' Mr. Waal Ahmad Khan, Advocate, and fifty-two others, detained presently in Camp Jail, Lahore and District Jail, Kot Lakhpat, Lahore, have fled the present writ petition alleging that after the pronouncement of the judgment of a Full Bench of this Court in Writ Petition No, 777/77 etc., on 2-6- 1977, declaring Act X of 1977, amending section 2 of the Pakistan Army Act whereby the civilians, who were previously not subject to the jurisdiction of the said Act, were made subject thereto and power was given to the Armed rorces to try them for large number of offences under the Pakistan Penal Code and other Penal Acts, to be invalid being contrary to and beyond the scope of Article 245 (1) of the Constitution of Islamic Republic of Pakistan, they are being detained without any lawful authority and in an unlawful manner.
2. According to the statement of Mr. Muhammad Khan, Superintendent, Camp Jail, Lahore, all the petitioners, except Nos. 1, 34, 47, 48, 49, 49-A, 51 and 52, are committed to his custody and they are presently lodged in Camp Jail, Lahore, being involved in case F.
1. R. No, 217, dated 5.5-1977 lodged with Police Station Civil Lines, Lahore under rules 49 and 92, Defence of Pakistan Rules and section 59 of the Army Act. He has stated, after perusal of the relevant record that, besides this, petitioner No, 4, Abdul Ejaz Qadri, is also involved in case F. I. R. No, 40/77, lodged with Police Station, Mughalpura, Lahore under section 16 of Maintenance of Public Order Ordinance ; petitioner No, 31, Maulana Zahid-ur-Rashidi, in cases under F. I. R. No, 32/77, lodged with Kohsat Police Station, Islamabad, under rule 49, D. P. R., under F. I. R. No, 33/77, lodged with Railway Police Station, Wazirabad for offences under sections 427, 147 and 148/149, P. P. C. And section 127 of the Railways Act and under F. I. R. No, 31/77, Also lodged with Railways Police Station, Wazirabad, for offences under sections 436, 147 and 149,.P. P. C. And rule 43, D. P. R. 1 petitioner No, 42, Ishaq Zaffar, is also involved in case F. I. R. No, 32/77, lodged with Police Station, Kohsar, Islamabad, under section 120-B, P. P. C. And rule 49, D. P. R. 1 and petitioner No, 43, Abdul Waheed Khan, is also involved in another case under F. I. R. No, 32/77, under section 120-B, P. P. C. And rule 49, D. P. R., lodged with Kohsar Police Station, Islamabad.
3. Mr. Muhammad Khan has further stated that according to the record, initially the custody of all the petitioners, including that of Nos. 1, 34, 47, 48, 49, 49-A, 51 and 52, was committed to the Camp Jail, Lahore. By Ch. Shaukat Ali, M. I. C., Lahore on 6.5-1977. However, according to him, custody of the latter, they having been awarded better class, was transferred to the District Jail, Kot Lakhpat, Lahore, on 8-5-77. He has submitted on the basis of the record that custody by the learned Magistrate was given uptil 16-5-1977. He has further stated that since the cases of the petitioners were transferred to the Military Court, therefore, one Lt.-Col. Wager Ahmad Naseer made order on 7.5-1977 committing their custody to the jail authorities till 16-5-1977. He has further stated that according to the record relating to 44 of the petitioners, presently lodged in Camp Jail, the above- mentioned Officer on the said date extended their remand period till 28-5-1977, when he again committed their custody to the jail authorities for the purpose of "day-to-day hearing". He has stated that thereafter, on 3-6-1977, Qazi Ghazanfar Ali, a learned Member of the Special Tribunal, Punjab, visited the jail premises and directed the jail authorities to keep the petitioners detained in jail and produce them before the Tribunal on different dates such as 13th, 14th, 15th, 16th and 17th June, respectively. According to him the said 44 petitioners are now being kept by him in the jail under the orders of Qazi Ghazanfar Ali, as referred to above.
3. Mr. Afaal Mahmood, Assistant Superintendent, District Jail, Kot Lakhpat, Lahore, who is present in the Court alongwith the relevant record, custody of petitioners Nos. 1, 34, 47, 48, 49, 49-A, 51 and 52 was transferred to District Jail, they having been awarded better class, on 8-5-1977. According to him all of them are involved in a case under F. I. R. No, 217, dated 5-5-1977 lodged with Police Station, Civil Lines, Lahore as referred to above. He has stated on the built of the record that in addition to this, petitioners Nos. 34 and 51 are also involved in case under F. I. R. No, 32/77, dated 5- 5-1977 for offences under rule 49, D. P. R. And section 120-B. P. P. C. And petitioner No, 47, Sardar Muhammad Inayat Khan, is also involved in another case under F. I. R. No, 135/77 for an offence under section 16 of M. P.
0.
' Mr. Thal Mahmood has stated that custody of the said petitioners was initially committed to the judicial lock-up by Ch. Shaukat Ali, M. I. C., Lahore on 6-5-1977 till 16-5.1977 but since their cases were transferred to the Military Court, therefore, Lt.-Col. Wagar Ahmad Naseer made a fresh order on 7-5-1977 remanding their custody to judicial lock-up till 16-5-1977. He has further stated that thereafter the petitioners have been appearing before the said Tribunal for day-to-day hearing of their cases. He has submitted, after due perusal of the relevant record, that in the case of said eight persons no fin ther remand order was passed committing their custody to judicial lock-up and it was on 3-6-1977 when Qazi Ghazanfar Ali, a learned member of the Special Tribunal, Punjab, visited Kot Lakhpat Jail and directed the authorities to keep the petitioners in jail and produce them before the Tribunal on 17-6-1977.
4. It has also been stated by both the Jail Officers that none of the petitioners was produced before the learned member of the Tribunal when he passed the said order committing their custody to judicial lock-up and they were never heard nor represented before or at the time when the said order dated 3.6-1977 was passed. However, according to Mr. Muhammad Khan, Mr. Umer Kasuri, Advocate, appeared before the learned Member on behalf of Mr. Gul Khan, his driver, and contended that unless the bail plea of the said petitioner was decided the remand order could not be passed.
5. It has been argued by Rana Abdur Rahim, the learned counsel for the petitioners that after Act X of 1977, as referred to above, has been struck down by a Full Bench of this Court and has been held to be invalid being contrary to and beyond the scope of Article 245 (1) of the Constitution, all the orders passed by the Military Courts/Army Officers being null and void have no substance. It has been contended that the Military Courts/ Army Officers were given power to try the civilians in relation to various offences under the Pakistan Penal Code and other Penal Acts and after Act X of 1977, whereby the said amendment was Introduced and such authority was given, having been held to be invalid, the orders passed by the Military Courts/Army Officers committing the custody of the petitioners to the jail authorities or otherwise passing orders extending their remand period being null and void and the Special Tribunal otherwise having not passed/extended their remand period, they are being illegally detained in jail and as such they are liable to be set at liberty.
6. It has also been urged on behalf of the petitioners, while relying upon section 8 of Defence of Pakistan Ordinance, 1971, that Special Tribunal consisting of three members appointed by the Federal/Central Government, one member thereof, alone, is not competent to pass any order with regard to committing the custody of the petitioners to the jail authorities, or otherwise extending their remand period. According to him, even according to the notification issued by the Government, at least, two members of the Tribunal can hold judicial proceedings and in the absence thereof any order passed by a single member cannot be held to be valid. He has submitted that proceedings in remand are essentially judicial proceedings according to law.7. It may be mentioned here that in the present case, Qazi Ghasanfar Ali, a learned member of the Special Tribunal, Punjab, visited Camp Jail, as well as District Jail, Rot Lakhpat, Lahore, on 3-6-1977 and directed the jail authorities to keep the petitioners being undgtrials and produce them before the Tribunal on 15.6-1977. It has been admitted by both the Jail Officers that none of the petitioners was ever produced before the Tribunal or even before the learned single member of the Tribunal and order dated 3.6-1977, as referred to above, was passed by Qazi Ghazanfar All in the absence of the petitioners. They were neither hoard nor given an opportunity of being heard before the said order was passed. It is also admitted on record that at the time when the said order was passed the relevant record, such as police report and other necessary documents in relation to the cases registered against the petitioners were not available with the learned member. The record produced by the jail authorities shows proceedings according to law.
7. It may be mentioned here that in the present case, Qazi Ghasanfar Ali, a learned member of the Special Tribunal, Punjab, visited Camp Jail, as well as District Jail, Rot Lakhpat, Lahore, on 3-6-1977 and directed the jail authorities to keep the petitioners being undgtrials and produc them before the Tribunal on 15.6-1977. It has been admitted by both the Jail Officers that none of the petitioners was ever produced before the Tribunal or even before the learned single member of the Tribunal and order dated 3.6-1977, as referred to above, was passed by Qazi Ghazanfar All in the absence of the petitioners. They were neither hoard nor given an opportunity of being heard before the said order was passed. It is also admitted on record that at the time when the said order was passed the relevant record, such as police report and other necessary documents in relation to the cases registered against the petitioners were not available with the learned member. The record produced by the jail authorities shows Ali, alone, passed the aforesaid order. It is also admitted by the parties that challan in all the cases had been submitted and the trial of the petitioners was being carried on by the Military Court concerned and it was on 3-6-1977, after the judgment of the Full Bench of this Court, as referred above was pronounced that the Military Court concerned ceased to have jurisdiction in the matter and did not hold any trial against the petitioners.
8. It has also been contended on behalf of the petitioners that the aforesaid order dated 3-6-1977 having been passed without applying mind and without giving any reason cannot be sustained in law. According to the learned counsel, even otherwise the said order does not show in itself to have been passed in remand proceedings.
9. Mr. Rashid Aziz, the learned Assistant Advocate-General, Punjab, appearing on behalf of the respondents, on the contrary, has argued while relying upon section 10 (2) as well as subsection (5) thereof, that since the memorandum of the proceedings can be signed by a single member of the Tribunal, therefore, the order dated 3-6-1977 having been passed by a single member is justified in law. He has further argued on the basis of the said provision that after an accused person has once appeared before the Tribunal he can be tried in his absence if in the opinion of the Tribunal such absence has been brought about by the accused himself with a view to Impeding the course of justice ; or the behaviour of the accused in the Court has been such as to impede the course of justice and the Tribunal in the circumstances has ordered his removal from the Court. This argument has been advanced in order to justify the order dated 3.6-1977, admittedly passed in the absence of the petitioners as well as the relevant record. He has further contended that the said order amounts to remand order as by that the petitioners have been directed to be kept in jail and produced before the Tribunal on a particular date.
10. According to law, as laid down in State v. Sami Ullah Khan others (0, in order to obtain remand, under section 344, Cr. P. C. Three conditions are required to be fulfilled t some evidence should be adduced before the Court which should be sufficient to raise a suspicion of the accused's guilt and the Court should be sure that further evidence to strengthen suspicion in the belief is expected to be collected, a police report in writing of acts constituting the offence must also be produced to enable the Court to take cognisance of the offence, and if the nature of the case is such that no cognisance can be taken of the offence without previous 'sanction then such sanction should be produced to enable the Court to take cognizance of the offence.
11. It has been held In Muhammad Raft v. The State and 2 others (2) that according to law an accused person is to be forwarded to a Magistrate and not that a Magistrate has to make himself available to the police in a building where a police lock-up is situated. It has also been held that when a Magistrate passes an order of remand to police custody under the relevant provision of law he performs a judicial function which ought to c be performed in an open atmosphere. If the Magistrate performs such judicial functions, such as the remand proceedings, in police stations where the accused admittedly have no means to have recourse to a lawyer or their relatives the whole significance of section 167 as well as section 344, Cr. P. C. Would disappear and it will amount to a farcical performance of
(1) PLD 1959 Kar. 157 (2) 1969 P Cr. L J 873 imperative legal requirement concerning the liberty of a citizen. It has also been held that the action of the Magistrate in going from one police station to another police station and passing orders of remand to police 'custody while detenus were in the lock-up is clearly illegal.
' This view further gains support from the State v. Muhammad Yousaf (1) holding that the practice of Magistrates themselves proceeding to places of confinement for the purpose of passing remand order instead of the prisoners being brought to them is illegal.
12. In the present case it is admitted on record that a learned single member of the Special Tribunal visited both the jails and passed the aforesaid order on 3-6-1977. This order was passed in the absence of the petitioners. They were never summoned no afforded an opportunity of being heard.
The three conditions which are liable to be fulfilled before the remand order is passed, as laid down in PLD 1959 Kar., cited above, had not been fulfilled in the present case when the alleged remand order was passed. As discussed above, no relevant record, whatsoever, was available with the learned member of the Tribunal showing as to what evidence had been adduced in the case and what facts were constituted against the petitioners according to the cases registered against them. In the absence thereof it cannot be said that the order in question was passed after applying mind.
13. It has been held in Farooq Bedar v.
1.-G. Police, West Pakistan, Lahore and others (2) that the proceedings relating to grant of remand are prcceedings within the meanings of section 340, Cr. P. C. And during these proceedings an accused has a right to be represented by a lawyer and to have access to his relatives for that purpose. The production of an accused person before a Magistrate at a place where he is in a state of helplessness and in complete detachment from the world outside and where he has no freedom of communication with his lawyer or his relatives will actually amount to a travesty of judicial proceedings. In that case actual production of the detenu before the Magistrate at the time of passing of remand order was found to be doubtful. It was found on the basis of the evidence before the Court that the detenu was in lock-up at the time when the remand order was passed. In view of that the said order of remand was held to be violative of the relevant provisions of law. It has also been held in the aforesaid case that under subsection (3) of section 167 of the Code it is obligatory for the Magistrate concerned to record his reasons for ordering detention of a person in custody. He has to weigh the evidence and decide whether there is any ground to remand a person to custody, as law views with disfavour the continuation of prisoner's detention in police custody without good reasons. According to law it is the duty of the Magistrate concerned himself to weigh in the given circumstances that time is any reasonable ground for passing an order of remand and for that purpose be has to look into the evidence and to determine the sufficiency of the grounds for pa sing a remand order. According to para. 12 of Chapter XI-B of the High Court Rules and Orders, Vol. III, when a prisoner is produced before a Magistrate for remand it is the duty of the said Magistrate to inform him ab out his position as such and that 8 a remand has been applied for and whether the accused has any objection to the grant of the same. The order granting remand is to be passed in the presence of the accused himself and if he wishes to be represented by a counsel
(1) PLD 1965 Lab. 324 (2) PLD 1969 Lab. 1020 the Magistrate should allow him time to produce the counsel and argue the matter before him.
14. In the present ease a learned single member of the Special Tribunal passed the order dated 3- 6-1977, alleged to be a remand order by t respondents, admittedly in the absence of the petitioners without apply' his mind and without giving any reason in a mechanical manner. Further the said order has been passed In the jail premises where the petitioners were confined and had no access to their lawyers as well as their relatives. The said order having not been passed in the open atmosphere as required by law and after having provided an opportunity to the petitioners to be defended by their counsel at the time of the passing of the order, the same cannot be justified in law as held in the aforesaid authorities.
15. It has been held in State v. Wazir Khan (1) that the Magistrate concerned is obliged under the law, before granting remand, to study the police diaries to ensure as to accusations against the accused persons and evidence secured to justify the remand. It has been observed that since the right of personal liberty is precious one, therefore, the Courts should be jealous to guard the same against any invasion. Similar view hss been taken in Rashid v. The State and 2 others (2) holding that a Magistrate under section 344, Cr. P. C. Should assign reasons for adjourning the case and remanding the accused to custody. Likewise under section 167, Cr. P. C. Though a Magistrate is not expected to pass an elaborate order be is certainly required to give briefly the reasons requiring the accused's remand to police custody. It has been held that a Magistrate acting under section 167 or 344, Cr. P. C. Has to weigh evidence to decide whether the prisoner should be detained in custody or not and this function of his is essentially a judicial function. It has been observed that remand, to police or judicial custody should not be granted in a mechanical manner application of mind is a must, and should be granted in the case of real necessity and the period should be fixed with due regard to the requirements of the case as it involves the liberty of a citizen of the State.
16. The view taken in various authorities discussed above is mostly based upon many cases decided long before the independence of the country. As late as 1867 in Crown v. Shera etc. (3) it was held in a murder case, while examining the police diaries, that remand of a prisoner on the application of the police when the prisoner was not present before the Court was illegal. Similar view was taken in Khuda 8akhsh v. The Crown (4). The finding was given while examining the provision as contained in the present Cr. P. C. Under section 340/344. It was held that while remanding an accused person to police or judicial custody a Magistrate must base his order on some reasons as an accused person cannot be detained on the mere expectation that time would show his guilt, or upon the chance of further facts coming to light. In that case the Deputy Commissioner, Jhang had passed his order remanding the custody of the accused persons to jail authorities without giving any reason and without applying his mind to the facts of the case. It was observed that the Court has to see that an accused person cannot be detained for an indefinite time upon the chance of further facts coming to light and it must exercise its discretion either to commit or discharge them as soon as no likelihood remains of further evidence being brought forward. It was further held that without passing any order
(1) PLD 1968 Pesh. 140 (2) P L,13 1970 Lab. 389
(3) 1867 P R. 39 (Cr.) 72 (4)1872 P R 1 (Cr.) 21 or expressing any opinion-as to whether the accused persons should be committed or discharged, the order passed in this behalf cannot be contained.
17. Similar view was taken in Sundar Singh v. Emperor (1). It was that a Magistrate acting under section 167. Cr. P. C. Has to weigh the evidence to decide whether the accused persons should be detained in custody or not. It was observed, weighing of evidence in this behalf is essential as it forms part of a judicial function. It was further observed that a Magistrate while passing a remand order cannot be said to be acting in executive capacity. It was held that proceedings before a Magistrate under section 167, Cr. P. C. Fall within the provision of section 340, Cr. P. C. And in that view of the matter it is in the interest of justice that an accused person should have access to legal advice while he is in police custody during the course of investigation.
18. The above view has also been taken in Bal Krishan v. Emperor (2). It has been held that an accused person is entitled to be represented by a counsel is proceedings before a Magistrate under section 167/344, Cr. P. C. The object of requiring an accused person to be produced before a Magistrate for the purpose of remand under the said provisions obviously is to enable the Magistrate to see that the remand is necessary and also to enable the accused to make any representation he may wish to make in the matter. It has further been observed that legal assistance in such circumstances is very useful. It bas also been held that both the said provisions require a Magistrate remanding an accused person to custody to state his reasons in writing. A remand to police custody ought not to be granted by a Magistrate without satisfying himself as to its necessity and the period of remand should also be restricted to the necessity of the case. This view was also followed in Amolak Ram v. Emperor (3) holding that an accused parson is entitled to have access to the legal advice under reasonable restrictions even when he is in police custody during the course of investigation. In that case the judgment as reported in AIR 1930 Lab., as referred to above, was followed.
19. It has been held In re : Liewelyn Evans (4), that the provision as contained in section 340, Cr. P. C.
Certainly contemplates that the accused should not be only at liberty to be defended by a pleader at the time the proceedings are actually going on but also implies that he should have a reasonable opportunity, if in custody, of getting into communication with his legal adviser for the purpose of preparing his defence. It has also been held that an application by the police for remand purpose falls under section 167, Cr. P. C. And can be held to be a proceeding instituted under the Code of Criminal Procedure under section 340 which contemplates that access to legal advice to the accused would be allowed before and irrespective of the charge.
20. The above discussion would show that while deciding the matter with regard to remand or committing the custody of an accused person to police or judicial lock-up it is essential for the Court/Tribunal to see that the circumstances of the case so warrant. The allegations as contained in the F. I. R. And other evidence produced on record should be weighed and after due application of mind the Court should decide such
(1) AIR 1930 Lah. 945 (2) AIR 1931 Lah. 99 (3; AIR 1932 Lab. 13 (4) AIR 1926 Bom. 551 ' matter with valid reasons. At the time when matter with regard to remand or custody is decided presence of the accused person is also essential, except in exceptional circumstances to be explained by the Court, so as to enable him to express his grievance as to whether remand period should be extended or not. According to law, it is also necessary that a ' such occasion if the accused person so desires he should be represented by counsel.
' In the present case apart from the fact that a single member of the Tribunal has passed the order dated 3-6.1977, which does not amount to a remand order, the other essential formalities, as discussed above, were never followed. Neither accused persons (petitioners) were produced before the learned member nor they were otherwise heard nor afforded an opportunity to produce their counsel. Even the order does not contain any reason on the basis whereof remand order can be assumed to have been passed. In the absence of such necessary formalities the said order, even if passed by the full Tribunal, cannot be deemed to be a remand order committing the custody of the petitioners to jail authorities. On that view of the matter their detention with the jail authorities is illegal and without any lawful authority.
21. According to section 8 of Defence of Pakistan Ordinance, 1971, Special Tribunal shall consist of three members appointed by the Central Government. The learned Assistant Advocate-General while trying to justify the order passed by a single member of the Tribunal on 3-6.77 has relied upon the provision as contained in section 10 (2) of the Ordinance to the effect that the memorandum of the evidence recorded by the Tribunal can be signed t y a member of the Tribunal and the same shall form part of the record. It is contended that since a single member can lawfully act in signing the memorandum of evidence the order in question dated 3-6-1977 is also justified and competent on that score. I am afraid, this contention has no force. There is no provision in the Ordinance showing that judicial function such as recording of evidence deciding a matter pending before the Tribunal, can be dealt with by a single member of the Tribunal. The provision as referred to above does not even authorize a single member to record evidence. It is only to the effect that a member of the Tribunal can sign memorandum of the evidence recorded by the whole Tribunal. Eaten- 7 lion of remand period or committing a person to custody amounts to a judicial decision to be made on the basis of the relevant record after hearing the parties. No provision of the Ordinance envisages that any such decision can be arrived at by a single member of the Tribunal which otherwise consists of three members. As such, Qazi Ghazanfar Ali, learned member of the Tribunal, was not competent to pass the aforesaid order himself alone, even if it is considered to be a remand order, though held otherwise in the discussion made above. On this view of the matter as well the said order cannot be maintained and the custody of the petitioners cannot be deemed to have been entrusted validly to the jail authorities. As such they have been in illegal custody after the announcement of the judgment by a Full Bench of this Court, as referred to above.
22. The other contention raised by the learned Assistant Advocate-General, as stated above, while relying upon section 8 (5) of the Defence of Pakistan Ordinance, 1971, is that an accused person who has once appeared before the Tribunal may be tried in his absence, if the said absence has been brought about by the accused himself with a view to impede the course of justice, or the behaviour of the accused in the Court has been such as to impede the course of justice and for that reason the Tribunal has ordered his removal from the Court. The circumstances of the case discussed above would show that none of ingredients as laid down in the said provision are present in the instant case. None of the petitioners is alleged to have tried to impede the course of justice or for that reason removed under the orders of the Court. As such the aforesaid provision being not applicable to the facts of the case cannot be relied upon.
23. Act X of 1977, amending section 2 of the Army Act having been held to be ultra vires and beyond the scope of Article 245 of the Constitution of Islamic Republic of Pakistan by a Full Bench of this Court on 2-6-1977 while disposing of fourteen writ petitions, as mentioned above, the Army Officers/Military Tribunal had no jurisdiction to deal with the cases of the petitioners which were otherwise transferred to them under the said amended law by the Special Tribunal, Punjab. It means that any order passed by such Army Officers/Military Tribunals committing the petitioners to the custody of the police/jail authorities or extending the remand orders has no legal substance and is ineffective. There is nothing on record, as discussed above, to show that the Special Tribunal, Punjab, after the pronouncement of the said judgment of the Full Bench, has remanded the custody of the petitioners to the jail authorities in a lawful manner by any valid order. In the circumstances it cannot be said that the petitioners have been in lawful custody of the jail authorities. They being in detention without any lawful authority are liable to be set at liberty.
Consequently their release is hereby ordered.
' This order, however, does not amount to their acquittal in the cases registered against them. They have been set at liberty only on the ground of being in illegal detention without any lawful authority.
' The writ petition is accepted without any order as to costs.