BEGUM SHAMIM AFRIDI vs THE PROVINCE OF PUNJAB THROUGH THE

SHAMIM HUSSAIN KADRI, J.-Begum Shamim Afridi has challenged the illegal detention and illegal manner of the custody of her husband Lieut.--Col. (Retired) Abdul Alim Afridi and her brother Muhammad Tariq Khan by Writ Petition No. 705 and Writ Petition No. .815 of 1973 respectively. The third Writ Petition No. 740 of 1973 is moved by Begum Jamila A.I wife of Brigadier (Retired) Farrukh Bakht A.I practically on the same grounds, challenging the illegal detention and illegal manner of detention of her husband. This order will dispose of the second prayer of the Writ Petitioners, namely, the illegal manner of detention of the detenus.

2. We directed the production of the detenus by our order dated 27th April 1973. They were produced by an army captain and their statements were recorded. Col. Abdul Alim Afridi stated that he was arrested from his house on 30th March 1973 by contingent of police headed by a D. S. P.

His house was searched. During the search the D. S. P. Was very keen to look at his personal papers.

He took a bundle of files and handed over the same to one of his assistants who after scanning through them remarked "yeh hain ji woh". These were the two drafs prepared by Mr. M. Anwar Advocate a few weeks before for filing defamation suit which he intended to file against the Government and some other functionaries challenging the manner of his retirement. He was taken to Lahore Cantonment Police Station the same day at about 4 or 5 a.m. At about 6 p.m. He was produced by the D. S. P. Before a Magistrate on duty at the Army Stadium who remanded him to the custody for 24 hours for his onward journey to Rawalpindi. He was then taken to Rawalpindi in prisoners large van where they arrived at about 3 a.m. On 31st March 1973. He was kept sitting in the Police Office in the Cantonment Police Station, Rawalpindi the whole night. The detenu told the Duty Officer of the Police Station that he had to be produced before a Magistrate, but to his query no satisfactory reply was given. Since then he did not see any person till 30th April 1973 when his statement was recorded in this Court except the personnel who interrogated him.

3. He further explained the miseries of his detention. At about 8 a.m. On 31st March 1973 he was handed over to a party of Army Officers who took him to a Unit known as Field Intelligence Unit in Station Headquarters, Rawalpindi. He was straightaway taken to a torture cell 25 feet below the ground with Electronic Torture Equipment fitted on the walls. According to him there was blood splattered on the walls and floor which was rubbed. There was a dark passage leading away from the cell into a tunnel, which he believed to be meant for disposal of dead bodies. There was a crucifying post in the shape of door post meant for hanging individuals upside down. He was constantly under glaring lights of eight bulbs of 100 watts each and was not permitted to sleep, as somebody would come and wake him up and walk into the room every hour.

4. An interrogation team of two officers visited him after three or four days. On one occasion he wanted to go to toilet but he was denied the facility for two hours till he raised hue and cry. He narrated the first interrogation conducted by two Majors of the army, one of them being Major Aurangzeb who told him that they knew everything but they wanted him to make a confession and if he failed to do so they had authority from the highest in the country to go to any extent. The detenu was kept in this cell for 5/6 days. He used to be brought out of the cell to answer the call of nature. On 5th or- - 6th day Lieut.-Col. Afzal again of the Intelligence Department came and made similar demand of revealing everything. The detenu told him that he had not slept for many days and that he was under considerable mental pressure. He requested him to take him out of the cell in order to save himself from the indignity of the mental torture of the equipment which was there.

He decided to answer the leading questions like: "Did it not happen like this"; "did it not happen like that"? In order to come out of the cell the detenu stated that he had to admit. Specific question was asked about manhandling or beating while he remained in the cell to which he replied that there were repeated threats but no actual beating took place since he obliged them to give the answers the way they wanted. He was brought out of the cell on the 6th or 7th day and was kept in prisoners' cell measuring 10' x 7' within the same premises. It was 7' high and was very hot. He was not permitted to talk with anyone, read anything or even to sleep. In answer to a Court question he replied that he was provided ~t bed and a cot but he was kept under the crucification post.

5. One Brigadier Anjam told the detenu that he was over all incharge of the total investigation. He told him that he will have sympathetic treat--ment if he co-operated with him. The detenu stated that he had nothing more to add to what had already been extracted. Brigadier's behaviour was insolent in telling him that he was not telling the truth and was keeping something hidden.

On 9th April 1973 he was taken to Attock Fort which is another institution of the Army. He was given in the charge of one Col. Aziz. He took him to a cell which is a barrack and has a barbed wire and steel gates. The copy of Quran which he carried with him was snatched to which he protested but he was told that he could not be permitted to keep any book in the cell. The detenu deposed that though there was no physical atrocity committed but he was kept in solitary confinement and had to go to the toilet in the same room. The place was infested with flies during the day and during the night glaring lights and mosquitoes disturbed him. There was no fan and mosquito not. He, however, stated that he was given normal food. He weighed 174 lbs. When he was brought in Attock Fort. He was also weighed when he was brought to this Court. According to him he lost 14 lbs.

6. Periodically he was taken out of the cell for interrogation and was handcuffed on both hands, blind-folded, pushed and made to walk in a particular direction. In spite of repeated requests that it was not necessary for him it was done. He was not provided any reading material but a few days before when he was brought to this Court he was given copy of the Holy Quran. For one week he was not permitted even to pray.

He made repeated requests that he being a civilian should be produced before a Magistrate and permitted to see his lawyer, but he was refused. In the beginning lie was not permitted to write to his family. According to him he wrote 4/5 letters to his wife and one to his lawyer. Letter written by him on 10th April 1973 (marked Exh. A. 1) was shown to him. This he despatched in the envelope marked (Exh. A. 2) which bears the Lahore postal stamp dated 21st April 1973. Portion of letter Exh. A.

1 which is dated 10th April 1973 is reproduced :---- "Still alive and kicking This is open letter, so has to be formal. I know you have mountains of courage and will live up to expectations. Please don't do anything rash. Consult the lawyer in every thing you do or say. . .

Past 12 days a memorable and unique experience. I suppose a lot more is yet to come. I am rather worried about you and your temper. Please remember your responsibilities towards Aalya and Tina as well. I would hate if you allowed yourself to get into the grip of Government." '

The detenu contradicted the affidavit sworn by Major Aurangzeb to the effect that he took him in Military custody on 31st March 1973 at 10 a.m.

7. Col. Afridi was the Chief Instructor of War course in the National Defence College, Rawalpindi during the Indo-Pakistan War of 1971. On 9th December he was posted as Chief of Staff of a corps called the Army Reserve North. He served in that capacity till 1st January 1971 when he was sent back to his job. He stated that he appeared before Hamoodur Rahman Commission, for two reasons, firstly to tell about the conduct of war and secondly to describe his role in the happenings of 19/20-12-1971 which resulted in the exist of Ex-President General Yahya Khan. He was awarded "Sitara-e-Jurat" after 1965 Indo-Pakistan War.

8. In cross-examination by the Advocate-General the detenu replied that he was provided a bed, chair and a tepoy. The food was served in the following manner: Every thing was put in one plate and some Chapattis were provided along with it. Answering the question whether he was medically examined every week during his stay in the Fort the detenu stated that he suffered from acidity and on one occasion medicine was not given to him at all although he kept asking for it till 10 o'clock in the night and eventually he gave up the pursuit. He described the incident of the taking of his watch at Police Station but denied to have made any shriek since according to him it was an insult for him to have shrieked.

9. We would now refer to the statement made by Muhammad Tariq Khan. The detenu is brother of Air-Marshal (Retired) Asghar Khan, and his sister Mst. Shamim petitioner is married to Col. Abdul Alim. Afridi. He joined as Cadet in the Air Force in 1953. He was however, boarded out on medical grounds because he was suffering from pleurisy and had spent a year in the hospital. He was declared permanently unfit for the Commission. He was present at the house of his brother---in- law Col. Abdul Alim Afridi, at Lahore Cantonment on 30th March 1973. He stated the circumstances under which he surrendered before the District Magistrate, Hazara. According to him on 3rd April 1973, he was informed by his sister on telephone that a notice has been posted--on his door calling him to appear before the District Magistrate under the Defence of Pakistan Rules. His wife arrived in Lahore on the evening of 4th April 1973. He pondered as to whether he should present himself before the District Magistrate, Lahore or go to Hazara. On 5th ultimately he decided to leave for Hazara, on the 30th of April 1973, and. Reached Abbottabad the same evening. On the following day he presented him--self before the District Magistrate who sent him with police escort to Haripur Jail, where he was kept in solitary confinement till 14th April 1973. The cell at Haripur Jail was 8' x 10' wide and full of mosquitoes. He could not sleep. He was kept under Guard of three murderous convicts. On 14th the Superintendent of Jail sent for him. He was shown a letter (Exh. A. 1) dated 13th April 1973 of the Central Government revoking his detention under the Defence of Pakistan Rules.

Thereafter the D. S. P. Appeared inside the Jail and he was told that he had orders to take him to Rawalpindi. The detenu asked him to show him the authority under which he wanted to arrest him again. According to him he was not produced before any Magistrate at Haripur nor he was permitted to contact hi& family members or a Lawyer. During his stay in Haripur Jail he was not provided good food. He was given mostly dal and roti and occasionally meat was provided. He was permitted to go out of the cell for a week and, he had the toilet facility at a distance of 50 yards from his cell. At Rawalpindi he was kept at Cantonment Police Station and according to him he was not produced before any Magistrate and was driven to, Attock in Police jeep.

10. At Attock Fort he was kept in a cell which had just one bed, .One commode lying in the corner, it had no ventilation and no windows. 7here was no fan and he was not permitted communication with anyone. The cell, according to him, is 10' x 25 . Occasionally he was taken out of the cell for interrogation blind-folded and handcuffed with four soldiers keeping guard over him. This continued for 10 days. He used to be interrogated for 6 to 7 hours a day. On his arrival at Attock Fort he was weighed after 3 or 4 days. His weight was 154 lbs. On his being weighed again when he was brought to this Court his weight was 153 lbs. Before he entered Haripur Jail he was 176 lbs. Since 7th April 1973 up to the date of his appearance in this Court he lost about 21 lbs. There was lot of fes in the room. He could not sleep during the day and at nights lot .Of mosquitoes also joined the flies in keeping him awake. Light used to be dept on throughout the night. He was not permitted any reading material. He wrote four letters to his relations but received no answer, for anyone of them.

For three days he was not provided any chair or table in the cell. He had to eat his food by putting it on the commode which he used as a table. He did not know the reason why he was kept in custody. He wrote letters Exh. A. 2 and A. 3 in which he mentioned some of his problems and requirements. In one letter he complained that he had reduced round the waist considerably. He said that he was suffering from pleurisy and had not recovered fully even uptill now. In Attock Fort he had some breathing difficulty and he had to send for the doctor on a number of occasions who gave him sleeping pills which had no effect on him since he was kept in miserable condition. Out of 15 days he could hardly sleep for two hours. It was suggested that he absconded before be was arrested. He denied and disclosed that on the information of the pasting of notice in front of his house he proceeded to Hazara and surrendered before the District Magistrate. In cross--- examination by the Advocate-General he denied that he was shown any warrant of arrest by the D.

S. P. He also denied that he was produced before a Magistrate at Rawalpindi on 14th April 1973.

11. Brigadier Farrukh Bakhat A.I stated that he was arrested on 30th March from his residence in Karachi in the morning. He was arrested by the S. S. P., Karachi who had a large number of Police Officers accompanied by two army officers. The S. S. P. And Lt.-Col. Fakhfoor took him to Clifton Police Station where he was kept for half an hour and from there he was driven to Drigh Road Airfield by Major Bajwa. He was put in Air Force Plane, handcuffed and blind-folded. The plane presumably landed at Rawalpindi from where he was taken to Attock Fort. He was placed in a cell where he was kept in solitary confinement till the day he was brought to this Court. His cell was 20'

X 10'. He was taken out of this cell for interrogation. He was kept totally cut off from the rest of the world and practically had no human contacts. The .Only people he used to see were his guards passing outside the iron bar. He could not speak even to the guards. He received no news from his family. After a fortnight of his stay in Attock he was told that he could write to his family. He wrote 6/7 letters but received no reply. He was given proper food in proper manner like other ranks in the cell. He was provided with a bed, but was not allowed any reading material. He complained that though he was not subjected to physical torture he was reduced to the level of an animal in the zoo. He had a commode in the corner of his room and a bucket of water. . He was interrogated thrice in order to make a statement. He had no fan, no mosquito not and no reading material. The light was kept on in his room throughout the night. In answer to the question were you kept in custody in a manner befitting the status of a Brigadier? What, according to the usages of service, are the modes and manners of keeping an officer in custody? He replied he had not been kept in custody in anything remotely resembling the normal manner in which an officer is kept in custody.

The usage of the service is that officer under close arrest is confined to his living quarters and an escort of his own or higher rank stays with him in his quarter. This is laid down in the Army Code. He was not taken out of his cell for a walk or exercise. He was not permitted to see anybody or talk with. He denied to have known the accusation against him and also refuted the sugges--petition that he was ever produced before the Magistrate for obtaining remand. The Advocate-General was given an opportunity to cross-examine the detenu but he declined.

12. On 4th May 1973, the Advocate-General made a statement that certain facilities have been provided to, the deterius namely, mosquito nets, fans reading material and the articles given by the relatives. He stated that from now onward officers will keep company of the detenus according to the convenience of the prisoners. The Advocate-General further submitted that he would like to make a statement about the meeting of the wives, other family members and further details on 7th May 1973. It was argued, however, by learned counsel for the petitioners that the detenus have not been kept in lawful manner and they were subject to torture even if facilities have been provided to the detenus for future. On 10th May 1973, Advocate-General submitted a document in the form of written statement accompanied by a certificate from C. O. Special Detenu Camp and the letter addressed by the Commander to him dated 28th April 1973 which have been placed on the file.

This document mentions :-

1. (i) Ceiling fans have been installed in all the rooms ;

(ii) All the accused were asked in writing whether they need mosquito nets and those who wanted it have been provided with it ;

(iii) Reading material supplied by the relatives and other reading material have also been made available to them.

(iv) Radio and transistors if any sent by the relatives of the accused have been given to them.

2. Apart from the above facilities the following other facilities have also been provided to the accused :-

(i) Wives and the near relations of the accused can see them and have also been seeing them at the detention camp.

(ii) The complaint of the accused that the commodes have been kept in their rooms has been removed and the commodes are no longer in the same room.

(iii) They axe provided with a bed, table and a chair.

(iv) Officers are allowed to keep their company whenever they desire it.

(v) The food from the officers' mess is being supplied to them and it is the same food which all other officers stationed at the camp take and many a times the menu is made after consulting the accused.

13.----(3) Medical facilities are available and in fact all the accused are thoroughly examined by the Medical Officer every Monday.

(4) Interrogation of the accused is practically over. The delay in recording the formal summary of evidence was necessitated because the first concern of the authorities was to find out how far the entire army was contaminated so that all such officers who were in that conspiracy should be segregated from others and now these investigations are over.

(5) The alleged torture cell mentioned by Col. Aleem Afridi in his statement before, the Court are actually operational underground apartments which are used by Officers of the Army during emergency and war day and night. There are no torturing instruments or, electronic devices kept in the operation room.

(6) The accused were being kept properly in a lawful manner, and have been provided with all possible amenities under the circumstances. The learned Advocate-General has- not produced any evidence in rebuttal of the allegations made except the above documents.

14. Considering that a question of great public importance has arisen in regard to the lawful manner of any custody in Pakistan we have heard Mr. Manzoor Qadir, Ch. Nazir A4mad Khan and Mr. S. M. Zafar as amicus curiae in addition to the counsel for the parties.

(2) Subject to this Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law-

(b) on the application of any person, rake 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.

Article 98 of 1962 Constitution equivalent to the above Article has been the subject-matter of interpretation in Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969SC 14). At page 30 it was observed :- "Whilst in the first case the direction is limited to the making of an order for doing or refraining from doing that which the law permits or does not permit, as the case may be, in the case of detention the High Court is enjoined upon to "satisfy itself" that the person is not being held in custody (a) without lawful authority or (b) in an unlawful manner."

This Court has, therefore, to satisfy under Article 201 of the Constitution two things, namely, whether the custody was without lawful authority or in an unlawful manner. In examining the question before us anything which is not done in accordance with law would be an act of unlawful manner.

Mr. Manzoor Qadir relying on Shorish Kasbmiri's case argued that the custody could be of two kinds i.e. One with the Army and the other with the Civil Authority. Dealing with Civil Custody he referred to Prisons Act, 1894 and different chapters of the Punjab Jail Manual.

Section 3 of the- Act defines `prison', `criminal prisoner', `convicted criminal prisoner' and `civil prisoner'. Section 29 deals with solitary confinement and section 31 relates to maintenance of certain prisoners from private sources. It reads :- A civil prisoner or an un-convicted criminal 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 Inspector- General."

Chapter XV of the Punjab Jail Manual, 1955 deals with under-trial prisoners: Paragraph 368 thereof deals with medical examination, page 370 with periodical weighments, para. 372 permits the wearing of his own clothes and use of his own bedding. Para. 374 relates to maintenance of prisoner from private sources, namely, permission for the under-trial prisoners by the Superintendent to purchase or receive from private sources, food, clothes, bedding and other necessaries subject to the restrictions placed thereon. The under-trial prisoners can receive money from their friends or relatives to purchase articles permissible under the rules by virtue of para. 376.

Para. 380 concerns the employment of the under-trial prisoners on any unproductive labour inside the jail if they so desire. Para. 383 deals with any special directions given by the Magistrate regarding the separation of an under-trial prisoner. Such separation should not be accompanied by irksome conditions, except those necessary to secure the object in view, namely to prevent him from communicating directly or indirectly with other prisoners concerned in the same case. Para. 386 provides that under trial prisoners may be allowed to use their own books approved by the Superintendent up to a reasonable limit in addition to those available in the jail library. They should be allowed to' read at their own cost, magazines and newspapers on the approved list.

Chapter 21, paras. 476 to 514, deals with diet of prisoners. Para. 478 gives power to the Medical Officer to vary the diet of the prisoner if he considered it unsuitable or insufficient for reason of his health. Para. 479 and para. 480 deal with morning and midday and evening meals and the scale of the various meals to be provided to the prisoner. Chapter 22 deals with clothing. Chapter 23 concerns writing letters and interviews. Chapter 26 relates to prisoners in cells. Para. 633 dealing with section 28 of the Prisons Act empowers the Superintendents to confine convicted criminal prisoners either in association or individually in cells, or partly in one way anti partly in the other. If any convict is confined in a cell under that section, he should, if circumstances permit, be treated in all other respects like ordinary prisoners confined in association. He should be locked up and unlocked at the same hours and allowed to work and have meals in association with other prisoners. The prisoner is kept in a cell because it is considered expedient to confine him there and not because he has been given this confinement as a punishment. Chapter 32 deals with sanitation in jail. Para. 758 of this chapter deals with ventilation of wards and cells. Para. 759 lays down that newly constructed ward, barrack or cell, shall be occupied by any prisoner until the Medical Officer shall have certified that such ward, cell or other compartment is in all respects fit for occupation. Para. 761 deals with sleeping berths. Para. 762 lays down that no cell shall be used for solitary confinement unless it is furnished with the means of enabling the prisoner to com-- municate at any time with an officer of the person, and every prisoner so confined in cell for more than 24 hours, shall be visited at least once a day by the Medical Officer or the Assistant Medical Officer.

Para. 517 of Chapter 22, however, prohibits the wearing of uniform by prisoners belonging to Army and other formations. From perusal of the Act and the Manual it is abundantly clear that the prisoners are I to be treated like human beings and they have: to be looked after for, physical and mental health: Facilities of good food and humanly treatmentis envisaged by the above provisions of the law. Dealing with the army custody one has to go to section 73 of the Army Act of 1952.

15. Subsection (9) (a) of section 8 defines `military custody' as follows :- "military custody means the arrest or confinement of a person according to the usage of the service and includes naval or air force custody."

Manual of Pakistan Military Law, 1957, published by Government of Pakistan, Ministry of Defence has also to be examined. Chapter III thereof deals with arrest: investigation of charges. Para. 2 is reproduced as under :- "Nature of arrest-Officers and Junior Commissioned Officers.-In the case of an officer or junior commissioned officer, custody means "arrest" either open or close; but, if circumstances require it, he may be placed under the charge of a guard, piquet, patrol, sentry or provost marshal. Whether the arrest is open or close will depend upon the direction of the officer who ordered it. An officer or J. C. O. In close arrest is placed in charge of an "escort" consisting of another (if possible, a senior) officer or J. C. O. As the case may be of the same rank., He must not leave his quarters or tent except to take such exercise under supervision as the medical officer thinks necessary. An officer or J. C. O. In open arrest may take exercise at stated periods within certain limits, which are -usually the precincts of the regimental lines or camp; he must not, however, appear out of uniform, or at any place of amusement or public resort, nor must he wear sash, sword, belt, or spurs. An officer or J. C. O. Placed under arrest should always be informed in writing of the nature of the arrest, which will be governed by the circumstances of the case; and any change in the nature of the arrest should be notified in writing to him."

It was argued that the supremacy of Municipal Courts in the matter of trial of offenders has been well-recognised in England. Paragraph 1060 of Halsbury's Laws of England, Third Edition, Volume 9 is reproduced "Concurrent jurisdiction.-Nothing in the Army Act affects any jurisdiction of any civil Court to try a person subject to military law for any offence. If he has been previously tried for the same offence by a court-martial, the civil Court must, in awarding punishment, have regard to the military punishment he may already have undergone. Where a person subject to military law has been acquitted or convicted of an offence by a competent civil Court, he is not liable to be tried for that offence by court-martial. And he is not so liable if he has been previously acquitted or convicted of the same offence by a court-martial. Similarly, a person is not liable to be dealt with summarily under military law for an offence of which he has been acquitted or convicted by a civil Court or court-martial, nor can a person be tried by court-martial where a charge against him has been dealt with summarily."

Somewhat similar position is envisaged by sections 94 and 95 of the Army Act, 1952 in this country.

The only distinction is that where a question arises as to who should have the custody for trial of the offender reference has to be made to the Central Government whose verdict shall be final for the delivery of the accused to the Court before which the. Proceedings are to be instituted.

16. Ch. Na2ir Ahmad Khan appearing as amicus curia'e opened his submission with reference to the affidavit submitted by Major Aurangzeb Khan dated 10th April 1973 and argued that the Major has not specifically denied the different allegations made about torture. Mere general denial would not be sufficient. In his affidavit he has not categorically denied the presence of electronic devices in the underground cell. Learned Advocate---General in his written statement dated 10th May 1973 in paragraph 5, however, has stated that the alleged torture cell mentioned by Col. Abdul Alim Afridi in his statement before the Court are actually operational underground apartments which are used by officers of the Army during emergency and war day and night. There are no torturing instruments or electronic devices kept in the operation room. This reply is not supported by an affidavit of any officer of the Army. Absence of any responsible Military Officer by itself reflects the position.

17. Ch. Nazir Ahmad Khan described custody of four kinds, namely, military custody, civil custody, custody in civil prison under revenue law for non-payment of land revenue and custody under the thumb. Each custody has to be governed by Rules, Regulations and certain norms. Onus is on the detaining authority to show that the manner of the custody was lawful. He referred to Article 3(1) of the Interim Constitution and laid emphasis on the words "wherever he may be" in the said Article which ensures protection of law to every citizen who is to be treated in accordance with law and only in accordance with law, this being his inalienable right. Particularly no action detrimental to his liberty or body could betaken except in accordance with law. It is also imperative that no person shall be compelled to do anything which by law he is not required to do. Nobody is above the law.

Article 5 enshrines in the Interim Constitution obedience to law, the basic obligation of every citizen.

The person in whose custody an under-trial or any other person is cannot exceed the limits imposed on him having authority according to his sweet will. He has to perform his duties within the ambit of law failing which the offender cannot claim immunity on account of his being a person in authority. Any act of a public functionary beyond the scope of law may expose him to penalty provided for the disobedience. He pointed out the gravity of punishment for voluntary causing hurt by an ordinary citizen and an official who causes hurt to extort confession as laid down in section 323 and section 330, P. P. C. In the case of an ordinary person the punishment extends to one year and a fine which may extend to one thousand or with both while in the latter case the official who for purpose of extorting confession causes voluntarily hurt to a person in his custody is liable to punishment for imprisonment which may extend to seven years and also liable to fine. Learned Advocate referred to section 50, Cr. P. C. And submitted that a person arrested shall not be subject to more restraint than is necessary to prevent his escape. He elaborated his submission that it was not necessary to handcuff or blind-fold a person or to put him to inconvenience and humiliation if the accused person does not behave in the manner in which his absconsion is apprehended.

18. Ch. Nazir Ahmad referred to Shorish Kashmiri's case and pointed out the following head-note on page 16 :- "The words in an unlawful manner in sub-clause (b) of Article 98(2) have been used deliberately to give meaning and content to the solemn declaration under Article 2 of the Constitution itself that it is the inalienable right of every citizen to be treated in accordance with law and only in accordance with law. Therefore, in determining as to how and in what circumstances a detention would be detention in an unlawful manner one would inevitably have first to see whether the action is in accordance with law, if not then it is action in an unlawful manner. Law is here not confined to statute law alone but is used in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by the superior Courts. It means according to - the accepted forms of legal process and postulates a strict performance of all the functions and duties laid down by law. It may well be, as has been suggested in some quarters, that in this sense it is as comprehensive as the American `due process' clause in a new garb."

19. He wound up his submissions in the words that every action of a detaining authority if it militates the law, rules or regulations on the subject can be subjected to the authority of judicial review of this Court under Article 201 of the Interim Constitution, and every such wrong has to be corrected and the authorities be made to act in accordance with law and law alone. No immunity can be claimed on any score by any authority for any citizen of this country.

20. Mr. S. M. Zafar last in the series of amicus curiae opened his arguments by making reference to Article 201 (2)(b)(i) and submitted that the High Court in the exercise of its extraordinary constitutional jurisdic--petition has to satisfy itself that a person in custody is not held without lawful authority and in an unlawful manner. He also placed reliance on Agha Shorish Kashmiri's case and quoted different paragraphs from the judgment. In his view there has been a change in the law of habeas corpus and that change is a fundamental one, having inclination in favour of the liberty of citizens. He discussed judicial power of review by making reference to Article 223-A of the Government of India Act,' 1935 adopted as Provisional. Constitution of Pakistan. The power was only limited to the conventional writs, namely, habeas corpus, mandamus, prohibition, quo warrantor and certiorari only. While the Constituent Assembly which framed Constitution of 1956 in Article 170 included in the power of High Court the issuance of directions, orders, or writs including the conventional writs by then. The fundamental rights have also been mentioned in Part 11 of this Constitution. In the country Presidential system was introduced by 1962 Constitution and the American Due Process Clause was introduced in a new garb. This was so observed at page 31 by our Lord the Chief Justice of Pakistan in Shorish Kashmiri's case. According to Mr. S. M. Zafar unlawful manner is one where the detaining authority deviates in action from the due process of law laid down by the Act and the Rules. In addition to the above argument he further divided his arguments in two parts, namely, concept of freedom and liberty as recognised by International community land freedom of individual as envisaged by Islam.

21. He submitted that Pakistan in its various constitutional docu--ments has committed itself to be civilised modern state. He referred to 9th para. Of preamble of 1956 Constitution which is reproduced as under :- "Wherein should be guaranteed fundamental rights including rights such as equality of status and of opportunity, equality before law, freedom of thought, expression, belief, faith, worship and association, and social, economic, and political justice, subject to law and public morality."

22. By second paragraph of the preamble to the 1962 Constitution Pakistan was declared to be a democratic State based on Islamic Principles of social justice. Initially in this Constitution fundamental rights were not there, but by first amendment they were introduced by Articles 7 and

9. Article 7 mentions principles of policy and it was the responsibility of each organ and authority of the State and of each person performing functions on behalf of the organ or authority of the State to act in accordance with those principles in so far as they relate to the functions of the organ or authority. Article 9 deals with well-being of the people.

23. In the preamble Paragraphs 2, 5 and 9 of the Interim Constitu--petition of 1972 are worth mentioning. They are reproduced as below;-=---- "Whereas the Founder of Pakistan, Quaid-i-Azam Muhammad A.I Jinnah, declared that Pakistan would be a democratic State based on Islamic Principles of social justice.

Wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam, should be fully observed.

Wherein should be guaranteed fundamental rights, including rights such as equality of status and of opportunity, equality before law, freedom of thought, expression, belief, faith, worship and association, and social, economic, and political justice, subject to law and public morality".

Part II of this Constitution deals with Fundamental Rights and Principles of Policy. Article 8 ensures that no person shall be deprived of life or liberty save in accordance with, law. Similar responsibility on the organs of the State was placed y Article 27 to perform functions in accordance with the, principles of Policy, namely, to act in the manner which is not inhuman and behave with individuals fairly with dignity and honour and no action should be derogatory to self-respect of an individual.

Article 30 provides Islamic way of life of Muslims of Pakistan and Article 39 guarantees the well- being of the people irrespective of case, creed or race. Para. 5 of the preamble of 1973-Constitution mentions Principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam. Para. 6 has provided fundamental rights, equality of status and equality before law. Article 9 provides that no person shall lie deprived of life or liberty save in accordance with law, while Article 14 has clearly mentioned that dignity of man, subject to law, the privacy of home, shall be inviolable. No person shall be subject to torture for the purpose of extracting evidence.

24. It would thus be clear that throughout its life as a country Pakistan has set itself to become a democratic and free society where there shall be dignity of man freedom of person in order to achieve a rightful and honourable place amongst the nations of the world with a distinction of having a Muslim concept of tolerance:

25. Article 201 is meant to provide this Court with supervisory power to see wherever any organ or public functionary does a thing which in any way is likely to hamper the progress of the country towards the goal mentioned above or deviates from the path so set. By its constitutional provision it should be corrected unhesitatingly the wrong so that the society should not be deprived of its rights wherevor any invasion is` made. Dealing with the expression `due process of law', Mr. S., M.

Zafar referred to Amendments Nos. 5 and 14 of the Constitution of U. S. A. And cited the following judgments of the Supreme Court, namely, Mian Jamal Shah v. The Member, Election Commission and others (PLD1966SC1), R. S. Jhamandas v. The Chief Land Commissioner (PLD1966SC229) and Malik Ghulam Jilani v; The Government of West Pakistan (PLD 1967 SC 373) and also pointed out commentary by Monir on Article 2 of 1962 Constitution of Islamic Republic of Pakistan. Interpretation of similar provision of Article 98 of the late Constitution of 1962 in the above authorities by the Supreme Court clearly brings the concept of due process of law by virtue of Article 201 read with Article 3 of the Interim Con--stitution as envisaged by Amendments Nos. 5 and 14 of the U. S. Constitution.

The personal freedom has been discussed in Chapter V at page 206 of A. V. Dicey book `An Introduction to the Study of the Law of the' Constitution' with an introduction by E. C. S. Wade which is reproduced as under :- "The security which an Englishman enjoys for personal freedom does not really depend upon or originate in any general proposition contained in any written document. The nearest approach which our statute book presents to the statement contained in the seventh Article of the , Belgian Constitution is the celebrated thirty-ninth Article of the Magna Charta: "Nullus liber home capiatur, vel imprisonetur, aut dis--saislatur aut utlagetur, `aut exuletur, aut aliquo' modo destruatur, nee super gum ibimus, nee super "gum mittemus, nisi per legale jud--icium parium "sucrum vel per legem terrae," which should be read in combination with the declarations of the Petition of Rights.

And these enactments (if such they can be called) are rather records of the existence of a right than statutes which confer it. The expres--sion again, "guaranteed", is as, I have already pointed out, extremely significant; it suggests the notion that personal liberty is a special privilege insured to Belgians by some power above the ordinary law of the land. This is an idea utterly alien to English modes of thought, since with us freedom of person is not a special privilege but the out-- come of the ordinary law of the land enforced by the Courts."

O. Hood Phillips in his book Constitution and Administrative Law, Fourth Edition by Sweet and Maxwell on page 444 deals with freedom of person and property under Chapter 22 as under :- "Freedom of the Person.-The right to personal liberty as understood in England", says Dicey, `means in substance a person's right not to be subject to imprisonment, arrest, or other physical coercion in any manner that does not admit of legal justification. It is one of the pillars of liberty," said Lord Atkin in Liversidge v. Anderson 1942 A C 206 that "in English law every imprisonment is prima facie unlawful, and that it is for a person directing imprisonment to justify his act". The justification is usually that the person is arrested and detained without bail pending trial in Court on a charge of crime, or that after trial by a Court of competent jurisdiction he has been. Convicted and sentenced to imprisonment or some other kinds of detention provided by statute. Other kinds of lawful detention under statutory safeguards are those of mentally disordered persons, children in need of care and protection, committal for contempt of Court or Parliament, imprisonment for failing to satisfy a judgment debt in spite of having had the means to do so, and custody pending extradition or deportation.

Redress for Wrongful Deprivation of Liberty.-On wrongful depriva--petition of liberty, the following remedies are available;---

(1) Civil proceedings for damages in respect of malicious prosecution, false imprisonment or assault ;

(2) a criminal prosecution for assault, battery, or even in respect of false imprisonment itself ;

(3) application for a writ pf habeas corpus to obtain one's release ;

(4) appeal against conviction or sentence to a higher Court ;

(5) the issue in appropriate cases of an order of certiorari or prohibition ;

(6) in certain cases a summons can be taken out before a Magistrate, to recover costs incidental to defending irregular and unjustifiable proceedings.

The common law allows a person to use a reasonable amount of force in self-defence to resist unlawful arrest without warrant, whether by a police constable or a private citizen; but it is inadvisable to resist arrest by a police constable as the arrest may well turn out to be lawful."

26. Luis Kutner in his book World Habeas Corpus deals with the Well Tried Virtues of Habeas Corpus at page 85 which is reproduced as under :- "Tested by time and experience, the writ of Habeas Corpus as a means to protect individual freedom has aroused the most eloquent admiration of Judges and scholars. Blackstone, in his comment--aries, called it "that great and important statute" and "one of the great Charters of Liberty", like the Magna Carta and the Bill of Rights, 18 and the "most celebrated writ in the English Law," The Habeas Corpus has gained admiration as the statute which forces the secrets of every person to be revealed, the cause of --very commitment to be declared, the person of the accused to be produced, that he may claim his enlargement, or his trial within a limited time. Holds-worth similarly wrote that : "This (1679) Act made the writ of Habeas Corpus ad subjiciendum the most effective weapon yet devised for the protection of the liberty of the subject by providing both for a speedy judicial inquiry into the justice of any imprisonment on a criminal charge, and for a speedy trial of prisoners remanded to await trial. It seems to have made the Habeas Corpus ad subiiciendum the only form of the writ used for the purpose of protecting liberty . . . . (Italics supplied).

On page 81 of his book he has dealt with the due process of law which is also reproduced:- "Due Process of Law, Habeas Corpus and the right of the individual to physical security, because of their intimate inter-relationship, have almost become synonymous. The phrase "the right to Habeas Corpus" is, in fact, tantamount to the assertion of the right to physical security because, in practice, the writ. Has been so effective in protecting the latter right. For clarity's sake it is pertinent to discuss the writ of Habeas Corpus as one procedure by which due process of law can be applied towards the protection of individual liberty."

Mr. S. M. Zafar cited the instance of William's case where an application of Habeas Corpus was moved for the production and liberty of a corres--pondent who was detained in Czechoslovakia.

The case gained such an importance that before an action could be taken by the United Nations the matter was taken up on diplomatic level and the detenu was released.

At page 204 of Annual Survey of American Law, 1966 Edition, writ of Habeas Corpus has also been discussed. Writ of Habeas Corpus was granted by a district Court in Utha to 19 years old soldier on the ground that he was not afforded a civilian counsel and was represented at a special court- martial by two officers, one a veterinarian, neither of whom had legal training. The District Court granted the writ, holding that the sixth amendment right to counsel applied to such a court- martial, at least where the charges involve moral turpitude. In general terms, the armed services must afford `military due process' which must comport with minimum constitutional standards, to their members appointing a non-lawyer as counsel was characterized as `the Judicially blind leading the blind' and the mere use of officers is not `effective' counsel within the meaning of the sixth amendment."

27. R. F. V. Heuston in his book "Essays in Constitutional Law", Second Edition published by Stenvens 8c Sons at page 101 has dealt with personal Liberty. The passage is worth quoting and is reproduced below :- "The bias of the common law in favour of the liberty of the individual subject is well known. There are no formal guarantees or statements of principle but instead a number peculiarly effective remedies which have been evolved over a period of many years. The general principle deducible from Entick v. Carrington (1765) 19 St. Tr. 1030 and similar cases is that every interference with individual liberty is unlawful unless some specific statutory or common law rule can be produced to justification for deprivation of liberty will be available in that the complainant will have been properly accused or convicted of some criminal offence or has been found to be a person of unsound mind whom it has been necessary to detain under the Mental Health Act, 1959. But whatever the justification alleged, it is always narrowly construed by the Courts."

On page 107 the author has eminently dealt with the writ of habeas corpus. The passage is reproduced :- "A person who has been wrongly deprived of his liberty is thus furnished by the law with remedies for its vindication; but an action cannot be begun if one is immured in a dungeon and hence it may be necessary for an imprisoned person first of all to secure his release by way of the writ of Habeas Corpus. While the writ of the habeas corpus is available a person in prison can procure his speedy release, if the detention is illegal or, if the detention has been shown to be legal, his release on bail or an early trial; for in the case of treason or felony a prisoner must be released on bail if he is not indicted at the next assizes after his committal, unless the witnesses for the Crown cannot appear. If he is not indicted and tried at the next subsequent assizes he must be discharged from custody. One of the main uses of the writ in early days was to secure release on bail pending trial, for the conditions in seventeenth century prisons were not attractive. The statute 19 Car. 2, c. 4.

Recites that prisoners "many times perished before their trial, and as until Victorian times there was only one assize a year in the four northern countries, one who had been committed to Durham Gaol by the Magistrates would have languished for a long time in bitter conditions without the benefit of habeas corpus."

28. Coming to the last point of Islamic Administration of Justice raised by Mr. S. M. Zafar he quoted a passage from by Syed Abul A'ala Moudoodi, page 210 which deals with the directions of the Holy Prophet (peace be on him) giving instructions for good treatment of those prisoners who were captured in the war of Badar. It is pertinent to mention that Muslims were maltreated, prosecuted for a period of 13 long years by these persons and the Apostle of Allah insisted in his order to Sahaba that they should be dealt with liberally and they should be given better food than what they used to eat. They were given more comforts which were available to them and in fact by this order Sahabas ate datepalms and fed the prisoners with good food. The prisoners had no clothing.

The Prophet of God provided them with clothes although financially it was a difficult period for the Muslims. At page 309 of the book "The Life of Muhammad", a translation of Ibn Ishaq's Sirat Rasul Allah with introduction and notes by A. Guillaume published by Oxford University Press a passage was cited which is worthy of re-production :- "Nubayh b. Wahb brother of B. Abdul-Dar told me that the apostle divided the prisoners amongst his companions and said, "Treat them well, `Now Abu Aziz b. Umayar b. Hashim, brother of Mus'ab' b. `Umayar by the same mother and father, was among the prisoners and he said, `My brother Mus'ab passed by me as one of the Ansar was binding me and he said, " Bind him fast, for his mother is a wealthy woman: perhaps she will redeem him from you." I was with a number of the Ansar when they brought me from Badr, and when they ate their morning and evening meals they gave me the bread and ate the dates themselves in accordance with the orders that the apostle had given about us. If any one had a morsel of bread he gave it to me. I felt ashamed and returned it to one of them but he returned it to me untouched."

Hazrat Usman and Hazrat A.I by Dr. Tua Hussain, its Urdu transla--petition by Alama Abdul Hamid Nehmani, published by Nafees Academy, Karachi at page 481 of this book has described the kind behaviour of Hazrat A.I in the following words:- Khalid M. Ishaque in his book "Constitutional Limitations" an essay on limits on exercise of political power at page 74 has commented on the duty to be in obedient to what is unlawful. This is reproduced: - "The clear implication of the idea of rule of Shariat is that a person is liable to obey only what is lawful and to even correct if he can, what is unlawful. Most of the relevant verses in this behalf have already been noticed in paragraphs of the text. The most com--prehensive statement is contained in the following verse :- "And help one another in righteousness and piety and abet not one another in sin and transgression."

29. There have been two trials of conspirators in this country one is known as Rawalpindi Conspiracy Case and the other is known as Agartala Conspiracy Case. The Constituent Assembly of Pakistan passed the Rawalpindi Conspiracy Special Tribunal Act, 1951. The trial was held in Hyderabad Jail. This Court was informed that the accused were kept in civil custody. In Agartala Conspiracy Case a Tribunal was set up under Ordinance VIII which was approved by the National Assembly of Pakistan on 6th June 1968. The custody of the accused in this case remained with Military Authority by virtue of section 8 of the said Ordinance. Winding up his submission Mr. S. M.

Zafar submitted that this Court has jurisdiction to consider both the questions of lawful authority and the lawful manner of detention. In the former case if it is found that the detention order is ultra vires the detenu has to be set at liberty. While in the latter, where the complaint is made to the Court that a person is being detained in a manner which is unlawful then the Court has the jurisdiction to go into the allegations and find out how the person is being kept in the prison, whether his physical security is in any way in danger, whether he is being given the treatment which in a civilised country the under-trial prisoners should receive And to see that there is no excess against him which is opposed to the concept of Muslim Law of Tolerance and Freedom. The Court has also to see that the, prisoner is kept in accordance with law laid down in the Jail Manual, Criminal Procedure Code, the Army Act, the Manual, the Rules and the Regulations. And they are strictly to be complied with. If the Court comes to the conclusion that while detaining a person the manner is unlawful, then according to him, the following courses are open to the Court:----- Order the correction of the unlawful manner and direct the authority to do what they are required to do under the relevant law of detention according to the nature of the custody Civil or Military as the case may be.

If the Court comes to the conclusion that there exists malice in the mind of the detaining authority and that the detaining authority is behaving in an unlawful manner not merely by mistake but due to vendetta and due to malice. In that case the Court will have full jurisdiction to grant bail to such detenu.

30. Mr. S. M. Zafar was requested to give this Court the circumstances and the manner of dealing with the conspirators of Agartala Conspiracy Case without violating the oath of his office as he was then the Law Minister in the Cabinet of Ex-President Field-Marshal Mohammad Ayub Khan. He explained that Agartala Conspiracy Case came to light when the Army Intelligence brought it to the notice of Civil Government that they have un--earthed the conspiracy and had got full evidence. The question then before the civil administration was whether the trial should be before the Military Court or should it be before the normal civil Court. Field---Marshal had suffered a severe attack and was unable to fully participate in the discussion and so the discussion took place between the Information Minister, General Yahya Khan and the Law Minister and they determined the question. Mr. S. M. Zafar as Law Minister insisted that there being civilians involved the rule of law required that there should be a civil trial and ultimately Yaha Khan agreed with one condition that the case should be tried at the highest level so that there are not many appeals or revisions and the case be disposed of once for all. According to him he readily agreed and the relevant law mentioned above was passed. The Tribunal was headed by the former Chief Justice of Supreme Court of Pakistan, Mr. Justice S. A. Rahman and 2 other Judges of the High Court of East Pakistan. Criminal Procedure Code was made applicable and Law of Evidence was to be applied.

As the Army had insisted for the custody of the accused it was allowed to remain with them. The accused were kept in Cantonment. According to him the Home Ministry had spent considerable amount for providing facilities to the persons detained. There was, however, an allegation that Panjabi officers were specially being used as Investigating Officers, but there was no complaint of physical or mental torture. On account of political pressure the emergency was lifted. The accused were in judicial custody. Mujib-ur---Rehman agreed to come on bail. An application was in fact drafted and moved. Admiral A. R. Khan the then Defence Minister was also present in Dacca on behalf of the Government. The Government at that time was in favour of releasing Sh. Mujib-ur- Rehman on bail. In the meantime a sort of conspiracy was found when Radio Pakistan in its 5 o'clock bulletin broadcast a news item that Sh. Mujib-ur-Rehman had agreed to come on bail. On hearing this news Mr. Qamar-ul-Zaman and Mr. Taj-ud-Din made a very strong protest that the Government was trying to belittle Mujib-ur-Rehmafi. Although the Tribunal had met for the consideration of the application of bail, counsel for the applicant did not turn up and ultimately the Ordinance was withdrawn.

31. Mr. M. Anwar counsel for the petitioners argued that the detenus have been harshly dealt with and they were kept in prison at sub--human level, they were mentally tortured and subjected to solitary confinement which is a punishment under section 73 and the limit to it is also provided by section 74, P. P. C. The solitary confinement of the detenus amounts to punishment before trial and this kind of detention is not available by any law of any under-trial prisoner. He submitted that howsoever heinous the crime may be that does not deprive the detenus the humanly treatment during the period of their detention. The statements of the detenus have not been specifically contradicted by any detaining officer and the fact that certain facilities have been provided goes a long way to show the truth of the allegations made.

Mr. M. Anwar has put in repeated applications alleging violation of the undertakings given by the Advocate-General regarding the facilities provided under the law. These applications will be dealt with separately.

The Attorney-General is out of the country and is not available. We have summoned the Judge- Advocate-General and heard him regarding the customs and usages of the Army in regard to the detention and arrest of persons amenable to the Army Act. He has put in written reply discussing the various provisions of the Army Law. This is placed on the file. Mr. M. Anwar learned counsel for the petitioners put 15 questions in order to ascertain clarification of his written arguments. The reply to these questions submitted by the Judge-Advocate-General is also placed on the file.

32. Briefly we will discuss the written arguments of the learned Judge---Advocate-General. He has referred to section 73 of the Pakistan Army Act which deals with the custody of offenders subject to this Act. He pointed out subsection (9-a) to section 3 of the Act in which `military custody' has been defined to mean "the arrest or confinement of a person according to the usage of the service and includes naval or air force custody. "He further submit--ted that usage of service includes customary practices, but could not dilate any further on the subject what are those customary practice. However, for purpose of taking into military custody according to him an offender need not be served with a formal charge-sheet. - He can be arrested simply on a complaint that an offence has been committed. He referred to paragraph 2 of Chapter III of the Manual of Pakistan Military Law and submitted that a person is not placed under close arrest unless if is necessary for his safe custody or maintenance of discipline. Whether arrest is open or close will depend upon the direction of the officer who orders it. Open arrest generally involves only such restraint as makes it necessary for safe keeping, whereas close arrest involves deprivation of all liberties and requires continuous super--vision. According to him if there are too many accused jointly involved in a serious case like the one in question or seduction they will be placed in custody at one place, and if they are stationed at different places they can be brought to one place where they may be detained. It may be necessary in the interest of discipline to segregate them so that they are not in a position to influence other persons. In such circumstances their separate placing may not be taken as a solitary confinement and it may not also be considered as a mental torture, A guard can be posted. It is not incumbent that only an officer either senior to him or equivalent in rank should be put as an escort on him. If any basic amenities are not provided initially to such persons which could be also due to certain administrative difficulties then Pakistan Army Act section 168 provides remedy for redress. They can submit a complaint for any grievance. If their complaint is not redressed by the Army authority then the Central Government under the said section is com-- petent to provide them relief which they may deem necessary. Placing of the accused in one place was also necessary in order to facilitate the investi--gation and recording of summary .Of evidence. He submitted that the words used "He must not leave his quarters or tent except to take such exercise under supervision as the medical officer thinks necessary" in para. 2 of Chapter III of the Manual does not necessarily mean his quarters where he normally resided before his arrest.

We agree with him that person can be taken to some other place but certainly he has to be placed in a quarter or tent. Normally quarter would not mean a cell and if the word "quarter" is interpreted in which the J.A.G. Wants us to do, the very beneficent manner of his close arrest provided to an officer or J. C. O. In para. 2 of Chapter III of the Manual disappears. In any case he frankly conceded that every person has to be kept in custody keeping in view the human dignity. Para. 269 of the Army Regulation Volume II also deals with arrest on Remand for Further Investigation or Trial. This paragraph deals with open arrest and close arrest. The close arrest could only be ordered when absolutely necessary, for example when

(i) the offence charged is one for which the maximum or only punish--ment is death ;

(ii) he is deliberately trying to undermine discipline by acts of miscon--duct. Isolated instances of insubordinate language or violence would justify placing him under close arrest immediately and retaining him there until he is brought before the C.O. On a charge, but would not in themselves justify his retention under close arrest while awaiting trial ;

(iii) he is likely to injure himself or others ; (iv) he is likely to suborn witness;

(v) he has been apprehended and has not surrendered himself as being illegally absent, or has habitually absented himself ;

(vi) having regard to the nature and prevalence of the offence with which he is charged or which is under investigation it is undesirable in the interests of discipline that he should be at large or in a position To consort with his comrade.

Para. 269-A of Army Regulation, Volume II deals with handcuffing of offenders which is reproduced as under :- "An offender in military custody, except a deserter who is being escorted to unit/centre or a convict who is being taken to a civil jail, will not be handcuffed except when h~ shows violence, attempts to escape or is charged with a very grave offence like murder, attempted suicide, mutiny, etc. Or is certified mentally unsound by the medical autho--rity.

A deserter, being escorted to his unit/centre for trial will, however, be handcuffed, except when he is in a cell in any unit etc. En-route. After arrival in the unit/centre, he will be treated as a normal "offender".

(a) Long chains with handcuffs will not be used.

(b) Normally handcuffs will be used in such a manner that only one hand of the arrested person is handcuffed with the hand of the OR of the escort,

(c) Handcuffing will be done surreptitiously and a blanket, a sheet or some other article of clothing etc. Will be put on the handcuffs so that his being handcuffed is not made too obvious.

(d) In public, the arrested person will not be treated with any disdain or m a manner to expose him to curiousity of other people.

These instructions aim to maintaining and respecting normal human dignity and self-respect of the arrested person. They do not in any way minimise the responsibility of the escort or other personnel concerned with the safe custody of the arrested person.

He referred to section 74 of the Army Act which describes the duty of the Commanding Officer in regard to person in custody. He has to take care that a person charged with an offence is not detained in custody for more than forty-eight hours after the committal of such person into custody is reported to him, without the charge being investigated, unless investigation within that period seems to him to be impracticable having due regard to the public service. Every case of a person detained in custody beyond a period of forty-eight hours and the reason therefor shall be reported by the Commanding Officer to the officer to whom application is to be made to convene a general or district court martial for the trial of the person charged. Section 75 provides that where any such person not on active service remains in custody for a longer period than eight days, without a court martial for his trial being ordered to assemble, a special report giving reasons for the delay shall be made by his Commanding officer in the manner prescribed and a similar report shall be forwarded at intervals of eight days until a court martial is assembled or such person is released from custody. These details and delay reports under section 75 are to be submitted as laid down in rule 166 of the Pakistan Army Act Rules, 1954. The report has to be made by letter and shall refer specifically to the case and the reasons have to be stated justifying the detention of the accused in custody and preventing the investigation.

33. The learned Judge-Advocate-General admitted that Brigadier F. B. A.I one of the detenus had submitted an application to him under para--graph 296, Volume II of the Army Regulation complaining the delay. This has been turned down by hint as the Array is on active service since 23 November 1971 vide Notification No. 4852/325/PSIA/4484/D2(A)/71, dated 23rd November 1971.

He has also placed copy of the notification on the file. According to the learned Judge-Advocate- General the utmost care is taken to ensure that undue delay does not take place in investigation of the case against the accused under the Pakistan Army Act. He further submit--ted that he was fully aware that personal liberty is a valuable asset of a citizen and the law affecting the liberty of an individual must be strictly complied with. In suitable cases the authorities have the power to order the open arrest of an accused without prejudice to re-arrest after his continued detention for a period of 32 days unless they feel that it would not be proper to order open arrest when the investigations are still on. He submitted, however, that there is no provision in the Pakistan Army Act for granting bail to an accused person. According to his knowledge he submitted that investigations are being conducted in accordance with the Pakistan Army Act and the rules thereunder and the regulations. The authorities are, therefore, acting according to law which applies to the Army. He, however, submitted that Jail Manual or for that matter any other rule governing the detention of offenders under the ordinary law are not applicable to persons who are accused for offences under the Pakistan Army Act.

34. Mr. M. Anwar learned counsel for the petitioner posed 15 questions to the Judge-Advocate- General which are reproduced :-

(1) Is there a provision anywhere authorising the blind-folding of an accused person?

(2) Authorising putting into manacles an accused person charged with an offence under section 131 of the Pakistan Penal Code while being taken from his house to the Airport and in the plane right up to the place of his detention?

(3) Is there any provision regarding manacling and blind-folding a person while taking him from his place of detention to the Interroga--petition centre?

(4) Is there any provision authorising the detention of an accused officer in a cell with iron bars and iron gates?

(5) Is there any provision prohibiting the family members of an accused officer from meeting him before he has been tried and convic--ted?

(6) Is there any provision prohibiting correspondence between an accused officer and his family and censoring of the same ?

(7) Is there any provision prohibiting reading material including news--papers, books and the Holy Quran from being given to an accused officer?

(8) Is there any authority enabling anyone to take away from An accused person the Holy Quran in his possession?

(9) Is there any authority enabling the interception of a letter written by an accused person (Officer) to a Judge of the High Court, who is seized of his detention or his counsel?

(10) Is there any authority for preventing an accused officer from having access to his counsel during or before the convening of the summary of evidence?

(11) Is there any authority for taking an accused officer to a special chamber for interrogation where instruments of torture are available and can be used?

(12) Is there to your knowledge any chamber or place used as an interrogation centre where accused persons are subjected to torture?

(13) Are you aware of the existence of an F. I. U. Centre in Rawalpindi where interrogation is carried on underground and where torture is resorted to?rd

(14) Is interrogation in this manner permissible under any law, rule or regulation?

(15) Is there any provision for withholding the pension of a civilian during the pendency of the trial before conviction?

35. In answer to question No. 2 he referred to para. 269-A of the Army Regulations, Volume Il and said that use of manacles (handcuffs) is permissible) under the law. Reference to section 131 of the P. P. C. According to him. Appears to be irrelevant as these accused have become subject to Pakistan Army Act by virtue of section 2(l)(d) thereof and therefore prima facie their case falls under section 31(d) of the said Act.

1 In reply to question No. 4 the answer submitted is that an officer if put in closed arrest may be detained in any place which the detaining authority considers suitable bearing in mind the gravity of the offence and the security of the person detained. Chapter III of M. R. M. L. Which is referred to in para. 266 of the Army Regulations, Volume II deals with the arrest of an officer and permit: a guard being put on him while in close arrest. There is no statutory restriction on a place of custody. There is, therefore, nothing specific in law as to the place where an officer is placed and if the place where an accused is lodged has iron bars or iron gates it does not offend against any statutory provision.

Answering question No. 5 he submitted that there is no provision to his knowledge which specifically prohibits the family members of an accused officer from meeting him before his trial.

However, for reasons like prevent--ing an accused from passing on any information through members of his family which is likely to destroy any piece of incriminating evidence which may otherwise be available or may come to light, the detaining authority may at the initial stages of the investigation place reasonable restrictions on the members of the Officer's family in meeting him land may also specify the occasions on which they may visit him.

Giving reply to question No. 8 he denied that there is any authority to withhold the Holy Quran from the accused.

Answering question No. 10 he argued that an accused cannot claim to be represented by a counsel during the investigation and summary of Evidence. He can, therefore, be prevented from having access to a counsel at the initial stages of the investigations.

As regards question No. 11 he said torture is not permitted by any law.

Replying question No. 13 he stated torture is not permitted by any law, nor was he aware of `any underground F. I. U. Of centre. He denied that interrogation in the manner mentioned in question No. 13 is permissible under any law, Rule or Regulation. According to him the President of Pakistan is competent under Pension Regulations, Volume II, rule 5 to restrict pensions of retired army officers.

36. We are unable to agree with the reply given by the Judge-Advocate---General that although there is no special provision for blind-folding in the Pakistan Army Act, Rules and the Regulations but as there is no prohibition either, such an action can be resorted to. Anything for which there is no sanction under the law will become unlawful and in circumstances explained in this case there was hardly any necessity for the blind-folding of Brigadier F. B. A.I during his flight from Karachi to Rawalpindi and his journey to Attock. After all he was not an alien enemy or a sepoy for which secrecy of security v0s necessary. Similarly the blind-folding of the detenus while taking them before the Investigating Officer in the fort premises would also be unjustified and unreasonable.

Use of manacles (handcuffs) is permissible under paragraph 269-A of the Army Regulation, Volume II. The discretion for making use of them is left with the officer but there is nothing on this record to show that the behaviour of the detenus was unruly and non-co--operative. In such circumstances use of manacles was also in our view not necessitated and the action is deprecated.

37. We are also unable to adopt the view expressed by the Judge---Advocate-General in interpretation of paragraph 2 of Chapter III of the Manual of Pakistan Military Law since the words used for place of close arrest of an officer or a J. C. O. Are "his quarters or tent". `Quarter' has been defined in Oxford English Dictionary, Volume VIII at page 27 to mean place of stay or residence ; dwelling place, lodging of solidiers. Even normally quarters means a place where a person normally resides or is kept. An Officer or a J. C. O. Can certainly not live in a place which has iron bars or iron gates. The place of custody of an accused army officer until he is found guilty cannot be the cell of a prison but at place of human inhabitation with some dignity attached to the office of the Army Personnel. The greater degree of stress in our view, is placed on the prisoners when an officer under arrest was confined to the precincts of the Regimental Line or camp and was not allowed to wear sash, sword, belt or spurt. The highest degree of restraint to which an under-trial prisoner in military custody could be subjected to was to confine him to his own quarters. Even in this restraint he is permitted to take exercise at stated periods within certain limits which are usually the places of Regimental Lines or Camp. There is restriction, however, that he will not appear out of uniform or at any place of amuse--ment or public resort. The Army Prisoner, therefore, in our view has a right to dignified treatment much better than what is permitted by the Jail Manual and the Prisons Act to prisoners in civil custody. We are in agree--ment with the learned Judge-Advocate-General when he says that there is no provision which prohibits the family members of an accused Officer from meeting him before his trial. But during the investigation reasonable restric--tions can be placed on the family members in meeting him by specifying the occasions on which they may visit the prisoners. This restriction, however, will not be available after the summary of evidence is over.

38. Hardly restrictions can be placed on correspondence. There is no provision of censoring the correspondence either, but surely the authorities have the right to delete any objectionable material from the correspondence which is objectionable from the ,point of view of discipline and security of the army. He has frankly conceded that there is no objection for allowing Holy Quran to an accused person. But the detaining authority may prohibit -subversive material from being read by the accused. Regarding newspaper there is no hard and fast rule on the. Subject, but this can be' disallowed at early stages of investigation. Once that stage is over such a restriction had to go.

In the Jail Manual there is a provision for the supply of newspapers and reading material anal in fact there is a library in Jails from which books can be taken out and read. Such restriction, as canvassed by the Judge-Advocate-General, in our view, would not be in accord with human dignity especially when educated persons are placed in close arrest. It has been vehemently complained that the Officers have been kept in solitary confinement and even in the statement of Brigadier F. B. A.I, recorded by us on 22nd June 1973 allegations have been made that they are being kept in solitary confinement even `after the assurances given. Even if the principle of segregation of prisoners which is canvassed before us, by the learned Judge-Advocate-General and the Advocate-General for purpose of investigation in the initial stages is accepted, this has also disappeared on account of the conclusion of the recording of summary of evidence and there is no reason why these officers should be kept in solitary confinement which f is unlawful and is a punishment which could only be awarded under section 73, P. P. C. Only after conviction. Col. Ahmad Khan in his commentary dated 21st June 1973 has mentioned that summary of evidence has since been completed and meetings with relations have been allowed in the normal manner, through Commander Logistic Area, Rawalpindi.

39. Learned Advocate-General traced the history of the law of habeas corpus in the Indo-Pakistan sub-continent and referred to Basanta Chandra Ghose v. Emperor (AIR1945FC10), and argued that analogy of civil proceedings in which the rights of parties have ordinarily to be ascertained as on the date of the institution of the proceedings cannot be invoked in habeas corpus proceedings. If at any time before the Court directing his detention is produced, the Court cannot direct his release merely on the ground that at some prior stage there was no valid cause for detention. In his view the above principle has been reiterated in Arbab Muhammad Hashem Khan v.

Crown (PLD1954FC 1), Basanta Chandra Ghose v. Emperor (AIR 1954 FC 18), was also followed in Molvi Shad Muhammad of Turlandi v. Crown (PLD 1950 Pesh.22) and Arbab Muhammad Hasham Khan v. The Crown (PLD 1953 Pesh. 72). Another Full Bench judgment of the Lahore High Court reported as Mst. Nasim Fatima v. Government of West Pakistan (PLD 1967 Lah. 103), was cited at the bar in support of the above contention.

40. Referring to Article 201(3) of the Interim Constitution he frankly conceded that there is no ouster of jurisdiction in matter of civilian subjected to the Army Act but there is ouster of jurisdiction of civil Courts in regard to the persons in the Defence Services of Pakistan. He also relied on Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14) and cited Ranbir Singh Sehgal v. The State of Punjab (AIR 1962 SC 510). This was a case in which Superintendent of Jail kept the under-trial prisoner in separate cell without allowing him to communicate and speak with other prisoners' from the date these prisoners entered the prison as an under-trial prisoner up to the date even after he was convicted and later classified as B Class prisoner, although he did not commit any greater offence or was guilty of any indiscipline during that period. The finding of the learned Judges in paragraphs 13, 14 and 15 are reproduced as under;---- "It is said that the confinement is neither solitary, cellular or separate, for he is allowed to go to Courts. The fact that a prisoner is to be sent to a Court on summons has no bearing on the question whether the confinement is legal or not. On the facts disclosed in the case, we have no doubt that, for one reason or other, which is not clear from the record, the petitioner was discriminated from other prisoners and, under the colour of the rules for separation, was illegally confined in a manner not authorised by law.

Before closing we would like to make some general remarks. The modern development of criminology has revolutionized the system of treatment of convicted prisoners. The told brutal treatment has given place to more humane one. The concept of vengeance by society and of deterrence is in fact disappearing and is being replaced by the concept of correction and rehabilitation. Though our jail administration is moving with times, it is not keeping pace with advanced countries. A statute may reflect the modern trend and may contain salutary provisions for fair treatment of prisoners; but in practice much depends upon the Superintendent, who is expected to implement them in the spirit in which they are conceived. A Superintendent of Jail may be a good disciplinarian, but, it is not enough; he should also be a humanitarian possessing conscience and having an awareness that to his care is entrusted an abnormal class of society deserving a more sympathetic approach and sincere attempt at rehabilitation than that of vindictiveness. In this case, the Superintendent, as we have already stated, not only did not carry out the spirit of the rules but also broke the " letter of the law and illegally placed the petitioner practically in solitary confinement from 7th May 1959 up to date.

41. Learned Advocate-General cited R. v. Army Council Ex parte Revenscroft ((1916-17) All E L R 492) wherein it was held as under :- "In a matter affecting discipline in the army the Court cannot interfere by mandamus at the suit of an officer or soldier with the proceedings of a military Court of inquiry or with any action that may there--upon be taken by the Army Council."

Reliance was placed in this case on Dawkins v. Lord Rokeby ((1866) 4 F & F 806 (N P)In our view this case is distinguishable and is not applicable to the facts of the case, for, the detenus in these cases are not the serving army officers, not subject to the discipline of Army after their retirement and there was no question of discipline involved in this case. An allegation of an offence of conspiracy is made against them. ' He then cited Barnards v. Ford ((1891-1894) All E L R 522and submitted that remedy of habeas corpus intended to facilitate the release of persons detained in unlawful manner and not to afford the means of inflicting penalties on those persons by whom they were at sometime or other' illegally detained. While ably arguing the case he pointed out para. 265-A of the Army Regulation regarding provision of handcuffing an offender and para..269 of the said Regulation for close-arrest. The learned Advocate-General referred to sections 7,3, 74, 75 and subsection (9-a) of section 8 of the Army Act in .Addition to the other provisions which were also later cited by the . Judge-Advocate-General. The learned Advocate-General emphatically supported the view that this Court has power to give direction to the authorities to keep the prisoners in accor--dance with lawful manner as provided in Article 201 of the Interim Constitution and if any public functionary violates the law and disobeys the orders of the Court he will strongly support for punishment of the offender, in contempt under Article 206 of the Interim Constitu-- petition.

42. In para. 1063 of Halsbury's Laws of England, Third Edition, Volume 9 it is mentioned that the High Court has power to interfere where a. Court-martial acts without, or in excess of jurisdiction. This power may be exercised by means of the prerogative processes of pro--hibition, certiorari and habeas corpus. The High Court, however, will interfere only where the civil rights of the person concerned are affected and not in matters affecting military status only or matters of military law or procedure. It was held in Rex v. Governor of Wormwood Scrubs Prison Ex parte Boydell (1948 L R K B D 193) that an officer who has ceased to render military service, he after his release from military duty, was at the respective dates of arrest and trial no longer an officer of the regular forces on the active list and therefore, he was no longer subject to military law. His custody was, therefore, illegal.

Similar view was expressed in R. v. Governor of Wormwood Scrubbs Prison and another (1948 All E L R 436). We are of the view that bar of jurisdiction provided in Article 201 (3)(a) of the Interim Constitution is not attracted to the facts of this case, for, the two detenus are no more in the service of Pakistan. They are civilians and no question of the terms and conditions of their service or any matter arising out of their service or any action taken in relation to their being members of the Defence Services of Pakistan is being taken against them. The immunity therefore, cannot be claimed on account of this sub-Article from purview of judicial review of this Court of the matter which is enshrined in the constitution.

43. The upshot of the discussion, therefore, in our view is that persons in civil custody have to be kept strictly according to the Prisons Act and the Jail Manual, with due regard to the dignity of mankind in this age K of light and advancement. Similarly where custody is with the Army the prisoner has to be kept in a more dignified and beneficent manner provided by the Army Act, Regulation and the Rules.

44. From perusal of the facts we are clearly of the view that the prisoners have not been kept in accordance with the Rules and the Regulations of the Army. From submissions of the Advocate- General and the Judge-Advocate-General it clearly transpires that the prisoners are being kept in solitary confinement which is a punishment and no reasonable excuse can be spelt out for such an action. We would, therefore, hold that the mode of their detention is unlawful and we direct that they should be kept in accordance with the standards laid down by the Army. We are fortified in this view by an order of Division Bench of this Court in Begum Nusrat Bhutto v. Government of West Pakistan (Writ Petition No. 1794 of 1968). The detenu, who was detained under Defence of Pakistan Rules, in his affidavit made an allegation that he was lodged in Mianwali and Sahiwal Jails in inhuman conditions although he was required to be treated as Class I detenu. The allegations were found to be correct. Since the detenu was in the custody of Court the Home Secretary was directed to confine the detenu in his house in Larkana City. Several complaints have been made that despite the assurances given by the Advocate-General and the Commanding Officers the prisoners are not meted out the proper behaviour. The solitary confinement and similar other fall shorts obviously amount to torture which in the new Constitution is specifically prohibited by Article 14 of the Constitution which is likely to be enforced in the near future. The framers of the Constitution had clearly in their mind the respect and dignity of a citizen of the State when they have enshrined this Article in the Constitution. We, however, make it clear that if the wrongful act of the officers precipitates, the prisoners may be directed to be transferred from this custody to the custody of some other authority, as held in Ranbir Singh Sehgal v. The State of Punjab (AIR1962SC510If, however, succinctively torture and atrocities are continued found true, the Court will have no other option but to consider the question of bail. Continuous ill-treatment and torture by any authority may visibly depict malice in such authority which has to be stopped.

We are grateful to Mr. Manzoor Qadir, Ch. Nazir Ahmad Khan and Mr. S. M. War, amicus curiae, Mr. M.

Anwar, the Advocate-General and the Judge-Advocate-General for giving us valuable assistance in deciding this intricate question.

45. With profound regret we, however, have to note that the learned Advocate-General took a sudden change and canvassed ouster of jurisdic--petition of this Court when this judgment was complete and evidence of the detenus was being recorded on applications made for repeated violation of the assurances given to this Court and the withholding of the petition of one of the detenu addressed to this Court by the Commanding Officer of the Attock Fort. He based his submission on R. v. Army Counsel. We have already discussed and distinguished this case in this judgment. The general ouster of jurisdiction cannot be canvassed on the basis of an English case which is no more binding authority on this Court and also because N in the development of the law of habeas corpus much water has flown by now. We invited the attention of the learned Advocate- General to the case cited in this judgment of a writ of habeas corpus granted by a district Court in Utah, mentioned in Annual Survey of American Law, 1966 Edition in which it was held that principle of due process of law was also applicable to courts-martial. This was a case where 19 years old soldier involved in a case of moral turpitude was not allowed a civilian counsel and was represented at a special court-martial by two officers, neither of whom had legal training. It was held in general terms, the armed services must afford military due process which must comport with minimum constitutional standards, to their members. Withholding the service of a qualified counsel it was observed that judicially blind leading the blind and the mere use of officers is not effective counsel within the meaning of the constitutional provision. This case will show how jurisdiction of Municipal Courts is respected in United States and other civilised countries. No authority can claim- immunity to act in violation of the Constitution.

46. Pakistan is a democratic country and it is governed by the Interim Constitution. Nothing, in this country is supreme except the Constitution. If the Constitution gives the power to this Court, it can only be taken away by an amendment in the Constitution by the National Assembly or the President, as envisaged in the Interim Constitution. We are astonished on the sudden change in the stand of the learned Advocate-General who at one time was anxious and was supporting that this Court had jurisdiction and could punish the contemner for violating the orders of this Court. It was for him to decide whether he could take such a position as an Advocate-General of the province, who was an officer of this Court owes primary duty to support the implementation of the orders of this Court especially when two days earlier he himself produced a letter which showed that the petition of the detenu was withheld for transmission to this Court and the Law Officer of the Government was to initiate under Article 206 of the Constitution. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.