' NASIR ASLAM ZAHID, C.J.--- This petition was filed by petitioner himself while he had appeared in custody before the Court on 28-10-1992. Under orders of the Chief Justice, the said petition was ordered to be registered as a Constitutional petition and notice was issued to the Advocate- General. The petition was admitted to regular hearing on 4-11-1992. We have heard at length learned counsel for the petitioner and the learned Additional Advocate-General.
2. The case of the petitioner is that since 14-11-1990, he has been in continuous custody and not for a single day, he has been free, and his entire detention has been illegal and mala fide. In the last over two years and one month, during which the petitioner has remained in custody and continues to remain in custody, he has been implicated in 11 cases including two detention orders dated 20- 12-1990 and 10-10-1992 passed under section 3 of the Maintenance of Public Order Ordinance, 1960.
The first detention order was challenged in C.P. No,D-1488 of 1990 and, by order dated 10-1-1991, the detention order dated 20-12-1990 was declared to have been passed without lawful authority and to be of no legal effect. The other detention order dated 10-10-1992 was also challenged in C.P.
No,D-2560 of 1992 filed in this Court but, on 28-10-1992, before the said Constitution Petition could be decided on merit, the impugned order dated 10-10-1992 passed under the Maintenance of Public Order Ordinance, )960, by District Magistrate, Karachi Central was withdrawn on 28-10-1992.
However, as mentioned above, the petitioner has remained in continuous custody. Out of the other nine criminal cases, in three cases, reports under section 169, Cr.P.C. were submitted as no evidence was found against the petitioner. It may be repeated that despite the aforesaid reports, the petitioner was not released and remained in custody. Then in one murder case, he was acquitted after 21 months of detention by order dated 10-10-1992, under section 249-A, Cr.P.C., but still he was not released as he still remained implicated in other cases. In another case, a report under section 173, Cr.P.C. was submitted and the name of the petitioner was deleted from the final challan. In Crime No,298/1989 of Police Station Civil Lines (the only case in which his name appeared as an accused in the F.I.R.), he was challaned but was released on bail. In Crime No,436 of 1990, another murder case, he was granted bail on 30-9-1992. He is facing trial in that case. In Crime No,389 of 1989 of Ferozabad Police Station challan has been submitted and petitioner is facing trial but has been granted bail.
3. The position that emerges from the above facts, in respect of which learned counsel for the petitioner was asked to prepare a chart which was done and placed on record, is as follows:--
(i) In three cases, namely F.I.R. No,389/91 of Ferozabad Police Station, Crime No,298/89 of Civil Lines Police Station and Crime No,436 of 1990 of Ferozeabad Police Station, the petitioner is facing trial but he has been granted bail in all the said three cases.
(ii) The only case which remains in which he is still in custody is Crime No,704 of 1988 of Korangi Police Station, under section 3/5 of the Explosives Act read with section 120-B, P.P.C. According to the learned AA.-G., challan has been submitted against the petitioner and the case is pending before the Special Court (STA) III, Karachi.
' It may, be mentioned that except for Crime No,298/89, in which the petitioner has been named as an accused, in none of the other cases, including Crime No,704/88, the petitioner has been named as an accused and, as observed earlier, two detention orders were passed against him under the Maintenance of Public Order Ordinance, 1960, out of which one was quashed and the other detention order was withdrawn.
4. Despite his admitted continuous custody since 14-11-1990 in the aforesaid cases in which not a single witness has/had been examined, the petitioner still remains in custody now on account of Crime No,704 of 1988 of Police Station Korangi in which case he is facing trial and, according to the learned AA.-G., challan has been submitted against the petitioner before the Special Court. It was further informed that an interim challan had been submitted against him on 31-10-1992, whereas, the final challan was submitted against him before the Special Court on 6-11-1992.
5. Normally, if an accused is challaned, the ordinary process of law for the trial is allowed to take its course and the accused is left to the remedies available for bail, etc. However, in the present case, there are certain special features which have been mentioned earlier but the same may be repeated here with additional observations on Crime No,704 of 1988. Firstly, the petitioner has been kept in custody continuously since 14-11-1990 till today and this has been made possible on account of the aforesaid 11 cases. Secondly, except in one case and the two detention orders, in the other eight cases, the petitioner is not named as an accused and, as observed earlier, in some cases reports under section 169, Cr.P.C. were submitted and in others he has been acquitted or granted bail except Crime No,704 of 1988. Thirdly, in this long period of two years and one month of custody, in spite of all nine cases having been registered in which he was arrested, not a single witness has been examined except in Crime No,141 of 1990, in which he was challaned but was acquitted under section 249-A, Cr.P.C. Fourthly, from the Chart that has been prepared under the order of the Court and filed by learned counsel for the petitioner, it follows that no sooner the petitioner was acquitted or a report under section 169, Cr.P.C. was submitted, he was shown to have already been arrested in some other case or a detention order was passed against him under section 3 of the Maintenance of Public Order Ordinance, 1960. From the above, it would follow that despite there being no evidence, the detenu has been kept in custody continuously for a period of over two years and one month. It would not be unsafe to infer from these facts that the intention was that the detenu should be kept in custody at all costs and this inference is strengthened by the fact that in only one case out of the nine cases registered in which he was arrested, he was named as an accused.
6. Coming now to Crime No,704 of 1988, it may be mentioned that this case was registered in 1988 at Korangi Police Station and one accused Rafiq Memon was convicted in absentia and sentenced to life imprisonment on 1-4-1992. The petitioner is not named in the F.I.R. For the first time, according to the prosecution, one Dodo Jatoi, who is in custody for long period in some other case or cases, made a statement before the police on 26-10-1992. This statement under section 161, Cr.P.C. recorded on 26-10-1992 is relied upon by the prosecution for the implication of the petitioner in Crime No,704 of 1988. It may be stated that though interim challan was submitted against the petitioner in this Crime No,704 of 1988 on 31-10-1992, in the list of witnesses in the said interim challan, the name of Dodo Jatoi is significantly missing. For the first time the name of Dodo Jatoi, a man in custody in some other cases, appears as a witness in the final challan dated 6-11-1992 against the petitioner. Apart from Dodo Jatoi there are five other prosecution witnesses according to the final challan, all of whom are police officials and none of them implicates the petitioner and it can be stated that they are formal witnesses. A further fact which may be mentioned is that, prior to his arrest in F.I.R. No,704 of 1988, the detention order dated 10-10-1992 under the Maintenance of Public Order Ordinance, 1960, was passed by District Magistrate Central directing the detention of the petitioner for a period of 30 days but, as observed earlier, C.P. No,D-2560 of 1992 was filed in this. Court challenging the said order and the said impugned detention order was withdrawn after 18 days on 28-10-1992. It is significant to note that two days earlier to the withdrawal of the said detention order, on 26-10-1992, according to the prosecution, the statement of Dodo Jatoi was recorded under section 161, Cr.P.C. Further, even the statement of Dodo Jatoi had not been recorded prior to 26-10-1992, though remand of petitioner had been taken on 18-10-1992 in Crime No,704 of 1988 and, accordingly, the petitioner is shown to have been arrested on 18-10-1992 in Crime No,704 of 1988, the only case on account of which at present he is in custody.
7. We had also the occasion, with the help of the learned Additional Advocate-General, to go through the police papers of Crime No,704 of 1988. According to the Investigating Officer, the statement of Dodo Jatoi was not sufficient to make out any case against the petitioner. The P.D.S.P.
(Legal) also gave opinion that statement of Dodo Jatoi was not sufficient but despite that challan was submitted against the petitioner. As observed, apart from the solitary statement of Dodo Jatoi, accused in csutody in another case for a long period, recorded on the date and in the circumstances mentioned above, there is no other evidence against the petitioner in Crime No,704 of 1988.
8. This petition for quashment of proceedings in Crime No,704 of 1988 has been vehemently opposed by the learned AA.-G., Mr. Syed Sarfraz Ahmed. His challenge is based on two contentions.
Firstly, that a challan has been submitted and the petitioner should approach the trial Court either for bail and/or under section 249-A, Cr.P.C. Secondly, it has been submitted by the learned AA.-G. that the ordinary course of trial should be allowed to continue in this case, namely, Crime No,704 of 1988, before the Special Court (STA)-III, Karachi, and in case the Court exercises its Constitutional jurisdiction or powers under section 561-A, Cr.P.C. it will be deflecting the normal course of trial, which is not permitted by law. He relies upon the case of A. Habib Ahmad v. M.K.G. Scott Christian PLD 1992 SC 353.
' In normal circumstances the contentions raised by learned AA.-G. would appear to be weighty but we have given hereinabove a resume of the various cases registered and the detention orders passed by which it has been possible for the prosecution to keep the petitioner in continuous custody since 14-11-1990 till today. As observed, today the only case in which the petitioner is involved and on account of which he is in custody is Crime No,704 of 1988. We have dealt with this case in some detail and in the background of the cases. against the petitioner and the facts of this case itself, it is apparent that the proceedings in Crime No,704 of 1988 against the petitioner cannot be allowed to be continued as the same would amount to an abuse of the process of the Court and would not be in the interest of proper administration of justice. We have already mentioned that from the chequered history of the cases given above and the manner in which it has been possible for the prosecution to detain the petitioner in continuous custody for such a long period, the intention has been that the petitioner should remain in custody and for this purpose to involve him, with mala fide intention, in case after case in which it has turned out that there was no evidence at all against the petitioner.
9. In the circumstances, the proceedings pending against the petitioner before the Special Court (STA)-III, Karachi, in Crime No,704 of 1988 are quashed and declared to be without lawful authority and to be of no legal effect.
10. We had asked the learned Additional Advocate-General whether there was any other case pending against the petitioner or not and we have been informed that, at present, Crime No,704 of 1988 is the only case against the petitioner and that the petitioner is not required to be interned in any other case. In view of what has happened and what the petitioner has undergone on account of his continuous dentention for over two years and one month, the possibility of his false involvement in other cases cannot be ruled out, and, therefore, it is directed that the police will not again arrest the petitioner without first obtaining permission in writing from the Home Secretary.
The order of the Home Secretary shall give reasons for giving permission to the police for the arrest of the petitioner. It is further directed that in case permission is granted and the petitioner is arrested, copies of the F.I.R., application of the police seeking permission to arrest the petitioner and the order of the Home Secretary will be supplied to the Registrar of this Court. The direction given for taking permission from the Home Secretary and submission of information to the Registrar will be valid till 31-12-1993.
' The petitioner is present in Court. He is released from the Court forthwith.