' This petition has be, n submitted by Dr. Ejaz Hassan Qureshi, Printer and Publisher, Urdu Digest, Labor; through Superintendent, District Jail, Lahore, Kot Lakhrat, for setting him at liberty, he being in illegal custody of the jail authorities. He Is involved in two cases registered against him vide F. I. R.
No, 908, dated 17-12-1975, under sections 49 and 54, D. P. R . . . Lodged with Police Station, New Anarkali, Lahore and F. I. R. No, 651, dated 24-5-.975, under section 49. D. P. R lodged with Police Station, Mozang, Lahore. So far as the latter case is concerned, he has already been granted bail by the Special Tribunal, Punjab, while in the former case vide F. I. R. No, 908, he was granted ball by my learned brother S. Rehman, J. By his order dated 23-12-1975. Simultaneously the petitioner also filed Cr. Misc. No, 752/T-75 in the High Court in regard to Case No, 908 for the purpose of withdrawing the same from the Court of Ch. Nasarullah Khan Cheema, M. I. C., Lahore and trial of the same by the High Court in its original jurisdiction. This petition was disposed of by my learned brother Mr. Gulbaz Khan, J. By his order dated 19-4-1976 holding that since Ordinance III of 1976 had not been made applicable with retrospective effect, therefore, the aforesaid case was liable to be tried by the ordinary Courts and not by the Tribunal constituted under section 8/9 of the said Ordinance.
2. Later on, on account of the amendment introduced in the Ordinance itself the jurisdiction of the ordinary Courts was ousted to try such case?. In the circumstances, the Senior Civil Judge, Lahore, whom the case was transferred for trial by the High Court, sent the file of the same to the High Court stating that on account of the establishment of the Special Tribunal, he had no jurisdiction to proceed with the case. It appears from the record that the said file remained pending in the High Court and was requisitioned, for the first time, by the Special Tribunal vide its letter dated 19-4-1977 and was received by the Tribunal, probably, by the end of the same month. The said letter, issued by the Tribunal, shows that the file was requisitioned on the application having been filed by the petitioner for grant of bail in Case No, 908, which could not be disposed of in the absence of the file.
After the receipt of the file the said application was rejected by the Tribunal vide its order dated 9- 5-1977, when the present petition was entertained by the Office of this Court the same day having been sent through the Superintendent, District Jail, Lahore.
3. The learned A. A.-G. Has also brought to my notice pendency of Writ Petition No, 3185/75, titled "Ziaur Rehman v. S. H.
0. Mozang etc." challenging the arrest of the petitioner Dr. Ejaz Hassan as well as his brother Altaf Hassan Qureshi, on the ground that they both were arrested in December 1975, without any warrant and thereafter cases were registered against them under rule 49/54/42, D. P. R. It was contended in that case that since the petitioner as well as his brother, both, were arrested without a warrant and the provision as contained in rule 206 of the D. P. R. Ousted the general provisions of the Cr. P. C., the complaint had to be taken cognizance of directly by the Magistrate and no arrest otherwise could take place without a warrant. It was further contended that the Public Officer concerned had to prefer a complaint directly in the Court and no case could be registered ner any challan submitted and the Magistrate having not so received the complaint had not and could not take cognizance of the matter. It was contended that even if he did so he had to issue notice and not to take into custody the detenus who were illegally arrested. An application for grant of bail was submitted in that case by the petitioner but the same was rejected on the ground that on account of the Fifth Constitutional Amendment no ad interim relief could be granted in the exercise of extraordinary jurisdiction under Article 199 of the Constitution. The narration of the above facts would show that the aforesaid writ petition has got nothing to do with the present petition as the facts and respective reliefs prayed for in both the cases are quite different from each other. In the present case the petitioner has challenged his detention being illegal on the ground that his custody to the jail authorities has not been remanded lawfully and as such he should be set at liberty being in custody without lawful authority.
4. The record of Case No, 90/75, summoned from the Special Tribunal as well as that maintained by the jail authorities shows that no order was ever passed committing the custody of the petitioner in Case No 908 to the jail authorities by the High Court when the case was pending there having been sent by the Senior Civil Judge, Lahore, whom it was transferred for trial, nor by the Special Tribunal when it received the file of the case in April 1977. The record maintained by the jail authorities, on the contrary, shows that request was made by them to the Special Tribunal for issue of warrant in Case No, 908 remanding the custody of the petitioner to them, but no order in this behalf was ever passed. The entire aforesaid record shows that the petitioner's custody was remanded in Case No, 651/75 and he was directed to be detained in that case by the jail authorities and not in Case No, 908/75. It is also admitted on record that the remand order in Case No, 651 in relation to the petitioner has been passed on different dates only by a single member of the Tribunal.
5. It has been argued by the learned A. A.-G. That after the record of Case No, 908 was received by the Special Tribunal in April 1977, the petitioner should be deemed to be in lawful custody thereof.
He has, however, conceded that before that period there being no order, whatsoever, either by the High Court or by the Senior Civil Judge, Lahore, remanding custody of the petitioner to the jail authorities he may be deemed to be in illegal custody in the said case. He has further argued that remand order passed by the Special Tribunal in Case No, 651 should be deemed to have been passed in Case No, 908. Since, according to him, the petitioner was already on bail in Case No 651, there was no occasion for remanding him to custody in that case.
6. It is contended that the petitioner has been appearing before the full Tribunal and even if the order was signed by a single member it should be otherwise deemed to have been passed by the whole Tribunal and not by a single member.
7. The learned A. A.-G. Has also submitted that the order dated 9-6-1977 rejecting the bail application of the petitioner should also be deemed to be an order remanding his custody to jail authorities.
8. The learned A. A.-G. Has also relied upon the provision as contained in section 537, Cr. P. C. To the effect that no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVI!, or on appeal or revision on account of-(a) any error, omission or irregularity in the complaint, report by a Police Officer under section 173, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings Under this Cc de, or (b) any error, omission or irregularity in the charge or mode of trial, including any misjoinder of charges, unless such error, omission or irregularity has in fact occasioned a failure of justice. It is conceded by the learned A. A.-G. That though this provision as such applies to the cases in appeal or revision under the Code, but he submits that the principles laid down therein may be applied to the facts of the present case.
According to him if any error, omission or irregularity has been committed in the order passed under section 344, Cr. P. C., then the same can be rectified by the Special Tribunal itself by sending the case to the same and not by deciding the case by the High Court itself in view of such error or omission. He has relied upon the judgment delivered by the High Court, in Muhammad Alkbar Batik v. Superintendent fall, 'hang (Writ Petition No, 625/77) on 14-4-1977. In that case, one of the grievances of the petitioner was that the detenus in that case had not been produced before the Magistrate concerned on some occasions when the orders for remand were passed. The statement of Mr. Abdul Wahab Khan, the Magistrate, was recorded by the High Court in relation to the said grievances. He deposed that it was reported by the police at the time when he remanded the custody of a particular detenu that he could not be brought from Jhang where he was imprisoned, on account of law and order situation prevailing at that time and in the given circumstances ho permitted the remand for fourteen days in the absence of the accused.
According to the Magistrate, judicial custody in such exceptional circumstances could be granted.
It was, however, admitted by him that at the time when detenus were remanded to the custody the relevant record was produced before him.
' All the dotenus involved in the said case were undertrials. They were arrested by the police of Mianwali District on different dates in connection with the movement launched by the Pakistan National Alliance. Under this orders of a Magistrate in the District they were detained in the Central Jail, Mianwall, but thereafter they were transferred to District Jail, Jhang. The transfer order as made with regard to the undertrial prisoners was set aside by the learned Judge and they were directed to be brought back to the judicial lock-up of the Magistrate having jurisdiction in the case at Jhang and produced before him. It was further directed that the said Magistrate would ascertain from them, if necessary, after recording their statements, the illegalities having been committed with a view to regulate their detention and to make it in accordance with the law applicable to the undertrials.
' It has been argued that in view of the aforesaid judgment if any illegality has been committed in remanding the custody of the petitioner to the jail the same can be regulated by the Special Tribunal to whom the matter should be entrusted.
9. The learned A, A.-G. Has lastly contended that since the order of release, if any to be passed by this Court, would be rendered ineffective by the re-arrest of the detenu on the basis of a warrant issued by the Special Tribunal, therefore, the relief as claimed for in the writ petition should not be granted. He in this regard has relied upon Sh. Rehmat Ullah v. The Deputy Settlement Commissioner, Karachi (1), Sped Abul Ala Maudoodi v. Government of West Pakistan (2), Ab8u1 Aziz v. Muhammad Ali (3) and Mirza Muhammad Shaft v. Collector, Sheikhupura etc. (4).
10. It is admitted by the parties that the detenu/petitioner was sentenced to undergo imprisonment for two years and to pay a fine of Rs, 10,000 by the Special Tribunal in another case registered against him for an offence under section 49, D. P. R. By its order dated 30-9-76. However, on appeal filed in the High Court against the said order ho was acquitted of the charge on 21-3-77. According to the petitioner and admitted by the Jail authorities, the said order of the High Court was communicated to the Jail authorities on 22-3-1977, but the petitioner was not released tin the ground that he was involved in Case No, 908/75 in which he was not on bail. As mentioned above, at present there are only two cases pending against the
(1) PLD 1963 SC 632 (2) PLD 1964 Kar. 478
(3) PLD 1967 Lab. 762 (4) PLD 1968 Lab. 403 petitioner Le., Cases Nos. 908/75 and 651/75. In the latter case he is already on bail granted by the Special Tribunal while in the former case bail has not been granted to him.
11. The main grievance of the petitioner is that after 21-3-1977, when his appeal was accepted and he was acquitted by the High Court in another case in which he was convicted by the Special Tribunal, no order, whatsoever, was passed by the Special Tribunal or any other competent authority remanding his custody to the jail authorities. The argument of the learned A. A.-G. That after the file of Case No, 908 was received by the Special Tribunal in April 1977, from the High Court it took cognizance of the case and as such the petitioner should be deemed to be in lawful custody has no substance in the given circumstances.
' The challan in the case having already been submitted and some evidence having already been recorded by the Magistrate before whom the trial was pending at the initial stage, an order remanding the custody of the petitioner was obliged to be passed under section 344, Cr. P. C. There is nothing on record to show that any such order was ever passed by the Tribunal even after 21.3- 1977, when the petitioner was acquitted by the High Court in another case accepting his appeal.
' The further argument that the order of the Tribunal though passed in relation to Case No, 651/75 remanding the custody of the petitioner to jail authorities should be deemed to have been passed in Case No, 908/75 has also no substance. I have checked up the relevant record, maintained by the jail authorities carefully in the presence of the Deputy Superintendent of Jail as well as the learned A. A.. G. The remand order throughout has been passed in Case No, 651/75 in which the petitioner is admittedly on bail. It is admitted by the respondents that the file of Case No, 908/75 was received by the Tribunal in April 1977, as mentioned above, and before that it was pending in the High Court. I fail to see as to how the aforesaid order can be deemed to have been passed in Case No, 908/75 when the relevant record thereof was not even with the Tribunal.
12. Further, after the record was received by the Tribunal in April 1977, it was necessary to pus the remand order after having applied full mind in the given circumstances of the case. It is evident that no mind was, at all, applied by the Special Tribunal while remanding the petitioner to the jail even after 21-3-1977. If it had been so then at least Case No, 908/75 would have been mentioned in the remand order itself. Since the custody of the petitioner was always remanded to the jail authorities in Case No, 651/75 before 21-3.1977 or April 1977, as the case may be, the Special Tribunal without applying its mind and without looking into the relevant record and without seeing as to whether the remand was necessary to be granted mechanically passed the order remanding the custody of the petitioner in Case No, 651/75. It may be mentioned here that it continued to be so even after the reminder having been given by the jail authorities that no judicial warrant had been issued in Case No, 908/75. In the circumstances the aforesaid orders, though passed after 21-3- 1977, cannot be deemed to have been passed in Case No, 908/75.
13. According to law, in order to obtain remand under section 344, Cr. P. C. Three conditions are required to be fulfilled :
(I) some evidence should be adduced before the Court which should be sufficient to raise suspicion of the accused's guilt and the Court should be sure that further evidence to strengthen the suspicion in the belief is expected to be collected.
(ii) a police report in writing of acts constituting the offence must be produced to enable the Court to take cognizance of the offence ; and
(iii) if the nature of the case is such that no cognizance of the offence can be taken without the previous sanction, then such sanction should be produced to enable the Court to take cognizance of the offence."
' It has been held in various authorities that proceedings relating to grant of remand are proceedings within the meanings of section 310, Cr. P. C. And during these proceedings an accused has right to be represented by his lawyer and to have access to his relatives for that purpose.
14. According to law, it is obligatory for the Court concerned to record its reasons for ordering detention of a person in custody. Evidence ha to be weighed for deciding whether there is any ground for remanding a person to custody as law views with disfavour the detention of prisoner's detention in custody without good reasons. It is the duty of the Court itsel to weigh, in the given circumstances, whether there is any reasonable ground for passing an order of remand and for that purpose it has to look into the evidence and to determine the sufficiency of the grounds for passing a remand order.
' Under paragraph 12 of Chapter XI-B of the High Court Rules and Orders, Vol. III, when a person is produced before a Magistrate for remand it is the duty of the said Magistrate to inform him about his position as such; that a remand has been applied for and whether the accused has any objection to the grant of the same. The Court is obliged under the law, before granting remand, to study the police diaries to ensure as to the accusations against the accused person and the evidence secured to justify the remand. Since the right of personal liberty is precious one, therefore, the Courts should be jealous to guard the same against any invasion. An accused person cannot be detained on mere expectation that time would show his guilt, or upon the chance of further facts coming to light.
' It has been held in many authorities that a Court while passing a remand order cannot be said to be acting in executive capacity; the remand' proceedings being judicial in nature should be conducted judiciously.
15. I have discussed the aforesaid point in detail in the judgment delivered by me in Writ Petition Nos 1162/77 (Iqbal Ahmad Khan etc. v. State etc.), decided on 7-6-1977. Further reliance in this regard can be placed upon State v. Samiullah Khan rand others (1), Farooq Bedar v. Police, West Pakistan, Lahore and others (2), State v. Wazir Khan (3), Rashid v. State and 2 others (4), lauda Bakhsh v. Crown (5) and Sundar Singh v. Emperor (6).
In the present case, mind having not been applied to the facts thereof, reasons having not been given, at all, and the petitioner accused having not been heard in relation to the grounds of remand, it cannot be said that remand order, if ever passed even after 21-3-1977, was passed in accordant
(1) PLD 1959 Kar. 157 (2) PLD 1969 Lah. 1020
(3) PLD 1968 Lab. 140 (4) PLD 1970 Lab. 389
(5) 1872 P R 1 Crl. 21 (6) AIR 1930 Lah. 945 with law. If the record of Case No, 908/75 had been examined by the Special Tribunal at the time of remanding the custody of the petitioner then there was no occasion to mention Case No, 651/75 while passing the necessary order. It is evident on record, as mentioned above, that the jail authorities had been reminding the Special Tribunal even after April 1977, that the custody of the petitioner had not been committed to them in Case No, 908/75 and necessary order in that behalf might be, passed, but the needful in this behalf was never done. It means that the necessary record of Case No, 908/75 was never examined and was never available with the Tribunal while remanding the custody of the petitioner. As such, the aforesaid contention of the learned A. A.-G.
Has no force and the same is hereby repelled.
16. Section 8 of the Defence of Pakistan Ordinance contemplates that the Special Tribunal would consist of three members to be appointed by the Central Government. All the aforesaid remand orders passed by the Tribunal in Case No, 651/75 have been signed by a single member of the Tribunal. It has been argued that since the petitioner has been appearing before the Full Tribunal, therefore, even if the remand order has been signed by a single member it will not invalidate the same. I am afraid, this contention is devoid of any force. It does not appear from the record that the petitioner has been appearing before the Full Tribunal. If it had been so, then the order passed in this behalf would have been signed by all the three members. No doubt that through a notification, not placed on the file, the Tribunal has been authorised to conduct the proceeding even with two members, even this requirement has not been fulfilled in the present case.
' Section 10(2) of the Ordinance provides that memorandum of evidence recorded by the Tribunal may be signed by a member of the same and it shall form part of the record. It has been argued that on this basis the order of remand, though signed by a single member, should be deemed to be valid. This contention has no force. As discussed above, according to law an order of remand being judicial proceeding has to be passed after applying full mind in the given circumstances of the case and after giving reasons therefor; while in the case of recording evidence such application of mind is not required. The provision as contained in section 10(2), therefore, does not help the respondents for the purpose of treating the orders passed by a single member to be valid.
' On this view of the matter also the aforesaid orders of remand, passed by a single member of the Tribunal, being illegal and without jurisdiction cannot be maintained even if they are deemed to have been passed in Case No, 908/75.
17. The contention of the learned A. A.-G. That the order dated 9-6-1977, passed on the bail application of the petitioner dismissing the same, should be deemed to have been passed under section 344, Cr. P. C. Is illogical. As discussed above, the said order cannot be deemed to have been passed under section 344, Cr. P. C. Remanding the custody of the petitioner to the Jail authorities in a lawful manner, as no reasons therefor have been given by the Trtbunal. The operative part of the order says : "After having anxiously considered the argument of the learned counsel for the petitioner we find that no ground for bail has been made out."
' The application for bail was dismissed on that basis. Even the earlier part of the order does not mention as to whether the custody of the petitioner should be remanded to the jail authorities or not. In view of that the said order cannot be deemed to have been passed under section 344, Cr. P.
C. Remanding the custody of the petitioner to the jail authorities in a lawful manner.
18. As far the argument while relying upon section 537, Cr. P. C. That since there has been an error, omission or irregularity by referring to Case No, 651/75 and not to Case No, 908/75 while passing the remand order, therefore, the same can be rectified or otherwise cannot be deemed to be fatal so as to invalidate the order, I am Afraid the same without any force. I have already held above that the aforementioned order was never passed in Case No, 908/75. If it had been so then application of the provision as contained in section 537, Cr. P. C. Might have been considered Further, the provision as contained in section 537 envisages an order passed by a Court of competent jurisdiction and if during the course of the proceedings by that Court certain error, omission or irregularity has been committed the same may not be taken into consideration while disposing of the case on appeal or revision, as the case may be. In the present case, as discussed above, even if the said order may be deemed to have been passed in Case No, 908/75, the same is not valid having been passed by a single member only who under the law was not competent to pass any such order. Moreover, the illegalities discussed above, committed while passing the said order cannot amount to errors or omissions or irregularities committed by the Court while conducting the proceedings. The vital rule of procedure as contemplated by section 340, Cr. P. C.
Has been violated. The reliance placed by the learned A. A .G., while defending the aforesaid order, upon Abdul Subhan Khan and others v. The State (1) is 'of no help to him. It was a case of murder and the appellants before the High Court were involved therein It was contended on their behalf that their conviction under section 302/149, P. P. C. Was not tenable as charge in that behalf had not been properly framed. The only omission or error pointed out by the learned counsel was with regard to the words used- by the trial Court while framing the charge "committed death of Mantazullah. It was found by the High Court that though the charge only to that extent was not properly framed and proper charge would have been to mention in the Vace of aforesaid words, "committed murder by intentionally causing death of Mantazullah". The question which confronted the Court was as to whether the conviction as such was illegal and unsustainable on that account, or whether the aforesaid defect was cured under section 537, Cr. P. C. It was held that crucial test to be applied in such a case was, whether the accused Lad a fair trial in spite of the transgression of the prescribed rule of procedure; and if there was any illegality the High Court would not interfere, except in case of failure of justice. This finding was based upon the observation that it was never the intention of the Legislature that the persons who committed offences should escape punishment on technical ground which did not affect the merit and substantial justice in the case.
Where the law or section of the law is mentioned in the charge the omission of details is not so material as to prejudice the accused. It was further observed in that case that the appellants knew from the very beginning of the trial as to what charge they were required to answer, the charge
(1) 1968 P Cr. L J 263 under section 302/149, was explained to them and thereafter evidence was led by the prosecution that they formed an unlawful assembly with the common object of staining the deceased and others and in pursuance of their common object they caused fatal injuries which resulted in the instantaneous death of Mantazullah. It was further observed that the appellants were examined under section 342, Cr. P. C. And their attention was drawn to the material portions of the evidence at that time and thus they fully knew the charge they were to meet and there was no reason, whatsoever, for any misconception.
19. In the present case, no order of remand, whatsoever, was ever passed in Case No, 908. If any such order had been passed containing any error, or omission or irregularity then question of its being cured under section 537, Cr. P. C. Might have been considered. That being not the position the said provision is not applicable to the given circumstances of the case. Further, the provision as contained in section 537 aims at curing such error, omission or irregularity, in certain proceedings wherein some order has been passed by the Court of competent jurisdiction while deciding the matter under Chapter XXVII or in appeal or revision, as the case may be. This is not the position in the present case. In the instant case it is only to be seen whether the petitioner has been remanded to custody lawfully or not. When proceedings for the purpose of. Committing the custody of the petitioner in Case No, 908 have never been held, at all, the said provision of law would not be applicable.
20. The judgment delivered by the High Court in Writ Petition No, 625/77 is also of no help to the respondents for the reasons discussed above. In that case remand order was given by the Magistrate concerred committing the custody of the detenus in the case registered against them.
It was during the month of March 1977, that some of the detenus could not be produced before the Court at the time of remanding their custody to Jail authorities. The relevant papers of the case were, however, produced before the Court before the remand order was passed. It was explained by the Magistrate concerned, who appeared before the High Court on 14.4-1977, that since the law and order situation was bad on the date when the remand order was passed, therefore, the detenus could not be produced before him by the police bn that date. That being the position it was observed by the High Court in its judgment that it was necessary for the Magistrate concerned to see the under-trials while granting remand order or dealing with them and hear their grievances and, it necessary, record them and pass appropriate order in writing so that in a disputed case where proceedings of this nature/are instituted a reference to the record would be sufficient for ascertaining the legality of the action taken. Admittedly the matter with regard to remand being legal or otherwise was referred to the Magistrate concerned with a direction that he should ascertain from the detenus, if necessary, by recording their statements the illegalities, if any, committed with a view to regulate their detention and to make it in accordance with law applicable to the under-trials.
' It may also be necessary to mention, as discussed above, that the detenus in that case being undertrlals and arrested at Mianwali had been transferred to the Jail authorities at Jhang. The order passed in this behalf being illegal was set aside. It is, however, admitted on record in that case that the remand order, whether defective or not, was passed in the case registered against the detenus and any error or omission alleged to have been made while passing that order was directed to be looked into by the Magistrate himself.
' The facts of the present case are, however, quite different from the said case.
21. It has been argued by the learned Assistant Advocate-General on the basis of the authorities relied upon by him, as mentioned above, that the relief as prayed for should not be granted to the petitioner as the same would be rendered ineffective by his arrest on the basis of warrant issued by the Special Tribunal subsequent to the order of this Court.
' The first case relied upon by the learned counsel is 1963 Supreme Court. It was a case for the transfer of a shop (godown) in favour of a non-claimant displaced person under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The Rehabilitation Authorities in that case had contended that since the property was likely to be transferred by the Central Government by an order under section 10(2) of the Act in favour of the State Bank of Pakistan, therefore, the, relief as prayed for should not he granted. The tenor of the majority judgment shows that since the transfer of the property in question in that case was likely to be made in favour of the petitioner in the public interest, therefore, interference was not made by the Supreme Court. However, his Lordship Mr. Justice B. Z. Kaikaus differed with the majority view holding that it would be proper to quash the orders of the Rehabilitation Authorities acting in certiorari leaving the Government to take such further action as may be open to be done in accordance with law. In the opinion of his Lordship the Court should not be deterred in granting relief as prayed for, if otherwise provided by law, on the ground that the same would be rendered ineffective by some subsequent action on the part of the Government or authority, as the case may be. This view was upheld in PLD 1964 SC 673.
2?. In the above case two petitions were moved on behalf of Jamat-iIslami of Pakistan under Article 98 of the late Constitution of 1962, one in the West Pakistan High Court, Lahore and the other in the High Court of Dacca, calling into question the notification issued by the two Provincial Governments on 6th of January 1964, extending the Criminal Law Amendment Act (XLV of 1908), as amended by Ordinance XXI of 1960, to the two provinces declaring Jamat-i-Islami to be 'unlawful association' under section 16 of that Act; and further notifying certain places under section 17.A of the said Act as those which were being used for the purpose of Jama'at. The petition filed in the High Court at Lahore was dismissed but that presented to the High Court at Dacca succeeded. The decision of the Dacca High Court was challenged on behalf of the Province of East Pakistan while the decision of the West Pakistan High Court was challenged on behalf of Syed Abu'l Ala Maudoodi and others in respective appeals. It was urged on behalf of Jamat-i-Islami before the Supreme Court that the action taken was illegal as Act XIV of 1908 had lost its validity owing to its repugnancy to the Political Parties Act (III of 1962) ; that due notice of the publication of notice under section 1(2) of Act XIV of 1908 not having teen given, the notifications that followed under sections 16 and 17-A of the Act were bad in law; the Provincial Government had merely acted at the behest of the Central Government and the action taken, therefore, was colourable; Act XIV of 1908 was inconsistent with Fundamental Right No, 7 included in Chapter I of the Constitution and was, therefore, void ; and that the action taken was also vitiated on account of the failure to observe the principle of natural justice in so far as no notice of the proposed action was given to Jamat-i-Islami and no opportunity was afforded to them for putting their point of view before the authorities concerned.
23. The West Pakistan High Court dismissed the petition filed before it mainly on the ground that it was open to the Court to decline to exercise jurisdiction under the said Article if the order to be issued was likely to become Ineffective on the taking of certain remedial steps. It was observed that it was still possible for the Government to amend the Criminal Law (Amendment) Act XIV of 1908 in such a manner as to bring it into conformity with the fundamental right affected.
' It was observed by the Supreme Court that if such a view was to prevail then in no case could an existing Statute, which was inconsistent with the exercise of any fundamental right granted by the Constitution, ever be successfully challenged as it would have the effect of turning Article 98 of the Constitution into a dead letter, as far as the matters of this nature are concerned. It was held that the circumstance that the law can be subsequently amended can hardly be a relevant consideration for refusing the relief prayed for if conclusion has been arrived at that the restrictions imposed by the amendment were clearly in violation of the fundamental right granted by the Constitution. It was further held that it was always open to the Legislature to amend law, but there was hardly a case in which the Courts had refused to grant relief because of the possibility of the law being amended and the order of the Court being rendered thereby ineffective. The case reported in PLD 1963 SC 633, relied upon by the learned A. A.-G. Was considered In that authority and not followed.
24. In the Province of East Pakistan v. Daulatpur Jute Mids Ltd. And another (1) an action was taken against the respondent under certain provisions of the Defence of Pakistan Rules, 1965. The impugned order passed by the Government being not proper and in accordance with law was held liable to be net aside. It was contended in that case before the Supreme Court on behalf of the Government that nonetheless interference was not called for under Article 98 because it was still' open to the Government to pass a proper order after considering the relevant facts and thus defeat any directive that the High Court might issue; This argument was found wholly untenable as, it was observed, the High Court was not obliged to issue any directive to the Government to take any particular kind of action. It was held that all that it needed to do was to declare the impugned order or notification having been made without lawful authority and then leave the Governor to act in accordance with law; the High Court was not bound to speculate upon what the Government was and not likely to do in the future. It was further held that under Article 98, the High Court merely pronounces upon the legality or constitutionality of an act of the executive. In this, It is not to be deterred by the possibility of the executive doing something afterwards by following right procedure or complying with the legal formalities. (Underlining* is mine). It was further observed that High Court does not substitute its own opinion for the opinion of the executive in such matters nor does it dictate to the executive as to the nature of the action to be taken; thus no question of rendering order of the High Court futile or ineffective can
(1) PLD 1968 SC 398 *Wore in italics) arise in these circumstance. It was held that the Courts are merely interested in seeing that the executive authorities act in accordance with law and do not take away the rights by arbitrary or Illegal exercise of power: they are not interested in seeing as to what kind of action will or will not be taken. Their Lordships of the Supreme Court ultimately dismissed the appeal filed by the Province of East Pakistan,
25. Similar view was taken by the Supreme Court in Rahim Shah v. Chief Election Commissioner of Pakistan and others (I). In that case a writ petition was filed in the High Court against the order paused by the Chief Election Commissioner which was accepted and the impugned order was set aside on the ground that there was no evidence on record to support the finding of fact arrived at by the Chief Election Commissioner. It was argued that the jurisdiction of the High Court to issue a writ of certiorari was confined to the determination whether the Chief Election Commissioner had acted with or without jurisdiction. It was held that the scope of interference in the High Court was limited to the inquiry whether the Chairman of the Tribunal had acted in taking the proceedings in accordance with law. If the answer be in the affirmative the High Court would stay its hands and would not substitute its findings for the findings recorded by the Tribunal. Cases of no evidence, bad faith, misdirection or failure to follow judicial procedure etc. Were treated as acts done without lawful authority and vitiating the act done by the Tribunal on this ground (underlining* is mine).
26. The proposition of law as laid down in the aforesaid cases by their Lordships of the Supreme Court clearly shows that the High Court should not be influenced by the tact that any order to be passed by it would be rendered ineffective by issuing a valid order subsequently or by following the correct procedure as laid down by law. It has to see as to whether the impugned order can hold good ? If the said order has been passed in violation of the legal provisions, affecting the rights of a party, then the same should be set aside irrespective of the fact that the wrong done can be rectified later on .
' In the present case, as discussed above, the petitioner was never remanded to the custody of the jail authorities in Case No 9J8/75 and even after 21-3-1977, when he was acquitted by the High Court. In another ease, the Special Tribunal never passed any valid order in this behalf. The argument that such error or irregularity can be rectified subsequently by passing a valid order has no force in the given circumstances. Liberty of a person, which is a very precious right of an individual, Is involved in the present case. Even if it is accepted for argument's sake that the same would be jeopardized later on by any order to be passed in this behalf by the Special Tribunal, this Court should not hesitate in passing the right order if the petitioner is found to be in custody without any lawful authority.
27. The view taken in PLD 1964 Kar. 478 was not approved by the Supreme Court in the appeal filed by Syed Abul Al'a Maudoodi, reported in PLD 1964 SC 673. Therefore, the same being not relevant cannot be considered in the present case. The case reported in L D 1967 Lah. 762 is also
(1) PLD 1973 SC 24 not relevant to the facts of the present case. The obiter dictum that Court should refuse to set aside an order If the same would be rendered ineffective and defeated subsequently was passed on the basis of the case reported in PLD 1963 SC 633. This obiter dicta was otherwise not made in the given circumstances of the case. It was made while discussing the nature of relief to be granted under Article 98 of the Constitution of 1962: as to how and in which cases relief under that Article should be granted. The real point Involved in that case was as to whether in the given circumstances laches in filing the writ petition in the High Court were liable to be condoned. No such circumstance was brought on record that if any relief was given in that case then the same would otherwise be rendered ineffective by an act to be done subsequently by the Government.
28. Similarly, the case reported in PLD 1968 Lah. 403 is also not helpful to the respondents. In that case the conduct of the petitioner before the High Court was found to be most objectionable, rather fraudulent and dishonest as he himself was responsible for not administering oath to one of the respondents as member of the Town Committee, Dhaban Singh in District Sheikhupura. It was contended by the petitioner before the High Court that since the aforesaid member/respondent had not taken oath in accordance with law, therefore, his vote having been cast in no-confidence proceedings against him cc uld not be considered to be valid. The conduct of the petitioner was noticed in that context and it was held that since the aforesaid member could be administered oath of office in proper form and vote or no-confidence could again be passed against the petitioner, therefore, the relief as prayed for could not be granted. Further, the tenor of the judgment clearly shows that the relief was refused mainly on account of the bad conduct of the petitioner.
' Even otherwise in view of the proposition of law laid down by the Supreme Court in the authorities referred to above, PLD 1968 Lab. Need not be followed.
29. For the foregoing reasons, it is held .That the petitioner has been in custody without any lawful authority and lawful manner, his custody having not been remanded by any order, whatsoever, by the Special Tribunal even after 21-3-1977, when his appeal was accepted by the High Court in another case, he cannot be deemed to be in lawful custody. The petition Is, therefore, hereby accepted and he is set at liberty.
' This order, however, does not amount to the acquittal of the petitioner in Case No, 908/75, pending against him before the Special Tribunal, Punjab.