1. ANWARUL HAQ, J.-After hearing the learned counsel for both sides we have decided to convert this petition into an appeal, as it raises a substan--tial question of public importance regarding the powers of the High Court in habeas corpus matters.
2. During the pendency of a habeas corpus petition, moved by the respondent Malik Ghulam Jilani in respect of the detention of four persons belonging to Baluchistan, viz., Sardar Khair Bakhsh Marri, Mir Ghaus Bakhsh Bizanjo, Sardar Attaullah Mangal and Col. Sultan Mohammad Khan, a Division Bench of the Lahore High Court has made an order on the 30th of September 1974 directing that they be produced in Court on 8-10-1974 so that the Court could ascertain their point of view. It appears that at an earlier stage the Court had desired that the prisoners be kept in a jail at Lahore so that their counsel could seek instructions from them, but the Provincial Government had expressed its inability to do so in the public interest, on the ground that shifting of the prisoners from different jails in the Province to one jail at Lahore involved security risks. It was also averred that there was a possi--bility of an attempt being made to get the prisoners forcibly released from custody. It is in this background that the High Court has directed that even if the prisoners cannot be lodged in a prison at Lahore, yet they should be brought to the Court for the purpose of recording their statements, after which they could be taken back to the places where they are presently lodged.
3. The Federal Government of Pakistan as well as the Provincial Govern--ments of Baluchistan and the Punjab, besides the Deputy Inspector-General of Police, Special Branch at Lahore, have felt aggrieved by this order. It is submitted by the learned Attorney-General that when the habeas corpus petition was admitted by the High Court to a full hearing on the 17th of August 1973, the only direction made by the learned Judges was that the prisoners be not removed from the territories of the Punjab Province, and as late as the 25th of September 1974 the Bench had observed that the pro--duction of the detenus in Court did not appear to be necessary, as only legal questions were being debated. He contends that in the written statement submitted on behalf of the Governments concerned the question of jurisdic--petition of- the Lahore High Court was specifically raised on the ground that the prisoners were being held in pursuance of specific criminal cases having been registered against them in the Baluchistan Province and not by way of preventive detention, and the Lahore High Court had no jurisdiction to quash proceedings pending in the Courts of another Province. He submits that the High Court should have, therefore, first decided the question of jurisdiction before directing the production of the detenus. The learned Attorney-General further submits that the prisoners being charged with specific offences, there could be no point in recording their statements in the High Court, as such a procedure would not only prejudice the trials which are still to be held in the Courts of Baluchistan Province, but was also likely to require lengthy cross-examination by the counsel for the State. It appears to the learned Attorney-General that once the detaining authority had stated before the Court that the prisoners were being held under valid warrants issued by competent Courts, the High Court should have dismissed the habeas corpus petition without further proceedings. Finally, the learned counsel submits that, according to the information available to the Federal and the Provincial Governments, the production of the detenus before the High Court at Lahore is fraught with serious security risks, and in this behalf the High Court should have accepted the opinion of the executive Government, as indeed the learned Judges did in the matter of the detention of the prisoners at Lahore instead of their detention separately in several prisons of the Punjab Province. The learned Attorney-General argues that in this respect the order of the High Court is self-contradictory as the production of the prisoners before the High Court at Lahore could not be done without keeping them for sometime at least in some prison at Lahore. It is submitted that in the special circumstances pointed out by the Government the High Court should not have insisted on the production of the prisoners.
4. The power of issuing a writ in the nature of habeas corpus has been conferred on the High Courts by clause (b)(1) of Article 199(1) of the Con--stitution which prescribes that a High Court may, if it is satisfied that no other adequate remedy is provided by law, on the application of any person, make an order directing that a person in custody within the territorial juris--diction 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.
5. This constitutional provision is of fundamental importance, providing, as it does, an effective safeguard for the liberty of the subject. The Constitu--petition itself contemplates that in a matter of this.-kind the High Court shall have the power to direct the production before it of the person alleged to be detained without lawful authority or in an unlawful manner. The production of the body is of course intended for the purpose of enabling the High Court to satisfy itself as to the legality of the detention. The Constitution does not make the exercise of this power dependent on the prior determination by the Court of questions relating to its jurisdiction and the validity of the detention, as long as the person detained is within the territorial jurisdiction of the High Court concerned. All such questions can in fact be legitimately raised only in the presence of the detenu so that he is in a position to apprise the Court of the facts and circumstances which may be within his peculiar knowledge. Such being the scope of the power conferred by the Constitution on the High Court, we are of the view that the exercise of this power cannot be denied to the High Court on the grounds urged by the learned Attorney-General.
6. It, however, goes without saying that once the detenu is produced before the Court, the latter would exercise its discretion judiciously, in the light of all the attendant circumstances of the case, for the purpose of examining the detenu, and ensuring that such examination does not prejudice the trial, if any, which may be pending, nor does it defeat the very object of habeas corpus proceedings by undue prolongation. It is in fact a matter of some regret that in this case the proceedings have not yet concluded even though the habeas corpus petition was instituted nearly fourteen months ago.
7. While holding that the High Court has undoubtedly the power to require the production before it of the alleged detenus, we are inclined to agree with the learned Attorney-General that, in the peculiar circumstances of the case, the High Court has passed a somewhat self-contradictory order. The learned Judges have accepted as valid the reason given by the Government for its inability to lodge all the prisoners at one place, by observing that "as the question whether the Government can make adequate arrangements for lodging the under-trial prisoners at Lahore or at one place, is a matter about which the Government is the best Judge, we would not dispute the correctness of the conclusion of the Government in this behalf, and observe that the prisoners need not be shifted from their present jails." It seems to us that the same considerations ought to have prevailed with the learned Judges in the matter of the production of the detenus before the Court at Lahore. As already stated, the Government has made it clear that the production of the detenus in the Court at Lahore would be fraught with security risks. In keeping with the opinion expressed by the learned Judges on the other point, this appreciation of the situation by the Government could not be rejected.
8. We accordingly requested the learned Attorney-General by our order dated the 7th of October 1974, to inform us about the place in the Province of the Punjab where, consistent with security measures and convenient to the High Court, the four under trial prisoners concerned could be produced before the High Court. The learned Deputy Attorney-General has today informed us that the Government would have no objection in producing the prisoners before the High Court at the Sihala Rest House on any date con--venient to the learned Judges of the High Court. He states that at one time all the prisoners were held at this Rest House before being dispersed to various jails in the Punjab Province.
9. We would accordingly accept this appeal only to the extent that the High Court order is modified so as to permit the detaining authority to produce the prisoners before the High Court at the Sihala Rest House instead of the premises of the Court at Lahore, on any date convenient to the learned Judges of the High Court.
10. The case shall now go back to the High Court for further proceedings.