The present habeas corpus petition was riled praying for a direction that as the alleged detenu Mushtaq Ahmad was being confined in District Jail, Lahore by the respondents without there being a legal order of a competent Court to that effect, therefore, the respondents be directed to produce the said detenu before the Court to be set at liberty, his detention, as pointed out earlier, not being in accordance with law.
2. Notice was issued to the respondents and the relevant record was directed to be produced by the respondent No.2.
3. The relevant warrant orders were produced by the respondent No.2. A perusal of the same showed that the detenu Mushtaq Ahmad had been in jail as a result of having been arrested in two cases registered against him i.e. F.I.Rs. Nos.435 of 1988 and 202 of 1989. The learned counsel for the petitioner pointed out that the detenu had been admitted to bail by the trial Court, in the Case bearing No.435 of 1988. The learned A.A.-G. Confirms the same.
4. However, the learned A.A.-G. Pointed out that the detenu had not been admitted to bail in the other Case i.e. 202 of 1989 and further pointed out that the trial Court had been remanding him to the custody of the respondent on various dates on which he had been produced before the Court.
The learned A.A.-G. Stated that the detenu had been produced before the trial Court on 14-1-1990 for the last time and that he has to be produced in the Court on 27-1-1990 in accordance with the order passed on that date by the learned trial Court. The said order is in the case No.435 of 1988, in which case, though the detenu Mushtaq Ahmad has been admitted to bail but, nevertheless, has not been released as he was still required to be detained in case F.I.R. No.202 of 1989 registered under section 3; 4 of the Prohibition (Enforcement of Hadd) Order, 1979 at Police Station Ravi Road, Lahore.
5. However, the learned AA.-G. Very fairly pointed out that the remand order in Case No.202 of 1989 as well was passed on 13-1-1990 but without the accused being produced in the Court in accordance with the previous remand order. In this respect, the learned A.A.-G. Referred to the order dated 13-1-1990 on the judicial file, the judicial file having been produced in the Court by the Ahmad Jaffar Ali of the trial Court on the directions of the Court. The said order is as followed:--
6. In view of what has been stated above, the detention of the accused Mushtaq Ahmad was no longer under a legal remand order as required in accordance with the law, therefore, the custody of the said Mushtaq Ahmad prima facie was illegal. However, in view of the fact that he was an accused in a heinous crime and that there are more than one case against him, therefore, the Court had come to the conclusion that, under the facts and circumstances of the case, the forthwith release of Musthaq Ahmad shall not be ordered.
7. However, on the request of the learned counsel for the petitioner, the present petition was converted into one for bail after arrest and notice in the same was issued to the State on 2(1-1- 1990. The learned AA.-G. Present in the Court accepted the said notice for today.
8. The learned AA.-G. On the other hand, has opposed the grant of bail to the detenu Mushtaq Ahmad on the ground that he has been charged with an offence that is covered by the prohibitory clause of section 497, Cr.P.C. The offence charged being 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, for which the punishment is life imprisonment.
9. After having heard the learned AA.-G., the Court has decided to exercise its discretion in favour of the said Mushtaq Ahmad to the extent of admitting him to bail without commenting on the merits of the case.
10. In this respect strength was sought from Criminal Miscellaneous No.231-H of 1987 Abdul Wakil v.
The State, wherein the accused's detention in a case under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 was declared illegal as there was no proper remand order, but, in view of the offence charged with, the accused was instead enlarged on bail under the circumstances. In this case the Court had also taken serious notice of the fact that the trial Court had violated the directions given by the Court in a case titled Ghulam Sarwar and others v. The State reported as NLR 1984 Cr. Paged 39. The said authority applies to the present case as well.
11. Further, reliance was placed on Criminal Miscellaneous No.241-H of 1987. In this case the detenu was also charged under the same offences as stated above, and the Court had come to the conclusion that as the accused was in jail without any legal order as there was no remand order by the trial Court, therefore, his detention was illegal. But in this case the Court instead of setting the detenu at liberty had exercised its powers to admit the accused to bail. In this case reliance was also placed on Muhammad All etc. v. The State 1985 PCr.LJ 603 wherein the accused charged of offence under section 302 were released on bail as they had not been remanded to the jail under orders of a competent Court.
12. Therefore, in view of what has been stated above, as the detenu Musthaq Ahmad is in the custody of the respondent No.2 without any remand order to that effect by the competent Court, and placing reliance on the cases referred to above, the detenu Mushtaq Ahmad is hereby admitted to bail in the sum of Rs.30,000 with two sureties in the like amount to the satisfaction of A.C., City Lahore.
13. The record in custody of the Court be returned to respondent No.2.
SA./A-1094/L