' This petition in the nature of habeas corpus filed by Ch. Pervaiz Elahi, leader of the Opposition of Punjab Assembly, seeking release of Mr. Inam Ullah Khan Niazi, M.P.A., from the custody of the respondents, was presented before the Honourable Chief Justice of this Court yesternight at 9-00 p.m. At his residence. His Lordships directed hearing of the petition by me, which was received by me at my residence at about 10-00 p.m. As neither the petitioner nor his learned counsel were present, therefore, I had kept the petition in waiting to be taken up later. At about 10-45 p.m. Kh.
Muhammad Sharif, Advocate accompanied by Ch. Pervaiz Elahi, petitioner appeared before me at my residence. The petition was heard. Learned counsel contended that Inam Ullah Khan, M.PA. Of Punjab Provincial Assembly has been taken into illegal custody by the respondents police officials and is presently being illegally confined by the respondent No,3 i,e, S.H.O. Police Station Ichhra, at the behest of respondent No,4, although there is no case registered against him. Therefore, he prayed that respondents Nos.3 and 4 may be directed to produce the alleged detenu before this Court and after recording of his statement, he may be set at liberty. The petitioner also supported the contents of the petition as well as the arguments addressed by the learned counsel for the petitioner. Consequently, I ordered that the petition should be registered and the respondents Nos.3 and 4 shall produce the alleged detenu before me in Court, on 2-11-1994. It was further directed that Roznamcha/daily diary shall also be produced. A copy of the petition was ordered to be handed over to Advocate-General, Punjab, Lahore, to seek instructions and assist the Court.
2. Today at 8-00 a.m., when I arrived in Court, I handed over the file of this case to the O.S.D. Of this Court as well as Superintendent, Criminal Branch, for the purpose of implementation of my order and fixation before me for hearing of the case today. The office has registered this petition, issued notices to respondents Nos.3 and 4 in pursuance of my order referred to above and has listed it for hearing before me today. The case was taken up for hearing at 11-30 a.m. When Kh. Muhammad Sharif, Advocate, assisted by Mr. Mushtaq Ali Tahir Kheli, Advocate, alongwith lot of many other associates of Kh. Muhammad Sharif, Advocate, appeared on behalf of the petitioner. Mr. Abdul Sattar Najam, learned Advocate-General, Punjab, Lahore assisted by Mr. Farooq Baidar, learned Additional Advocate-General and Mr. Pervaiz Inayat Malik, Advocate appeared on behalf of the respondents, but the alleged detenu was not produced at that time. On my query, learned Advocate-General states that he was not aware of the order to that effect and as the alleged detenu in fact is an arrested accused person in a criminal case, hence has been taken to the Court of A.C./Ilaqa Magistrate, for obtaining of remand, therefore, hearing of the case may be adjourned upto 2-30 p.m., when he shall be produced in Court. Hence, hearing of the case was postponed to 2-30 p.m., when it was again taken up for hearing. Alleged detenu has been produced in police custody.
3. Mr. Abdul Sattar Najam, learned Advocate-General Punjab, Lahore has contended that the alleged detenu in fact is an accused person in case F.I.R. No,357/94 registered on 20-9-1994 under sections 324, 436, 188, 353, 186, 148, 149, P.P.C., 16-M.P.O. Read with section 13 of the Arms Ordinance, 1965, at Police Station Civil Lines, Lahore and has been arrested in that case on 1-11-1994 at about 4- 30 p.m., whereafter he was taken to Police Station Civil Lines, wherefrom he was taken to and kept in the "Hawalat" of Police Station Ichhra for the night. He states that today he has been produced for physical remand before A.C./Ilaqa Magistrate, Cantt., who has granted four days physical remand of the said accused person. Therefore, the alleged detenu being in the lawful and proper custody of the police, this habeas corpus petition is misconceived hence is liable to be dismissed.
In support of his contention, learned ocunsel has placed reliance on the following cases:--
(1) Case of Basanta Chandra Ghose v. Emperor AIR (32) 1945 Federal Court 18,
(2) Case of Farooq Bedar v. Inspector-General of Police, West Pakistan Lahore and others PLD 1969 Lah.
1020.
4. Kh. Muhammad Sharif, Advocate, learned counsel for the petitioner has contended that the petitioner is an elected Member of Provincial Assembly of Punjab and belongs to Pakistan Muslim League (N). He was a cause of annoyance to the Chief Minister of the Punjab, during the course of current Session of Provincial Assembly Punjab, when he delivered a speach, at the floor of the house, which had offended him and it is as a result of the aforementioned annoyance that he has been abducted forcibly by his private employees who were in white clothes, while he was sitting in the car of Ch. Pervaiz Elahi, petitioner, whereafter he was taken to different places by those private persons, whom he could identify if they appear before him. Learned counsel further states that the accused was taken to Police Station Ichhra and was kept in the lock-up of said Police Station, hence, is in illegal and improper custody of the respondents. Elaborating his argument, learned counsel has pointed out that on 20-9-1994 a case under sections 332, 148, 149, P.P.C. Etc. Was registered at Police Station Old Anarkali, Lahore on the complaint of Noor Hussain, S.H.O. Against the accused as well as other M.PA./M.NAs., in which he was admitted to bail after arrest. On the same day, another case F.I.R. No,197/94 was registered at Police Station New Anarkali, Lahore under section 506/353, P.P.C., etc. Against him and others wherein he has been admitted to a pre-arrest bail by learned Additional Sessions Judge, Lahroe. In the third case registered on 20-9-1994 under sections 324/148/149, 188, 341, 353, 186, P.P.C. And 16-M.P.O. At Police Station Civil Lines, Lahore on the complaint of Firdaus Khan, Inspector, he has also been admitted to pre-arrest bail. In the last mentioned case occurrence is said to have taken place at 11-30 a.m. At Regal Chowk, Mall Road, Lahore whereas the report was lodged at 1-20 p.m. In case F.I.R. No,357 wherein accused has now been shown to have been arrested again the complainant is Firdaus Khan, Inspector, and the occurrence in this case is alleged to have taken place at 2-30 p.m. And the F.I.R. Was lodged at 3- 40 p.m. The petitioner is not named in the F.I.R. Nor any overt act has been attributed to him. During the course of hearing of bail applications in the previous cases it was never disclosed by any of the police officials including the Investigating Officer of the present case, who was also the Investigating Officer in the earlier case that the petitioner is also an accused in case F.I.R. No, 357, which fact is clear proof of the fact that the accused has been roped in this case mala fidely in order to teach him a lesson for causing of annoyance to Chief Minister of the Province, as there is absolutely no material with the police on the basis whereof it could be said that a cognizable case has been made out against him, hence his arrest and detention being illegal and without any lawful justification, the petitioner is really not an "arrested accused person" in a criminal case, but is a detenu whose custody with the police is proved to be illegal and improper.
5. Learned counsel further points out that there was a direction by this Court that the alleged detenu is to be produced in this Court. In spite of that direction when the case was taken up at about 11-30 a.m. Today, he was intentionally not produced and it is about 3-00 p.m. When he has been produced before this Court and that too after the intervention of the learned Advocate- General Punjab, Lahore and that the intervening period has been consumed by the police officials to legalise the arrest and custody of the accused, and, therefore, it is a fit case, where this Court in exercise of its plenary jurisdiction should release him forthwith.
6. As an alternative plea, learned counsel has argued that the arrest of the accused in this case being doubtful and fishy, this petition may be converted into a bail application and the accused may be admitted to bail.
7. Lastly learned counsel has prayed that in case this petition is not allowed and request for its conversion as a bail application is also not granted, a direction may be issued to the Investigating Officer to get the accused medically examined and provide him necessary medical and other facilities permissible under the law and further that the learned Advocate-General, Punjab may supply/furnish list of all other cases so far registered against the detenu/accused with copies of F.I.Rs, thereof to this Court as well as to the learned counsel for the petitioner.
8. Mr. Abdul Sattar Najam, Advocate-General, Punjab, Lahore has reiterated his arguments addressed earlier, which have been taken note of and has further contended that neither merits of the case can be gone into nor the case can be held to be false, at this stage, as the same is still under investigation and at any rate there is nothing on record to show that the arrest and judicial remand of the petitioner to police custody is tainted with mala fides or in any way is connected with so-called annoyance caused to Chief Minister and further that neither the Chief Minister is annoyed with the petitioner nor has he got anything to do with the commission of criminal offences by the petitioner or his involvement in the case in hand. Hence arrest and custody of the accused being lawful and proper, this petition is not maintainable.
9. As regards alternate prayer for treatment of the petition as a bail application, he contends that it is not a fit case wherein this Court should entertain this request as every person is equal before law and merely because the accused is M.PA. Is not a valid ground to entertain prayer for grant of bail directly by this Court without first having resort to lower Courts of competent jurisdiction. In support of his arguments reliance is placed on the law declared in case of Amir Habib v. S.S.P. And others Writ Petition No,9330 of 1994 decided by this Court on 15-8-1994.
10. As regards the prayer of the learned counsel for medical examination of the accused, provision of facilities to him and supply of list of cases and copies of F.I.Rs,, learned Advocate-General, states that he has no objection to the issuance of directions as prayed for.
11. I have considered the arguments addressed by the learned counsel for both sides and have perused the record, which has been produced by the Investigating Officer through learned Advocate-General. It is clear from the perusal of the case file that Inam Ullah Khan Niazi, M.PA., has been arrested in case F.I.R. No,357/94 registered at Police Station Civil Lines, Lahore on 20-9-1994 under sections 188, 353, 186, 148/149, P.P.C., 337, " V " Ordinance and 16-M.P.O. It is also clear from the record that he was arrested on 1-11-1994 and has been produced for remand before A.C./Ilaqa Magistrate, who has granted physical remand of the accused for a period of four days vide order, dated 2-11-1994. Hence presently he is in police custody in pursuance of a judicial order passed by a Court of competent jurisdiction. Therefore, custody of the accused was/is neither illegal nor improper, as such, this habeas corpus petition is misconceived and is not maintainable.
12. As regards the argument of the learned counsel for the petitioner that the arrest of the accused has been shown in a mala fide manner and, therefore, petition is competent, suffice it to say that the arguments raised in this behalf relate to the merits of the case which is still under investigation, and, therefore, at this stage, it cannot be said that the case wherein the accused has been arrested is false; that he has been falsely involved therein; that the same is otherwise tainted with mala fides or that the case registered on 20-9-1994, is a result of cause of alleged annoyance to Chief Minister which is alleged to have been caused in the end of October, 1994 as on the present record there is absolutely no material to prove that the Chief Minister, Punjab is in any way involved in the arrest or custody of the accused in the case in hand.
13. As regards the request of the learned counsel for the petitioner for treating this petition as a bail petition, there is no cavil with the proposition as laid down in case of Fitrat Ilyas v. The State PLD 1975 Lah. 1096 that this Court has jurisdiction to treat a habeas corpus petition as a bail petition, yet while exercising discretion overall circumstances of each case have to be kept in view. Merely because an accused person is a public representative, will not be a sufficient ground to convert a habeas petition into bail petition and entertain the same directly by this Court. It has already been held by me in case of Amir Habib" (Supra) which case is in all forms identical to the case in hand and ratio whereof is binding upon me in view of the law declared in case of Muhammad Muzaffar Khan v. Muhammad Yousuf Khan PLD 1959 SC 9 that as per Injunctions of Islam as contained in Holy Qur'an and Sunnah, every citizen of Pakistan, powerful or powerless; black or white; rich or poor, is equal before the law and has a fundamental right to be equally treated by Law Courts.
Above principle of equality is also guaranteed by Constitution of Islamic Republic of Pakistan 1973, and, therefore, has to be strictly adhered to. In this case, no special circumstances has been shown which may justify deviation and hence violation of the aforementioned Injunction of Islam and fundamental right. Therefore, request for treatment of habeas corpus petition as a bail petition and direct entertainment thereof by this Court is refused. The accused, if so advised, may first approach the Lower Courts of competent jurisdiction as other persons similarly placed do. Resultantly, this petition has no force, hence is dismissed.
14. Before parting with this order it is directed that the Investigating Officer shall get the accused medically examined. The accused who is a respectable public representative shall be given his due respect and shall be provided with all the facilities permissible to him under the law, while in custody. Learned Advocate-General, Punjab, Lahore shall furnish/supply list and copies of F.I.Rs, of all the cases so far registered against the accused, to this Court as well as to Kh. Muhammad Sharif, Advocate, learned counsel for the petitioner. The record produced by Investigating Officer shall be returned to him. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.