' SALEEM AKHTAR, J---These two appeals with the leave of the Court involve common questions of law and fact and shall be disposed of by this judgment.
2. The brief facts are that respondents Nos.1 and 2 filed a Constitution petition in the High Court of Sindh averring therein that respondent No,1 is the wife of Farooq Ahmed son of Muhammad Razi and the mother of Dr. Imran Farooq. It was alleged that since the advent of operation clean-up in the Province of Sindh, there had been unbearable repression against the family members of MOM office-bearers and workers including the family of Dr. Imran Farooq. It was further alleged that in order to bring pressure for the purpose of obtaining arrest of Dr. Imran Farooq, who was an office- bearer of M.Q.M., respondent No,1's ailing and aging husband Farooq Ahmed was taken into custody on 31-10-1992 from the house of respondent No,2 alongwith others, namely, Mushtaq Sehgal, being the husband of respondent No,2 and Amir Sehgal and Noman Sehgal, being the sons of respondent No,2, without any lawful authority and they were subjected to very severe torture and beating. In the prayer the following reliefs were claimed:-- "(a) directions to the respondents Nos.1 to 4 (appellants) to disclose the whereabouts of the detenus as mentioned in the memo. Of petition and produce them before this Hon'ble Court on each and every date of hearing and order for their immediate hospitalisation to the four detenus on account of the torture inflicted upon them;
(b) declare the illegal detention as without lawful authority and to no legal effect and accordingly direct their immediate release forthwith."
3. Notice was issued to the Advocate-General, Sindh, in response to which learned Additional Advocate-General appeared and stated before a Division Bench of the High Court that the respondents/detenus were confined in the police lock-up at Gulshan-e-Iqbal Police Station. It was also stated that there were three FIRs in which these four detenus were involved. The first F.I.R.
Bearing No, 272 of 1992 of Gulshan-e-Iqbal Police Station dated 6-51992 under section 302/34, P.P.C.
Was referred in which the names of four detenus were not mentioned and that a shopkeeper was alleged to have been killed by firing from a car driven by unknown persons. The other two F.I.Rs,, namely, 232 of 1992 and 234 of 1992 were under section 13-E of the Arms Ordinance against Noman Sehgal and Amir Sehgal respectively for possessing illegal 'TT' pistols recovered one from each after'they had been arrested and detained.
4. The respondents/detenus had contended that the four detenus had nothing to do with the commission of the alleged offences. It was pleaded that respondent No,3, the husband of respondent No,1 is an old person whereas respondent No,4, the husband of respondent No,2 was suffering from kideny trouble and was scheduled to be operated by Dr. Adeeb Rizvi on the date of hearing or on the following day. Her two sons, namely respondents Nos.5 and 6 were also suffering from serious illness inasmuch as one was suffering from typhoid and the other had some chest ailment. The learned Judges heard the learned Additional Advocate-General, Sindh, who contended that the release of the detenus will hamper investigation; the normal process of investigation should be allowed to continue; the investigation may be influenced by the detenus and their family members; and notice should be given. During hearing on question being asked the S.H.O. Stated that "after about five months of the incident somewhere around 15-10-1992 two witnesses came forward and informed him that the aforestated four detenus are involved in the murder of the shopkeeper." The S.H.O. Failed to explain why those statements of the witnesses were not produced with the F.I.R. After hearing the learned counsel for the parties the learned Judges observed that "the cases registered by S.H.O., Gulshan-e-Iqbal Police Station are prima facie mala fide and this is supported by the significant act that in spite of having sufficient time preparing the copies of the F.I.Rs, and typing statement addressed to the Advocate-General alongwith which the copies of F.I.Rs, were typed, the SHO did not consider it at all necessary to bring the entire Police papers with him including the statements of two witnesses alleged to have been recorded by the S.H.O." It was further observed as follows:-- "We find no merit in any of the contentions raised by the learned A.A.-G. In detention matters, it is the responsibility of the A.-G. And any law officer appearing that he should assist the Court in reaching the correct conclusion rather than taking technical objections. We have already held that the entire exercise apparently is to get information 'about the whereabouts of Dr. Imran Farooq who is, perhaps wanted in serious offences by the Police but for that reason the law will not permit that relatives and friends of the person who is required should be taken into custody and cases foisted upon them."
' The learned Judges granted bail to the detenus on each of them furnishing personal bond of Rs,50,000 in each case to the satisfaction of the Deputy Nazir of the High Court. Respondents Nos.1 and 2 were also directed to furnish personal bond in the same amount undertaking to produce the detenus whenever required by S.H.O., Gulshan-e-Iqbal, Police Station or Bahadurabad Police Station for investigation of Crime No, 272 of 1992, 232 of 1992 and 234 of 1992. Further, directions were also given that in case the four detenus are to be arrested again by the Police in Sindh, first written permission will be taken from the Home Secretary after which they can be arrested and in case the order is passed by the Home Secretary for arresting all or anyone of them, copy of the order will be sent to A.-G. And to their Advocate. This order has been challenged in C.A. No, 58 of 1993.
5. After the bail was granted by order dated 4-11-1992, the appellants filed an application under section 497 (5) read with section 561-A, Cr.P.C., seeking cancellation of bail. It was alleged that respondents Nos.3 to 6 jumped the bail and were still at large and have thus frustrated the expectation of the learned Judges of the High Court. Respondents Nos.1 and 2 when called for have also disappeared and committed breach of condition on which bail was granted. It was alleged that the concession of bail has been misused as they have not appeared 'before the investigating agency in spite of notice requiring their attendance they are absconding and are not available at their residence and that the bail has been obtained on false averment of illness. This application was dismissed on 24-12-1992 holding that no case was made out for interference. This order has been challenged in CrA. No, 85/1993.
6. Leave was granted to consider the following questions:-- "(i) Whether the High Court was justified in allowing the above Constitution petition in the above terms after having been informed that the above four detenus were allegedly involved in the above F.I.Rs,;
(ii) whether the High Court was justified in dismissing the above criminal miscellaneous application for cancellation of bail summarily without recording any finding, whether the allegation of the State that the four detenus jumped the bail was correct or not."
7. The learned counsel for the appellants contended that the impugned order passed on 4-11-1992 granting bail to respondents Nos.3 to 6 should not have been passed in exercise of Constitutional jurisdiction after the appellants had laid information before the Court that the detenus were involved in criminal cases under the F.I.Rs, registered in the police stations. From the nature of the proceedings instituted by the respondents it is clear that they had invoked the writ jurisdiction of the High Court challenging the detention or respondents Nos.3 to 6 as illegal, mala fide and without jurisdiction. The High Court in exercise of this jursidiction issued notice to the appellants for laying down information about the whereabouts of the detenus and also laying down the facts and reasons for detention if they were under arrest. From the impugned order it seems clear that the appellants were not able to satisfy the Court by producing authentic and relevant documents, particularly statement of two witnesses on the basis of which the detenus were involved in a case under section 302, P.P.C. In which originally they were not named in the F.I.R. Considering the facts and circumstances of the case the learned Judges came to the conclusion that the arrest was a mala fide act intended to pressurise the B respondents to disclose the whereabouts of Dr. Imran Farooq who was wanted by the Police in certain criminal cases. In these circumstances, respondents Nos.3 to 6 were allowed bail, but no order was passed holding that the proceedings initiated against them were illegal or without jursidiction. In fact the order allowed the prosecution to investigate and directed the respondents to cooperate with the prosecution. When the Court came to the conclusion that the action was mala fide and merely to harass the respondents, they were justified in granting relief to the respondents as not only that the grounds for grant of bail which will be discussed later, were available, but also the Court would have been cognisant of the fact that question of liberty of citizens was involved and also to protect such persons from highhandedness and illegal actions perpetrated with mala fide intention. Under Article 4 every citizen has an inalienable right to be treated in accordance with law and to enjoy the protection of law. Furthermore, under Article 9 no person shall be deprived of life or liberty save in accordance with law. Article 10 provides safeguards against arrest and detention. It provides that no person who is arrested shall be detained in custody without being informed as soon as may be of the ground for such arrest and every person who is arrested and detained in custody, shall be produced before a Magistrate within 24 hours of such arrest excluding the time necessary for journey from the place of arrest to the Court of nearest Magistrate and no such person shall be detained in custody beyond the said C period without the authority of a Magistrate. These provisions do not apply to preventive detention, but this is not the case here. Article 14 provides that the dignity of man and subject to law the privacy of home shall be inviolable. It in clear terms prohibits that no person shall be subjected to tortue for the purpose of extracting evidence. These provisions which confer fundamental rights on a citizen whenever violated and complaint is made to a High Court about their violation, the Court must step in to investigate such facts under the discretionary jurisdiction conferred on it under Article 199 and pass such order as may be found just, legal and equitable taking into consideration the facts and circumstances of each case. In the present case we would refrain from commenting upon the merits of the case and will restrict ourselves only to the observation that the High Court on consideration of facts and documents and D also the conduct of the prosecution in with holding material statement of two witnesses came to the conclusion that the action initiated against the respondents prima facie was mala fide. It was a tentative observation for purposes of deciding the petition. In fact the whole proceedings culminated in release of the detenus on furnishing personal bond.
8. It is now settled principle of law that where petition under Article 199 is filed challenging the arrest and detention of any person, the High Court will not straightaway refuse to exercise jurisdiction the moment an information is laid that the detenue is involved in any criminal case registered with the Police. The High Court has the jurisdiction to examine the facts and information laid before it to determine prima facie that it does not lack bona fides, is not a cooked up or manipulated affairs, the detenue has not been illegally detained without a proper and legal remand order where it is required and there appear reasonable grounds for believing that the detenue is involved in the crime charged with. If once it is conceded that on receipt of information as supplied the High Court should refuse to exercise its Constitutional jursidiction without examining it, the very provision of the Constituion (Article 199 (1) (b) (i) conferring power of judicial review will be frustrated. The High Court is competent to examine and satisfy itself that the detenue is not being held in custody without lawful authority or in an unlawful manner. This can be achieved only when the Court examines the information, reasons, facts and causes leading to detention. While examining, the High Court will not act as an appellate Court nor will it make sifting investigation. In such Constituion petition the prosecution is bound to disclose the material upon which it has acted and the Court is to satisfy itself that such action is lawful and not in violation of law and fundamental rights. Reference can be made to Abdul Baqi Baloch v. Government of Pakistan (PLD 1968 SC 313) in which the appellant had challenged his detention under the Defence of Pakistan Rules, 1965 by filing Constitution petition in the High Court under Article 98(2)(b) of the Constitution of 4962 (Article 199 (1) (b) of Constitution of 1973) which was dismissed. While accepting appeal Hamoodur Rahman, J. (as he then was) made the following observation which is applicable to the present case as well:-- "This Court has pointed out that whatever may have been the position under the English Law or the Government of India Act, 1935, the position under the present Constitution of Pakistan is wholly different, for, by Article 98 (2) (b) (i) of the Constitution, a duty has been cast upon the High Court, whenever a person detained in custody in the Provinces is brought before that Court to 'satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner'. Can this Constitutional duty be discharged merely by saying that there is an order which says that he is being so detained? Can the High Courts be expected to be satisfied on the mere ipse dixit of the detaining authority?
' If this could be so, then this 'judicial power' would as pointed out in that case, be 'reduced to a nullity if laws are so worded or interpreted that the executive authorities may make what statutory rules they please thereunder and may use this freedom to make themselves the final Judges of their own 'satisfaction', for imposing restraints on the enjoyment of the fundamental rights of citizens, and Article 2 of the Constitution itself would be 'rendered meaningless'. If the mere production of an order of a detaining authority, declaring that he was so satisfied, was to be held to be sufficient also' to 'satisfy' the Court then what would be the function that the Court was expected to perform in the discharge of this duty."
"However, as I have said earlier, my reading of the majority decision in Ghualm Jilani's case to which I am a party, is that it alters the law laid down in Liversidge's case (1941) 3 AER 338 only to the extent that it is no longer regarded as sufficient for the executive authority, merely to produce its order, saying that it is satisfied. It must also place before a Court the material upon which it so claims to have been satisfied so that the Court can, in discharge of its duty under Article 98 (2) (b)
(i) be in turn satisfied that the detenu is not being held without lawful authority or in an unlawful manner. The wording of clause (b) (i) of Article 98 (2) shows that not only the jurisdiction but also the manner of the exercise of that jurisdiction is subject to judicial review. If this function is to be discharged in a judicial manner, then it is necessary that the Court should have before it the materials upon which the authorities have purported to act. If any such material is of a nature for which privilege can be claimed, then that too would be a matter for the Court to decide as to whether the document concerned is really no privileged. In exercising this power the High Court does not sit as an appellate authority nor does it substitute its own opinion for the opinion of the authority concerned."
9. The principles laid down not only govern the cases of preventive detention but apply to all such cases where detention or arrest has been challenged in the Constitutional jurisdiction of the High Court. The Courts have to safeguard the fundamental rights of every citizen and to protect the life and liberty from illegal, unauthorised and mala fide acts of omission and commission by any authority or person. In the instant case the information laid before the High Court was deficient and no substantive material was produced to satisfy it that till then there existed reasonable grounds that the detenue had committed the crime. In fact the statement of two witnesses was not produced which was basis for involving the detenus in a crime committed five months back report of which did not mention the names of the detenus. The prosecution therefore failed to produce material statement which was the basis for the arrest of the detenus. How could in such circumstances the High Court close its eyes to the glaring illegalities perpetuated in the background of the failure to arrest Dr. Imran Farooq. In the circumstances, the High Court was justified to reasonably conclude that the arrest was mala fide and intended to extract information about the whereabouts of Dr. Imran Farooq and therefore exercised its Constitutional jurisdiction in a limited manner by releasing the detenus on furnishing surety bond and leaving the prosecution free to make further investigation, if necessary. The High Court had thus corrected actions of the investigating agencies in the right direction without in any manner interfering with the investigation. These observations find support from the following dictum of Hamoodur Rahman, C.J. In Mst. Shahnaz Begum v. Hon'ble Judges of the High Court of Sindh and Balochistan (PLD 1971 SC 677):-- "If an investigation is launched mala fide or is clearly beyond the jurisdiction of the investigating agencies concerned, then it may be possible for the action of the investigating agencies to be corrected by a proper proceeding either under Article 98 of the Constitution of 1%2 or under the provisions of section 491 of the Criminal Procedure Code, if the applicant is in the latter case in detention, but not by invoking the inherent power under section 561-A of the Criminal Procedure Code."
10. In Zahoor Ellahi v. State (PLD 1977 SC 273) Salahuddin Ahmed, J. Referring to Rule 42 (6)(e) and
(g) of Defence of Pakistan Rules and sections 124-A and 153-A, P.P.C. In which offences are substantially the same, observed:-- " where no compelling reasons appear to show why Emergency Law was preferred to ordinary law, then prima facie the assertion that the proceedings against a person were mala fide cannot be said to be altogether unfounded. (See E in para. 74 of the judgment): S. 13 of Ordinance XXX of 1971 makes no mention of section 561-A, Cr.P.C. And, therefore, the High Court may examine under section 561-A, Cr.P.C. The lack of bona fide or the misuse of the powers (see F at the end of para. 74 of the judgment); High Court under Article 199 of the Constitution has unquestionably this power and should exercise this jurisdiction when the question of liberty of a citizen is involved even when the High Court has before it only application under section 498, Cr.P.C. (see F in para. 75 of the judgment); mala fide or colourable action is not in accordance with the law (see G in para. 76 of the judgment)."
(Note.---The above quotation is from the headnotes as the entire judgment has not been published.)
11. The other aspect of this case is that respondents Nos.3 to 6 were released on furnishing bail bonds. This has also been challenged by the appellants. A Court considering a bail application has to tentatively look to the facts and circumstances of the case and once it comes to the conclusion that no reasonable ground exists for believing that the accused has committed a non-bailable offence, it has the discretion to release the accused on bail. In order to ascertain whether reasonable grounds exist or not, the Court should not probe into the merit of the case, but restrict itself to the material placed before it by the prosecution to see whether some tangible evidence is available against the accused which if left unrebutted, may lead to inference of guilt. Mere accusation of non-bailable offence would not be sufficient to disentitle an accused from being bailed out. There should be reasonable grounds as distinguished from mere allegations of suspicion. As observed in Ch. Abdul Malik v. The State (PLD 1968 SC 349), however, strong the suspicion may be, it would not take the place of reasonable ground. The words 'reasonable grounds' are words of higher import and significance than the word 'suspicion'. It is for the prosecution to show reasonable grounds to belieeve that the accused has committed the crime. If the Court is not satisfied with the material placed before it that there exist reasonable grounds to believe that the accused is guilty, then the Court has the discretion to grant bail. In the present case as discussed above, the learned Judges came to the conclusion that the action being mala fide and also the material documents not having been produced, no reasonable grounds existed to believe. That the accused had committed the crime. This Court rarely interferes with the discretion exercised properly, judicially and legally by the High Court. In our view, considering the facts and circumstances of the case and the material produced, the learned Judges were justified in releasing the detenue on furnishing personal bond. In cases where the liberty of a citizen is involved, the action initiated by the police/prosecution is found to be mala fide and intended to extract evidence or information from the detenue the superior Courts should not be reluctant to step in and grant relief to the citizens.
12. The learned counsel for the appellant contended that the conditions imposed on the appellant in case respondents Nos.3 to 6 are to be arrested as contained in the last paragraph of the impugned order are illegal. Ordinarily such conditions are not imposed but where the action and proceedings are not bona fide and with ulterior motive to obtain information about an absconding accused and arrest after arrest is made involving same person in different blind reports lodged much earlier and no explanation is provided for such series of actions in seriatum one after the other, the High Court is empowered to affored protection to the citizen against frivolous and mala fide actions by imposing conditions on the erring authorities and agencies. We, therefore, dismiss C.A. No, 58 of 1993.
13. Now we take up Cr. A. No,85 of 1993 which has been filed against the order of the High Court dismissing the application for cancellation of bail granted to respondents Nos.3 to 6. A, Court granting bail is empowered to cancel it provided reasonable grounds are made out. In the present case the application made by the appellants alleged that the respondents have jumped the bail and did not attend the investigation whenever called upon to do so. These were vague and general allegations which could be made at any time against any accused. In fact once bail has been granted the prosecution should. Make out strong case for cancellation not by making allegations alone, but by giving substantive proof of such allegations. In the present case the appellants had filed an application which did not give any particulars of any nature. It was an application making general allegations without any attempt to substantiate the same. The learned Judge, therefore, rejected the application.
13. The learned counsel for the appellants contended that the learned Judges had passed a short order and not a speaking order. In cases of cancellation of bail if the application is frivolous, without any substance making general allegations, the Court is competent to dismiss it by a short order without going deep into the facts and arguments. The High Court had the jurisdiction to refuse to cancel the bail and merely because it did so by passing a short order does not render such order illegal or without jurisdiction. In contested matters it is desirable to give reasons, but not in cases where the very basis of proceedings has been challenged and found to be mala fide and on the top of it application is made for cancellation without any basis and on grounds which remain unsubstantiated. This appeal is also dismissed.
(Sd.) Ajmal Mian, J.
' I agree that appeal be dismissed for reasons recorded by me in separate note.
(Sd.) Sajjad Ali Shah, J.
(Sd.) Saleem Akhtar, J.
' SAJJAD ALI SHAH, J. ---On 28-2-1994 after the hearing concluded I had agreed that appeals CA.
58/93 and Cr. A. 85/93 filed in this Court be dismissed. Such short order was announced. After going through judgment, which is signed by my two learned brothers I feel inclined to write my own reasons in support of the conclusion that these appeals should be dismissed. Facts are elaborately stated in the main judgment, hence they do not need to be repeated. Perusal of copy of memorandum bf Constitution petition filed in the High Court shows that it was filed under Article 199 of the Constitution as Habeas Corpus/Detention matter and it is mentioned therein that four detenus were taken away by the Police and their whereabouts were not known. In response to notice, Syed Sarfraz Ahmad, AA.-G., appeared in the High Court and informed that detenus were in custody at Police Station Gulshan-e-Iqbal and were involved in three F.I.Rs,, one of which was for offence under section 302/34, P.P.C. High Court came to the conclusion that the entire exercise was made by Police to get information about the whereabouts of Dr. Imran Farooq who was, perhaps wanted in serious offences by police and for that reason, relatives and friends were taken into custody and cases foisted upon them. In the result detenus were released on bail on furnishing personal bonds and conditions were imposed on their arrest again by the Police.
2. In CA. 58 of 1993 which is filed by Government of Sindh against release of detenus on bail by the.
High Court Mr. Rashid Akhtar appearing on behalf of State submitted that detenus were not detained under any Preventive Law but were in custody in connection with substantive offences in respect of which F.I.Rs, are filed, hence they were not detenus and remedies as provided under the ordinary law should have been availed. He was not able to show us any material that remands were obtained in connection with cases in which the detenus were allegedly taken in custody. High Court had gone deep in the matter and found that F.I.R. No 272 of 1992 for offence under section 302/34 filed at Police Station Gulshan-e-Iqbal was dated 6-5-102 in which the names of the detenus were not mentioned but it was alleged that a shopkeeper was killed by firing from a car.
Other two F.I.Rs,, are for offence under section 13-E of the Arms Ordinance for possession of two T.T.
Pistols and in those two names of the detenus are mentioned. In murder case it was alleged that two witnesses have come forward and implicated the, detenus but their statements were not produced before the High Court. It is also on the record that one detenu is father of Dr. Imran Farooq, who is leader of M.Q.M. And is wanted by Police in cases.
3. Prayers in the Constitutional petition filed in the High Court are for production of detenus in the Court and for declaration that their detention is illegal, hence they should be released forthwith.
High Court has not granted prayers as made but has allowed .Bail to detenus and to that extent no exception can be taken to the relief granted by the High Court, which is just and proper on merits and in the concomitant circumstances of this case as stated above. I am of the view that conditions should not have been imposed by the High Court in connection with fresh arrest. This I say for the reasons that in my opinion the present case under consideration is not a case of preventive detention but as prosectuion case stands, it is of substantive offences and in that connection F.I.Rs, have been filed. If this is a case of substantive offences arising from F.I.Rs, then remedies can be availed as are provided under the Criminal Procedure Code.
4. In this case illegalities have been pointed out in respect of arrest, hence in my opinion action can be taken by the High Court appropriately under section 491, Cr.P.C. I am mindful of the fact that there N are limitations on the powers of the High Court as High Court has no power under the Constitution or Cr.P.C. Or Letters Patent or otherwise to interfere with the investigation in a criminal case conducted by officers competently authorised by the Criminal Procedure Code as is held in the case of Shahnaz Begum v. Judges of the High Court of Sindh and Balochistan, reported in (PLD 1971 SC 677). Fundamental rights are subject to law and can be enforced as specifically provided in the Constitution. Conditions imposed by the High Court while granting bail would affect adversely the progress of investigation because while disposing the Constitutional petition criminal cases arising from F.I.Rs, have been left open and only bail is granted. It is held by this Court in the case of Shahnaz Begum that if investigation is mala fide or beyond the jurisdiction, then the same can be corrected under Article 98 of the Constitution of 1962 or under the provisions of section 491 of Cr.P.C.
5. In the case of Mir Abdul Baqi Baluch v. The Government of Pakistan etc. (PLD 1968 SC 313) appellant was detained under preventive law namely rule 32 of Defence of Pakistan Rules. In the Court order of detention was produced but no other material upon which reliance was placed by the authority. In that context it was held that the High Court could insist on disclosure of materials on which Executive Authority had acted. It was further observed that such judicial review was not in the nature of an appeal against the decision of Executive Authority. In the case of Ch.. Manzoor Elahi v. Federation of Pakistan (PLD 1975 SC 66) Ch. Zahoor Elahi, M.N.A., brother of appellant was arrested in Lahore and taken to Kohlu in Balochistan 8(X) miles away and this process took three days to complete without his production before Magistrate for remand within 24 hours as contemplated under Article 10 of the Constitution. At that time emergency was proclaimed with suspension of some fundamental rights not including Articles 9 and 10. Arrest was challenged as mala fide. This Court granted bail and declined to go into the question of mala fides for the reason that High Court was seized of that matter. Federation of Pakistan filed review petition in this case which is reported in (PLD 1976 SC 430). In this case also High Court was right to the extent of granting bail only.
6. In Criminal Appeal No, 85 of 1993, criminal miscellaneous application was filed by State through Advocate-General Sindh before High Court for cancellation of bail on the ground that after release they jumped the bail and did not join the investigation. Application was dismissed by short order to the effect that no case is made out for interference. On our inquiry as to on how many occasions and on what dates notices were issued to persons released on bail for joining them in the investigation Mr. Rashid Akhtar Qureshi was not able to give us satisfactory reply. In such circumstances I see no merit in this appeal which is liable to he dismissed. In the result both appeals arc dismissed.