorically stated that none of the detenus were ever arrested, confined or were detained by any of the federal law-enforcing agencies therefore, any claim for compensation or awarding of costs against the Federal Government or any of its functionaries is baseless, misconceived and mala fide.
11. We have considered the submissions put forth on behalf of the_ parties and have also minutely gone through the record and the papers including the evidence recorded by this Court. The case- law cited by Syed Ayaz Zahoor as well as the learned A.G. Have also been perused in the light of the facts and circumstances of this case. Admittedly detenus Mitha Khan Marri, Gul Bahar, Liaquat Ali and Mir Jan in view of the initial report submitted by S.H.O./Police Station Sariab and the subsequent reports filed by the S.P./A.T.F. And Deputy Commissioner, Quetta were taken into custody on 4-8-2000 from the house of Mitha Khan Marri on a raid conducted by the A.T.F. And they were taken by the said force to some unkndwn place. Roznamcha entries to such effect of Police Station Sariab have also been filed by the S.H.O. This position also stands confirmed from the evidence of Muhammad Tariq S.H.O./Police Station, Sariab and. Habibullah Kethran, EAC-II/MFC, Quetta recorded by this Court, however; from the statements of detenus recorded by this Court on 4-9-2000 it is difficult to conclude even tentatively that they or either of them were subsequently handed over by the A.T.F. To any one of the law-enforcing agencies operating under the Federal Government for the purpose of interrogation regarding bomb blast incidents nor any of law- enforcing agency of the Provincial Government has owned responsibility about detaining/holding custody of the detenus until their arrest in case Crime No.42 of 2000 registered with Police Station Cantt. Under sections 3/4/5 of Explosive Substances Act except that as per statement in writing filed by S.P./A.T.F., Quetta the detenus pursuant to the reliable information received were suspected as involved in bomb blast in Cantt. Area, Quetta and in a raid conducted on the house of Mitha Khan Marri, he detenus were apprehended and taken away by the said agency to its Headquarters, but were not identified by the source, accordingly; were released in respect whereof information was reportedly passed on to the District Magistrate, Quetta on telephone and about their release.
Further it has been pointed out in such statement that the ATF had no other involvement in the matter except as detailed therein. Copy of Roznamcha dated 4-8-2000 of A.T.F. Shows that the detenus were apprehended from the house of Mitta Khan Marri on which raid was conducted by the ATF in presence of "Illaqa Magistrate" but the source did not identify that they were the culprits involved in the bomb blasts, accordingly, were released on the same day. On the other hand; from the evidence of the detenus recorded by this Court, it appears that they were detained and kept in custody by some law-enforcing agency for a period of more than thirty days and during such alleged period none of them was produced before any Court or Magistrate for remand and were subjected to physical and mental torture until arrested by the police on a criminal charge. The learned D.A.-G. Categorically asserted that none of the federal law-enforcing agency detained or interrogated any of the detenus nor ever anyone of them was handed over to any of such agency and likewise the learned A.-G. Did not claim or owned any responsibility about the alleged detention/confinement of the detenus by the police or any other agency of the province except to the extent that initially as hereinabove noted, the detenus were apprehended on 4-8-2000 and were released on same day on having not been identified by a secret source of their involvement in the bomb blast incident which took place in Cantt. Area, Quetta, therefore, in view of the serious controversy about the alleged detention/ confinement of the detenus and to determine such fact by making probe, was found not to be proper and justified in the exercise of suo motu extraordinary powers vesting in the Court under Article 199 of the Constitution of Islamic Republic of Pakistan. However, we may observe and make it clear for all the concerned that no person or citizen can be apprehended/ arrested or kept in custody by the police or any other agency operating or functioning under the authority of the Federal Provincial Government except in accordance with law for the purpose of investigation of a criminal case, interrogation or otherwise, but in the instant case as hereinabove noted since there remains ambiguity in view of the available material regarding the alleged confinement of the detenus, hence; no consequential order can be passed by this Court and for such reason the case-law cited by Syed Ayaz Zahoor regarding awarding of compensation and direction for the payment of costs become not relevant nor have any application in the instant matter. Also, the reported judgment of the Hon'ble Supreme Court i.e. 2000 SCMR 146 referred to by the learned D.A.-G. And the learned A.-G. Applies to this case as being quite distinguished on fact.
' Thus in view of what has been discussed above no order needs be passed in view of the question formulated by this Court on account of serious controversy about the alleged illegal confinement of the detenues, however; the aggrieved persons may have recourse to any remedy that may be available to them under the law for the rederessal of their stated grievance. Consequently, suo motu proceeding stands terminated accordingly.