' In pursuance of the order of this Court dated the 17th of August, 1995, a Bailiff of this Court has produced the detenus (i) Suba, (ii) Rophen Masih, Jamal Masih, (iv) Nazir Masih, (v) Manzoor Masih,
(vi) Rafique Masih, (vii) Rehmat Masih and (viii) Karamat Ali.
2. Learned counsel for Boota Masih petitioner submits that the detenus are labourers by profession and were working as such in the brick kiln of Mian Javaid and Mian Parvaiz of Mauza Bhagewala, Nishatabad, Tehsil and District Faisalabad (respondents) and that since the last week the detenus were being illegally and improperly detained by the respondents.
3. Learned counsel for the respondents submits that the owners of the brick kiln had given an amount of Rs,54,259 as an advance to the petitioner and the detenus and that after receiving the said amount, the petitioner as also the detenus are violating the oral agreement arrived at between the parties.
4. Chapter XXXVII of the Code of Criminal Procedure empowers the High Courts to issue directions of the nature of the habeas corpus and provides, inter alia, as follows:-- "Section 491.---(1) Any High Court may, whenever it thinks fit, direct--
(a) that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law;
(b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty;
5. It has long since and unanimously been settled by the High Courts that while exercising jurisdiction under section 491, Cr.P.C. The High Court is only concerned with free will of the detenu.
Reference in this context can usefully be made to the following cases:--
(i) Amir Bukhsh v. Mehar All and others PLD 1962 (W.P.) Kar. 725;
(ii) Mushtaq Ahmad v. Mirza Muhammad Amin and another PLD 1962 (W.P.) Kar. 442 (DB);
(iii) Ch. Muhammad Anwar v. Government of West Pakistan PLD 1963 (W.P.) Lah. 109;
(iv) Maulvi Farid Ahmed v. Government of West Pakistan PLD 1976 (W.P.) Lah. 135 (Full Bench);
(v) Hamesh Gul v. The Crown PLD 1955 Pesh. 1 (DB), and
(vi) Bahadur Zaman v. The Crown PLD 1957 (W.P.) Pesh. 41 (DB).
6. It has also been settled that the High Court will exercise jurisdiction and issue a direction of the nature of a habeas corpus, wherever it finds that the detention is either illegal or improper. In other words, the detention can only be justified if it is both legal and proper. Reference in this context can usefully be made to the following cases:-
(i) Malik Ghulam Jilani v. S.H.O., Police Station Gulberg PLD 1975 Lah. 210;
(ii) Brig. (Rtd.) F.B. Ali and another v. The State PLD 1975 Lah. 999 (DB), and
(iii) Brig. (Rtd.). F.B. Ali and another v. The State PLD 1975 SC 506.
7. The pitiable predicament of brick kiln bonded labourers commonly known as {{URDU TEXT}} and their illegal and improper detention by their employers who are normally owners of brick kilns is too well-known. In fact so well-known that it has attained notoriety. This socio-economic problem received the attention of the Supreme Court of Pakistan where an indepth examination was carried out and the law laid down through an elaborate judgment delivered in the case of Darshan Masih v. State reported in PLD 1990 SC 513. Their Lordships vide order, dated the 21st of August, 1988 were pleased to observe as follows, at page 527:-- "In this first case of its type, namely, public interest litigation, the Supreme Court having taken cognizance of a case of public importance for the enforcement of Fundamental Rights, regarding bonded labour practices, concluded the first part of the proceedings. All the 21 detenus, who belong to brick kiln labour force and are of Christian community have been released from the alleged detention."
' Vide order, dated 17th of September, 1988, which begins at page 531, it was ordered that:- " SHORT ORDER"
' All concerned have been heard at considerable length. The following broad agreement has been reached (if approved) to be made as Order/decision of the Court.
(i) Peshgi system to be discontinued forthwith except that up to one week's estimated wages may be paid by the owner to the worker as advance against proper receipt. The payment shall be made to the worker concerned or the head of the household, direct in cash. The receipt shall be issued in duplicate--one to be retained by each.
(iii) The Institutior of lamadari' is finished and he is excluded for all times. No payment for others shall be made to him nor shall it be acknowledged in any forum, as due in any form, if claimed to have been made through him.
(iv) The Institution of 'Jamadarni' is likewise finished altogether.
(v) Every case registered anywhere in Punjab by the Police, which deals with directly or indirectly, any of the constituents of the practice of bonded labour in the brick kiln industry shall be reported to the Advocate-General, with a copy of the F.I.R. Within 24 hours. The Advocate-General shall submit a photocopy of the F.I.R. And other documents, if any, with his own comments, within further 24 hours, to the Supreme Court.
(vi) Past Peshgis for the time being, shall not be treated as void and unrecoverable. However, they shall not at all be recovered in any form through police, or through the employment of the so- called 'labour' ($',,7 ) under the Peshgi recovery arrangement' or through any coercive measure; and further orders shall be made by the Court in this behalf including the request for utilisation of the Zakat fund for the discharge of so-called bad debts for Peshgi. The question, whether recoveries would be abolished altogether and whether legislation shall be made on the lines as done in India, is deferred for the time being, for six months. This aspect shall be reviewed in the light of the working of these arrangements to which all concerned have agreed, if approved by Court.
(vii) Filing of Habeas Corpus petitions shall not be stopped. However, all concerned have agreed that if the arrangements agreed upon are put into practice the need for filing false/genuine habeas corpus petitions would not arise. The Advocate-General shall, however, appear personally in every habeas corpus petition whether in the High Court or in the Supreme Court.
(viii) The owners shall not directly ask or pressurise any labourer for employing the womenfolk or children. However, if the latter do so at their own risk and responsibility, no complaint shall then be made against the Bhatta owners in this behalf. The head of the household who employs any of their womenfolk against her wishes and/or children might in proper cases, be proceeded against.
The payment made to the head of the household including that of his family members male, female, shall be in the name of the head of the household. Separate recipients may not be mentioned in the formal registers and receipts.
' No deduction whatsoever shall be made from wages; nor the number of bricks, if they are more than 1,000 shall be counted as 1,000 in any garb. The damage/loss to the bricks suffered on account of rain shall be wholly borne by the owner. Similarly, no other deduction including that of past Peshgi, loans including those for marriage or for medical treatment etc. Shall be made from the wages.
(x) Payment made by the owner to the labourer in addition to the wages whether in the form of formal loan or otherwise for marriages and other ceremonies or for medicines or other ceremonies or for medicines or other purposes shall not be recoverable from the labourer. If genuinely paid/spent they shall be treated as for .Goodwill or donation.
(xi) Other arrangements that may be specified at the final stage in the final judgment.
' Finally at page 540 it was observed that:--
(a) Past Peshgis
(i) It is to be made clear that past unreturned Peshgis given to the labourers by brick kiln industry owners are still outstanding against the labourers. The labourers are legally bound to return all such outstanding Peshgis to the respective kiln industry owners. However, in case of denial of peaceful return of these Peshgis, the owners are authorised to recover the same by legal means i,e, through Court decrees---cases to be decided expeditiously with effective notices to the labourers; but, they are not authorised to use unlawful means for the recoveries of such Peshgis, such as coercive methods or use of police.
(ii) Past Special Emergency Loans.---A maximum of Rs,5,000 per household granted to the labourers in the past, in the form of formal loans or grants for: marriages, religious festivals, medicine/treatment and death ceremonies, by the owners (to the labourers) shall not be recoverable from them and shall be treated as donation. This concession shall only be available to those labourers who return and resume their work voluntarily.
(b) Future Peshgis.---Peshgis system in future is to be discontinued. Although in proper case if a valid agreement on this point is reached between a labourer and a brick kiln owner, the latter shall give to the former an advance loan, which shall not be in any case more than seven days' wages, against a proper receipt in duplicate, copy of which shall be retained by both the parties. The payments/adjustments of which shall be made to the owners in easy instalments as agreed by the parties. However, if a loan in this behalf is not settled/ adjusted, no additional loan is to be advanced by the owner and if given that would be against the spirit of the agreement and would be at the risk of the owner.
(c) Return to work.---A notice/direction is to be issued to all the labourers to come for work and report to their respective Bhatta owners; who will give them assurance in writing that they will not use any coercive methods or use of police force to bring them back or to retain them. However, in case a labourer does not want to come back or having returned, wants to leave his work in the Bhatta of an existing owner, or to get job elsewhere, or in the Bhatta of another owner, he shall not be retained forcibly provided he on application to be made to the concerned District Judge/Civil Judge 1st Class, gets a certificate for the purpose.
(d) Payment of wages.----Payment of wages shall have to be made to the labourers on daily/weekly/fortnightly/monthly basis as agreed upon between the labourer and Bhatta owner, regularly. No deductions are to be made from their wages; for the damages/losses to bricks caused on account of rain and it shall be borne by the Bhatta owners.
(e) Jamadar/Jamadarni Systems.---The existing Jamadar/Jamadarni system is to cease forthwith. All the labourers shall have direct dealings with their respective owners. No payments on behalf of the labourers shall be made to them nor recoverable adjustable.
(f) The owners shall not directly or indirectly ask or pressurize any labourer for employing the womenfolk or children. However, if the latter do so at their own risk and responsibility, no complaint shall then be made against the Bhatta owners in this behalf. The head of the household who employs any of their womenfolk against her wishes and/or children might in proper cases, be proceeded against."
8. Notwithstanding the illuminating judgment delivered by the Supreme Court of Pakistan referred to above, unfortunately the predicament of brick kiln labourers continues to be what it has always been and the problem of bonded labour continues to be a scourge in our society.
9. Mian Abdul Sattar Najam, learned Advocate-General of Punjab who has appeared in response to the Court's call and who so ably assisted the Supreme Court in the case of Darshan Masih, has stated at the Bar that the Government is conscious of the problem of bonded labour with all its ramifications and that a high-powered committee has been set up by the Government to look into the problem in its entirety.
10. Be that as it may, no amount of money which may have been given as an advance which is commonly known in the parlance of those engaged in the brick kiln trade and industry as can be countenanced in law much less be a justification for illegal and improper detention because illegal and improper detention offends against the fundamental rights enshrined in Part II Chapter I of the Constitution of the Islamic Republic of Pakistan, 1973. Particularly Article 9 of the Constitution which lays down that no person shall be deprived of life or liberty save in accordance with law. Article 11, sub-Article (2) which, lays down that all forms of forced labour and traffic in human beings are prohibited, Article 14 provides that the dignity of man and subject to law, the privacy of home, shall be inviolable and Article 25 which lays down that all citizens are equal before law and are entitled to equal protection of law.
11. If indeed, the respondents have given any amount of money to either the petitioner or the detenus as an advance which practice has been abolished by the Supreme Court in its judgment delivered in the case of Darshan Masih, the methodology for the recovery of the advanced money is provided in the law of the land for which relief has to be sought from the Court of ordinary general civil jurisdiction and not by improper and illegal detention. Lack of information and knowledge about the ratio decidenti delivered by the Supreme Court in Darshan Masih's case, though it may be factually true cannot be accepted as an argument, much less a justification for illegal and improper detention.
12. Learned Advocate-General may consider the desirability of advising the Government to educate and inform those engaged in the brick kiln trade and industry in the light of the guidelines and directions given by the Supreme Court in the case of Darshan Masih through the media if necessary.
13. For the above mentioned reasons this petition in the nature of habeas IF corpus is accepted. The detenus are set at liberty.