The petitioner's brother Shahid alias Shanda Lamba has been arrested in a murder case F.I.R. No,125 dated 15-3-1994 registered at Police Station, Hajipura, Sialkot. He is also stated to be involved in other criminal cases registered in Sialkot District. The petitioner apprehends that his brother Shahid alias Shanda Lamba who is, at present, confined in District Jail, Sialkot, may be done to death by or at the instance of Police by way of extra-judicial killing. He further prays that the accused Shahid alias Shanda Lamba may not be taken out of the Jail in the interest of his proper safety and security.
2. The learned Assistant Advocate-General present in Court also shares the view of the learned counsel for the petitioner and states that certain directions may be passed by this Court to ensure the safety of the accused Shahid.
3. I have heard the learned counsel for the petitioner as well as the learned Assistant Advocate- General at length. Article 4 of the Constitution expressly provides that no action detrimental to the life, liberty anybody of any person shall be taken except in accordance with law. The Constitution also guarantees fundamental right enshrined in Article 9 of the Constitution in that no person shall be deprived of life or liberty save in accordance with law. The Constitutional guarantees make it clear that even the undertrials or accused are not denuded of their fundamental rights as guaranteed by the Constitution in their capacity as citizens. Quite recently, the Hon'ble Supreme Court of Pakistan took a very serious view of the extra judicial killings by the State Agencies in the recent case of dissolution of the National Assembly as it was one of the grounds in which the National Assembly was dissolved. Suffice it to refer to the Case of Smt. Nilabati Behera alias Lalita Behera v. State of Orissa and others AIR 1993 SC 1960 where Article 21 which is parimateria with1 Article 9 of the Constitution of Islamic Republic of Pakistan, 1973, came up for interpretation. Justice Dr. A.S. Anand of the Indian Supreme Court held in that case as under:-- "Convicts, prisoners or undertrials are not denuded of their fundamental rights under Article 21 and it is only such restrictions, as are permitted by law, which can be imposed on the enjoyment of the fundamental rights by such persons. It is an obligation of the State, to ensure that there is no infringement of the indefeasible rights of a citizen to life, except in accordance with procedure established by law, while the citizen is in its custody, whether he be a suspect undertrial or convict.
His liberty is in the very nature of things circumscribed by the very fact of his confinement and, therefore, his interest in the limited liberty left to him is rather precious. The duty of care on the part of the State is strict and admits of no exceptions. The wrongdoer is accountable and the State is responsible if the person in custody of the police is deprived of his life except according to the procedure established by law. The defence of 'sovereign immunity' in such cases is not available to the State."
4. In this view of the matter, the Home Secretary, Government of the Punjab, the Inspector-General of Police, Punjab, Lahore and the Senior Superintendent of Police, Sialkot are directed to take all necessary steps to ensure that the apprehension of the petitioner remains a dream and the accused does not come to any harm. They shall be responsible if they failed to ensure the safety and security of the accused.
5. The writ petition is disposed of with the above directions. Ms. Benazir Bhutto v. President of Pakistan 1997 SCM R 353.