NASIM HASAN SHAH, J.-This order will dispose of W. P. No. 1630 of 1973, Criminal Miscellaneous 641/H of 1973 and Criminal Miscellaneous 2953-B of 1974, as these matters have been heard together.
2. On 16-8-1973, Malik Ghulam Jilani, Secretary General, Tehrik-i---Istiqlal, filed a petition under Article 199 of the Constitution and under section 491, Cr. P. C. Through Mian Mahmud Ali Kasuri, Advocate (W. P. 1630 of 1973) alleging that according to his information Mir Ghaus Bakhsh Khan Bizenjo, Sardar Ata Ullah Khan Mengal, Sardar Khair Bakhsh Marri and Bizen son of Mir Ghaus Bakhsh Khan Bizenjo, had been arrested at various places` on account of mala fides and on false and trumped up charges and were lodged in the Lahore Fort; that he was a friend of the detunes and prayed to the Court to direct:
(1) The production of the prisoners before it so that it may satisfy itself' that they are not being held in custody without lawful authority or in any unlawful manner;
(ii) that the detunes be not removed from the jurisdiction of the Court: till the final disposal of the petition; and
(iii) that the detunes be set at liberty.
3. On 17-8-1973, Muhammad Farooq Qureshi, Acting President. Lahore National Awami Party, filed a petition for the issuance of a writ of habeas, corpus under section 491 of the Criminal Procedure Code, read with Article 199 of the Constitution "for the production of the corpus of` Mr. Ghaus Bakhsh Khan Bizenjo, Sardar Ata Ullah Khan Mengal, Sardar Khair Bakhsh Marri and Colonel (retired) Sultan"
(Criminal Miscellaneous. 641/B of 1973). This petition was filed through Mr. Rafique Ahmad Khan Banghash, Advocate.
Both these petitions came up for hearing before a Bench consisting of K. E. Chauhan and Aslam Riaz Hussain, JJ. On 17-8-1973. Three orders, at different hours of the day, were passed on that date in connection with W. P. 1630 of 1973. By the first order the standing counsel for the Central Government was asked to indicate whether the "alleged detunes are within the territorial jurisdiction of this Court". It was further directed that if this was so "they should not be removed out of the jurisdiction of this Court tilt further orders." In the second order it was observed that the information supplied to the Court showed that whereas Mir Ghaus Bakhsh Khan, Bizenjo, Sardar Ata Ullah Khan Mengal and Sardar Khair Bakhsh Marri were detained at various places of the Punjab, Mr. Bezen was not detained anywhere in the Punjab. In this order note was taken of the oral request of Mian Mahmud Ali Kasuri Advocate to see the detunes and the learned Advocate-General allowed time to obtain instructions in regard thereto. In the third order, note was taken of the place where Colonel (Retired) Sultan was lodged (in respect of whom Criminal Miscellaneous 641/H of 1973 was moved) and the statement of the learned Advocate-General to the effect that there was no objection to the various counsel of the prisoners to see them, was taken note of. Two orders were passed in connection with Criminal Miscellaneous 641/H of 1973, which also carne up for hearing on 17-8-1973 at different hours on that day. In the first order it was observed that as W. P. 1630 of 1973 for seekinj liberty of Mir Ghaus Bakbsh Bizenjo, Sardar Ata Ullah Khan Mengal and Sardar Khair Bakhsh Marri had already been filed through Mian Mahmud Ali Kasuri, Advocate, a duplicate petition about the same persons could not be entertained. Hence the said petition was entertained with regard to Colonel (Retired) Sultan only. The same was ordered to come up along with W. P. 1630 of 1973 towards the close of the day when the reply of the learned Advocate-General in regard to the prayer relating to interviewing the prisoners was to be considered. The second order was simply to the effect "same order as in W. P. 1630 of 1973 in this order the place of confinement of Colonel Sultan was noted and permission to see the prisoners by various counsel was allowed."
4. Before taking up the case on the merits, it appears necessary to detail the history of the proceedings of these matters before this Court and to explain why these petitions which were in the nature of habeas corpus petitions and were instituted on 17-8-1973 have taken so much time for their disposal.
5. On 20-8-1973 the written statement on behalf of the Punjab Govern--ment was submitted in Court, stating that the prisoners were held in lawful custody under the valid orders of the competent authority and in this behalf the following details were furnished:- "That the District Magistrate Lasbella on 10-8-1973 issued warrants for the arrest of Colonel Sultan Mohammad Khan and Sardar Ata Ullah Mengal under section 409/122/121-A/120-B, P. P. C. Read with section 5 Act II of the Prevention of Corruption Act, 1947.
That said Colonel Sultan Mohammad Khan and Sardar AU Ullah Mengal were arrested by the police from Quetta on the 16th August 1973 and were produced before the Assistant Commissioner and S. D. M., Quetta on the same day. The S. D. M. On 16-8-73--remanded both the accused to judicial custody for 14. Days and further directed that the accused be produced before the Court con-- cerned on 29-8-1973.
That on 9-8-1973 the A. C. And Magistrate Ist Class Sibbi issued warrants for the arrest of Sardar Khair Bakhsh Marri under section 302/400/121-A/396 read with sections 109 and 34, P. P. C.
That Sardar Khair Bakhsh was arrested by the Quetta Police on 16-8-1973 and produced before the A. C. And S. D. M. Quetta on the same day.. The S. D. M. Remanded Sardar Kbair Bakhih Marri to judicial custody for 14 days and further directed that the accused be produced before the Court concerned on 29-8-1973.
That the A. C. And Magistrate Sibbi on 9-8-73 issued warrants for the arrest of Mir Ghaus Bakhsh Bizenjo under sections 302/:100/121-A and 396 read with sections 10)/34, P. P. C.
That the accused was arrested by the D. S. P. Crimes Quetta at Rawalpindi on 16-8-73 and was produced before the Magistrate 1st Class, Rawalpindi on the same day who granted three days remand to the police so that this accused may be produced before the competent Court which issued the warrants on 9-8-1973.
That in the meantime this Hon'ble Court in the above noted writ petition ordered that the accused if within the jurisdiction of the Lahore High Court should not be removed outside the jurisdiction till further orders.
That in view of the orders of the High Court the accused was not taken to Quetta, the accused Mir Ghaus Bakhsh Bizenjo was again produced before the Magistrate 1st Class Rawalpindi on 19-8-1973 and was remanded to' police custody till 22-8-1973. The Magistrate further directed that he should be produced before the competent Court on 23-8-1973.
That the Government of Baluchistan considered it necessary in the interest of public peace and order that Sardar Khair Bakash Marri. Sardar Ata Ullah Khan Mengal and Colonel Sultan Mohammad Khan be kept out of the Province of Baluchistan during these 14 days of judicial remand. The Home Secretary of the Baluchistan Government, therefore, sent a requisition to the Government of Punjab that the three accused persons are being transferred for confinement within the Punjab Province upto 29-8-1973 when they are to be produced before the competent Court."
6. When the case came up for hearing on 20-8-1973, Mian Mahmud Ali Kasuri, Advocate, (appearing in Writ Petition No. 1630 of 1973) submitted, by invoking the provisions of Article 196 of the Constitution, that the Court was not competent to function as the Chief Justice of the Court had gone out of Pakistan to attend an International Conference and the most senior of the other Judges not having been appointed to act as Chief Justice all proceedings -taken in the Court in his absence would be coram non judice. He was called upon to file a formal application incorporating this objection. This was accordingly done. The Central Government and the Punjab Government duly submitted replies to this application. In the reply submitted to this application by the Central Government, it was inter alia stated that "this objection was raised in a mala fide manner only to get an adjournment to prolong the proceedings of this case for some ulterior reason counsel knew that several criminal cases have been registered against the accused persons mentioned in the writ petition and, therefore, these petitions may not proceed in view of the fact that other adequate remedies are available to the accused persons against their arrest." So far as the validity of the objection itself was concerned, the same was also controverted. In the written statement of the Punjab Government the validity of the objection was also repudiated.
Consequently, when the matter again came up for hearing, on 22-8-1973, Mian Mahmud Ali Kasuri withdrew his objection. However, when the Court wished to proceed on merits, Mian Mahmud Ali Kasuri as well as Mr. M. B. Zaman (the then Advocate General) prayed for adjournment of the .Case for a week. The Court pointed out to Mr. Kasuri that "he being .Counsel for the detunes was himself applying for adjournment. But he submitted that he bad some such engagement which he could not avoid."
The case was accordingly adjourned. When the matter next came up for hearing, namely, on 31-8- 1973, Mr. Kasuri again asked for adjournment to prepare the case. The adjournment was opposed by counsel for the Central Government on the ground to quote the words of the Bench then attending to the matter "that the petitioner does not appear to be serious about the main case and is trying to get it postponed on one pretext or the other after having once obtained an order that the detunes should not be removed out of the territorial jurisdiction of this Court. Even otherwise, according to the learned counsel for the Central Government, by taking adjournments, learned counsel for the petitioner is creating legal complications in the matter of the detention of the aforesaid persons in this province. "However, in the interest of justice, to enable Mr. Kasuri to prepare the case, the matter was adjourned to 4-9-1973.
7. On 4-9-1973, Criminal Miscellaneous 641/H of 1973 which was confined to the case of Colonel Sultan, appears to have been taken up first.
The said petition was admitted to consider the question as to whether his detention in the Punjab, in the circumstances of the case, could be held to be with lawful authority. In view of this order, W. P.
1630 of 1973 was also admitted and the office was directed to fix a date after the reopening of the Courts, after the Summer Vacation
8. Thereafter W. P. 1630 of 1973 did not come up for hearing before the Court until 25-2-1974 and that too for consideration of a miscellaneous application (Criminal Miscellaneous 3 of 1974) moved by Mr. Kasuri on behalf of three persons desirous of meeting the prisoners, for grant of permission to do so. Before that, a petition seeking a similar relief (Criminal Miscellaneous 2152/M/73) was moved by some relatives of Colonel Sultan in Criminal Miscellaneous No. 64 t /H of 1973, but the same was dismissed by the order of a Division Bench, consisting of Mohammad Akram and K. E.
Chauhan, JJ., on 9-11-1973 (the judgment is reported as PLJ 1974 Lah. 237). Accordingly, C. M. 3 of 1974 m W. P. 1630/1973 too was dismissed on 2-4-74 by a Division Bench, consisting of K. E.
Chauhan, J: and one of us (K. M. A. Samdani, J.). The applicants challenged the above order by filing a petition for Leave to Appeal before the Supreme Court (C. P. S. L. A. No. 495 of 1974) and leave was allowed by the Supreme Court, vide its order dated 11-7-74 and interim relief was granted.
9. On 15-g-1974 all the for prisoners, namely, Mir Ghaus Bakhsh Khan Bizenjo, Sardar Ata Ullah Khan Mengal, Sardar Khair Bakhsh Marri and Colonel Sultan moved an application for bail under sections 497/498, Cr. P. C. (Criminal Miscellaneous No. 2953-B of 197 4) contending, inter alia, that according to the provisions of subsection (3) added to section 16 of the Criminal Law (Special Provisions)
Ordinance, 1968, by Act II of 1972--Criminal Law (Special Provisions) (Amendment) Act, 1972. The petitioners were entitled to bail because they had already been under detention for a period exceeding one year and their trial had not yet commenced and under clause (b) of subsection (3) where an accused was detained for an offence punishable with imprisonment exceeding seven years, he could be released on bail if his detention for such offence exceeded a period of one year and his trial had not concluded. This matter came up for hearing on 16-8-1974 before one of us (Nasim Hasan Shah, J.) and notice was issued to the Attorney General of Pakistan and the Advocate-General of the Punjab for 23-8-1974. Before that date, the learned Advocate-General, Punjab, moved an application (C. M. 4 of 1974) in Writ Petition No. 1630 of 1974) for vacation of the order dated 17-8-1973, whereby the respondents were directed not to remove the detunes out of the jurisdiction of this Court till further orders. In this application it was submitted that the challans against all the detunes had now been put in the relevant Court in the province of Baluchistan and the said Court had taken cognizance of the case, but the said cases could not proceed on account of the absence of the accused. Notice was issued to Mian Mahmud Ali Kasuri for 23-8-1974 in this application the date fixed for the hearing of the bail matter. The Attorney General, however, was not present on 23-8-1974 and both the matters were accordingly adjourned to 26-8-1974 for which date leave was also granted to the Advocate-General Baluchistan to appear and assist the Court.
Accordingly, both the matters again came up for hearing on 26-8-1974. Mian Mahmud Ali Kasuri, on this date, submitted an affidavit of Senator Abdul Wahid who had seen Mr. Ata Ullah Mengal in the meanwhile. In this affidavit it was averred that the health of Mr. Mengal was - not satisfactory.
In the affidavit allegations of mala fides were, made and it was also averred that the cases against the prisoners were false and fabricated. After hearing the parties, it was considered that the bail petition and the application for vacation of the restraint order should be taken up with the main case. All the learned counsel, keeping in view their other commitments, agreed that the case may be adjourned to 23-9-1974. Meanwhile, the Punjab Government. Was. Directed to arrange for a heart specialist to see Mr. Mengal and report about his health.
10. When the above mentioned cases came up for hearing in September, 1974 and the matters were heard at some length, a prayer for adjournment was made by the learned Assistant Advocate General, Punjab, in order to place copies of the remand orders in answer to the plea raised on behalf of the prisoners that they had not been remanded to custody under proper and lawful orders. This prayer was not objected to, but a submission was made by Mr. Kasuri that as the case was being adjourned, the detunes may also be ordered to be produced before the Court on the next date of hearing so that they could clarify their point of view. At any rate, they should be brought to and detained in Lahore so that he could easily interview them and obtain instructions from them. The learned Assistant Advocate General, Punjab, with respect to this prayer, requested for time to obtain instructions. The main case was adjourned to 8-10-1974. In the meanwhile, the Provincial, Government informed the Court that it could not make adequate arrange--ments for lodging the under-trial prisoners at Lahore. The Government was then directed, by this Court's order dated 30th September 1974 to produce the. Prisoners in Court on 8-10-1974. The object was to ascertain their point of view on the said date, whereafter the Government could take back to wherever it was considered appropriate.
11. The last mentioned order was, however, challenged by the Federal. Government, the Baluchistan Government, the Punjab Government and the D. I. G. Lahore before Supreme Court and proceedings were stayed in this Court, by the said learned Court. The appeal was accepted by the Supreme Court vide its order dated 14-10-1974 to the extent that this Court's order was "modified so as to permit the detaining authority to produce the prisoners before the High Court at the Sibala Rest House instead of the premises of the Court at Lahore." The case was sent back to this Court for further proceedings with this direction
12. When the matter was taken up again on 25-10-1974, the learned A. A.-G. Punjab informed us that at least two weeks time would be needed by the Government for making necessary arrangements.
The case was accord--ingly adjourned to 11th November 1974, for further proceedings at the Sihala Rent House.
13. On 31-10-1974 the Federal Government moved a miscellaneous application (C. M. 7 of 1974) praying for vacation of the restraint order made on 17-8-73. This application came up for hearing on 1-11-1974 and notice was issued to the counsel for the prisoners for 5-11-1974.
14. The Attorney-General, the Advocate-General Punjab, and counsel for the prisoners were heard.
In the arguments addressed by the learned Attorney-General the main effort was to persuade us to hold that the order of the Supreme Court dated 14-10-1974 did not imply that this Court was bound to examine the detunes without first deciding the question of its jurisdiction. This petition was dismissed by a detailed order passed on 6-11-1974. This order too was challenged before the Supreme Court, but without success. However, on the request of the Attorney-General, which was not opposed by the other side, the hearing of the case at Sihala was adjourned to 28-11-1974.
15. The statements of the prisoners were recorded at Sihala from 28-11-1974 to 3-12-1974. Thereafter, the case was fixed for arguments on 1,1-12-1974 at Lahore.
16. The arguments for one reason or the other dragged on to 11-3-1975 and the reasons for this appear from the following extracts from some of the interim orders recorded during the course of the proceedings : Order dated 11-12-1974 "The learned Advocate-General Punjab, has stated that the learned Attorney-General is busy in Karachi and prays for an adjournment of the case . . . . . The learned counsel for the prisoners does not oppose the request . . . . . The case is adjourned to 17-12-1974 for further proceedings."
Some arguments were heard on 17-12-1974 from Mian Mahmud Ali Kasuri, who also continued to address us on the 18th and 19th December, but although he had not concluded his address on that date he, however, prayed for an adjournment. The order passed on that date (19-12-74) which deals with this prayer, may, therefore, be reproduced below :- "Arguments have been heard partly in this case. The learned counsel for the prisoners states that owing to certain pre-occupations it is not possible for him to continue: -his arguments tomorrow, as he has to proceed to Islamabad. He prayed for an adjournment.
(2) The learned Attorney-General states that he is not available on 23rd instant as he has to appear before the Supreme Court on the said date.
(3) In these circumstances, this case is adjourned to 14-1-1975 for further proceedings."
Mian Mahmud Ali Kasuri and Mr. Rafiqua Ahmad Bangash, Advocates, were thereafter heard on 14- 1-1975 until they concluded their address on 17-1-1975, but on this date the learne9 Attorney- General was not available.
The order passed on 17-1-1975, whereby the case was again adjourned to, 14-2-1975 is self- explanatory. It reads as under : "The arguments on behalf of the prisoners have now been concluded. The learned Attorney- General informed us on 15-1-75 that owing to his other unavoidable pre-occupations it was necessary for him to proceed to Islamabad and the earliest date on which he could return to Lahore, for making his address was the 4th of February 1975. He, accordingly, prayed that after the address on behalf of the prisoners. Was concluded, he should, be heard in reply on 4th February 1975. It was also pointed out that the Advocate-General, Baluchistan, who had gone for Haj could also be heard, if the case was adjourned to 4-2-1975. The learned Advocate for the prisoners states that he had no objection to the adjournment of the case to 4th February 1975.
(2) Although we were most anxious to conclude the hearing of the arguments in the case without interruption, but as neither the Attorney-- General nor the Advocate-General of Baluchistan can appear before 4-2-1975, we reluctantly agree to adjourn the case to 4th February 1975, for further proceedings. Order accordingly."
In the meanwhile, on 3-2-1975 the learned Attorney-General of Pakistan moved an application under section 151, C P. C. For the grant of permission to remove Mr. Ata Ullah Mengal out of the Province of the Punjab for the purpose of his medical treatment at the National Institute of Cardio Vascular Diseases, Karachi. This application was granted by our order dated 3-2-75. However, when the case came up for arguments on the date already fixed, namely, 4-2-1975, a request was made by the Attorney-General for adjourn--ment of the case. The relevant part of our order, which deals with this prayer, is reproduced below: "The learned Attorney-General states that owing to his extreme pre---occupations in connection with the Land Reforms cases before the Supreme Court of Pakistan, he has not been able to fully prepare then arguments in this case. He prays for a short adjournment.
(2) Mr. Muhammad Ahmad, Advocate-General, Baluchistan, has also made a similar request on the ground that he has just returned from Haj and has, therefore, not been able to study the case.
(3) The learned counsel for the prisoners, Mr. Mushtaq Raj, Advocate, has no objection to the adjournment . . . . . To come up for further proceedings on 20-2-1975."
The learned Attorney-General, Advocate. General, Baluchistan, and the Assistant Advocate- General, Punjab, addressed us from 20-2-1975 to 26-2-1975, and the learned counsel for the prisoners, Mian Mabmud Ali Kasuri, was to submit his final reply on 27-2-1975. However, when the case came up on the said date, he prayed for adjournment, and the matter was adjourned to 27- 2-1975, with the following observations:- "The address of the learned counsel for the Federal Government, the Government of Baluchistan and Government of the Punjab concluded yesterday. However, on the request of Mian mahmud Ali Kasuri that he may be heard in connection with the final reply on the next day,. The case was adjourned to today.
(2) When the case was taken up today, Mr. Mahmud Ali Kasuri stated that he was busy in a part- heard murder case and prayed for adjourn--ment. We informed him that this case had already been inordinately delayed on account of the frequent requests of counsel for the parties for adjournments of the case from time to time, with the result that these habeas corpus petitions continued to remain pending. The learned counsel stated that it was in the interest of the prisoners that their counsel should be able to present a full and uninterrupted argument and this could be done when he was free. The delay being caused was, therefore. Not against their interests, but to their advantage.
(3) In view of the above, we reluctantly adjourn the case to the next working day of the Court, namely, 4-3-1975.
Hearings ultimately concluded on 11-3-75.
17. This somewhat detailed reference to the history of the proceedings shows that the delay in the disposal of the case has been caused largely to accommodate the requests of the learned counsel for the parties. In this connec--tion besides the adjournments granted by the Court to the dates fixed by it, the office was also handicapped in fixing the case on certain dates because the learned counsel for the prisoners, Mr. Kasuri, had obtained orders of general adjournment of all his cases for various periods of time to enable him to attend the National Assembly or to attend to work outside Lahore. More--over, none of the parties was at all keen that the cases be taken up for about a year after their institution. On the expiry of the period of one year of the arrest of the prisoners an application for bail was moved on behalf of the prisoners on 15-8-1974 and a day or so later a counter application was made for vacation of the restraint order. So far as the prisoners were concerned, it appears to have been realized that even if their detention in the Punjab Province was held to be without lawful authority, their liberty was likely to be short-lived, because the respondents were not precluded from arresting them and taking them to Baluchistan to stand their trial before the Courts there on the charges levelled against them. Mr. Kasuri repeatedly stated before us that he did not want the prisoners to be taken to Baluchistan and put before "Kangroo Courts"-the description given by him to the tribunals established under the Special Provisions of Ordinance 1968-and be sentenced to 30 years imprisonment. He accordingly opposed most vehemently the application for vacation of the restraint order dated 17-8-73 and also showed no anxiety for-the early disposal of these matters. The Government side was also not keen for the disposal of these petitions and moved for the vacation of the restraint order for the first time on the 17th or 18th of August 1974, when the situation in Baluchistan, to quote the learned Attorney -- General, had become more normal and the investigation in the cases had been completed and the prisoners could be taken to Baluchistan for standing trial before the Courts there. In fact the order dated 19th August 1973, a hereby the custody of the prisoners was transferred to the Punjab under section 2 of the Removal of Accused Persons Ordinance, 1973, was not rescinded until 28th November 1974. Another cause for the delay was that the Court was obliged to attend to interlocutory applications made by the parties. A scrutiny of the records of the three matters, being disposed of by this judgment, shows that over sixty interim orders have been recorded in the aforesaid matters, some of these orders being fairly elaborate orders-the longest one, passed in C.
M. 2152/M/73 in Criminal Miscellaneous No. 641 /H of 1973, runs into 32 pages. Three of these orders were challenged before the Supreme Court including the last mentioned matter and the appeal against it is still pending, and in connection with one such matter proceedings of this Court were even stayed. Be that as it may, the fact remains that the prisoners never complained of the delay and in fact they were fully satisfied by the dates of hearing fixed as these were fixed taking into account the wishes of their counsel and to accommodate him.
18. Reverting to the merits of the case, we may observe that although these matters were argued at very great length before us, we have, after full consideration of-the various matters raised before us, found -that the issues falling for determination in essence are simple and, therefore, we propose to state our views with respect to them and shall refrain from discussing the questions which do not really fall for consideration by this Court.
19. The undisputed position is that the prisoners were arrested in -pursuance of warrants of arrest issued by the competent Courts and that ,criminal cases have been registered against them.
These criminal cases are to tried before the Courts in Baluchistan. The Courts in that Province would appear to be Courts which should be moved for redress. However, the detention of the prisoners was challenged before this Court on the ground that the prisoners being in custody within the jurisdiction of this Court, this Court could quash the criminal proceedings pending against them and declare .Their arrest and detention in the Punjab to be illegal.
20. As the prisoners are in custody within the territorial jurisdiction of this Court, this Court undoubtedly has the jurisdiction to .See whether the prisoners are not being held in custody with-- out lawful authority or in an unlawful manner in view of the pro--visions of Article 199(1)(b)(i) of the Constitution. Thus, this Court does have the jurisdiction to go into the question whether the detention of the prisoners in the Punjab is legal and valid. This scrutiny cannot, however, be extended to quash the criminal proceedings which are pending against the' prisoners in Baluchistan because this can only be done before the competent Courts in Baluchistan and not by this Court. Moreover, the legality or .Otherwise of the detention of the prisoners in the Punjab has no bearing on the validity of the proceedings in Baluchistan. Therefore, the question of quashment of the criminal proceedings does not arise.
21. So far as the legality of detention of the prisoners in the Punjab is concerned, the same is assailed on threefold grounds, that the prisoners, being under-trial prisoners, could not be taken outside the territorial jurisdiction of the Courts before whom they are to be tried, that during their .Detention in the Punjab the provisions of the Criminal Procedure Code regarding the remand were not complied with and, lastly, that the provisions of Article 10 of the Constitution have been violated.
Hence the continued detention of the prisoners in the Punjab is illegal.
22. So far as the first ground is concerned, the learned counsel for the prisoners was unable to point out any provision of the law which compels the detaining authority to detain the prisoners within the territorial jurisdiction of the trial Magistrate. All that was submitted was that section 29 of the Prisoners Act, 1900, which authorises the Provincial Government to determine the place of detention of prisoners or custody of prisoners, was not applicable, because it applied to custody of parsons who are already convicted or those who have been ordered to give security and not to under-trial prisoners. He was, however, unable to point out the law applicable to the under-trial prisoners. In the instant case the prisoners were remanded to the judicial custody by orders of the competent Magistrates. So far as Sardar Ata Ullah Khan Mengal, Sardar Khair Bakhsh Marri and Colonel (Retired) Sultan are concerned, they were required to be produced before the Court concerned on 29-8-1973 while Mir Ghaus Bakbsh Bizenjo was ordered to be produced by the second order of remand before the competent Court on 23-8-1973. The Government of Baluchistan, however, considered it necessary, in the interest of public peace and order, that Sardar Ata Ullah Mengal, Sardar Khair Bakhsh Marri and Colonel Sultan be kept out of the Province of Baluchistan during the fourteen days of judicial remand and transferred their custody to the Government of the Punjab for being kept within the Punjab Province up to 29-8-1973, when they were to be produced before the competent Court, but before this date the restraint order was passed by this Court, forbidding the prisoners to be removed outside the jurisdiction of this Court. As already observed, no law was shown to us which forbids the detention of an under--trial prisoner at a place outside the territorial jurisdiction of the trial Magistrate. On the other hand in Jumma Khan Baluch v. Government of Pakistan (PLD 1957 Kar. 939) the prisoners were removed from the Mekran levies lock up to the District Jail, Quetta, which was outside the jurisdiction of the officer who passed the order of arrest and it was held that the legality of the detention was not questionable. It appears to us that where an accused person is remanded to judicial custody, there is no fetter on the power of the detainer, subject to the provisions relating to reception and detention of prisoners and the exigencies of the warrant, as to the place where he might be detained.
23. Coming to the ground that the detention of the prisoners in the Punjab is illegal owing to the failure to observe the privisions of the Criminal Procedure Code, we may observe, even at the cost of some repetition, that the prisoners except for Mir Ghaus Bakhsh Bizenjo were arrested under warrants of arrest in the small hours of 16th August 1973 at Quetta for having allegedly committed various offences punishable under the Penal Code and the Prevention of Corruption Act within the Province of Baluchistan and they are liable to be tried before the Courts in Baluchistan established under the normal law and the Criminal Law (Special Provisions) Ordinance, 1968 (II of 1968) but instead of being detained in Baluchistan, their custody was transferred to the Punjab. Mir Ghaus Bakhsh Bizenjo who was arrested in the Punjab was also kept here.
24. These petitions were filed on 17th August 1973 with the purpose of securing the release of all the for prisoners. The same day a Division Bench of this Court, on the request of the Advocates of the prisoners, directed that the detunes shall not be removed out of the jurisdiction of this Court till further orders. No further orders has so far been passed in that behalf.
25. On the same day i.e. 17th August 1973, the Removal of Accused Persons Ordinance (XVII of 1973) was promulgated which became an Act, I e. Act LXIII of 1973 on 15-9-1973. The Federal Government made an order on 19th August 1973 under section 2 thereof, transferring them to the Province of the Punjab to be kept in custody therein. This order was, however, later rescinded on 28-11-1.974. (It may be mentioned here that although the vires of the above Ordinance was challenged before us, we are not called upon to decide that question in this case because the learned Attorney-General sub--mitted that his plea was that the detention of the prisoners in the Punjab. Was in obedience to the order passed by this Court, on 17th August 1973 and he was not relying upon the provisions of Act LXIII of 1973.
26. The three detunes, other than Mir Ghaus Bakhsh Bizenjo, were under a remand to the judicial custody given by the S. D. M , Quetta on 16-8-1973 when they were brought over to the Punjab. The remand was valid till 29-8-1973. The remand in respect of Mir Ghaus Bakhsh Bizenjo was to expire on the 23rd August 1973. But since it was not possible for the executive authority to produce the detunes before the competent Courts in Baluchistan on the expiry of their remand, in view of the restraint order passed by this Court on 17-8-1973, it tried in its own way to comply, as far as possible, with the provisions of the Criminal Procedure Code relating to the custody of the under trial prisoners by taking different Magistrates to the places of detention to grant necessary remands. This method to obtain remand of the prisoners is no doubt open to question, but it must be noted that most of the cases against the prisoners are to be tried under Baluchistan' Ordinance II of 1968 (Criminal Law (Special Provisions) Ordinance, 19681 and it is doubtful whether the provisions of the Criminal Procedure Code relevant to remands, are strictly applicable to trials under that law. More importantly the situation in this case was that before the valid orders of remand passed in respect of each of the prisoners expired, the restraint order forbidding the prisoners from being removed from the jurisdiction of this Court had been made by this Court. In view of that order it was not possible to remove the prisoners to Baluchistan and produce them before the competent Courts in compliance with the requirements of the Criminal Procedure Code, if at all the provisions of that Code were attracted. Consequently, after the expiry of the initial remands the prisoners should be deemed to have beet in the custody, and retained under the orders of this Court in which cast the executive authority was absolved of the obligation to observe the require--ment of producing the prisoners periodically before a Magistrate.
27. We cannot, however, fail to observe that it was only proper and desirable for the Governments concerned as well as for the learned counsel championing the cause of the prisoners to point out that the prisoners being in custody as under trial prisoners and not being under preventive detention, it was necessary to produce them before a competent Court at least once every fortnight. The Governments concerned appeared to think that the procedure being followed by them, by obtaining remands from the Magistrates of the Punjab, read with the provisions of the Removal of Accused Persons Act, 1973, was a sufficient compliance with the law, whereas the Advocates of the prisoners were not at all eager to see the prisoners go to Baluchistan for the purpose of being produced before the Courts of competent jurisdiction there. It is, however, unfortunate that this aspect of the matter was not brought to the attention of the Court until the argument stage and the effect of this omission can, at this late stage when the only anxiety on the part of the Government of Baluchistan is to take the prisoners back to Baluchistan to prosecute them as the investigations have been completed and there is no hitch left in the commencement of the trials by vacating the restraint order in case the other pleas questioning the detention of the prisoners in the Punjab are found to lack substance. Our conclusion is that the failure of the executive authority to comply with the provisions of the Criminal Procedure Code in respect of the remand of prisoners to custody is, in the peculiar circumstances of this case, of no consequence and their detention in the Punjab cannot be held to be unlawful for failure to comply with the provi- -sions of the Cr. P. C. In the relevant respect.
28. Coming to the third ground, namely, that the provisions of Article 10 of the Constitution have been violated as a result of which the detention of the prisoners has become illegal, a perusal of Article 10 would show that only clauses (1) and (2) thereto are relevant to the case of an under trial prisoner. Clause (1) reads as follows:- "No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult and be defended by a legal practi--tioner of his choice."
The grievance of the prisoners is that they were not informed of the grounds for their arrest when they were arrested and were also denied the right to consult a legal practitioner of their choice. The respondents have submitted that the detunes were produced before the Magistrates. Who remanded them to the judicial custody. As the provisions of law under which the prisoners were arrested were mentioned in the warrants, they were made aware of the grounds for their arrest.
Moreover, shortly after the arrest of the prisoners, the Chief Minister of Baluchistan held a Press Conference in which the charges on which the prisoners had been arrested were explained in great detail. (The details of this Press Conference were published in all the leading newspapers).
The prisoners admitted in their statements before us that they were receiving newspapers at the places of their detention. Though they will denied having read the contents of the Press Conference in question, the veracity of leis denial was seriously questioned by the learned Attorney--General. It was also submitted that as early as 17th August 1973, the learned counsel for the prisoners was allowed permission to see them and one or the other counsel appearing on their behalf did, shortly thereafter, interview each one of them (except Colonel Sultan Muhammad). In these circumstances the provisions of Sub-Article (1) of Article 10 would not be held to have been violated.
29. We are inclined to agree with the point of view advanced by the learned counsel for the respondents. We may observe that Sardar Khair Bakhsh Marri even admitted that he was told that he was being arrested in connection with the "Tandoori incident". Even otherwise, the purpose underlying the provisions of Article 1.) is to enable the person who is arrested to be informed of the grounds for his arrest so that he may be able to take necessary legal measures to secure his release. In the instant case, the prisoners approached the highest Court in the province, where they were being detained, within 24 hours of their arrest and their counsel was allowed permission to interview the prisoners. The written statement filed in this Court, on 2tth August 1973. I.e. Three days after the writ petition' was instituted, gave full details of the grounds upon which the prisoners had been arrested and a copy of the statement made by the Chief Minister of Baluchistan at the Press Conference was enclosed with the aforementioned written statement. In these circumstances, the prisoners cannot be held to have been detained in custody without being informed of the grounds of their arrest or to have been denied the right to consult and to be defended by a legal practitioner of their own choice.
30. So far as the provisions of Sub-Article (2) of Article 10 are concerned, the prisoners were produced before a Magistrate within a period of 24 hours of their arrest and were remanded to judicial cu3tody. Thereafter, on their own request they were ordered to be retained in the Punjab and during) the course of our examination of the prisoners each one of them submitted that be was desirous of the continuance of the restraint order. In these cir--cumstances sub-Article (2) of Article 10 has also not been violated.
31. It was also argued that the Criminal Law (Special Provisions) Ordinance, 1968 (II of 1968) is ultra vires of the Constitution and is not a good law. Hence the prisoners cannot be subjected to trial under Ordinance II of 1968. Since we have come to the conclusion that the question of validity of the trial can only be raised before the trial Courts in Baluchistan and the Courts superior thereto, we do not consider it necessary to say anything with regard to the above contention. This is a question which ought appropriately to be raised before the Courts in Baluchistan and not before this Court. Mr. Rafique Ahmad Bengasb, learned Advocate for Colonel (Retired) Sultan Muhammad also attempted to argue that no case was made out against his client and, therefore, the proceedings against him ought to be quashed. As this matter in our view, can only be agitated before the Courts at Baluchistan, we would refrain from examining this aspect in any detail. We may, however, mention that the learned Attorney-General made a statement before us at Sihala, during the examination of Mir Ghaus Bakhsh Bizenjo that out of the cases registered against the prisoners only one or two were going to be tried by a Jirga while the rest would be tried by regular Courts. At this stage Mr. Kasuri suggested that the learned Attorney-General should confirm that the cases triable by the regular Courts would commence before the case which are to be tried by the Jirga. The learned Attorney-General made a statement that this would be so and that in the first instance these cases which are to be tried by regular Courts will be taken up so that the prisoners may have right of appeal before the High Court or the Supreme Court in case of conviction. A similar statement was made before us at Lahore by the learned Advocate-General of Baluchistan.
32. The last contention on behalf of the prisoners was that in the circumstances of the case the grant of bail was a legal remedy.
33. It has already been mentioned that a petition for bail (Criminal Miscellaneous No. 2953/B;1974) was moved on 15-8-1974 for release of the prisoners on bail on the ground, inter alia, that under the provisions of subsection (3) added to section 16 of the Criminal Law (Special Provisions) Ordinance, 1968 by Act II of 1972, laid down that the persons who had already been under detention for a period exceeding one year and their trial had not yet commenced were entitled to bail under clause (b) of the newly added subsection (3). The learned Advocate-General of Baluchistan, however, pointed out that Act II of 1972 had been repealed by the Criminal Law (Special Provisions)
(Amendment) Act, 1974 Baluchistan Act No. XVII of 1974, which was notified in the official Gazette on 13th August 1974. The plea of bail was not subsequently pressed on this ground, but it was argued that even otherwise bail was a legal remedy in this case. Since we consider that the habeas corpus petitions should be disposed of by permitting the prisoners to be transferred back to Baluchistan for their trials, we think that the question of bail should be raised before the trial Courts and the Courts superior thereto in Baluchistan.
34. The upshot of this discussion is that the detention of the prisoners in the Punjab cannot be held to be without lawful authority and to be without legal effect. We express no opinion with regard to the challenge made to the validity of the criminal proceedings, initiated against the prisoners, as this can only be made before the Courts at Baluchistan. To enable them to do so, the restraint order made by a Bench of this Court on 17th August 1973, is hereby vacated. However, in order to enable the executive authorities to make arrangements for the transfer of the prisoners back to Baluchistan, the said order shall remain in operation for a further period of one week. All the three matters, namely, W. P. 1630 of 1973, Criminal Miscellaneous 641/H of 1973 and Criminal Miscellaneous 2953-B of 1974 stand disposed of in the light of the foregoing observations, leaving the parties to bear their own costs.