' SAJJAD ALI SHAH, C J.--By this petition leave is sought to file appeal against order dated 12-10- 1995 passed by the Division Bench of the Lahore High Court at Rawalpindi during pendency of the criminal appeal of the petitioner rejecting his request for his transfer from Bahawalpur Jail to Rawalpindi Jail till hearing of the appeal is concluded.
' Briefly stated the relevant facts in the background are that the petitioner is a sitting member of the National Assembly of Pakistan and has been convicted by the Special Court No,1 at Rawalpindi, set up under the provisions of the Suppression of Terrorist Activities Act, 1975, for offence under section 13 of the Arms Ordinance XX of 1965 for possessing an unlicensed Klashnikov, as claimed by the prosecution, and sentenced to R.I. For seven years with a fine of Rs,2 lacs or in default of the payment of fine he is to undergo further R.I. For two years. He has been given benefit under section 382-B, Cr.P.C. After his conviction and sentence, the petitioner has filed as appeal which is being heard by a Division Bench of the Lahore High Court at Rawalpindi. During the pendency of the appeal, he filed an application with prayer to the Court that orders may be passed for transferring him from Bahawalpur Jail to Rawalpindi Jail till the disposal of his appeal. After hearing the counsel appearing for the parties, the High Court has dismissed the application by the order which is impugned before us.
3. In the High Court during hearing of the Miscellaneous application, which has culminated in the impugned order, three points for determination were framed which are reproduced as under:--
(1) Whether the appeal is continuation of the trial?
(2) Whether this Court while hearing an appeal filed under section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 has jurisdiction to order the transfer of a convict prisoner from one custody to another custody in a jail situated in or near Rawalpindi, where the appeal is being heard?
(3) Whether this is a fit case to pass an order of transfer as prayed for by the appellant-petitioner?"
' After hearing the learned counsel for both the parties, the High Court in the impugned order has given findings in the affirmative in respect of the first two points to the effect that the appeal is continuation of trial and that the High Court has power to order during pendency of appeal transfer of convict prisoner to the jail of the district in which appeal is pending for hearing. There is an elaborate discussion in the impugned order with regard to these two points with citation of case- law and these two findings of the High Court are not disputed by the learned Additional Advocate- General for the State. However, so far the second point with regard to transfer of prisoner from one jail to another jail is concerned, the High Court, as it appears from the impugned order, seemingly has wavered and finally observed as under:- "We, therefore, held that this Court has the power to pass the order of transfer as prayed for. Powers under section 491(1)(e), Cr.P.C., however, are not available to the High Court while hearing of an appeal filed under section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, as the said provision is specifically excluded by section 7 referred to above."
4. This has been so held by the High Court, as stated above, after discussing the point in question in the light of decisions in the case-law, which holds the field. There is no dispute about the fact that section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 envisages that from the decision of the Special Court, appeal is maintainable before the High Court but no Court shall have authority in revise such sentence, or to transfer any case from a Special Court or to make any order under section 426 or-section 491 or section 498 of the Code, or have any jurisdiction of any kind in respect of any proceedings of a Special Court. Subsection (2) of the abovementioned section further provides that an appeal shall be heard and decided by a Bench of no less than two Judges of the High Court within three months. Section 491(1)(e), Cr.P.C. Empowers the High Court to pass an order with regard to removal of a prisoner from one custody to another for the purpose of trial. The interpretation of section 7 of the abovementioned Act came up for detailed consideration before Full Bench of High Court of Sindh in the light of case-law on the subject on the point of power of the High Court to grant bail or not during the pendency of appeal in the case of Abdul Khalique v. State PLD 1990 Karachi 448. The concluding portion from the relevant paragraph of the said judgment of the High Court is reproduced as under:-- "For the facts and reasons mentioned above, on the question of interpretation of section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, my considered view is that this section clearly provides that from conviction under the said Act appeal can be heard by a Division Bench of the High Court but during the pendency of the appeal jurisdiction is barred in respect of suspension of sentence and grant of bail under section 426, under section 491 and under section 498, Cr.P.C. As well as no order can be passed under revisional jurisdiction nor any order can be passed with regard to transfer of a case from Special Court. This construction is so placed on section 7 in the said Act keeping in view preamble of the Act and other provisions, which manifest the intention of the legislature that cases of sabotage, subversion and terrorism in the scheduled offences are to be tried speedily and their appeals are also to be disposed of expeditiously within three months. For that reason, legislature intently has deprived Court of Appeal from power of grant of bail under section 426, Cr.P.C. During pendency of appeal. Since inherent jurisdiction of the High Court under section 561-A, Cr.P.C. Is neither specifically barred nor impliedly, the same is available to pass such orders which may be necessary to give effect to any order under this Code, or to prevent the abuse of process of any Court or otherwise to secure the ends of justice in appropriate case of hardship. Hardship case may include a case in which appeal is not disposed of within three months or order of bail is to be passed in order to secure ends of justice."
5. This Court examined analogous provisions under the Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984) in the case of Allied Bank of Pakistan Ltd. v. Khalid Farooq and also titled as Muhammad Aslam v. State 1991 SCMR 599 and observed as under:-- "Thus, the High Court basically has no power under section 561-A of the Code to release a convict on bail pending the disposal of his appeal under the Ordinance, in view of the clear bar contained in section 10(1) of the Ordinance, However, in an exceptional case such as where there in complete want of jurisdiction or the evidence on the record does not make out any case for conviction, the High Court would still be barred from releasing the appellant on bail pending the disposal of his appeal, was kept open by the Supreme Court, to be examined at the proper time when such a case was before it."
6. The same question with regard to the interpretation of the provisions under the Suppression of Terrorist Activities (Special Courts) Act, 1975 came up for detailed consideration in the case of State v. Qaim All Shah 1992 SCMR 2192 which was heard by a Bench of five Judges. Construing section 7 of the said Act and considering exclusion of application of sections 426, 491 and 498, Cr.P.C. During hearing of appeal by a Division Bench of the High Court vis-a-vis section 561-A, Cr.P.C. This Court observed at page 2221 of the report as under:--- "If the High Court was to invoke section 561-A, Cr.P.C. Because of the above of section 426, Cr.P.C., it may amount to defeating the legislative intent. However, it may be pointed out that the exclusion of the application of section 426, Cr.P.0 by virtue of section 7(1) of the Act during the pendency of an appeal of a convict before the High Court is founded on the assumption that the appeal would be disposed of within three months as provided in subsection (2) of above section 7 of the Act, but in case an appeal of a convict remains pending for a number of years either on account of delaying tactics on the part of the Prosecuting Agency or because of the heavy work load of the Court, would it be fair and just to deny him bail on the ground of delay. In my view, since it has been held by this Court in more than one cases already referred to hereinabove in para. 21 that the delay in prosecution of a criminal case amounts to abuse of process of Court/law warranting grant of bail, the High Court in a case of above nature may press into service section 561-A, Cr.P.C. But not as a matter of course or as a substitute to section 426, Cr.P.C. The delay should be of the nature which may be repulsive and unconscionable.
' Similarly if a convict during the pendency of his appeal before the High Court develops an ailment of the nature that keeping him in detention may result into his death and that he cannot be provided requisite treatment under detention in the Government and/or other hospitals, the High Court may in such a case invoke section 561-A, Cr.P.C. And may release him on bail, as such an order will be within the ambit of the expression "or otherwise to secure the ends of justice", used in above section 561-A, Cr.P.C.
' We should not be oblivious of the fact that our Constitution guarantees fundamental rights and Article 2-A thereof enshrines Islamic mandates and we are living in an era in which the enforcement of human rights has become an international issue. So, the Courts while construing the provisions of statute should make efforts that the interpretation of the relevant provisions of the relevant statute should be in consonance with the above Articles of the Constitution and the grund norms of human rights. The view which I am inclined to take seems to be in accord with the above approach."
7. In the instant case, *question of bail is not involved but what is involved is prayer of the petitioner for transfer of his custody from Bahawalpur Jail to Rawalpindi Jail during pendency of his appeal before the Bench of Lahore High Court at Rawalpindi as contemplated under section 491(1)(e), Cr.P.C. This prayer. Is rejected by the High Court vide the order impugned in this petition on the joint grounds that powers under section 491(1)(e), Cr.P.C. Are not available to the High Court, having been excluded under section 7 of the said Act and for the reason that on inherits also it is not a fit case for passing such order.
8. Mr. Ijaz Hussain Batalvi, learned Senior Advocate Supreme Court, has submitted before us that the fundamental right of the petitioner, as contemplated under Article 10 of the Constitution, is violated inasmuch as the petitioner is deprived from the right to consult and be defended by a legal practitioner of his choice. It is further elaborated by him that he is engaged by the petitioner, who has been lodged in Bahawalpur Jail, while his appeal is being heard at Rawalpindi and in such circumstances he is not in a position to obtain complete instructions from his client and may require such instructions from time to time during hearing of the appeal at Rawalpindi, which is not possible when the petitioner is in jail at Bahawalpur.
9. The learned counsel for the petitioner further argued that the action of the government of transferring the custody of the petitioner from Rawalpindi Jail to Bahawalpur Jail is mala fide for the reason that the petitioner was taken in custody in connection with F.I.R. No,449 of 1994 registered at Police Station Waris Khan on 20-9-1994 for offences under sections 324, 353, 188, 186, 148, 149 and 109, P.P.C. And later on in absence of the petitioner, a Klashnikov was allegedly recovered from "Lal Haveli" and the case arising from the prior F.I.R. 449 of 1994 is not concluded while the case arising from subsequent F.I.R. Was concluded in which the petitioner has been convicted and sentenced as stated above. It is further submitted that the first case is still pending for the reason, inter alia, that the petitioner could not be produced for trial from Bahawalpur Jail. In that connection, the learned counsel has produced photo stat copy of the order sheet showing the reasons for delay in trial proceedings on account of non-production of the petitioner from Bahawalpur Jail and non-compliance of the order of the Court in that connection by the Jail authorities. When we asked from the learned counsel for the petitioner as to whether he had taken this ground before the High Court, he answered in negative and stated that he was unable to do so far the reason that he was not in a position to obtain full instructions from his client who was lodged in Bahawalpur Jail while his appeal was being heard by the High Court at Rawalpindi. It is further pointed out by him that he has taken the ground in his application which he filed in the High Court during pendency of the appeal with prayer for transfer of custody of the petitioner in which he had taken categorical plea that the petitioner has been transferred by the authorities to Bahawalpur Jail with mala fide and malicious intention. Since this point as such was not taken up before the High Court, we did not allow the learned counsel to take this ground in this Court.
10. The learned counsel for the petitioner has drawn our attention to the Prisons Act, 1894, the Prisoners Act, 1900 and the rules framed thereunder for the Superintendence and Management of the Prisons of Pakistan. Chapter 7 in the said rules relates to transfer of prisoners and rule 152 covers the procedure of transfer of prisoners who are undergoing sentence. Such prisoners are classified under different headings and for some the Superintendent is empowered to transfer without sanction of the Inspector-General and for some no such transfer can be made without sanction- of the Inspector-General. In this context Rule 161 envisages that subject to the provisions of rule 152, prisoners shall not ordinarily be transferred from the prison to which they were in the first instance committed until the result of the appeal to known or if appeal is not preferred, the time for appealing has elapsed.
11. We enquired from the learned Additional Advocate-General as to what were the grounds on which the Government or the concerned authorities passed order of transfer of the petitioner from the jail in Rawalpindi to the jail in Bahawalpur and we asked him to show us any material giving reasons for the transfer. We gave him time to make enquiry from the Home Secretary and if any grounds have been recorded, the same may be faxed for the benefit of the perusal of the Court.
We adjourned the hearing in order to enable the learned Additional Advocate-General to do the needful but when the proceedings were resumed, he was unable to produce any material showing grounds. We have perused the reply filed on behalf of the State against the application filed in the High Court by the petitioner for his transfer from Bahawalpur to Rawalpindi Jail. In reply dated 24- 9-1995, stand is taken that there is no law which binds the State to lodge a convict within a district in which his appeal is likely to be heard. It appears from the record that further reply was also filed by the learned Additional Advocate-General; Punjab, on behalf of the State in the High Court in which stand is taken that section 541, Cr.P.,C. Is to be read in conjunction with the Pakistan Prison Rules. Section 541, Cr.P.C. Provides that unless where otherwise provided by any law for the time being in force, the Provincial Government may direct in what place any person liable to be imprisoned or committed to custody under the Criminal Procedure Code shall be confined.
Subsections (2) and (3) of the abovementioned section are not relevant for the reason that they relate to removal to criminal jail of accused or convicted persons, who are in confinement in civil jail and their returns to the civil jail. In the reply mentioned above, reference is also made in section 59 of the Prisons Act, 1894 which empowers the Provincial Government to make rules consistent with the provisions of this Act. Remaining contents of the reply relate to the plea taken by the State that the case of the petitioner cannot be compared with the case of Mr. Zulfikar Ali Bhutto, who was allowed by the Supreme Court to be heard in person in addition to his counsel during hearing of the appeal against his conviction and sentence.
11-A. After hearing the learned counsel for both the parties, we have come to the conclusion that no grounds have been made out justifying transfer of the petitioner from Rawalpindi to Bahawalpur Jail while making departure from Rule 161 of the Prison Rules which requires that prisoners shall not ordinarily be transferred from the prison'to which they were in the first instance committed until the result of the appeal is known or if appeal is not preferred, the time for appealing has elapsed. In absence of such material, we are inclined to hold that the order passed by the concerned authorities transferring the petitioner from Rawalpindi to Bahawalpur Jail is not a bona fide order.
This Court is competent and has power to issue such directions, orders or decrees as may be necessary for doing complete justice in any case of matter pending before it as contemplated under Article 187 of the Constitution and under Article 191 this Court has power to make rules regulating its practice and procedure and in consequence of which the Supreme. Court Rules, 1980 have been framed; of which Order XXXIII relates to inherent powers of the Court and Rule 6 thereof further envisages that nothing in these Rules shall be deemed to limit or otherwise effect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to E prevent abuse of the process of the Court. We are, therefore, of the considered opinion that the order passed by the High Court rejecting the prayer for transfer of the petitioner from Bahawalpur to Rawalpindi Jail is not sustainable and it was a fit case in which the High Court . Should have F interfered under section 561-A, Cr.P.C. During hearing of the appeal of the petitioner. We passed short order dated 20-12-1995 for reasons to be recorded later, whereby we granted leave, converted the petition into appeal and allowed the same and in consequence we ordered transfer of the petitioner from Bahawalpur to Rawalpindi Jail. These are the detailed reasons in support of the short order mentioned above.