1. ' AMIR-UL-MULK MENGAL, C.J.---Human Rights Commission of Pakistan has filed this petition through Aurang Zaib Kansi under Article 199(2) of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as the "Constitution") with the following prayer:--- "In the circumstances, it is respectfully prayed that this Honourable Court may kindly declare that the arrest, detention, removal of Mir Aimal Kansi Government of Pakistan has failed to give protection to a National. It may also be declared that the Government of Pakistan by failure to perform its lawful function has thrown a citizen to the mercy of a Foreign Government. Therefore, now it is its Constitutional obligation to provide legal assistance to Aimal Kansi at the State expense.
2. ' The failure of Government to provide protection to its citizens has created genuine apprehension that the Government cannot perform its Constitutional obligation nor can protest the sovereignty of Pakistan. Therefore, in order to restore its confidence amongst the citizens the Government of Pakistan must approach American Government to surrender Aimal Kansi to Pakistani Authorities to fulfil the extradition process to uphold the supremacy of the Constitution and Rule of law in the country.
3. ' Mir Aimal Kansi was a Pakistan National, domiciled at Quetta. Therefore, the Provincial Government is also under a Constitutional obligation to protect the interest of a person domiciled in Balochistan.
4. ' It may also be observed that the Federal and Provincial Government must take necessary measure to prevent such events in future. It is their duty to protect petitioner and other citizens from highhandedness of Foreign agencies."
5. The facts as stated in the petition are that the petitioner came to know through Press that Mir Aimal Kansi allegedly killed two American citizens while he was in the United States of America. He then came to Quetta. It is further stated in the petition that the petitioner came to know that Aimal Kansi was arrested at Quetta or Afghanistan on 18th June, 1997. However, then according to press reports it was confirmed that arrest was made from a Hotel at Dera Ghazi Khan. The petitioner has challenged the arrest and inaction of Federal Government to protect a citizen of Pakistan.
6. ' Before admitting this Constitutional petition pre-admission notice was given to Advocate-General Balochistan and Deputy Attorney-General Pakistan. Learned Advocate-General Balochistan appeared and stated that even as per contents of petition the arrest of Aimal Kansi has been made from Dera Ghazi Khan within the jurisdiction of Lahore High Court, therefore, neither the Province of Balochistan has any concern nor this Court has territorial jurisdiction to hear this petition. The matter was adjourned time and again when Mr. Ross Masud on behalf of respondent No,2 appeared and contended that Foreign Office has been improperly impleaded. On the last date of hearing i,e,, 27th April, 1998 an adjournment was sought by Mr. Tahir Muhammad Khan to argue the matter. The matter was finally heard on 13th of May, 1998.
7. ' The counsel for petitioner contended that it is a case of first impression, therefore, same may be admitted for regular hearing. In this regard it was emphatically urged that since Aimal Kansi has not committed any offence in Pakistan and there were no warrants of his arrest by any competent authority, therefore, he could not have been arrested by any warrants issued by foreign office or U.S.A. Government. According to learned counsel even if he had been arrested it was mandatory that he should have been produced before a Magistrate for authorisation of his detention. The counsel further contended that under Article 10 of the Constitution the authority directing arrest shall have to inform the detenu of the grounds of his arrest. According to the counsel the detenu Aimal Kansi could not have been extradited except under the provisions of Extradition Act, 1972 whereunder a specific procedure is provided. It was further contended by the counsel that both the Provincial as well as Federal Governments have failed to provide protection to its citizens, thus, impliedly surrendering the sovereignty of the country.
8. ' Learned Advocate-General, Balochistan reiterated his arguments that as per own showing of petitioner the detenu Mir Aimal Kansi has been arrested from a Hotel of Dera Ghazi Khan, therefore, Provincial Government is not directly concerned with the arrest and that this Court under Article 199 of the Constitution has no territorial jurisdiction. He, therefore, prayed that petition be dismissed in limine. A similar objection has been taken by the Deputy Attorney-General in the written statement filed on behalf of respondents Nos.1 to 3. Another objection raised by Deputy Attorney-General in the written statement was that Writ Petition No,1359 of 1997 (Gen. Hamid Gul v. The Inspector- General Police, Islamabad and others) and Writ Petition No,15282 of 1997 (M.D. Tahir v. Federation of Pakistan) have been filed in Lahore High Court which are on the same grounds and in respect of the same facts. Since the Lahore High Court has taken cognizance, therefore, this writ petition may not be proceeded. However, Mr. Tahir Muhammad Khan was asked how this Court has territorial jurisdiction in respect of arrest of Mir Aimal Kansi from a Hotel in Dera Ghazi Khan, in the Province of Punjab. Learned counsel replied that this petition has been filed under sub-Article (2) of Article 199 of the Constitution where the bar of territorial jurisdiction has been deliberately omitted by the Constitution-makers. In order to supplement his contention the counsel relied on 1995 SCM R 1535.
9. We have perused the said judgment. It was a case of fire claim by the petitioner demanding a sum of Rs,1,98,27,996. After when aforesaid amount of claim was demanded within 14 days of the receipt of the letter failing which it was observed that action would be taken under section 202 of the Customs Act. The said order was challenged in the Sindh High Court. The Sindh High Court inter alia dismissed the petition on the ground that it had no territorial jurisdiction as the goods were stored in a customs bonded warehouse in industrial area Kot Lakhpat, Lahore. It was in such circumstances that the Hon'ble Supreme Court held as under:--- "However, in this regard, reference can also be made to Article 199(2) under which a High Court can make a declaration that any act done or proceedings taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation is without lawful authority and of no legal effect. Although in clause (1) the restriction is provided that a person against whom direction is to be issued should be performing duty within the territorial jurisdiction of the Court but so far clause (2) is concerned, such restriction is not provided. It is attracted only if the act done or proceedings taken is within the territorial jurisdiction of the Court."
10. According to our considered view the above observations are not beneficial to the present petitioner because at the time when Mir Aimal Kansi was arrested he was in Dera Ghazi Khan. The cause of action if at all accrued to him was at Dera Ghazi Khan within the territorial jurisdiction of Lahore High Court. It is not the case of petitioner that Mir Aimal Kansi after being arrested was brought to Quetta or detained within the territorial jurisdiction of this Court. Mr. Tahir Muhammad Khan relied on PLD 1968 SC 378 and contended that if a person is performing in any Province functions in connection with the affairs of the Centre, although its main office and Secretariat be located in another Province, then the territorial jurisdiction of High Court shall extend. The above case was also perused by us which was in respect of some grievance against the Election Commission in East Pakistan (as it then was). It was observed that although the Secretary of Election Commission was located in West Pakistan but there were officers performing the duties in respect of elections in East Pakistan, as such the Dacca High Court had the jurisdiction. This authority is also inapt to the facts of the present case. The reason being that neither Aimal Kansi has been arrested in this Province nor after his arrest detained in this Province nor any of the officials of the Federation or the Province are alleged to have arrested him. So much so that petitioner is totally unaware as to who in fact arrested Aimal Kansi. Mr. Tahir Muhammad Khan relied only on press clippings which are also contradictory. In this petition he had apprehended that Aimal Kansi has been arrested either from Quetta or Afghanistan. But in the same para. It has been stated that he has been arrested from a hotel at Dera Ghazi Khan by FBI Commandos who are neither under the control of Federal Government nor of Provincial Government. In fact the petitioner was totally confused as to who had arrested Aimal Kansi, therefore, the question that Aimal Kansi was arrested within the jurisdiction of this Court or by an authority exercising powers in this Province or by officials of the Federal Agencies having their office in this Province (remains unanswered).
11. ' When the counsel was confronted with this situation, he made an abortive attempt by saying that Foreign Office of Pakistan has sub-office at Quetta but there is no material that foreign office was involved in the arrest of Aimal Kansi. He then contended that I.S.I. Has its official working in this Province but not an iota of evidence was placed before us that Aimal Kansi has been arrested by I.S.I. In such circumstances it is very difficult for us to hold that we have territorial jurisdiction in exercise of Article 199 of the Constitution.
12. ' The second and important point as agitated is as regards enforcement of fundamental right by a High Court under sub-Article (2) of Article 199 of the Constitution. It may be observed that condition precedent for filing a petition under this Article depends upon existence of a fundamental right. It is a right which is either a personal right or an individual right. Mr. Tahir Muhammad Khan contended that there exists Extradition Act between two Governments i,e,, Government of Pakistan and United States of America. It was also mentioned in the petition that Aimal Kansi was wanted by the Government of U.S.A. But the Government of U.S.A. Instead of resorting to said law has adopted illegal and unconstitutional method by forcibly arresting the said Aimal Kansi and the provisions of Extradition Act had not been adhered to. Suffice it to observe that all these facts are hypothetical and based on press clippings. No material was produced before the Court who, in fact, arrested Aimal Kansi and in what circumstances. So much so that petitioner himself has suspected his arrest either from Afghanistan or Quetta and then basing his information on press reports stated that he has been arrested from Dera Ghazi Khan. These are all questions of fact which require recording of evidence and it is not possible for us to do so in Constitutional jurisdiction. The question whether he has been produced or not before a Magistrate as per Extradition Act, 1972 is again a question requiring evidence.
13. ' Of course it is almost established that he has been taken to United States where he faced the trial but there is no conclusive or even prima facie proof except contradictory press reports about the manner in which he was arrested and by whom he was arrested.
14. A minute perusal of sub-Article (2) of Article 199 of Constitution would indicate that as per Constitution, the right to move a High Court for the enforcement of any of the fundamental right conferred by Chapter 1 of Part II shall not be abridged. The word "a High Court" according to the learned counsel means any of the High Court in the country irrespective of the territorial jurisdiction of the High Court. We are afraid that we cannot agree to such an interpretation for the reasons that opening words of sub-Article (2) are "Subject to the Constitution....". 'A High Court' in ordinary words means any High Court. But if persons performing functions take action by infringing a fundamental right of a citizen, his right to move a High Court is not abridged. If, for example, a citizen of Pakistan belong to any Province is residing in a different province, when such right is infringed, the High Court of that Province has territorial jurisdiction to issue writ to the said effect. Or in some eventuality, if action is taken by the Federal Government, for instance, to curb right of citizens to form Association (Article 17) of the Constitution, a citizen may move any High Court in the country or for that matter the Supreme Court under Article 184(3) of the Constitution. In such event the High Court of all the Provinces have jurisdiction and a citizen may move any of the High Courts. But, if generally the Fundamental Right is not violated and only a citizen claims that his arrest is without lawful authority, when Article 10 has been violated by a person performing functions in connection with the affairs of Federation, a Province or a local authority, as in the instant case, then the High Court having territorial jurisdiction, may make or pass appropriate orders.
15. ' In case of Sar Khan v. The State reported in PLD 1967 SC 149, the then Chief Justice Mr. Justice A.R.
16. Cornelius, observed as under:--- "The effect of these two decisions is clear, namely, that with respect to all proceedings held in a judicial or a pretended judicial capacity within the territories where the writ of the High Court runs, the High Court had power in certiorari to examine into their propriety and legality. The High Court also possessed power under habeas corpus, to examine the authority for the imprisonment of any person held in a prison in such territories, notwithstanding that the source of the authority was outside those territories. These powers are now derivable from Article 98 of the Constitution. Here the whole proceedings from start to finish were held in Peshawar, and the prisoner is confined in Abbottabad, both places being within the High Court territorial jurisdiction. The impression of the learned Single Judge that the High Court's jurisdiction under Article 98 was excluded by the mere fact of the offence having been committed in tribal territory can only be explained on the basis of a misconception that the High Court was being asked to try the case or to sit in appeal on the conviction. The position was quite otherwise. The purpose of the writ was to invoke the jurisdiction of the High Court to examine into the propriety and legality of everything done at Peshawar from the making of the order of reference up to the issue of the warrant of imprisonment as well as into the authority for imprisonment at Abbottabad and such jurisdiction the High Court undoubtedly had."
17. ' The case in hand is, however, neither a case of habeas corpus, nor a case of certiorari. Mr. Tahir Muhammad Khan emphatically contended that the High Court is competent under Article 199 of the Constitution under writ of certiorari not only to declare that any act done or proceedings taken by person performing functions in connection with the affairs of the Federation, Province or local authority has been taken or done without lawful authority, but act done also includes omission or inaction. Even if this interpretation for the sake of arguments is conceded to, the High Court must possess jurisdiction as envisaged under sub-Article (1) of Article 199 of the Constitution.
18. ' Learned counsel was not clear whether this writ is a writ of habeas corpus, certiorari, prohibition or mandamus, therefore, his main argument was that it is a writ mainly filed for the enforcement of Fundamental Right of Aimal Kansi, therefore, an attempt was made that it is covered by sub-Article
(2) of Article 199 of the Constitution where the Court can take action even if it has no territorial jurisdiction but the facts would show otherwise. Keeping in view the facts as narrated in the petition and prayer clause which otherwise is ambiguous the case falls clearly under clause (c) of sub- Article (1) of Article 199 of the Constitution which reads as under:--- "(c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory with the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II."
19. ' Even in clause (c) of sub-Article (1) of Article 199 of the Constitution it is provided that Court may make an appropriate order giving direction for the enforcement of any fundamental right, as envisaged in Chapter 1 of Part II provided such fundamental right is infringed in any territory within the jurisdiction of that Court. Here in case in hand Aimal Kansi was admittedly not arrested within the territorial jurisdiction of Balochistan High Court. This fact is further substantiated from the written statement of Deputy Attorney-General that similar writs have been filed in Lahore High Court as regards arrest of Aimal Kansi from Dera Ghazi Khan.
20. ' For the above discussion and reasons assigned hereinabove, we are inclined to hold that this Court has no territorial jurisdiction, therefore, the petition is dismissed in limine.