The applicant is undergoing a trial before the IXth Additional City Magistrate. Karachi under rule 46/49 of the Pakistan Penal Code, section 120-B, P. P. C., section 13-D of the West Pakistan Arms Ordinance, 1965 and under section 5 of the Explosive Substances Act, 1908. He filed an application to this Court seeking a transfer of this case. This application was duly numbered 49/73 and admitted to regular hearing by me. While I was hearing that case Mr. A. K. Brohi learned counsel who appeared for the applicant in that case presented an application complaining of the transfer of the applicant without lawful authority from the Karachi Central Prison to the Dadu Prison and praying that he should be directed to be brought back to the Karachi Prison. Being erroneously under the impression that an interlocutory application was being moved I issued notice upon it to the State and when it came up before me for regular hearing I realized that it was in fact an altogether separate application in the nature of revision application and in the- proper course of things should not have beer presented to me in Court but in the registry of this Court. However, under the circumstances of the case I treated it as if it had been so filed and admitted it to regular hearing, directing, however, that the office should separate the relevant papers and prepare a separate file of this matter.
2. When the case came up for regular hearing Mr. Jamaluddin Ahmad. Additional Advocate- General, pointed out that the order under which admittedly the prisoner has been transferred to Dadu was an order of the Government and I agreed with him, therefore, that an application would not lie to this Court in the exercise of its criminal revisional jurisdiction to set aside such an order.
That such an order could be challenged in this Court I saw no reason to doubt but I thought and still think that could only be by involving, another jurisdiction, namely, the one under Article 201 of the Interim Constitution. Cases in that jurisdiction besides are rules to be heard by a Division Bench and I was dealing with the transfer application and now in exercise of criminal revisional jurisdiction as a Single Judge in accordance with the rules. Nevertheless I did not dismiss the application on that ground but adjourned it on Mr. Brohi's request to enable him to such further application as he considers advisable. I did indicate in my order that if there was an order of the Magistrate which was sought to be challenged then it could be done ire the course of criminal revisional proceedings. Consequently Mr. Brohi filed certified copies of the order off the trial Court dated the 14th of September, 1974 and the 30th of December 1972. In the course of the first order after hearing some arguments on the question whether the accused person could be detailed at Dadu or at Karachi the learned Magistrate decided, pending decision of this Court in some other case, that he should be remanded to custody at Karachi Central Jail.
3. On the 30 of December, 1972 an application was made on behalf of the applicant to the Magistrate which pointed out that despite the earlier direction of the Court the accused has been shifted by orders of the Government to Dadu and praying that he be ordered to be lodged in the Karachi Prison. Upon this application the learned Magistrate passed this order:-- "The accused has been shifted to Dadu Jail probably under order of Government on some administrative ground. I do not want to interfere with their order. The request therefore cannot be considered. The accused however, is being produced before the regularly and therefore I have no objection if he is detained in Jail at Dadu."
It is this order which I am now asked to set aside in the exercise of criminal revisional jurisdiction. It is true that the order whereby the person has been shifted to Dadu is that of Government and if that had been all then, as I have already stated, I would not have considered it within my jurisdiction on the criminal revisional side to interfere. But by means of this order the Earned Magistrate has expressly refused to pass an order which the law authorised him to directing that the prisoner be lodged at Karachi and with this order there can be no doubt I think (and indeed the learned Additional Advocate-General has not argued to the contrary) that I have the power to interfere. The question, therefore, arises whether this is a proper order and should be sustained? It will be noticed that the order itself recites the fact that the Government has passed an order and does not say that the Magistrate has no jurisdiction to interfere but that he does not wish to. He even uses the words "I have no objection if he be detained in Jail at Dadu". Clearly, therefore, the learned Magistrate was not applying his own mind to the question whether the prisoner be detained at Karachi or Dadu but leaving it to Government. Now if the Government had the authority to pass the order in question then of course the learned Magistrate would have been justified in refusing to pass any such order on the ground that he had no jurisdiction to do so. If it did not then it would appear to be prima facie his duty to have enforced his earlier order or to have made up his mind judicially that the accused be detained at Dadu and passed an order to that effect. It would be possible, therefore, for me to set aside this order upon the simple ground that he has failed to exercise his judicial discretion altogether. But the question whether he had any authority to interfere with the order of the Government would in those circumstances still arises and would itself depend upon the power of the Government to pass such an order. It becomes necessary, therefore, to examine the validity of the order of the Government itself.
4. Now the original order of the Magistrate was clearly an order tinder section 344 of the Criminal Procedure Code which authorises a Magistrate when he adjourns a case to remand the accused by a warrant if he is in custody. This order would then have to be carried out by an officer incharge of a prison by reason of the duty cast upon him under section 3 of the Prisoners Act (III of 1900) which reads as follows:- "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 byth which such person has been committed, or until such person is discharged or removed in due course of law."
The only relevant provision of law that I can find or that has been pointed out to me on this matter is section 29 of the same Act. It may be usefully reproduced:-- "29.--(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 transportation, or
(c) in default of payment of a fine, or
(d) in default of giving security for keeping the peace or for maintaining good behaviour, to any other prison in -(the Province, or, with the consent of the Provincial Government concerned, to any prison in (the other Province) or, with the consent of (Central Government) to any prison maintained (by it or under its authority) in any part of (Pakistan).
(2) (Subject to the orders, and under the control, of the Provincial Government) the Inspector- General of Prisons may, in like manner, provide, for the removal of any prisoner confined as aforesaid in a prison in the Province o any other prison in the Province.
(3) The Central Government may, by general or special order, provide for the removal of any prisoner or class of prisoners confined in any prison to any other prison in Pakistan maintained by or under the authority of the Central Government or of a Provincial Government with the consent . . . . . . Of the Provincial Government concerned).
It is plain that subsection-(1) of the section has no application and does not apply to under-trial prisoners. Subsection (2) although it does not in express language refer to prisoners other than under-trial prisoners must nevertheless be so construed by reason of the words "any prisoner confined as aforesaid"; the last two words clearly refer to the earlier sub-section.
5. The only subsection, therefore, which can be relevant is sub--section (3) and it is to this that the learned Additional Advocate-General pointedly drew my attention So far as the power of removal of a class of persons is concerned the provision is not in question and the learned Additional Advocate-General relies upon the words "any prisoner". I consider it unnecessary to decide whether this power would be available in the instant case because the learned Additional Advocate- General frankly admits that there is no order of the Central Government and that the Provincial Government which alone has passed the order in this case is not authorised by this subsection.
6. There do not appear to be many decisions on the question but learned counsel for the applicant has referred to the decision in the case of Ataullah Mengal v. The mate (PLD 1965 Kar. 320) where an identical question arose. I am so entirely in agreement that the reasoning of the learned Judge in that case that I think it suffices to reproduce a passage from the judgment which deals with the particular point:- "The argument of the learned counsel for the State was that there is alternative provision either in the Criminal Procedure Code or in any other law which gave power to the Special Magistrate to transfer the accused from the prison at Karachi to the Bahawalpur Prison and as this measure was considered necessary on administrative ground by the Provincial Government it is that Government which had the power to direct in what prison the accused was to be confined. With due respect to the learned counsel it appears to me that this argument is completely misconceived. Section 541 of the Criminal Procedure Code has nothing to do whatever with the ques--petition of the transfer of a prisoner from one prison to another. This section appears in Chapter 46 of the Code of subsection (1) thereof merely empowers the Provincial Government, unless otherwise provided by any law, to direct in what place any person liable to be imprisoned or committed to custody under the Code shall be confined. This subsection, therefore, relates to the power of the Provincial Government to appoint a place of imprisonment. Indeed, this is the marginal note to this subsection. This becomes more clear when the rest of this section is examined. Subsections (2) and (3) provide for the removal to criminal jail of an accused or convicted person who may be in confinement in Civil Jail, In my opinion, the relevant provisions in this regard are those contained in the Prisoners Act. Section 3 of that Act maybe conveniently quoted:-
(3) The Officer-in-charge 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."
A plain reading of this section in so far as it is relevant for the present cast would make it clear that when an under-trial prisoner is committed to a prison he has to be received by the officer-in- charge in accordance with the warrant issued by the Court. Such Officer is then to detain that person in that prison until he is discharged or removed in due course of law. Once such a warrant has been issued there is no power in the Provincial Government in the case of an under-trial prisoner to order his shifting from one jail to another. There is also no power in the Provincial Government to direct the Magistrate to issue an 'intermediary' warrant so that an under-trial prisoner may be taken to one prison and from there shifted to another. The power of the Provincial Government for the removal of any prisoner confined in a prison is also laid down in this very Act under section 29, but that power is exercisable only in the cases mentioned in clauses (a) to (d) of subsection (1), that is, when the prisoner is under sentence of death or is confined in lieu of a sentence of imprisonment or transportation or in default of payment of fine or in default of giving security for keeping the peace or for maintaining good behaviour. That is not the case here.
Considering that the power of the Provincial Government for providing for the removal of any prisoner confined in any prison is limited under section 29 to the cases referred to above, it must follow, that no such power intended to be conferred upon that Government with regard to the removal of under-trial prisoners. The case of such a prisoner is to be governed by section 3 of the Act under which the officer-in-charge of the prison is to act according to the exigency of the writ, warrant or order of the Court concerned. Therefore when a Magistrate adjourns a case under section 344, Cr. P. C. And commits the under-trial accused to prison and specifies the date of re- appearance in Court the prison authorities have to comply with that order and detain the accused in that prison and produce him from there into Court according to the warrant of commitment. It follows that the removal of the petitioner from the Karachi Central Prison to the Bahawalpur Central Prison under the orders or directions of the Provincial Government was without any lawful authority."
7. If, therefore, there was no power in Government to pass the order in question it is clear that the order of the learned Magistrate is wrong in the first place he should have directed that the accused be detained at Karachi in accordance with his previous order. Assuming without holding, however, that the learned Magistrate had power to direct the detention and custody of a person accused before himself at a place outside Karachi, that is, the local limits of his own jurisdiction, it is clear that he did not pass any such order but merely refused to interfere with the order of the Government.
8. I cannot, therefore, see that he applied his mind judicially to the matter at all. I am, therefore, constrained to set aside the order of the Magistrate and direct that the applicant be kept in custody in the Karachi Prison pending his trial subject of course to any order of bail that may be made by a competent Court hereafter.