Anwaarul Haq Pannun, J.- Pithily, the facts constituting background for institution of instant writ petition are that the petitioner , being an accused, is facing the trial, simultaneously in the below mentioned three Nab references:- i) Accountability References No.03/2018 pending before Judge Accountability Court at Multan ;
(ii) Accountability References No.71/2018 pending before Judge Accountability Court-III, Lahore
(iii) Third case of similar nature filed by NAB authorities at Rawalpindi and the petitioner is under judicial remand of the learned Judge Accountability Court at Rawalpindi .
2. The case of the petitioner as portrayed, in the writ petition is to the effect that the petitioner , as a result of his alleged involvement as an accused in the reference mentioned at serial No.1, was arrested on 05.04.2018 and since then, he has been confined in District Jail, Multan. The petitioner is also allegedly involved in Accountability References mentioned at serial No.2 and 3 pending before the respective Accountability Courts at Rawalpindi and Lahore. The petitioner is legally bound to be produced before the said courts on the dates fixed for hearing. The Government machinery responsible to produce the petitioner in the courts referred above, has failed in doing so on various dates, causing delay consequently in his trial without any fault on his part. The petitioner is permanent resident of Lahore. As a result of his confinement at a distant place i.e., Multan, he is facing hardships in materializing his right of visitation with his family members including his unmarried daughter and a son. The petitioner is also unable to avail of the legally permissible facilities like home-made food to which he is entailed to seek. The petitioner moved an application before the court/respondent No.1 seeking transfer of his custody from District Jail, Multan to Camp Jail at Lahore. It was dismissed vide order dated 14.11.2018. Once again, as a result of excessive hardships to the petitioner, his dependents since facing financial constraint moved an application to I.G. (P) and Secretary Home Department, Government of the Punjab for transfer of custody of the petitioner, as aforesaid from Multan to Lahore. The office of I.G.(P), accorded the requisite permission, subject to the concurrence of the concerned Accountability Court, for shifting the custody of the petitioner as prayed for, vide his letter dated 17.12.2018. Once again, the concerned authority moved to the learned court for seeking concurrence for transfer of the petitioner's custody as aforesaid which has been dismissed vide order impugned dated 03.01.2019. The petitioner, in the above background has made through instant petition the following prayer:- a) The impugned orders passed by the respondent No.1 dated 14.11.2018 and 03.01.2019 may kindly be set aside and declared illegal, unlawful, void ab-initio resultantly allowing the petitioner to be shifted to Jail in Lahore. b) The concurrence as desired by the office of the Inspector General of Prisons through its letter dated 17.12.2018 may kindly be accorded, in the wider interest of justice.
3. In response to the notice, the learned respondent No.1 has submitted his parawise comments, the crux of which is that it is the duty of the jail authorities to produce the petitioner from jail. In case the petitioner's custody is shifted to Camp Jail, Lahore, the expenses will have to be borne out of the exchequer . Further , that in the subject Reference Hon'ble Supreme Court of Pakistan vide order dated 14.02.2018 in CPLA No.5133-34 passed a direction to decide the case within three months. However , Reference could not be decided within the stipulated period because when the direction was received, no reference was even pending in this court. Reference was submitted on 15.02.2018, thereafter , charge was framed on 27.03.2018. During shifting of Asif Kamal, petitioner/accused, to Lahore by the NAB for investigation in another Reference and for investigation by the NAB at Rawalpindi, the case in hand remained pending. Ahsan Rafique, accused, was arrested later on. Supplementary Reference to his extent was awaited which was received on 10.12.2018. In the meanwhile, request was sent to the Hon'ble Supreme Court of Pakistan for extension of time for disposal of the Reference. Then Humayun Nabi Jan, accused did not appear and his non-bailable warrants of arrest were issued. On 02.11.2018, Ahsan Refique and Asif Kamal, accused were not produced from Jail due to Law and Order situation. On the same date, learned defence counsel remained busy in the Hon'ble High Court. Humayun Nabi Jan, accused, after necessary proceedings was declared PO vide order dated 26.11.2018. In view of supplementary reference, amended charge was framed on 17.12.2018 against the accused and on 07.02.2019, examination in chief of PW-1 has been recorded and on the request of learned defence counsel, case has been adjourned to 13.02.2019 for cross examination on PW -1.
4. While reiterating his contentions, based on the grounds urged in the writ petition, learned counsel for the petitioner while relying upon the case-law reported as Muhammad Tufail Khokhar v. The Inspector-General of Prisons Punjab, Lahore and 3 others (PLD 1980 Lahore 162), Zia-ud-Din v. Superintendent, Camp Jail, Lahore and another (PLD 1976 Lahore 93) and Shahabudin v Home Secretary , Home Department Punjab Lahore and 4 others (2005 YLR 1902 ) submits that due to the incarceration of the petitioner at Multan, excessive hardships have accrued to the petitioner's dependents i.e., un-married daughter and a son. The petitioner has failed to avail the right of visitation due to financial constraints. The petitioner is also unable to avail the facility of home-made food etc. The petitioner may, while setting aside the impugned orders, be ordered to be shifted to Camp Jail at Lahore. He further submits, that since the petitioner is also required to be produced before Accountability Courts at Lahore and Rawalpindi, besides court at Multan, therefore, Lahore being in the midth of both the courts, the shifting of the petitioner is more feasible and quite in the interest of justice.
5. On the other hand, it has been maintained by the learned Special Prosecutor NAB that since the petitioner has been remanded by the court to jail under section 344 Cr.P.C., therefore, unless the trial is completed, the jail authorities, without the concurrence of court, have no power to shift the petitioner , to any other place from District Jail, Multan. He has reiterated the contents of the reply and prayed for dismissal of the writ petition.
6. The arguments advanced by the learned counsel for the parties have been heard and record perused.
7. For the sake of reference and conve nience, it is pointed out that the relevan t legal instruments, in force, to establish and regulate the af fairs of the prisons and the prisoners respectively , are;
(i) THE PRISONS ACT,1894 (ii) THE PRISONERS ACT, 1900 (ACT IX OF 1894) (ACT III OF 1900)
(iii) THE PRISON RULES 1978 (iv) Rules and Orders of the Lahore High Court, Lahore, Volume II, Chapter 27, Judicial an Police Lock-ups. {To be called as The Prisons Act, The Prisoners Act and Prison Rules and High Court Rules hereinafter)
According to Oxford Advanced Learner's Dictionary, word prison" means:- "a building where people are kept as a punishment for a crime they have committed, or while they are waiting for trial."
As per Black's Law Dictionary , meanings of word " jail" have been provided as under:- "A local government' s detention center where persons awaiting trial or those convicted of misdemeanors are confined ."
8. In order to advance the discussion over the subject of {the bearing of concurrence of court for transfer of custody of an under trial prisoner from one jail to another } progressively moving towards its conclusion, some excerpts out of the related provisions, of the above mentioned statutes, shall be quoted, at appropriate places. The term jail or prison has also been defined under above mentioned statutes. Under subsection (1) of Section 3 of The Prisons Act, 1894 is reproduced hereunder:- Section 3(1) of The Act provides the meaning of word " Prison" as under:- "Prison" means any jail or place used permanently or temporarily under the general or special orders of a Provincial Government for the detention of prisoners, and includes all lands and buildings appurtenant thereto, but does not include --
(a) any place for the confinement of prisoners who are exclusively in the custody of the police;
(b) any place specially appointed by the Provincial Government u/s 541 of the Code of Criminal Procedure, 1882; or
(c) any place which has been declared by the Provincial Government by general or special order to be a subsidiary jail."
Similarly , under section 2 of The Prisoners Act, 1900 , the term Court' and Prison' have been defined as under:-
(a) "Court" includes a Corner and any officer lawfully exercising civil, criminal or revenue jurisdiction; and
(b) "Prison" includes any place which has been declared by the (provincial Government), by general or special order to be a subsidiary jail.
9. From the above definitions, it spells out that both the words i.e. "prison" & "Jail" can interchangeably be used to denote and describe a building, under general or special order of the Provincial Government where people are detained either as a punishment for a crime, they have committed or where they are housed waiting for their trial.
There may be persons detained in it, who, although have not committed any offence but detained under any order of some authority competent to pass such order .
(i) THE PRISONS ACT,1894 (ACT IX OF 1894)
Ac act to amend the law relating to Prisons.
Preamble: "Whereas it is expedient to amend the law relating to prisons in Pakistan and to provide Rules for the regulation of such prisons."
59. Power to make rules....The Provincial Government may make rules consistent with this Act....
(1).............................................
(11) as to the food, bedding and clothing of criminal prisoners and of civil prisoners maintained otherwise than at their own cost;
(17) for the classification and the separation of prisoners; (28).....
(ii) THE PRISONERS ACT, 1900 (ACT III OF 1900)
"An Act to consolidate the law relating to PRISONERS CONFINED BY ORDER OF A COURT"
Preamble : "WHEREAS it is expedient to consolidate the law relating to prisoners confined by order of a Court: THE PRISON RULES 59 Power to make Rules under this Part---(1) The (Provincial Government) may make rules:"
(a) For regulating the escort of prisoners to and from Court in which their atten dance is required and for their custody during the period of such attendance.
(b)...
(c)...
(iii) THE PRISON RULES 1978 CHAPTER 15 Undertrial Prisoners (Rules 365 to 399)
10. It may be observed that both the instruments i.e. The Prisons Act, 1894 and The Prisoners Act 1900 were enacted/legislated during the colonial rule. These pieces of legislation like many other laws have been adopted. It may also be mentioned that the perusal of preamble of the Prisons Act would shed light on the objectives behind its enactment. It clearly says that the laws relating to prisons have been amended through this Act, to provide rules for the regulation of such prisons. Besides various other provisions meant to regulate the affairs of the prisons, through section 59 of ibid the rule making powers has been vested in the Provincial Government.
Similarly, the preamble of The Prisoners Act 1900 sets it out that through this Act, the laws relating to prisoners confined by order of the court have been consolidated. It may also be of interest and relevant to say that the power for rule making had also been delegated to the Provincial Government. The Provincial Government has framed, in pursuance of delegated powers, the Prisons Rules, 1978 to maintain and regulate the affairs of the prisons and the prisoners besides their ancillary matters.
11. After describing hereinabove the dictionary meanings and legal definitions of the term jail or prison under the relevant statutes, which means a building or place used permanently or temporarily under general or special order of Provincial Government for the detention of the persons required to be detained by operation of law. It may be relevant to state, under Pakistan Prisons Rules, 1978, the classification of the prisons, into four kinds, is given below:- Classification of Prisons , Pakistan Prisons Rule,1976 Rule 4. Prisons shall be classified into four kinds namely , Central Prisons, Special Prisons, District Prisons and Sub-Jails.
CENTRAL PRISONS.
Rule 5. (i) Central Prisons shall have accommodation ordinarily for more than 1,000 prisoners irrespective of the length of sentences. There shall be a Central Prison in each division of a Province.
(ii) The Provincial Government may, in its discretion, declare any Special Prison or District Prison to be a Central Prison.
SPECIAL PRISONS.
Rule 6 (i) The provincial Government may, from time to time, declare any prison to be Special Prison or establish a Special Prison at any place.
(ii) No prison shall be deemed to be a special Prison, within the meaning of these rules, unless, it has been declared to be so or established as such under clause (i).
(iii) Women's Prisons, Open Prisons, Borstal Institutions and Juvenile Training Centers shall be deemed to be special Prisons under this Rule.
DISTRICT PRISONS.
Rule 7. All Prisons, other than Central Prisons or Special Prisons shall be deemed to be District Prisons.
CLASSES OF DISTRICT PRISONS.
Rule 8 (i) There shall be three classes of District Prisons:- First class, having accommodation ordinarily for 500 prisoners or more with sentences upto 5 years; Second class, having accommodation ordinarily for 300 prisoners or more but less than 500 with sentences up to 3 years; and Third class, having accommodation ordinarily for less than 300 prisoners with sentences up to one year;
(ii) The class to which any District Prison shall be deemed, during any year, to belong and the term of sentence for confinement in each prison shall be determined by the Inspector-General in the month of July in each year, in accordance with the average number of prisoners confined in such prison during the preceding year ending on the thirtieth of June.
CENTRAL PRISON MA Y ALSO BE A DISTRICT PRISON.
Rule 9. The Provincial Government may declare any Central Prison to be for all or any purposes, also a District Prison.
12. It may also be relevant to state that the prisoners have also been divided into various classes. This classification is important for the reason that every class of prisoners under the law and rules had been placed under some restrictions and had also been allowed certain privileges. According to Subsections (2), (3) and
(4) of Section 3 of The Prisons Act, 1894, following are the main kinds of prisoners:- Section 3(2) "criminal prisoner" means any prisoner duly committed to custody under the writ, warrant or order of any Court or authority exercising criminal jurisdiction, or any order of a Court-martial; Section 3(3) "convicted criminal prisoner" means any criminal prisoner under sentence of a Court or Court- martial, and includes a person detained in prison under the provisions of Chapter VIII of the Code of Criminal Procedure, 1882, or under the Prisoners Act, 1871; Section 3(4) "civil prisoner" means any prisoner who is not a criminal prisoner; Rule 224 of Prison Rule, 1978 also provides following types of prisoners:-
(i) a criminal prisoner , which includes
(a) A convicted prisoner, and
(b) An un-convicted or under-trial prisoner :
(ii) A civil prisoner; or
(iii) A state prisoner detained under Regulatio n III of 1818, or a person ordered to be detained in prison without trial under any law relating to the detention of such person.
Rule 225 further classifies convicted prisoners as under: (a) superior class; (b) ordinary class; and (c) political class. Superior class is further classified into A and B class prisoners. Ordinary class comprises of prisoners other than superior class. Under said Rule Political class comprises of prisoners who commit crimes not for personal gain but for political motives. This class is not criminal and does not require reformative or correctional treatment. Rules also classify convicted prisoners according to quantum of their sentences and also as casual and habitual.
Similarly Rule 229 provides classification of under trial prisoners such as (a) Committed to Sessions (b) Committed to other Courts
13. Let's revert back to examine that how and under what circumstances, a person is sent to jail or prison. In order to explain the legal position, the following legal provisions are relevant; hence the same are being reproduced in a chronology . Article 10 of the Constitution of Islamic Republic of Pakistan, 1973 is reproduced hereunder:- Article:10 of the Constitution of Islam ic Republic of Pakistan, 1973 provides Safeguards as to arrest and detention (1)...
(2) Every person who is arrested and detained in custody shall be produced befor e a Magistrate within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the nearest Magistrate , and no such person shall be detained in custody beyond the said period without the authority of a Magistrate.
Section 61 Cr.P.C. No police-of ficer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court.
A Magistrate to whom an accused is forwarded under section 167 Cr.P.C., whether or not he has the jurisdiction to try the case, authorize his detention in such custody as he deems fit for a term not exceeding 15 days in whole.
Section 167 of the Code of Criminal Procedure, 1898 reads :
167. Procedure when investigation cannot be completed in twenty four hours : (1) Whenever any person is arrested and detained in custody , and it appears that the investigation cannot be completed within the period of twenty four hours fixed by Section 61, and there are grounds for believing that the accusation or information is well founded, the officer incharge of the police-station or the police-of ficer making the investigation if he is not below the rank of the sub-inspector , shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has no jurisdiction to try the case, from time to time, authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole. If he has no jurisdiction to try the case or [send] it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction; Provided that no Magistrate of the Third Class, and no Magistrate of the Second Class not specially empowered in this behalf by the Provincial Government shall authorise detention in the custody of the police.
(3) A Magistrate authorizing under this section detention in the custody of the police shall record his reasons for so doing.
(4) The Magistrate, giving such order shall forward copy of his order , with his reasons for making it, to the Sessions Judge.
(5) Notwithstanding anything contained in Sections 60 and 61 or hereinbefore to the contrary , where the accused forwarded under subsection (2) is a female, the Magistrate shall not, except in the cases involving Qatl or Dacoity supported by reasons to be recorded in writing, authorise the detention of the accused in police custody , and the police officer making an investigation shall interrogate the accused referred to in subsection (1) in the prison in the presence of an of ficer of jail and a female police of ficer.
(6) The officer in-charge of the prison shall make appropriate arrangements the admission of the investigating police of ficer into the prison for the purpose of interrogating the accused.
(7) If for the purpose of investigation, it is necessary that the accused referred to in subsection (1) be taken out of the prison, the officer incharge of the police station or the police officer making investigation, not below the rank of sub-inspector , shall apply to the Magistrate in that behalf and the Magistrate may, for the reasons to be recorded in writing, permit taking of accused out of the prison in the company of a female police officer appointed by the Magistrate: Provided that the accused shall not be kept out of the prison while in the custody of the police between sunset and sunrise."
Section 344 of Code of Criminal Procedure, 1908 is regarding the postponement of proceedings by the courts during trial of a case, which reads as under:- "Power to postpone or adjourn proceedings. (1) If, from the absence of a witness or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of or adjourn any inquiry or trial, the Court may, if it thinks fit, by order in writing, stating the reasons therefore from time to time, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody: Remand. Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time.
(2) Every order made under this section by a Court other than a High Court shall be in writing signed by the Presiding Judge or Magistrate.
Let us now draw a synthesis from the above quoted provisions.
14. Arrest: A police officer or other person making an arrest shall actually touch or confine the body of the person to be arrested unless there be a submission to the custody either by word or action. It may also be pointed out that Article 10(2) of the Constitution of Islamic Republic of Pakistan safeguards to ensure that every person who is arrested and detained in custody shall be produced before a Magistrate within a period of 24 hours of such arrest, excluding the time necessary for journey from the place of arrest, to the court of nearest Magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate. Moreover, it may be observed that a police officer making an arrest without warrant, shall without unnecessary delay, subject to the provisions relating to bail, or send the person arrested before a Magistrate having jurisdiction in case or before the court incharge of a police station. No police officer as aforesaid thereafter shall detain in custody an arrested person without warrant for a longer period than under all circumstances of the case, which is reasonable and such period shall not in absence of any special order of a Magistrate under section 167 Cr.P.C. exceeds 24 hours exclusive of the time necessary for journey from the place of arrest, to the Magistrate's court. Thereafter, it may further be pointed out that in case of a person required in a criminal case for the purpose of investigation, when produced before the Magistrate under section 167 Cr.P.C. and the Magistrate is of the opinion that the investigation cannot be completed within a period of 24 hours, and there are grounds for believing that accusation or information is well-founded, the incharge of the police station or the police officer making investigation, not below the rank of Sub Inspector, shall forthwith transmit with the nearest Magistrate, a copy of the entries in diary hereinafter prescribed relating to the case and shall at the same time forward such accused to the Magistrate. The Magistrate will authorize the retention of physical custody of the accused for further investigation. In nutshell, an accused has to be produced before a Magistrate within 24 hours of his arrest either for his physical remand or for his detention in judicial lock up. No person shall be detained by any investigating police officer in custody after the expiry of 24 hours fixed by section 61 Cr.P.C. unless authorized by any Magistrate under section 167 Cr.P.C. The provisions in fact are meant to ensure that lives, liberties and honour of citizens are not thrown in the hands of a man in uniform who unbridled by any judicial restraint is likely to loose balance, leading to misery , tyranny and oppression. Sections 167 and 344 Cr.P.C. when put in juxtaposition with each other , it appears that while section 167 Cr.P.C. contemplates, remand during investigation and section 344 Cr.P.C. on the other hand, contemplates remand after initiation of proceedings in court. Needless to say, that the judicial proceedings cannot commence until and unless a report under section 173 Cr.P.C. or complaint is placed before a court. Section 344 Cr.P.C. postulates that no Magistrate shall remand an accused person to custody for a term exceeding 15 days at a time and if sufficient evidence has been obtained to raise suspicion, that accused might have committed an offence and it appears likely that further evidence may be obtained by a remand. Under the above provisions, the Code inter alia empowers the court after taking cognizance of an offence or commencement of trial, to remand the accused in judicial custody in cases where the court finds it necessarily to postpone the commencement of trial or inquiry . The rationale underlying both these provisions is that the continued deten tion of the prisoner in jail during the trial or inquiry is legal and valid only under the authority of the court / Magistrate before whom the accused is to be produced or before whom he is being tried. An undertrial prisoner remains in custody by reason of such order of remand passed by the concerned court and such remand is by a warrant addressed to the authority who is to hold him in custody . The remand orders are invariably addressed to the Superintendent of Jail where the under trials are detained till their production before the court on the date fixed for that purpose. The prison where the undertrial prisoner is detained is thus a prison identified by the competent court either in terms of section 167 Cr.P.C. or section 344 Cr.P.C. It is reasonable because for the remand where a case is exclusively triable by a court of sessions till the sending of the case to the court of sessions. It is the court of Magistrate who has the power to postpone or adjourn the proceedings and remand the accused in custody under section 344 Cr.P.C. and the court of sessions would not have any power to adjourn or postpone the proceedings and remand the accused to judicial custody as at that stage the said court shall not be deemed seized of the case. A court of sessions shall pass an order under section 344 Cr.P.C. after receiving a complaint or a report under section 173 Cr.P.C. for trial. A close scrutiny of section 344 of Cr.P.C., makes evident the rationale behind it that as to why the physical custody of an under trial prisoner cannot be transferred, violating exigency contained in the writ, warrant or the order committing accused in prison. It says that if from the absence of a witness or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of or adjournment any inquiry or trial, the court may as it thinks fit, by order in writing stating the reasons thereof from time to time, postpone or adjourn the same on such terms as it thinks fit, for such time as it consider reasonable and may by a warrant remand the accused if in custody provided that no Magistrate shall remand an accused person to the custody under this section for a term exceeding 15 days at a time. It evinces that control of the court over the under trial accused while remanding his physical custody primarily remains intact, with the object to proceed with the trial of the case.
The matter is only adjourned due to non-availability of evidence or any other reasonable cause but such remand cannot exceed the period of 15 days, so that the right of expeditious trial of an accused may not be prejudiced, by way of postponement of proceedings for a longer period and transfer of his custody by the executive/Government abusing its power on any other extraneous consideration behind it. The accused needs a reasonable time for preparing his defence, unless his personal attendance is dispensed with, the accused is required to appear in person in the court for facing trial. The rationale behind commencement of trial after a period of 7 days of supplying the copies of statements of the witnesses to the accused cannot be overlooked in this respect. Under Article 10 of the Constitution of the Islamic Republic of Pakistan, 1973 the accused has been bestowed with a right to engage to defend himself a counsel of his own choice. The executives have been bound down to obey the terms of the warrant, by producing the accused in the court.
15. The above discussion now requires browsing of the relevant provisions of law regulating the mode of admission of a prisoner into jail on the order of the court may be reproduced:- Section 3 of The prisoners Act, 1900 requires :- "Officers incharge of prisons to detain person duly committed to their custody .--the officer incharge of a prison shall receive and detain all persons duly committed to his custody , under this act or otherwise, by any Court, according to the exigency of any writ, warrant or order by which such person has been committed, or until such person is discharged or removed in due course of law ." and Section 4 of The prisoners Act, 1900 provides as under :- "Officers incharge of prisons to return writs, etc., after execution or discharge.--the officer incharge of a prison shall forthwith, after the execution of every such writ, order or warrant as aforesaid other than a warrant of commitment for trial, or after the discharge of the person committed thereby, return such writ, order to warrant to the Court by which the same was issued or made, together with a certificate, endorsed thereon and signed by him, showing how the same has been executed, or why the person committed thereby has been discharged from custody before the execution thereof." {EXIGENCY according to Oxford Advanced Learner's Dictionary , word "Exigency" means an urgent need or demand. In "Law Terms & Phrases ", words Writ, Warrant & Order' have been defined as "Writ. A judicial process by which any one is summoned to do a certain act, e.g., a writ of habeas corpus, to produce a minor before the court." "Warrant . A precept or notice under the seal and signature of a Court directed to a person to arrest a criminal and bring him before it (the Court) for being dealt with according to law. Warrant is also used for all kinds of processes of civil courts to attach properties and to arrest judgment-debtors." Order . Mandate, command."} Chapter 3, of the Pakistan Prisoners Rules, 1978 in the light of sections 24 to 26 of the Prisons Act, 1894, contain certain directions about the admission, discharge and removal of prisoners from one prison to another . Moreover , section 3, 15 and 16 of the Prisoners Act, 1900 empower officer incharge of prison s to give effect to any sentence, order or warrant for detention of persons duly committed to their custody . For ready reference, a relevant rule No.14 is reproduced hereunder:- Rule 14.---No prisoner shall be admitted into any prison except under a lawful warrant or order of commitment issued by a competent Court addressed to the Superintendent of Prisons.
16. The perusal of law on the subject goes on show that, a person accused of commission of an offence irrespective of the seriousness or severity of the allegation, until found guilty is presumed to be innocent, therefore, an undertrial prisoner is treated as a different class of persons, as compared to those who have been found guilty of the commission of an offence, thus known as convicts. This distinction is not only on the basis of their having been found and yet to be found guilty only rather there are certain other reasons behind it. An accused till the time, he remains undertrial, his personal appearance before the court unless it is dispensed with, is required by law. It may, however, be observed that on recording of conviction an accused, loses his initial presumption of innocence. His sentence may be suspended by a competent court. However, the conviction, i.e. the verdict of found guilty can only be set aside or removed by a superior court, exercising its appellate or revisional jurisdiction. Confining ourselves within the prescient of the issue under discussion, suffice it to say that on the termination of trial proceedings, in case of conviction, de jure control of the court remanding an accused to prison also comes to an end. The court after passing the judgment becomes functus officio of the case. Thus, the custody of convict is legally deemed to have been handed over finally to the Government for serving out the sentence imposed upon him. Thenceforth, the passing of a judgment of the conviction, the Government becomes exclusive custodian of the convict. All the matters relating to a convict are then to be regulated under the provisions of law applicable to him in prisons as a convict. In nutshell, the de jure control of the trial court over the custody of an undertrial prisoner comes to an end. The Government subject to law regulating the proceedings of the appellate court through jail authorities becomes de jure and de facto custodian of the convict to deal with him in accordance with law. The Rule 161 dealing with a convict/prisoner, under The Prisons Rules came under consideration of the Hon'ble Supreme Court of Pakistan in the case of Sheikh Rashid Ahmad v . The State reported in ( PLD 1996 SC 168 ) wherein it was held that,
(b) Rules for the Superintendence and Management of Prisons in Pakistan -- ---R. 161 --- Transfer of prisoner from the prison to which he was in the first instance committed--- Rule 161, Prison Rules requires that prisoners shall not ordinarily be transferred from the prison to which they were in the first instance committed until the result of the appeal is known or if appeal is not preferred, the time for appealing has elapsed --- In absence of such material, order passed by the concerned Authorities transferring the prisoner from the place where he was in the first instance committed, to another place was not bona fide.
Purpose of the prisons: It may be observed that an accused involved in a crime, if not released on bail, has to be detained in a prison. An accused committing a public wrong which constitutes an offence against State and society both, has to be put to trial by the State as a part of its duty. There are inter alia, primarily three functions of prisons: CUSTODY, CARE and REMEDIAL or CORRECTIVE. In this regard, Jail Manual was drafted with the object to hold the under-trial prisoners or confining the convicted persons at prisons. The prime purpose of prisons is certainly custodial but the purpose of custody has to take care of prisoner and apply corrective measures. The moment an accused enters into a prison, he loses his contact with outside world and he has to face an entirely changed atmosphere. An unfriendly atmosphere prevails all around; hence the strong and lofty walls, fortified with concrete watch towers, and the steel barracks all around are a constant source of dejection for him. An unfamiliar regime controls his conduct. Disowned by society and unclaimed by friends, the prisoner breaks in a discarded barrack for a stipulated period.
On the other hand the prisons are of course necessary to save the society from the wrong doings of nasty persons.
There are other considerations as well for maintaining prison system but that does not mean that human beings should not be saved or he be left alone to ruin himself . He may also not be left abandoned as a total wreck. At the end of his prisoning term, a prisoner must return home with the realization that human life is a Divine gift which has to be honoured because it has a meaning and a purpose.
RIGHTS OF PRISONERS PROTECTED UNDER PRISON LA WS.
Civilized societies are those which respect and honour human freedoms/rights. This is why prison discipline in modern world has undergone healthy amendments and legal instruments at the International level have been ratified to safeguard the rights of imprisoned lot. The relevant provisions of The Prison s Act, 1894 and the Pakistan Prisons Rules, 1978 are reproduced hereunder :- Section 31 of The Prisons Act, 1894
31. Maintenance of certain prisoners from private sources .--A civil prisoner or an unconvicted crim inal prisoner shall be permitted to maintain himself, and to purchase, or receive from private sources at proper hours, food, clothing, bedding or other necessaries, but subject to examination and to such rules as may be approved by the Director of Prisons .
Section 40 The Prisons Act, 1894
40. Visits to civil and unconvicted crimina l prisoners .--Due provision shall be made for the admission, at proper times and under proper restric tions, into every prison of persons with whom civil or unconvicted criminal prisoners may desire to communicate, care being taken that so far as may be consistent with the interests of justice, prisoners under trial may see their duly qualified legal advisers without the presence of any other person .
Rule 375. An under-trial prisoner may be permitted by the Superintendent to purchase or receive from private sources, food, clothing, bedding and other necessaries subject to the following restrictions :-
(a) The articles shall be examined by the Assistant Superintendent and the Medical Officer before being introduced into prison.
(b) Nothing that may be considered injurious to health or unnecessary or unsuitable by the Superintendent shall be allowed. Intoxicating drugs and spirituous liquors are prohibited.
(c) In case of zany epidemic disease being prevalent in the city, food from private souse may be stopped temporarily on the advice of the Medical Officer.
Right or privilege Relevant Rule of the Pakistan Prison Rules, 1978 Maintenance from private sources375 Maintenance of private accounts 377 Permission to cook his own food 378 Provision of Books, newspapers etc 387 The survey of above provisions and rules makes it abundantly vivid that subject to rules for examination of articles approved by the Director of Prisons, a civil or unconvicted prisoner shall be permitted to maintain himself and to purchase or receive from private sources at proper hours, food, clothing, bedding or other necessaries. Section 40 ibid further states that due provisions shall be made for the admission at proper times and under proper restrictions into every prison of person with whom civil or unconvicted prisoner may desire to communicate.
Further that the interest of justice may not be mutilated in making such arrangements. Even the undertrial prisoners have also been allowed to see their duly qualified legal advisor without presence of any other person. It may be said that even the scrutiny of rules also admits that the undertrial prisoner may be dealt with as nearly as possible with an ordinary man. Due care about his health, has specifically been ordered to be taken of. Due regards has also been shown towards grant of opportunities for fair trial by engaging a counsel of their choice by the undertrial prisoners while maintaining the secrecy and privacy of the privileged communication between the accused and his counsel as guaranteed under the constitution and the law. The facility which has been extended to an undertrial prisoner , as aforementioned, are of a vital importance for a living person. The undertrial prisoner has also been allowed to maintain his private account. He can also be provided the books and newspaper etc for his studies. The undertrial prisoner should not be placed under such circumstances rendering him to be in isolation.
17. Let us now examine the provision of law relating to transfer of prisoners; Section 29 of the said Act (Prisoners Act, 1900) , is regarding removal of prisoners which provides as under:- "Removal of prisoners .--- (1) The (provincial Government) may, by general or special order , provide for the removal of any prisoner confined in a prison ---
(a) Under sentence of death, or
(b) under , or in lieu of , a sentence of imprisonment, or
(c) in default of payment of a fine,
(d) in default of giving security for keeping the peace or for maintaining good behavior
(e) (convicted criminal prisoners). {Sections 29, 37 and 39 of the Prisoners Act, 1900 and Chapter-7 of the Pakistan Prison Rules, 1978 specifically provide about the transfer of prisoners from one jail to the other . In original section 29 of the Prisoners Act, 1900 was quiet about transfer of under-trial prisoners either within or outside the province. Subsequently vide Notification No: Prs. I (M) 1572, dated 6th July, 1977 clause (e) was added by the Punjab Government. While issuing this notification, the Government of Punjab allegedly exercised powers Under Section 60 of the Prisons Act, 1894, which had already been repealed through adaption Order , 1937. In this regard in case titled, "Muhammad Tufail Khokhar Vs The Inspector General of Prisons, Punjab" Cited as PLD 1980 Lahore 162, this Court held as under:- "9. Again, there is no power vesting with the Inspector-General of Prisons under section 29 of the Prisoners Act to transfer any unconvicted prisoner from one prison to the other, as even the above said notification of the Governor, issued under a non-existent provision of law, conferred that power only on the Provincial Government. Going further , one may conclude that the above notification, even if it had been made under a valid power , could not and would not have been intended or contemplated to take away the power conferred by section 344 of the Code of Criminal Procedure. Thus the legal situation at the time of the decision of the Ziauddin' s case remains unchanged and I respectfully agree with the view taken therein. Consequently , the orders of transfer , in case of both the prisoners, are without lawful authority and are, therefore, of no legal ef fect."} POWER OF INSPECT OR GENERAL TO TRANSFER PRISONERS.
Rule 147.--The transfer of prisoners from one prison to another within the Province shall be directed by the Inspector General . It may be stated that in the case of Dr. Muhammad Aslam Khaki v. The State and others (PLD 2010 Federal Shariat Court 1 ) wherein it is observed that, (d)Pakistan Prisons Rules, 1978--- ---Rr. 147, 148 & 149---Prisoners Act (III of 1900), Ss.29 & 42---Constitution of Pakistan (1973), Art.203- D--- Transferring certain categories of prisoners within and beyond the territorial limits of a Province and from one jail to another jail within the Province- -Vires of Rr.147, 148 & 149 Pakistan Prisons Rules, 1978 and Ss.29 & 42, Prisoners Act, 1900 on the touchstone of Injunctions of Islam---Rules 147, 148 & 149 of the Pakistan Prisons Rules, 1978 and S.29 of Prisoners Act, 1900 are repugnant to Injunction of Islam---Extent of repugnancy and exceptions-- Principles.
18. A plain reading of section 3 of Prisoners Act, 1900 read with Rule 14 of Pakistan Prisons Rules, 1978 would make it clear that when an under trial prisoner is committed to a prison, he has to be received by the officer incharge in accordance with the warrant issued by the court. Such officer is then to detain that person in the prison till he is discharged or removed in due course of law. The power of Provincial Government for the removal of any prisoner confined in a prison is laid down in section 29 but that pourer is exercis able only in cases mentioned in class (a) to (d) of subsection (1) i.e. when the prisoners is under sentenced to death or is confined in lieu of sentence of imprisonment or transportation or in default of payment of fine or in default of removing 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 prisoners 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 removal of an under trial prisoners. Such prisoner is to be governed by section 3 of the Act (The Prisoners Act, 1900) under which the officer incharge of the prison, according to the exigency , warrant or order of the court concerned, therefore, when the Magistrate adjourns a case under section 344 and commits under trial accused to prison or specify the date for appearance in court, the prison authority have to comply with that order and detained the accused in that prison and produced him from there into court according to the warrant of commitment. The above was held in the case of Ali Muhammad v. The State reported as (1974 PCr.LJ. 249 Karachi ). This view was based upon in the case titled Atta Ullah Maingal v. The State and others (PLD 1965
(WP) Karachi 320). It has further been noted in Zia ud Din's case reported as (PLD 1976 Lahore 93) that an under trial prisoner committed to a custody of an officer incharge of a prison by a warrant is to be kept by the latter because of the obligation cast upon him by section 3 of the Prisoners Act, 1900 unless the prisoner is discharged or removed in due course of law. It is quiet plain that this discharge or removal come about except an order of a court because no executive authority can countermand or vary an order of a court unless there is a express legislative authority . No enactment has bestowed such a power regarding unconv icted persons on the Provincial Government or for that matter an Inspector General of Prison, by implication. Such a power can neither be claimed nor contested to interrogate the authority of court established by law .
19. We have examined that no specific provisions exits on the statute books to permit expressly the Government to transfer an undertrial prisoner without the permission or concurrence of the court which had committed him to a specific prison. However , we have also noticed that provisions in Chapter IX of The Prisoners Act, 1900 (Sections 35 to 43) allow the courts, other than the court remanding the custody of an undertrial prisoner to a prison, to requisition his custody , either for recording his evidence as a witness or his facing of a charge for an offence, pending before them . For facility of reference, the relevant provisions of Chapter IX of Prisoners Act, 1900 are expounded hereunder: Relevant Provisions of Chapter IX (Provisions for Requiring the Attendance of Prisoners and obtaining their evidence)
Prisoners Act, 1900Summary of the Provision Section 35 Subject to the provisions of Section 39, any Civil Court may, if it thinks that the evidence of any person confined in any prison within the local limits of its appellate jurisdiction, if it is a High Court, or, if it is not a High Court, then within the local limits of the appellate jurisdiction of the High Court to which it is subordinate , is material in any matter pending before it, make any order in the form set forth in the first schedule, direct to the officer in charge of the prison.This section empowers a Civil Court to summon a prisoner within the local limits of its appellate jurisdiction to get record the evidence.
Section 36 reads as under:- Where an order under section 35 is made in any civil matter pending--in a Court subordinate to the District Judge, or
(b) in a Court of Small Causes it shall not be forwarded to the officer to whom it is directed, or acted upon by him, until it has been submitted to, and countersigned by ,--
(i) the District Judge to which the Court is subordinate, or
(ii) the District Judge within the local limits of whose jurisdiction the Court of Small Causes is situate.
(2) Every order submitted to the District Judge under sub-section (1) shall be accompanied by aConditions and procedure has been laid down for the Civil Court to pass the order under section 35. Order under Section 35 is always conditional to the scrutiny and countersigning by the concerned District Judge. statement, under the hand of the Judge of the subordinate Court or Court of Small Causes, as the case may be, of the facts which in his opinion render the order necessary, and the District Judge may, after considering such statement, decline to countersign the order.
Section 37 Subject to the provisions of Section 39, any Criminal Court may, if it thinks that the evidence of any person confined in any prison within the local limits of its appellate jurisdiction, if it is a High Court, or, if it is not a High Court, then within the local limits of the appellate jurisdiction of the High Court to which it is subordinate, is material in any matter pending before it, or if a charge of an offence against such person is made or pending, make an order in the form set forth in the first or second schedule, as the case may be, directed to the officer incharge of the prison: Provided that if such Criminal Court is inferior to the Court of a Magistrate of the first class, the order shall be submitted to, and countersigned by, the Sessions Judge to whose Court such Criminal Court is subordinate or within the local limits of whose jurisdiction such Criminal Court is situated.This section empowers a Criminal Court to summon a prisoner within the local limits of its appellate jurisdiction to get record the evidence or for proceedings in trial of a case, in which such person has been charged against. Here again such an order is conditional to the scrutiny and countersigning by the concerned Sessions Judge.
Section 43 of this Act makes it mandatory for the prison incharge to execute such an order .
Section 38 Where any person, for whose attendance an order as in this Part provided is made, is confined in any district other than that in which the Court making or countersigning the order is situate, the order shall be sent by the Court by which it is made or countersigned to the Sessions Judge or Magistrate within the local limits of whose jurisdiction the person is confined, and that Court shall cause it to be delivered to the officer incharge of the prison in which the person is confined.Where any person, for whose attendance an order is made, is confined in any district other than that in which the Court (making or countersigning the order) is situate, then such an order shall be executed through the Sessions Judge, within the local limits of whose jurisdiction the person is confine d .
Section 39
(1) Where a person is confined in a prison more than one hundred miles distant from the place where any Court, subordinate to a High Court, in which his evidence is required, is held, the Judge or presiding officer of the Court in which the evidence is so required shall, if he thinks that such person should be removed under this Part for the purpose of giving evidence in such Court, and if the prison is within the local limits of the appellate jurisdiction of the HighWhere a person is confined in a prison more than one hundred miles distant from the Court , (if such Court is subordinate to a High Court and the prison locates within local limits of the appellate jurisdiction of High Court) then the High Court may, if it thinks fit, make an order in the form Court to which such Court is subordinate, apply in writing to the High Court, and the High Court may, if it thinks fit, make an order in the form set forth in the first schedule, directed to the officer incharge of the prison.
(2) The High Court making an order under sub- section (1) shall send it to the Sessions Judge or Magistrate within the local limits of whose jurisdiction the person named therein is confined, and such Court shall cause it to be delivered to the officer incharge of the prison in which the person is confined.set forth in the first schedule, directed to the officer incharge of the prison.
Section 40: Where a person is confined in a prison beyond the local limits of the appellate jurisdiction of a High Court, any Judge of such Court may , if he thinks that such person should be removed under this Part for the purpose of answering a charge of an offence or of giving evidence in any criminal matter in such Court or in any Court subordinate thereto; apply in writing to the Provincial Government of the territories within which the prison is situate, and the Provincial Government may, direct that the person be so removed, subject to such rules regulating the escort of prisoners as the Provincial Government may prescribe.This section of law empowers the Judge of High Court, when the person confined isbeyond the local limits of the appellate jurisdiction of a High Court.
Section 41: Upon delivery of any order under this Part to theIt deals about duties of of ficer incharge of the prison to produce such prisoner before the court. officer incharge of the person in which the person named therein is confined, that officer shall cause him to be taken to the Court in which his attendance is required , so as to be present in the Court at the time in such order mentioned, and shall cause him to be detained in custody in or near the Court until he has been examined or until the Judge or presiding officer of the Court authorises him to be taken back to the prison in which he was confined. Section:42 This Section empowers the The Provincial Government may, by notificationGovernment to restrain in the Official Gazette direct that any person orremoval of certain prisoners any class of persons shall not be removed from the prison in which he or they may be confined; and thereupon, and so long as such notification remains in force, the provisions of this Part, otherfrom the prison . than those contained in sections 44 to 46, shall not apply to such person or class of persons THE SECOND SCHEDULE (See Section 37)
Court of______ To the of ficer incharge of the________ (state name of prisons).
You are hereby required to produce_________now a prisoner________ in , under safe and sure conduct before the Court of___at clock in the forenoon of the same day, there to answer a charge now pending before the said Court, and after such charge has been disposed of or the said Court has dispensed with his further attendance, cause him to be conveyed under safe and sure conduct back to the said prison.
The____day of________Countersigned
20. We have noticed, as observed hereinabove, in absence of any express provision of law, the Government has no power to transfer an undertrial prisoner . At the same time, however , we have also noticed that there is no provision expressly , prohibiting or placing any bar on the transfer of duly committed undertrial prisoner by the court, either at the instance of the Government or the jail authorities. This aspect of the matter once came under consideration of the Lahore High Court, Lahore. In the case of Malik Ghulam Jilani v. The Government of Pakistan through the Secretary , Ministry of Interior , Islamabad and 3 others (PLD 1976 Lahore 38), a Division Bench of this Court while examining the vires of some order , observed that, "No law was shown which forbids the detention of an undertrial prisoner at a place outside the territorial jurisdiction of the trial Magistrate. On the other hand in PLD 1957 Kar. 939 where the prisoners were removed from the Mekran levies lock-up to the District Jail, Quetta, which was outside the jurisdiction of the officer who passed the order of arrest it was held that the legality of the detention was not questionable. It appears that where an accused person is remanded to judicial custody , there is no fetter on the power of the detainer , subject to the provisions relating to reception and detention of prisoners and the exigencies of the warrant, as to the place where he might be detained ."
21. Irrespective of severity and seriousne ss of allegations of committing an offence, subject to discretion of a court in terms of release of an accused on bail and despite attachment of an inheren t presumption of innocence, he loses some of his rights available to a free citizen of the State only because of allegations of the commission of an offence, however , the status of an accused viz-a-viz his right is distinguishable from a person who is a convict. The statutory provisions of sections 31 and 40 of the Prisoners Act, 1900 read with Rules 375, 377, 378 and 387 of the Pakistan Prisons Rules, 1978, when looked through the prism of inherent presumption of innocence of an accused, it emerged demands that an undertrial prisoner , subject to law be dealt with, by allowing him to enjoy his fundamental rights guaranteed under part II of Chapter II of the Constitution of Islamic Republic of Pakistan, 1973.
The superior courts being custodian and defenders of the fundamental rights guaranteed by Constitution are required and expected to interpret the constitutional provisions, in such manner which is beneficial to the citizens instead of interpreting them in a stringent way giving them a strict construction. Adopting such a view in interpreting the law relating to undertrial prisoner is also required because he is yet to be found guilty , when equal possibility of his exoneration of charge simultaneously cannot be ruled out on the conclusion of his trial, therefore, a carefully drawn balanced approach should be adopted , while dealing with the rights of undertrial prisoners. The courts possess to exercise jurisdiction to review the public action, unless specifically barred by the parliament through appropriate legislation. The prisoners being a special class subject to special regimen and special status, they are not entirely denuded of all fundamental rights which are inherent in the constitution. These rights of citizens, however, circumscribed by the penalty/sentence are a permanent concern of the courts as aforesaid unless clearly without any ambiguity barred by law. It is the basic principle that unless the jurisdiction is expressly barred, it can be exercised by the superior courts to safeguard the fundamental rights of the citizens. The courts are in general an ultimate extension of rights and liberties of the subject, whatever his status and, however, attenuated those rights and liberties may be as a result of some punitive or other process. An essential characteristic right of a subject is that it carries with it a right of recourse to the courts unless some statute decrees otherwise. Here Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973,
(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right to every citizen.
Wherever he may be, and of every other person for the time being within Pakistan. in particular .
(2) In particular--
(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law . b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and c)
The law laid down in the case NATIONAL COMMISSION ON STATUS OF WOMEN through Chairperson and others v. GOVERNMENT OF PAKIST AN through Secretary Law and Justice and others (PLD 2019 Supreme Court 218) wherein it has been held,
(a) Constitution of Pakistan--- ---Art. 4(1)---Right of individuals to be dealt with in accordance with law---Scope--- Foreign citizens in Pakistan---Article 4(1) of the Constitution extended the right to enjoy the protection of law to every citizen regardless of where he was---Persons who were not citizens (of Pakistan) were also given said right while they were in Pakistan. is quoted with immense pleasure. What should be the nature and measures of the relief accorded must be a matter for the courts. Public policy and expediency as well as merit may be factors to consider and they may influenced to answer any application for relief but to deny jurisdiction on the grant of expediency seems to me.....to be tentamounts to abdicating a primarily function of the judiciary {Modern Law Review , Vol.42 P .469}.
22. It may be pointed out that in absence of any statutory provisions relating to transfer of an undertrial prisoner from one prison to another on certain grounds without the permission/concurrence of the court, remanding his custody to the prison, still there may arise certain situations in which transfer of custody of an undertrial prisoner may be expedient in the interest of justice. Generally there may be a prisoner whose transfer is necessary to relieve overcrowding, prisoner with special qualification whose services may be required elsewhere, influential, violent and dangerous prisoners, whose transfer is necessary in the interest of Law & Order, there may be a prisoner whose transfer is necessary for taking care of his health, and a prisoner whose transfer is desirable for any other reason as e.g. security of the person, character of the prisoner or his friends or relatives among the jail staff and in order to maintain peace and tranquility in the jail premises, are the main considerations for the transfer of the prisoners from one prison to another. The transfer of an undertrial prisoner can be ordered to avoid the breach of rights of such prisoner.
23. We will quote a judgment from other side of border in Kalyan Chandra Sarkar v. Rajesh Ranja n alias Pappu Yadav , the Hon'ble Supreme Court observed that, "a convict or an undertrial who disobeys the laws of the land, cannot contend that it is not permissible to transfer him from one Jail to another because the Jail Manual does not provide for it. If the factual situation requires the transfer of a prisoner from one prison to another , be he a convict or an undertrial, the Courts are not to be a helpless bystander when the rule of law is being challenged with impunity . The arms of law are long enough to remedy the situation even by transferring a prisoner from one prison to another , that is by assuming that the concerned Jail Manual did not provide such a transfer ."
In the light of above discussion, we feel no hesitation to hold that in absence of any legal provision, either expressly placing a bar or allowing the Government to transfer , the custody of a duly committe d under trial prisoner , subject to the permission of the concerned court, from one prison to another , the Government may transfer , such a prisoner without causing a prejudice to his admissible rights and privileges including his right to a fair trial. Undertrial prisoner may also seek his transfer upon showing his grievance regarding breach of his admissible rights and privileges, for fulfillment thereof by way of his confinement in a particular prison. The court after giving a proper hearing to all the concerned, being under a legal obligation to consider all relevant, legal, factual necessities and situational demands with their possible consequences, while keeping in view that the undertrial prisoner enjoys an inherent presumption of innocence till found guilty , shall pass such order of transfer of unconvicted prisoner .
Needless to observe that such order of the court is since bound to affect either way, the right to life, not only of the individual prisoner but also some of his related persons, therefore, the order of transfer of custody from one prison to another is thus a judicial order and not a ministerial one.
24. In the light of what has been discussed hereinabove, it is observed that indisp utably the petitioner is domiciled at Lahore, his family members are also residing there, he is facing trial simultan eously in the above mentioned three References pending before the learned Accountability Courts at Multan, Lahore and Rawalpindi respectively , the arrangement for the production of the petitioner before all the three aforesaid courts is to be made by the Government through its relevant agencies, the district Lahore is in the middle of Rawalpindi and Multan with regard to their inter-se distances, therefore, the transfer of custody of the petitioner from District Jail Multan to District Jail (Camp Jail), Lahore, shall place none under any extra burden rather it shall ensure the materialization of his admissible rights and privileges under the law, by shifting his custody at Lahore, it will enable the petitioner to maintain himself by way of receiving homemade food and also company of his near and dear ones to fulfill his desire to communicate with his children being elder of the family , the right to which he is entitled to under the relevant provisions of law. After going through the impugned orders, we have found the same to have been passed in slipshod manner without properly adverting to the entire range of issues involved and without considering the facts and circumstances of the case in their true perspectives, hence the same lack due application of judicial mind, therefore, the same are set aside, as having been passed illegally , without lawful authority , being result of failure in exercise of jurisdiction so vested with respondent No.1, particularly when the jail authorities have no objection to transfer the petitioner's custody from the District Jail, Multan to District Jail, Lahore. Consequently , by setting aside the impugned orders dated 14.11.2018 and 03.01.2019 passed by the learned Judge Accountability Court, Multan, this Writ Petition No.1646 of 2019 is accepted, the custody of the petitioner thus shall be transferred from District Jail, Multan to District Jail (Camp Jail), Lahore and the Government shall ensure in making of arrangements for the production/presence of the petitioner before all the courts concerned as and when required without any failure on its part.
25. Before parting with the judgment, it is mentioned that we have noticed that in most of the law legal commentaries on the Prisoners Act, 1900 and books published on the subject of Prisons and Prisoners, available in market for consumption of law relating persons, clause (e) of Section 29 (1) of the Prisoners Act, 1900, {reproduced in paragraph No.16 of the judgment}. has been shown, as still intact. Even if one may access the Prisoners Act, 1900 throug h http://punjablaws.gov .pk/laws/17.html, which is the Website of the Governmen t of Punjab, then again clause (e) may be found intact regarding Section 29 of the said Act. It is complete oblivion and disregard to earlier Judgment of this Court, cited as PLD 1980 Lahore 162 and legal proposition propounded through this judgment. This delusion in a shape of printing, publishing and mentioning of clause (e) should not remain any more on the statute books and Websites relating to law for perpetuating misguiding. Therefore, we feel necessary rather expedient to direct the Punjab Government through Chief Secretary and all Publishers and printers engaged in the business of publishing law books to get deleted Clause (e) from Section 29 of the Prisoners Act, 1900. All Publishers, printers and law sites handlers are cautioned to be careful in future and always to keep updating requisite data laws from the Ministry of law .