1. The following application was presented to this Court on 17-11-1972 on behalf of Maulana Abdus Sattar Khan Niazi, a former Professor and Head of the Department of the Islamiat Department of Islamia College, Lahore, and President of the Punjab Branch of the Jamiyat-e-Ulemas Pakistan:---- - "(1) That the petitioner above named is the President of the Punjab Branch of a political party known as Jamiyat-e-Ulema-i-Pakistan. He has been a Professor and Head of the Department of Islamiat at the Islamia College, Lahore, and was a Member of the Punjab Legislative Assembly from the year 1946 until its dissolution in 1951. He again successfully contested the election to the Provincial Assembly in 1951 and continued to be its member till the formation of One Unit in October 1958.
(2) That in order to propagate the views of the said Jamiat-e-Ulema-e---Pakistan and to make the stand of the party known to the public at large, the petitioner has been addressing public meetings throughout the Punjab and also in other parts of the country.
(3) That due to the stand taken by him and his party particularly on important issues like Bangla Desh, the Ruling Party do not Want him to continue his political struggle because they think it is likely to embarrass the Ruling Party. ,
(4) That during the course of the last six months the petitioner has made round about 70 to 80 speeches throughout the country. It is understood that the present Ruling Party has taken a decision to register a case at every place and for every speech which he has delivered during the last six months.
2. (5)' That the Government is planning to confine the petitioner in Police custody indefinitely and does not plan to initiate all the cases at once or in the very near future. Their scheme seems to be to arrest the petitioner for different cases one after the other and initiate pro--secutions in different cases at different places throughout the country so that when the petitioner is released on bail in one case he can be re-arrested in another one. This is amply clear from what the administration has done during the last two weeks.
(6) That the petitioner was first arrested irk Lahore in a case registered at Khanewal for a speech that the petitioner delivered there about four months ago, and when the Magistrate Khanewal, granted bail to the petitioner, he was immediately re-arrested in another case registered at Vehari under section 16 of the Maintenance of Public Order Ordinance. Again bail application was then moved before the Assistant Commissioner, Vehari, but the same was rejected by him by an order dated the 11th November 1972, on the ground that the case is of important nature.
(7) That on 15-11-1972 the Sessions Judge, Multan accepted the bail application of the petitioner in the Vehari case but the police did not release him and instead re-arrested him in another case relating to another speech at Burewala.
(8) That ever since his arrest the petitioner has been in police custody and according to information received from him, he is being tortured by not being allowed to sleep at all and is being kept under continuous questioning by the police, day and night.
(9) That according to a statement by Maulana Shah Ahmad Noorani, M. N. A., Acting President of Jamiat Ulema-i-Pakistan, Multan there are reports that the petitioner may be involved in as many as 80 prosecutions. Copy of the statement is Annexure "A".
(10) 'Pat in all these cases which have been registered and are likely to be registered against the petitioner, the custody of the petitioner is not at all required by the police. No recoveries are to be effected from him nor a sentence of death is warranted under the offences for which he could be charged in these cases.
(11) That the petitioner Abdus Sattar Khan Niazi is being implicated in false cases and is being detained, harassed and tortured only because the Government in power does not wish to permit any body to oppose them.
(12) That on account of the speeches which have been delivered by the petitioner as aforesaid there has been no breach of peace or distur--bances at any place, nor are such speeches likely to create chaos in the country.. Most of the speeches were delivered months ago and prosecutions are being started now to stifle the voice of the opposition to the recognition of Bangla Desh about which the Government seems to be determined without even reckoning the moral, con--stitutional, emotional and political cost of doing so.
(13) That the petitioner is not aware of the particulars of details of the cases in which he may be arrested and therefore his attempts to move various Courts for bail in individual cases will inevitably be frustrated by arrest in some other case.
(14) That there is no remedy available to the petitioner except to move for general bail in all cases in which the State may wish to arrest him.
3. For the reasons stated above, it is most respectfully prayed that the petitioner be enlarged on bail pending the decision of cases launched and to be launched against him.
4. It is further prayed that pending final decision of this petition, ad interim bail be granted to the petitioner."
5. A copy of a news item which appeared on the last page of the Daily Nawa-i-Waqt, Lahore, was also filed with the petition which was to the effect that more than eighty cases had been registered against the Maulana. The news item gave the reason for this large number of cases as the intention to keep the Maulana behind the bars in spite of bail successively granted to him in some of them.
6. I passed the following order on this application on 17-11-72; "This case has been presented in Court. Let it be registered. Direct the Advocate-General to furnish this Court with a list of the cases, if any, which, it has been alleged in the application, have been registered against the petitioner within a forthight.
7. The petitioner shall not be arrested meanwhile in any of the cases registered against him till this petition comes up for hearing.
8. He is admitted to bail in the sum of Rs. 5,000 (Rupees five thousand) with two sureties in the like amount to the satisfaction of Officer on Special Duty-II of this Court. This bail shall enure for the cases in which he has been arrested."
9. Aggrieved by this order and without waiting for the final decision of the case by this Court or complying with it by producing the necessary list mentioned in the order the State decided to move the Supreme Court of Pakistan and a petition for Special Leave to Appeal under Article 186(3) of the Interim constitution was presented to that Hon'ble Court. The matter came up before the Supreme Court on 7-12-1972 when Mr. Justice Muhammad Yaqub A.I Khan subjected the order passed by me to the condition that during the pendency of the petition for Special Leave to Appeal the respondent shall not make any speech or do any act which will amount to an offence under the Maintenance of Public Order Ordinance, 1960.
10. The petition for Special Leave to Appeal came up for hearing before a Division Bench of that Court and on 8-3-1973 the learned Judges passed the following order: "The State is aggrieved by an interim order made by a learned Single Judge of the Lahore High Court, on-17th November 1972, allowing anticipatory bail to the respondent, Maulana Abdul Sattar Khan Niazi, in a number of cases, which had been registered against him.
11. It is contended by the learned Advocate-General that the relevant sections in the Criminal Procedure Code do not confer any power on the High Court to pass an omnibus order of this kind, and that the only power is to allow bail in individual cases on a consideration of their merits.
12. We find that the High Court has not yet made any final order in the matter. By the impugned order a direction was made asking the learned Advocate-General, Punjab, to furnish the Court with a list of all the cases which might have been registered against the respon--dent. We are informed that the final hearing of the matter has been postponed by the High Court, owing to the pendency of this petition.
13. After hearing the learned counsel for both sides, we are of the view that it will be proper and expedient if the matter is first finally decided by the High Court. It will be open to the learned Advocate-General to take up before that Court the legal objections which he wishes to urge in support of the present petition. The petition is, therefore, adjourned so as to enable the High Court to pass a final order in the matter. The petition shall be re-fixed only on receiving intimation from the learned Advocate-General."
14. Since the learned Advocate-General had raised questions of far-reaching general public importance before the Supreme Court which he had been advised to press before this Court, I requested Mr. Manzoor Qadir, Ch. Nazir Ahmad Khan, Mr. M. Anwar and Mr. Farooq Azeem Hassan, Advocates to appear and assist the Court. I also called upon the High Court Bar Association to nominate a representative on their behalf. The High Court Bar nominated Mr. Abid Hassan Minto, Advocate. I am grateful to all these gentlemen for assistance in determining the points which had arisen in the case.
15. The grounds contained in the petition for Special Leave to Appeal are reproduced as follows for facility of reference:------ "(4) That the petitioner begs leave to appeal against the above order of the High Court inter alia on the following grounds:-
(i) That the Omnibus order passed by the High Court without ascertain--ing the number of cases and the offences committed by the accused respondent is illegal and the High Court has exceeded its jurisdiction in passing such an order.
(ii) That the petition was presented by Mian Mahmood A.I Kasuri, Advocate, for the accused- respondent directly in the Court of Mr. Justice Mushtaq Hussain who entertained it immediately and passed the order without prior notice to the State. Normally such petitions are submitted in the Registry before they are placed before the Judge.
(iii) That no opportunity was given to the State of placing its point of view for consideration of the High Court before granting bail in all cases to the accused-respondent.
16. (iv).That the ordinary procedure of requiring the accused to approach the trial Court in each case separately and if not satisfied to move the High `Court was not followed without any cogent reason.
17. This procedure is contrary to the law of bail laid down by the superior Courts.
(v) That there is no provision of law in the Code of Criminal Procedure which empowered the High Court to pass an order of this type whereby bail is granted in all cases registered against a person without the Court being apprised of the facts or the law against which the crimes have been committed.
(vi) That if this practice is allowed to go unchallenged, persons charged with heinous crime like that of murder and other anti-State offences may be able to obtain such an order of bail without disclosing the nature of the offence and the facts of each case with which they may be charged.
18. This procedure of granting bail in all cases is not permitted by the law of this land.
(vii) The accused under the cover of political speeches have been propagating activities which are prejudicial to the Public safety and 0-1 Maintenance of Public Order and- in that respect a number of cases have been registered against him in the districts of Bahawalnagar and Multan.
19. Five such cases registered under section 16 of the West Pakistan Maintenance of Public Order Ordinance, 1960, for making prejudicial speeches in the districts of Multan and Bahawalnagar are-- ----
(1) F. I. R. No. 277, Dt. 21-8-72, P. S. Khanewal.
(2) F. I. R. No. 304, Dt. 6-11-72, P. S. Burewala, Distt. Multan.
(3) F. I. R. No. 338, Dt. 6-I1-72, P. S. Vehari, Distt. Multan.
(4) F.1. R. No. 420, Dt. 8-10-72, P. S. Sadar Bahawalnagar.
(5) F. I. R. No. 234, Dt. 8-10-72, P. S. Minchinabad, Distt. Bahawalnagar.
(viii) That the order of the High Court is a composite order of granting bail before arrest as well as bail after arrest in a single application although the principles for bail before arrest and after arrest are quite different.
(ix) That the matter--" is of .Public importance and an authoritative adjudication of this Court is necessary as to the power of the High Court to pass such a composite order."
20. My order dated 17-11-72 broadly speaking contains four parts-------
(1) The grant of bail to the petitioner in cases in which he has been arrested ;
(2) The order to the Advocate-General to furnish a list of cases already registered against the petitioner;
(3) The liberty given to the Advocate-General to furnish the list even earlier than the fortnight granted to him and in that case to move for acceleration of the date of hearing; and
(4) The ad interim injunction restraining the State from arresting the petitioner in cases already registered which are specifically ascertainable by and only by the State.
21. I may in passing mention that the list of cases referred to above which I directed the Advocate- General on 17-11-72 to file within a fortnight was made available to me for the first time on 4-4-1973, by Mr. Kamal Mustafa Bokhari, Assistant Advocate-General. It was ready in his office on 22-3-73, as would appear from the date on the list. I am mentioning this to show that, in spite of all his resources, even the learned Advocate-General was not able to get the information about the cases registered against the petitioner in less than five months. In other words, if the petitioner who could not have resources equal to the highest Law Officer of the Province, had to specify all the cases which had been registered against him he would have in any case been incarcerated in jail for much longer than these five months before the would be admitted to bail.
22. The learned Advocate-General has informed me that he has gone through the F. I. Rs., and he has no objection to the confirmation of bail already granted to the petitioner and to the grant of bail to him in the cases which have already been registered and a list of which has been furnished by him.
23. I need not, therefore, go into the merits of the application for bail. The order granting interim bail is confirmed; it shall also enure for the other cases mentioned in the list submitted by the learned Advocate-- General. 'The first part of the order passed on 17-11-72, therefore, does not require further consideration.
24. The learned Advocate-General admits that this Court has the power to require him to furnish a list of cases and that part of the interim order is, therefore, not being dilated upon herein.
25. The learned Advocate-General does not cavil on the third part of the interim order either.
26. He has, however, grave objection to the fourth part, i.e. The order directing that the petitioner be not arrested in cases which bad already been registered against the petitioner but the nature and number of which was not known to him.
27. Let us, therefore, now go through the relevant provisions of the Code of Criminal Procedure.
28. Section 154 deals with information in cognizable offences and provides that every information relating to the commission of a cognizable offence given to the officer incharge of a police station shall be reduced to writing, shall be signed by the person giving it and substance thereof shall be entered in a book to be kept for that purpose. Section 156 empowers any officer incharge of a police station to investigate any cognizable case without the order of a Magistrate which a Court having jurisdiction over the local area would have power to inquire into. Section 160 empowers the police officer to require attendance of witnesses. Section 161 empowers him to examine such witnesses and provides the duties of a person so examined.
29. Section 167 provides that whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within tire period of 24 hours fixed by section 61 and there are grounds for believing that accusation or information is well founded the officer incharge of the police station shall, firstly, transmit to the nearest Magistrate a copy of the entries in the diary relating to the case and shall at the same time forward the accused to such Magistrate. It is then for the Magistrate to authorise the detention of the accused in such custody as he thinks fit: This power, however, does not authorise extension of the detention for a period exceeding fifteen days on the whole. The Magistrate is further required to record the reasons for so doing.
30. It is significant that Magistrates of the III class and of the II class who have not been specially empowered in this behalf by the Provincial Govern--ment cannot authorise detention in the custody of the police at all.
31. Section 168 requires the subordinate police officer who makes investiga--tions under this Chapter to report the result to the officer incharge of the police station. If it is found that the evidence is deficient, the accused shall be released on executing a bond. Under section 170 the case is to be sent to the Magistrate when evidence is sufficient.
32. Under section 172 every police officer investigating under the Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth, several details mentioned in the section.
33. Any criminal Court can send for these diaries and may use such diaries to aid him in the inquiry or trial though they cannot be used as evidence.
34. Section 173 requires that every investigation under this Chapter shall be completed without unnecessary delay and as soon as it is completed the officer incharge of the Police Station shall forward to a Magistrate having jurisdiction a report in the prescribed form setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties. A copy of any report forwarded under this section shall. On application, be furnished to the accused before the commencement of the inquiry.
35. The burden of all these provisions is that whenever a person is arrested on an allegation that he has been guilty of some offence, the police is required to act with all despatch and time limits have been set for the various stages of the case beyond which the police cannot act without any order from the Magistrate. The fact that -a, maximum period of 24 hours is prescribed for the police for producing a person detained in custody before a Magistrate shows teat the liberty of the citizen has been treated as of paramount importance even if there are allegations of the commission of an offence against him. Even a Magistrate is not empowered to authorise the detention of the accused in the custody of the police for a term exceeding 15 days on the whole. It is also meaningful that the power of such detention has been limited only to Magistrates of the First Class and those of the II and III Class have been excluded. The stress throughout is on the completion of the investigation in the shortest possible period and the submission of a report to the Magistrate empowered to take cognizance of the offence, no sooner the investigation has been completed. It has been seen above that the moment it is so completed a copy of the report forwarded to the Magistrate shall be available to the accused.
36. So much importance has been attached to the transmission of the accusation to the accused who is arrested that he is required by the Code to be produced before a Magistrate within 24 hours. If the only purpose of the provision was to get an authority to detain him without his being given any opportunity to appear before the Magistrate and to explain his position after having been informed of the allegations against him, it would have been unnecessary to provide that the accused shall be produced before the Magistrate within that period. The production is for the purpose of enabling the accused to find out from the Magistrate the reasons why he is being detained, to afford to the Police an opportunity to ask for his custody and to make out a case for his custody and detention and to enable the accused to explain his position and ask for bail.
37. The law is thus extremely chary of the deprivation of the liberty of a citizen at the hands of the investigation agencies. It further lays great stress upon the necessity for imparting information to the accused about the allegations against him. Thus armed with knowledge of the accusation against him the accused can move the Court under the provisions for the grant of bail under Chapter XXXIX of the Code.
38. Another aspect of this law thus becomes clear that the duty to furnish to the accused information regarding the allegations against him lies upon the prosecutors and they are required to furnish that information within 24 hours. Can it then be said that it is open to the prosecutors to withhold the information from the accused and still submit that the action taken by them is bona fide and as he is not possessed of the necessary details he should not be allowed to approach a Court of law for the purpose of obtaining bail and that they would succeed in incarcerating him for as long as they wish because after all the information which they expect him to place before the Court is with them and they are in no-mood to furnish it to him.
39. I had sent for the Sub-Inspectors who had been concerned with the cases enumerated in the list by the learned Advocate-General and the following information was elicited from them
(a) Khalid Ahmad, S. I., was concerned with the registration of F. I. R No. 420/72, which was registered on 6-10-1972. I enquired from him about the steps taken by him in this investigation. He informed me that he recorded the statements of Shamsher A.I and Ch. Ilam Din on the day when the case was registered and that of Abdul Jabar, Head Constable and Ch. Mohammad Yaqub on 5-11-1972, i.e., after the passage of about 20 days. He categorically stated that he had not taken any action under sections 169 and 170 of the Code of Criminal Procedure. No further action was taken.
(b) Aman Ullah, S. I., Minchinabad investigated the case arising out of F. I. R. No. 234 which was registered on 8-10-1972. He recorded the statement of Karim Bakhsh, Mohammad Hassan and Saleem Head Constables on 8-10-1972. On 12-10-1972, he recorded the statement of Rana Mohammad Afzal Magistrate. He informed me that after that the file was summoned by the office of the Superintendent of Police and it had ever since been lying there. Although the Superintendent of Police made the requisition of the file on 18-11-1972, no action was taken in the 40 days preceding it as according to the S. I. The instructions were that the case was to be registered and only such investigation was to be made as has been stated above. Whereafter the case was to be kept without any further proceedings. I asked him the reason for having done so, his simple answer was that he had acted under instructions.
(c) Gul Mohammad A. S. I., Police Station Burewala, registered F. I. R. No. 104 on 6-11-1972. He did not investigate the case but informed me that it was investigated by Rana Abdul Majid, S. I., who recorded the statement of Nazir Ahmad Head Constable, on 3-11-1972 and on this basis the F. I. R.
40. Was registered on 6-11-1972. The statements of Lal Khan and Khalil Ahmad were recorded on the same day. Thereafter Zahoor A. S. I. Recorded the statement of the detenu in the lock-up in Multan on 5-11-1972. The challan in this case was presented to Court on 22-11-1972 after had passed the impugned order and is pending before the Resident Magistrate, Vehari.
(d) Nazir Ahmad, A. S. I. Of Police Station Vehari stated that he registered F. I. R. No. 388 on 6-11-1972.
41. He recorded the statement of Ch. Ghulam Rasool, Rasool Bakhsh, Ch. Barkat A.I and Ch. Mohammad Sadiq, S. I. On 6-11-1972. The case was challaned and is being heard by the Resident Magistrate, Vehari.
(e) Mohammad Yaqub, S. I. Of Police Station Gulberg, Lyallpur, registered a case under sections 124-A, P. P. C. And 49 of the Defence of Pakistan Rules, vide F. I. R. No. 137 on 16-3-1973. He recorded the statement of Ch. Sultan Ahmad, S. I., Ala-ud-Din and Mohammad Akram on 23-3-1973 while that of M. Akhtar Joseph, City Magistrate, on 24-3-1973. He submitted further that the case has been sent to the Prosecution Branch who has not yet whetted it.
42. (f ) Ghulam Mohammad, S. I. Of Police Station Khanewal, registered F. I. R. No. 277 on 21-8-1972. The petitioner was arrested in this case and was bailed out by the learned Sessions Judge. This case is now pending before the Assistant Commissioner, Khanewal, and the next date of hearing was given out as 14-5-1973. In this case the statement of the Resident Magistrate, Khanewal, was recorded on 21-8-1972 by Shahid Qadri on 10-9-1972 and Mohammad Baddar Shah on 21-8-1972.
43. The case was challaned on 15-11-1972, i.e. 3 months after its registration.
44. The objection by the learned Advocate-General is that the Court cant order the release of the accused only in a case in which all the facts are s known to it. It boils down to this that if the petitioner comes before a Court submitting that he does not know and therefore, not in a position to disclose to the Court the list of allegations against him on account of which his liberty has been taken away from him and were to allege further that he is not in a position to disclose these allegations not because of any negligence on his part but because the other party is using its powers in such a way as to keep him in the dark about them; equipped as the Court is with the power to direct the prosecution to lay information before it with regard to the accusations, it is powerless to give relief against the incarceration of the individual till such time as the prosecution is able to produce the list of allegations and the accusations before the Court. It cannot be lost sight of that in the present case, it took more than five months for the prosecution to produce a list of seven cases before this Court on account of which the petitioner is said to have been charged.
45. As will appear from the list of cases given by the learned Advocate-General all of them relate to the delivering of speeches which are considered by the prosecution to be of a seditious nature. The petitioner was arrested in one of these cases and was suffering loss of liberty. Would it then mean that although he can be granted bail in such a case no order could be made directing that he shall not be arrested in other cases with regard to which the allegations of mala fide have been made in no uncertain terms by the petitioner himself.
46. After all what is the reason for not setting a person at liberty during the pendency of the case without making him furnish bail. The reason is to enquire that the petitioner shall appear before the Court to stand trial when called upon to do so. An individual may be accused in many cases, but his liberty is not divisible. He is already in the custody of his bailees under the direction of the Court whether required in one case or in several, he is amenable to the process of the Court while in such custody. Merely to satisfy the supposed technicality that he is to be arrested for each separate offence must his liberty be suffered to be confiscated in circumstances which prima facie give the impression that powers under the Code are being used for purposes other than those of the Code.
47. It was this prima facie misuse of power that was meant to be prevented by the order pending the supply of the information asked for.
48. The question is whether the order passed by me was without jurisdiction on the facts disclosed in the petition and those that have been narrated above.
49. The power to grant bail fn these cases is not being questioned. It is only the stage at which the order, which has been dubbed as an omnibus' order without any justification, has been passed which has unnecessarily upset the respondent. In the second paragraph at page 313 of Broom's Legal Maxims will be found the following:---- "Whenever anything is authorised and` especially if, as matter of duty, required to be done by law, and it is found impossible to do that thing unless something else not authorised in express terms be also done, then that something else will be supplied by necessary intendment. But if, when the maxim comes to be applied adversely to the liberties or, interests of others, it be found that no such impossibility exists that the c power may be legally exercised without the doing of that something else, or, even going a step further, that is only in some particular instances, as opposed to its general operation, that the law fails in its intention unless the enforcing power be supplied then in any such case the soundest rules of construction point to the exclusion of the maxim, and regard the absence of the power which it would supply by implication as a casus omissus."
50. The first part is directly in point and applies here. As Mr. Manzoor Qadir who appeared as amicus curiae in the case, submitted, I was entertain--ing a petition in which the petitioner was in a position to give some particulars of some cases and from those particulars, he said, it would be seen that powers of arrest and detention were being misused for an ulterior purpose. He said he was being deliberately kept in the dark in order that this ulterior purpose be perpetrated. Was the Court in a position to protect him? As the learned counsel put it, the Court said "yes in the case in which he had already given particulars he will be released on bail. In the remaining cases, the Court shall call upon the other side to supply the necessary particulars which would enable the Court to find out whether he should be released on bail or not". This according to Mr. Manzoor Qadir is the full purport of the order passed ad interim in this case.
51. He further submitted that the powers of the grant of bail are really adjusted to relief in relation to deprivation of liberty in exercise of the power for the purposes of the Code. The person against whom credible informa--petition of the commission of certain crimes has been received or who is reason--ably suspected of having committed a crime of a certain kind, is deprived of his liberty (which to begin with is his right) so as to ensure a fair trial. Pending the investigation, enquiry and trial, certain rules are laid down to see that such a person does not remain so deprived if other alternative adequate arrangements can be made; and bail is granted. Reference may here also be made to a paragraph occurring at page 35 in Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri (PLD1969SC14The paragraph runs thus----- "It must also be remembered that initially the onus is on the detaining authority to justify the detention by establishing the legality of his action for under the principles of English Law, which have, been adopted in our system also, the presumption that every imprisonment without trial and conviction is prima facie unlawful (per Lord Atkin in Liver sidge v. Anderson) and it is only then that the onus shifts on the detenu to show mala fides. Again having regard to the fact that in such cases the materials upon which the belief is based will be mainly in the special knowledge of the detaining authority and not of the detenu, section 106 of the Evidence Act itself would require the detaining authority to discharge this burden." bona fide exercise of power to arrest and detain vested in the authorities concerned. The provi-- sions of the Code are postulated on that basis. These powers give as a full scheme in relation to their bona fide use; and so long as by and large only bona fide use was being made, it did not seem to have occurred to anyone to `make any extension in the stage at which bail could be granted because, ordinarily speaking, the question of bail arises only when somebody has bee taken into custody.
52. In this case we are told that speeches were being made during the last six months. The petition is dated 15-11-72. In other words, from May 197 onwards. The arrest was made in. November 1972. Now, the first speech was made in June. Either an F. I. R. Was., recorded or was not recorded. If it was recorded why was the accused not apprehended? If it was not recorded then why not? If it was recorded then the question arises, was it investigated without unnecessary delay or was it just put into cold storage and if it was not investigated without unnecessary delay then the words of section 173 were not complied with. The command in words is "shall be completed without unnecessary delay." If the investigation has been com--pleted the clear implication is that it is a kind of investigation in which joining of the accused .Is unnecessary. In other words, it is an investigation which does not require any further finding out. Then why his detention and custody is necessary if he can furnish bail. The only thing is to ask him to come for the trial. If it has been investigated then it is required that the officer in charge must put in a report as soon as the investigation is completed. Why then has no challan been put up in several cases? Consequently when one takes the composite picture arising from these averments, one finds that the power to arrest does not seem to have been used for the purposes of the Code. Then we have Broom's Legal Maxim at page 315:----- "Whatever is prohibited by law to be done directly cannot legally be effected by an indirect and circuitous contrivance, and `a mere device for carrying into a transaction will not be upheld' which is `a mere device for carrying into effect that which the Legislature has said shall not be done'."
53. On the same page further on we have the following:----- "Of fraud itself it has been said that it is "infinite in variety; sometimes it is fraud audacious and unblushing; sometimes it pays a sort of homage to virtue, and then it is modest and retiring; it would be honesty itself if it could only afford it. But fraud is fraud all the same, and it is the fraud, not the manner of it, which calls for the interposition of the Courts."
54. A reference to Craies on Statute Law, Sixth Edn., page 78, would show that a Court of law will not tolerate such an evasion of an Act of Parliament as amounts to a positive "fraud upon the Act," such an evasion being, as Lord Eldon described it in E.x v. Bishop of Chester, "a fraud on the law G or an insult to an Act of Parliament." At page 79 Craies goes on to stat that:----- "If a statute has been passed for some one particular purpose, a Court of law will not countenance any attempt which may be made to extend the operation of the Act to something else which is quite foreign to its object and beyond its scope. The Public House Amendment (Scotland) Act, 1862, gave Magistrates the power to close public houses "in any particular locality" before the statutory hour. In Macbeth v. Ashley, it was held that, if the Magistrates, under the guise of exercising this power, were to order the public houses to be closed earlier, not merely in one particular locality, but in portion after portion of the whole district, until eventually all the public houses in the whole district had been closed at the earlier hour, this would be, as Lord Cairns said, "adopting a course for the purpose of doing what .I must describe as evading an Act of Parliament, and your Lordships would not be prepared to sanction, but would discountenance and prevent, the exercise of a power so used." at page 315, S. A. De Smith proceeds to elaborate it:-------- "The concept of bad faith eludes precise definition, but in relation to the exercise of statutory powers it may be said to comprise dishonesty (or fraud) and malice. A power is exercised fraudulently if its repository intends to achieve an object other than that for which he believes the power to have been conferred. His intention may be to promote another public interest or private interests."
55. To the same effect is the observation of My Lord the Chief Justice of the Supreme Court in State v.
56. Zia-ur-Rehman and others (PLD 1973 SC 49at pp. 87 and 88: "It will be observed that this too was a case of an buster of jurisdiction of the Courts by express words contained in a supra-Constitutional document. Nevertheless, learned Chief Justice pointed out with great clarity of the conditions under which the ouster would be operative and he in no uncertain terms excluded there from proceedings taken mala fide or cases in which the statute was merely being used as a cloak to cover an act which, in fact, is not taken, even though it purports to have been taken under the statute.
57. This again emphasises the same point that if the statute is being used merely as a cloak for a purpose which is not covered by the statute, then, even the ouster clause, will not operate to exclude the jurisdiction of the Courts to review the official act concerned in exercise of the power conferred by the Constitution itself, e.g., by Article 201.
58. It has also been held by this Court that an act done mala fide is an act without jurisdiction. Thus, in the case of Abdul Rauf v. Abdul Hamid Khan (PLD 1965 SC 671), Kaikaus, J., while delivering the unani--mous judgment of the Court, observed:------ `A mala fide act is by its nature an act without jurisdiction. No Legis--lature when it grants power to take action or pass an order contem--plates a mala fide exercise of power. A mala fide order is a fraud on the statute. It may be explained that a mala fide order means that which is passed not for the purpose contemplated by the enactment granting the power to pass the order, but for some other collateral or ulterior purposes'."
59. Again in the judgment of the Court in the case of Mohammad Jamil Asghar v. The Improvement Trust (PLD 1965 SC 698) the same learned Judge observed:----- ---However, with respect to mala fides the jurisdiction of the civil Court can never be taken away for a mala fide act is in its very nature an illegal and void act and the civil Court can always pronounce an act to be mala fide and therefore void."
60. I have myself, in the case of the Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14) where too the question of ouster of jurisdiction of the High Court was raised held that, in the discharge of its duties under Article 98 of the Constitution of 1962, corresponding to Article 201 of the interim Constitution, the High Court would have the right to determine the circumstances in which a detention could be said to be detention in an unlawful manner and that in so doing the High Court would be entitled to go into the question of mala fides or colourable exercise of power, for, such exercise of power is not regarded to be action in accordance with law.
61. It will thus be seen that, so far as the Court is concerned, it has con--sistently held the view that a mala fide act stands in the same position as an act done without jurisdiction, because no Legislature when granting a power to do an act can possibly contemplate the perpetration of injustice by permitting the doing of that act mala fide."
62. One further finds that he was released on bail in one of the cases by a Magistrate. This case related to one police station. He had not yet been released when he was arrested in. Connection with another case belonging to another police station. From this the only inference that can be drawn is that there was some sort of co-ordination in this respect. The subordinate police officers do not seem to have been acting on their own. Their modus operandi is suggestive of pre-planning, scheming and acting under mandate. Such an exercise of discretion or authority contains within itself the germs of its own destruction. But here the officers did not even have any discretion. Had there been any it would have had to be exercised by the subordinate police officers themselves and if they acted at the bidding of higher officers or other officers, then the exercise even of discretion would not be in accordance with law.
63. The petitioner was arrested at Lahore on 4-11-72 in consequence of F. I. R. No. 27 7 registered on 21- 8-72 in respect of his speech delivered at Khanewal four months earlier. The Sessions Judge granted bail to the petitioner since the Magistrate had declined to do so. He was re-arrested in a second case while he was still in the lock-up without being first released in compliance with the order of the Sessions Judge. This second case was registered on 6-11-1972 under section 16 of the Maintenance of Public Order Ordinance for a speech which was said to have been delivered at Vehari. The Magistrate at Vehari refused to grant bail. The Sessions Judge, Multan granted bail on 15-11-1972, the bail order was however, stultified and while the petitioner was still in police custody he was arrested in F. I. R. No. 304 dated 6-11-1972 registered in respect of his speech said to have been delivered at Burewala. During the 12 days that he was kept in custody, the petitioner alleged that he was denied the right to sleep and he was kept under interrogation. It was at this stage that this petition was moved.
64. So much for that part of the order by which bail was granted in the cases already registered and in which the petitioner's arrest had been effected. I now advert to the other aspect of the matter, i.e. the ad interim injunction issued to the respondent requiring him not to arrest the petitioner in cases which had been registered against him but in which he had not yet been arrested and the allegations in which were not even known to the petitioner.
65. Shahnaz Begum (PLD 1971 SC 677 at p. 693 would be found the explicit observation that; "If an investigation is launched mala fide (there may by remedy under Article 201) but not by invoking the inherent power of section 561-A, Cr. P. C."
66. We have already seen that there were allegations of mala fide in the present case and in the opinion of the Court these allegations were, prima facie not devoid of force. Even according to the observation in Shahnaz Begum's case quoted above, the Court was, therefore, within its' right in taking action under Article 201 with a view to preventing the effect of the mala fide action on the petitioner.
67. The learned Advocate-General was emphasising that action under Article 201 could be taken only if a petition under Article 201 was, duly presented to this Court. He submitted that in this case no such petition having been made it was not open to the, Court to act suo moto.
68. This submission of the learned Advocate-General is devoid of all force. Firstly, the question of acting suo moto in this case did not arise since a petition had been presented for taking action and it was in these proceedings that the order was passed.
69. As for the requirement that Article 201 should have been mentioned in the petition itself, suffice it to say that it is more than making a fetish out of a technicality. The question is of the effectiveness of the relief. If it is due, surmountable technicalities blocking it from becoming effective must not be allowed to prevail. This Court has never allowed itself to become a helpless and silent spectator of misuse of power. The jurisdic--petition of this Court under Article 201 of the Interim Constitution .Is subject only to the Constitution. If there is some sub-constitutional legislation, or rule, or some question of court-fee that comes in the way it cannot take away or abridge the jurisdiction. In any case it can be complied with as procedural step if at all. Anyhow, by making rules the constitutional jurisdiction cannot be whittled down.
70. Under Article 201(4) where the two conditions mentioned therein are full--filled, interim orders may not be made without notice; this means that where those conditions are not fulfilled interim orders may be made without notice. The jurisdiction to pass the order complained of was, therefore, always available. It would be too late to suggest that the mere fact that a particular section or Article is not quoted in an application, the Court becomes power less to take action if that jurisdiction is available to it. The mere fact that the right source is not quoted does not vitiate the exercise of that power. The provisions of the Criminal Procedure Code and particularly the provisions pertaining to bail contained in it have, therefore, nothing to do with the, interim order passed by this Court regarding the cases in which the petitioner had not yet been arrested. This is the only proper order that could have been made in the circumstances with regard to this aspect of the case.
71. The issue whether the High Court can or cannot grant bail in relation to cases the facts of which are not known does not arise because by my order the context had been altered by taking necessary steps effectively to get the information in order to enable me to exercise the power under the Code of Criminal Procedure.
72. I have not considered the effect of section 561-A of the Code for the reason that the Supreme Court has found that it does not have any bearing on the question of a bail. I was informed by Mr. Manzoor Qadir that the issue is under consideration by that Hon'ble Court again but till their Lord-- ships do so all other Courts are bound by their existing pronouncement.
73. Before parting with the case I deem it necessary to put the record straight regarding an aspect of the interim order. When the case came upon for final disposal, the learned Advocate-General informed me that his grounds of attack will be the same as are contained in the petition for Special Leave to Appeal. It was consequently agreed that a copy of that petition be placed on the record of this case. When this was done and I was going through it I found to contain the following:----- "4(ii) That the petition was presented by Mian Mahmud A.I Kasuri, Advocate, for the accused- respondent directly in the Court of Mr. Justice Mushtaq Hussain who entertained it immediately and passed the order without prior notice to the State. Normally such petitions are submitted in the Registry before they are placed before the Judge."
74. I was surprised to read it because I found that it gave the impression as if I had done something extraordinary procedurally in. Letting the petitioner present the petition in Court and in passing the orders thereon before its being registered in the office, I acted with unholy haste.
75. On 17-11-72 at about recess hour a gentleman whom I had seen sitting in the Court for some time, addressed me and said that he wants to present a bail application and obtain orders because his learned counsel Mian Mah mud A.I Kasuri who was at that moment busy - in some other Court was going out of Lahore at midday. He then presented the application to me. It was a bail matter and like so many other such matters I decided to hear it myself.
76. I adverted the attention of the learned Advocate-General towards it and informed him of the procedure which was being followed in all Divisions and which has been referred to above. The learned Advocate-General agreed that this was the procedure and that it had never been his intention to give an impression that any extra-ordinary interest had been taken by the Court in this particular case. On my informing him that the impression referred to by me above was being created by his paragraph, the learned Advocate---General submitted that he seemed to have overlooked this paragraph and had it not been so he would have certainly scored it off. Coming as it does from the highest Law Officer of the Province, I accept his assurance. The learned Advocate- General has further assured me that he will dispel this impression before the Supreme Court as and when the case comes up before it by making a similar statement.