QAISER AHMED HAMIDI, J.---At the conclusion of the hearing of this Constitutional petition riled under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, we had by a short order dated 4-5-1992 allowed the same and we now proceed to record the reasons for the said order.
2. The petitioner, a sitting M.N.A. And husband of Mohtarma Benazir Bhutto, sitting M.NA. Leader of Opposition and a former Prime Minister of Pakistan is involved in eight criminal cases, including the following three cases:- Crime No.7 of 1990, FIA, Commercial Bank Circle, Karachi
(ii) Crime No.4 of 1990, FIA, Special Investigation Unit, Islamabad
(iii) Crime No.154 of 1990, Saddar (CIA), P.S. Karachi.
All these cases are presently pending before Mr. Justice (Retd.) Fakhruddin H. Shaikh, Presiding officer, Special Court (offences in Banks), Karachi, and Judge, Special Court No.11, Suppression of Terrorist Activities, Karachi.
3. On 3-9-1991 a news item appeared in national press containing a statement made by Molitarma Benazir Bhutto that she apprehended danger to the life of her husband, the petitioner, at the hands of some persons in power and other functionaries and executives of the Government. The Government of Sindh then decided to appoint a Judge of this Court to hold an inquiry in the matter and that all the cases pending against the petitioner pending in different Courts would hence forth be tried in jail. A notification in this behalf issued by Government of Sindh, Home Department, Karachi, dated 3rd September, 1991, was challenged before this Court in-C.P. No.D-1100 of 1991, which was however, not pressed after the said notification was withdrawn by the Government of Sindh. Subsequent to the withdrawal of the said notification by the Government of Sindh, the Government of Pakistan issued Notification No.F-12(8)/81-All (Vol.11), dated 4th September, 1WI, in the following words:-- "No.F.12(8)/81 ---AII (Vol-11).--In exercise of the powers conferred by subsection (3) of section 3 of the Suppression of Terrorist Activities (Special Courts) Act 1975 (XV of 1975), the Federal Government is pleased to specify Juvenile Jail Landhi, Karachi. To be the place at which the Special Court-11 (Mr. Wajahat Hussain Siddiqui) constituted by this Division's Notification No.12(8)/81-All, dated the 13th October, 1988, shall sit for trial of Case No.22/90, registered vide FIR No.154/90, Police Station Saddar (CIA), Karachi."
This Notification was followed by-another Notification No.F44(1)/88--All, dated 5th September, 1991, issued in the following words:-- "No.F.44(I)/88-AII.--In exercise of the powers conferred by subsection (2) of section 3 of the Offences in Respect of Banks (Special Courts) Ordinance, 1984 (IX of 1984), the Federal Government is pleased to specify Juvenile Jail Landhi, Karachi, to be the place at which the Special Court (Offences in Banks), Karachi (Mr. Justice Retd. Fakhruddin H. Sheikh) constituted by this Division's Notification No.F.44(1)/88-All, dated the 30th August, 1990, shall sit for trial of Case No.31/90, FIR No.4/90, of FIA Special Investigation Unit, Islamabad and Case No.33/90, FIR No.7/90 of FIA Commercial Bank Circle, Karachi, pending in that Court."
After the demise of Mr. Wajahat Hussain Siddiqui, Judge, Special Court-11, Suppression of Terrorist Activities, Karachi, the Notification, dated 4th September, 1991 was amended by a Notification No.F.12(8)-All (Vol.11) dated 23rd November, 1991, by which the name of Mr. Justice (Retd.)
Fakhruddin H. Shaikh was substituted.
4. It is the case of the petitioner that the notifications issued by the Federal Government by which the venue of trial in respect of above three cases was changed From ordinary Court premises to Juvenile Jail, Landhi, is mala fide as the same has been issued in colourable exercise of jurisdiction without assigning any reason in order to deprive the petitioner a fair public trial through effective and competent defence. It is in these circumstances that the petitioner has invoked the Constitutional jurisdiction of this Court.
5. Mr. Abdul Hafeez Lakho, learned counsel for the petitioner has referred to several points but eventually confined his arguments in main to the following contentions:-- (i)That the provisions of law, whereunder the notifications have been -issued empower the Federal Government to notify the place of sitting of the Special Court in respect of all cases, which place of sitting cannot be other than the ordinary place of sitting in respect of one accused or a group of accused.
(ii)That the petitioner, being a sitting M.N.A. And husband of a former Prime Minister of Pakistan ought to have been tried in public view so that justice could nor only be -done but would manifestly have been seen to be, done.
(iii)That the impugned notifications were issued in complete disregard of the provisions of section 352, Cr.P.C. Which empower the trial Court alone to take a decision in this behalf, if it is expedient to do so for the safety-of the accused or for any other valid ground.
6. Since the, finding on first contention hinges on the interpretation of subsection (3) of section 3 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, and subsection (2) of section 3 of the Offences in Respect I of Banks (Special Courts) Ordinance, 1984, it would be convenient to read the relevant provisions which are in the following terms:-- "3. Constitution of Special Courts.--(1). The Federal Government may, by notification in the official Gazette, constitute, for the whole or any part of Pakistan, Special Courts consisting of a person who.
(a)has been, or is, or is qualified for appointment as, Judge of a High Court, or (b)has, for a to the period of not less than three years, exercised, whether continuously or not, the powers under the Code, of a Sessions Judge or an Additional Sessions Judge.
(2)If so directed by the Federal Government. The Provincial Government shall constitute a Special Court or Courts each consisting of a person who is qualified under subsection (1) to be appointed as Special Court.
(3)A Special Court shall sit at such place as the Government constituting it may, by notification in the official Gazette, specify in this behalf.
3.Constitution of Special Courts.--(1) The Federal Government may, by notification in the official Gazette, constitute, for the whole or any part of Pakistan, Special Courts consisting of a person who has been or is, or is qualified for appointment as a Judge of the High Court.
(2A Special Court shall sit at such place as the Federal Government may or by notification in the official Gazette, specify in this behalf.
7. A bare reading of the above sections would show that the word 'place' used in subsection (3) of section 3 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, and in subsection (2) of section 3 of the Offences in Respect of Banks (Special Courts) Ordinance, 1984, cannot be construed in a restricted sense. It is in fact of wide import and should mean and include an area, locality, etc. Reading the above subsections together with subsection (2) .Of section 9, Cr.P.C., it is apparent that they are couched in general terms. Subsection (3) of section 3 of the Suppression of Tcrrori4 Activities (Special Courts) Act, 1975, and subsection (2) of section 3 of the Offences iii Respect -of Banks (Special Courts) Ordinance, 1984, manifestly reject the idea of fixing of venue of a trial of one or more particular cases. The subsections in fact empower the Federal Government to fix a place of sitting of the Special Courts, which will be the place of sitting of Special Courts for all cases falling under their jurisdiction. There is, therefore, good deal of force in this contention raised on behalf of the petitioner.
8. Coming now to the question Whether in the circumstances of the present case the trial of the petitioner in jail in three out of eight cases was legally justified, we may add that this question turns entirely on certain observations made by a Division Bench of this Court in the case of Mairaj Muhammad Khan, v. The State, reported in PLD 1978 Karachi 308, wherein it was remarked:-- "The appellant was a politician of stature. He had squarely alleged political victimization. The allegedly seditious speech was made in public. There was at the relevant time no right of appeal unless a person was sentenced by the Tribunal to death or transportation for life or to imprisonment for a term exceeding ten years. The prescribed procedure for trial by Special, Tribunal was. Heavily loaded in favour of the prosecution. It was, therefore, all the more necessary that the trial should. Have been held in public view. These were compelling considerations that favoured an open trial so that justice should not be done but should manifestly seen to be done.
Even from the point of view of the Tribunal it was more appropriate to do so, for as it now transpires there would have been no occasion for the appellant to allege acts of commission and omission on the part of the Tribunal at the hearing held on 7th and 9th of January, 1975.
9. On a careful examination of above cited authority, it is obvious that this case can be easily distinguished from the case which we are dealing. We may, however, observe that the trial in open Court is an almost inevitable consequence of our judicial system, which we have inherited and the ordinaryrule is that it must be held in open Court unless it is conducive to justice to hold trial in jail.
The trend of the authorities indubitably leads us to the, conclusion that 'Justice should not only be done but should be manifestly seen to be done." In the case of Cora Lillian McPherson v. Oran Leo McPherson, reported in AIR 1930 Privy Council 246, it was observed that the publicity is authentic hallmark of judicial procedure, and the Court must be open to any who may present themselves for admission. We, however, do not feel it I necessary to go further on this point.
10. The third contention raised on behalf of the petitioner has got great force. Mr. Abdul Hafeez Lakho has referred us to a wealth of case-law commencing from the year 1917 down to the year 1989 in support of this contention. The first of these cases is that of Sahai Sindh and others Y.
Emperor reported in AIR 1917 Lahore 311,-wherein it was held that a trial in jail is not illegal when there is nothing to show that the prisoners were unable to communicate with their friends and counsel. The cases of The King v. U. Khemein and another reported in AIR 1940 Rangoon 72, Kailash Nath Agarwal and another v. Emperor reported in AIR 1947 Allahabad 436, In re: M.R. Venkataraman reported in AIR 1950 Madras 441, Narwarsingh and others v. The State reported in AIR 1952 Madhya Bharat. 193, Prasanta Kumar Mukerjee v. The State, AIR 1952 Calcutta 91, Shaikh Hafeez Ahmad v. The State through Secretary (Home), Government of the Punjab, Lahore reported in PLD 1975 Lahore 1453, and State v. Islamuddin alias Changha, reported in 1984 PCr.U 273, arc also relevant on this point. The ratio of the above judgments is that although for reasons of security for the accused or for the witnesses or for any other valid ground, the trial in jail is legal but the Presiding Officers of the Courts must realise that the place where the trial is held must be something like an open Court to which the public generally may have access so far as the same may contain them. It was further made clear that it -is also the duty of the Presiding Officers to see that proper facilities are, given to the members of the Bar and the members of the public and that they are not restricted by the Jail Rules or by the officers incharge of the jail in attending the trial. The decision to hold trial in jail, however, rests with the trial Court and the Government is not competent to give any such direction.
11. The case of Shaukat Hayat v. Government of Sindh and another, reported in 1987 M LD 2783, decided by a Division Bench of this Court report certainly appears to tend some support to the impugned notifications. Speaking broadly, however, this authority appears to us to create no difficulty for two reasons, firstly, that this judgment was set aside by the Supreme Court, although for different reasons, in the case of Shaukat Hayat v. Government of Sindh and another, reported in 1981) SCNIR 774, and secondly, the point in issue was not examined in its proper perspective and the discretionary relief was declined as the cases in which accused Shaukat Hayat was involved resulted in public riots, At any rate the respondent No.3, viz. The Government of Pakistan had no legal authority to issue the notifications dated September, 1991, and 5th September, 1991 by which the Presiding Officers 0 E the Special Courts were directed to hold trial against the petitioner within the precincts of Juvenile Jail, Landhi. It may be noted that the law does not tolerate the achievement of a lawful purpose by unlawful means. It is only legal orders passed in a legal manner that can be countenanced by the superior Courts of this country.
12. In the result the petition is allowed and both the above notificationsdated 4th September 1991 and 5th September, 1991, as ordinary amended are declared contrary to law and of no legal effect.
As a necessary corollary to this finding he consequential relief is also granted, There will, however be no order as to costs.