MUHAMMAD ISHAQ KHAN, J.--This Habeas Corpus Petition by Muhammad Nazir son of Muhammad Hassan is filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 read with section 561-A of the Code of Criminal Procedure, for declaring the continued custody of the detenus Fazal Wahid, Fazal Rahim, Muhammad Rahim, Fazal Karim, Muhammad Ibrahim and Abdul Karim by the police as to be without lawful authority and they be set at liberty.
2. This Habeas Corpus Petition arises out of the following circumstances:-- That at 10-35 p. m. On the night of 11th August, 1986 Prince Ahmad Zeb son of Mian Gul Jehanzeb,' former Ruler of Swat was fatally fired at. Assailants were, however, unknown; that when the deceased was shot at he was admittedly inside his own house; that the family of the deceased was present in the house when the alleged occurrence took place; that neither the father of the deceased nor any other member of the family lodged any report with the police; that instead A.S.I, of Police Station, Saidu Sharif lodged a report mentioning therein that he found the deceased in the Operation Theatre of Civil Hospital, Saidu Sharif while in a wounded condition that no details has been liven in this report about the circumstances in which the deceased was allegedly shot and by whom. The detenus 1 to 5 who are brothers inter se and are sons of Shah Rawan, A.D.C. To the father of the deceased and Abdul Karim detenu is their neighbour were arrested one by one i.e. Fazal Wahid on 16-8-1986, Fazal Rahim on 17-8-1986, Muhammad Rahim on 18-8-1986, Fazal Karim, Muhammad Ibrahim and Abdul Karim on 21-8-1986 after having been summoned to the Police Station, Saidu Sharif by respondent No. 2, D.S.P. Head Quarter, Swat and since then their whereabouts are unknown. The petitioner who is the brother-in-law of the detenus 1 to 5 moved an application for bail before respondent No.1, A.D.C. Swat, but he refused to entertain the same and returned it to the counsel of the petitioner. That as the local administration has refused to co- operate with the petitioner in finding out the whereabouts of the detenus and even the closest relatives of the detenus have been denied access to them and as the continued custody of the detenus is without lawful authority, therefore, the present habeas corpus petition.
3. A notice was issued to the Advocate-General to apprise the Court of the circumstances in which detenus have been arrested, where they are at the moment and at what stage the investigation of the case is. However, all the detenus were produced before us and recorded the statements of Fazal Wahid and Abdul Karim detenus, Tehsilnullah. Assistant Superintendent Central Jail, Peshawar and of Faiz Muhammad Khan, Prosecution D.S.P. Swat on 14-10-1986.
4. We have heard the learned counsel for the petitioner and the Advocate-General for the respondents at length and have also gone through the material on record. It is in the statement of Fazal Wahid detenu that he was arrested on 16-8-1986, Fazal Rahim detenu was arrested on 18-8- 1986 while Fazal Karim and Muhammad Ibrahim were arrested on 21-8-1986; that since their arrest they were confined at Swat Jail and it was on 5-9-1986 when they were shifted to Central Jail Peshawar; on 13-9-1986 they were shifted to Fort Bala Hisar Sub-Jail where they were retained in solitary confinement; that till 19-9-1986 they were retained there and were interrogated by S.P., D.S.P. And Police Inspectors who used to subject them to excessive torture. Further stated that on 19-9-1986 they were shifted to Central Jail, Peshawar; that prior to their shifting to Peshawar they were also tortured by the Police at Swat; that on 24-8-1986 they were brought to Peshawar and handedover to Police of Nowshera who kept them there for 5 days and during this period, they were also subjected to a grave and harsh physical torture through various means; that on 29-8-1986 they were returned to Swat where on 30-8-1986 they were produced before the Ilaqa Magistrate who gave remand against them of 5 days and after this they were sent on judicial remand to District Jail, Saidu Sharif where from they were brought to Peshawar. He also stated that admittedly on 24-8-1986 for the first time they were brought to the residence of S.S.P. Peshawar.
5. Abdul Karim detenu stated that he was arrested on 15-8-1986 and was detained in Rahim Abad Police Station at Swat; that he was alone and tortured in the said Police Station and then was shifted to Police Station Saidu Sharif; that his left hand was burnt by the Police and on 31-8-1986 he moved an application for his medical examination and accordingly he was medically examined by the Medical Officer at Saidu Sharif on 2-9-1986. Exh. P. W.2/1 is a photostat of his application. He further stated in cross-examination by the Advocate-General that he was to make a judicial confession due to torture; that on first appearance before the Magistrate he refused to make a confession and that he was again remanded to the Police for torture; that on 30-8-1986 he was again warned by the Police that in case he does not make confession before the Magistrate he would be again put to torture and would be involved in many other cases.
6. Tehsinullah Khan, Assistant Superintendent Central Jail Peshawar produced the judicial warrants of the detenus and stated that Fazal Wahid detenu was transferred to Central Jail Peshawar on 5- 9-1986 on the administrative ground by telephonic approval of the I.-G. Prisons; that Fazal Wahid; Fazal Rahim and Abdul Karim were transferred on 13-9-1986 to Sub-Jail of Fort Bala Hisar for interrogation by Joint Investigation Team and they were received back thereafter; that Muhammad Rahim, Muhammad Ibrahim and Fazal Karim detenus were admitted in jail hospital, therefore, their order of removal was struck-off and the same was not issued; on 19-9-1986 they were, however, transferred to Central Jail, Peshawar under a verbal order, dated 18-9-1986 of the Superintendent Central Jail Peshawar and till today all the detenus are confined in Central Jail, Peshawar. He, however, produced photostat copies of certain letters and copies of the photostat of the judicial warrants which are Exhs. P.W.3/3 to P.W. 3/8.
7. Faiz Muhammad Khan, Prosecution D.S.P. Swat stated that the detenus are charged for the murder of Ahmad Zeb son of Mian Gul Jehanzeb, Ex-Ruler of Swat; that investigation in the case is complete and the challan has already been put up in the Court of Ilaqa Magistrate on 11-10-1986 and the case is now fixed for trial and is to be heard, under PATA Regulation by the EAC-II Swat. In cross-examination he stated that the case was adjourned from 11-10-1986 for the reason that the detenus were confined at Central Jail, Peshawar and they could not be produced before the Court at Swat.
8. Having referred to the above statements of the detenus and the official witnesses we would now refer to the legal aspect of the case. Under section 5 of Regulation-I of 1975 (Provincially Administered Tribal Areas) Criminal Law (Special Provisions) Regulation, 1975, the Deputy Commissioner taking cognizance of an offence triable under this Regulation shall constitute a Jirga in accordance with section 6 and refer the question of the guilt of innocence of the person or persons accused of such offence to the decision of such Jirga But the facts of the case show that no such Jirga has been appointed by the Deputy Commissioner in the case in hand. Similarly, time limit for investigation in cognizable cases has been fixed under section 15/A of the Statute which provides as under:--- "15. A. Time limit for investigation in cognizance cases:--- Investigation in a cognizable case shall be completed by the Officer Incharge of a police station or any other Police Officer entrusted with such investigation and the report thereof along with the accused, if under custody, shall be forwarded to the Deputy Commissioner within a period of fifteen days of the making of the first information report: Provided that the said period may, for sufficient cause be extended by the Deputy Commissioner for a further period not exceeding ten days."
In this case admittedly the F.I.R. Was lodged on 11-8-1986 and the prosecution has initially a period of 15 days for the completion of the inquiry and further period of 10 days, for sufficient cause, in all 25 days, for completing the said inquiry and forwarding a report thereof along with the accused under custody to the Deputy Commissioner, which has not at all been done in this case. As mentioned earlier, the accused have not so far been produced before the Deputy Commissioner for constituting a Jirga as required under the PATAs Regulation-I of 1975. It is on record that first remand of Fazal Wahid, Fazal Rahim and Muhammad Rahim was obtained, on 3-9-1986 and that of Fazal Karim and Muhammad Ibrahim on 4-9-1986 and of Abdul Karim on 14-9-1986. Therefore, in our view the entire exercise of the prosecution was without any lawful authority. There is no valid order for transferring the detenus from Swat to Central Jail, Peshawar as is clear from the statement of Tahsinullah Khan, Assistant Superintendent, Central Jail, Peshawar, who admitted in his statement before us that they were transferred to Central Jail, Peshawar on the administrative ground by telephonic approval of the I.-G. Prisons. He further admitted it to be correct that prisoners are received in Jail under the orders of a Magistrate while in this very case it was on the order of the Superintendent, District Jail, Swat. Therefore, we hold that the detentions of the detenus is with flagrant departure from the procedure specified) for such like cases in the shape of PATA Regulation-I of 1975, with the result that the detenus could approach this Court for adequate remedy and this Court has the power under Article 199 (b) (i) for directing that the person in custody within the territorial jurisdiction of the Court be brought before it' so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner.
In this case, the detenus were all along kept in hiding and their whereabouts could not be known. In these circumstances, neither the detenus nor anyone else on their behalf could seek any legal remedy before a competent Court of law. In our view, the provisions of Article 199 (b) (i) have, therefore, been discharged by the authorities in the case in hand. The said provisions are reproduced for ready reference, which run as under----- ---199. (1) Subject to the Constitution, a High Court may, if it is satisfied that on other adequate remedy is provided by law.--
(a) ................................................................
(i) ...............................................................
(ii) ...............................................................
(b) on the application of any person, make an order-
(i) Directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner,"
Now according to the above provisions, the High Court may summon a person in order to satisfy itself about his detention, whether without lawful authority or in an unlawful manner. Similar case will be considered by the High Court if no other adequate remedy is provided by the law in the case. Hence, while examining the case, we have to take note of the expression "other adequate remedy" given in Article 199 of the Constitution. Correct that in the murder case, the detenu could apply for bail and could seek other legal remedy but it is clear that the doors for seeking such legal remedies were closed to them until the Habeas Corpus petition was filed on their behalf for their release. This position is not contradicted by the learned Advocate-General, nor indeed could he develop any argument in support of the impugned action of the authorities against the detenus holding them in custody for long time from the date of their arrest till today. We have, therefore, to observe that the adequate remedy provided by the law to the detenus was practically refused to them by the authorities. In other words, we feel justified in holding that in the circumstances of the case, no other adequate remedy is available to the detenus and there was, therefore, left no option but to file the present Habeas Corpus petition on their behalf with a prayer that they may be declared to have been kept in custody in an unlawful manner. Writ of Habeas Corpus is of remdial nature. In this view we are fortified by an authority reported in Moslemuddin Sikdar v. The Chief Secretary, Government of East Pakistan and others PLD 1957 Dacca 101 wherein it has been held as under:---
(b) "Constitution of Pakistan, Article 170-Habeas Corpus, writ of Conviction under special law found to be without jurisdiction Special Law not providing remedy by appeal or revision--Fit case for issue of writ."
There is another authority reported in Sar Khan v. The State PLD 1967 SC 149 which lays down as under:- "Frontier Crimes Regulation (III of 1901), section 11 and Constitution of Pakistan (1962), Article 98-- Proceedings under section 11, F.C.R., held in judicial or pretended judicial capacity, within territories where writ of High Court runs--High Court has power in certiorari to examine propriety and legality--Person imprisoned in territory within jurisdiction of High Court-High Court in exercise of its power under Habeas Corpus, competent to examine authority for imprisonment despite fact that source of authority be outside the territory--Person tried, convicted and imprisoned within territorial jurisdiction of High Court (Peshawar) under section 11. F.C.R. Allegedly committed in tribal territory (Landi Kotal)-High Court's jurisdiction under Article 98, Constitution of Pakistan (1962), to examine propriety and legality of everything within its territories not excluded merely because offence committed outside its territories."
Lastly, we would also like to refer to a case reported in Hakeem Khan v. Government of Sind and another PLD 1976 Kar. 448 wherein the observations of their Lordships were as under:--- "Preventive detention--Grounds of detention not supplied to detenu by detaining authority 'as soon as possible'--Detention becomes illegal and without lawful authority and order liable to be declared to be of no legal effect--Order of detention declared without lawful authority on ground that grounds of detention were supplied to detenu on the 15th day after passing of order of detention."
9. We would also like to say a few words about the alleged confession of Abdul Karim detenu, who admittedly remained in Sub-Jail Fort Bala Hisar. In a case reported as Asfandyar Wali v. The State PLD 1978 Pesh. 38 in a similar case, the following observations were made by this Court:--- "Quite apart from what has been alleged by the accused appellants against the police in regard to the maltreatment meted out to them, it is conceded that Fort Bala Hisar, by Notification, dated 12- 3-1975, was declared Sub-Jail where Nisar Muhammad Khan and Asfandyar Wali accused appellants were kept. It does not stand to reason that while in Fort Bala Hisar, the police has no access to the accused appellants, as the prosecution would have us believe in this respect. In the first place, the accused appellants would not get relief from the custody of the police until they had made the so-called confessions. In the second place, their confinement in a proverbial place of terror as Fort Bala Hisar is itself a proof to show that they would not be exonerated until they succumb to the wishes of the police.
In order to make sure whether it would have any psychological effect on the minds of the accused appellants by keeping them at Fort Bala Hisar, we in the company of the learned counsel for the parties visited Fort Bala Hisar with the prior intimation to Commandant of the Fort. We were taken to the cells where Nisar Muhammad Khan and Asfandyar Wali accused appellants had been kept from 12-3-1975 to 27-3-1975. What we observed was that these cells were in fact dungeons depicting a ghastly picture of grave in which one could not maintain his balance of mind, even if he is kept for one day, much less for a number of days which fact is a matter of record in this case.
These two dungeons are thickly dark and dingy. In view of this it is easy to imagine that the accused appellants, or for that matter anyone else, would not be able to keep their staminas intact and in order to get temporal relief from this horrible situation, they would be prepared to take any course even if it would ultimately go to their detriment. In these circumstances, can it be said that the accused appellants had made their confession voluntarily? Our answer to this question is straightaway in the negative."
10. In the result, we would hold that keeping in view the circumstances of the case coupled with the legal position cited above, the detention of the detenus is purely without lawful authority and in an unlawful manner. We would, therefore, accept this Habeas Corpus Petition and direct that the detenus be released forthwith. They are present in Court and are allowed to go with the observation that the release of the detenus by acceptance of the present Habeas Corpus Petition will have nothing to do with the murder case in which they are involved. Let the detenus appear before the Deputy Commissioner, Swat who is directed to proceed against them under the charge of murder according to Law.