' MUHAMMAD AFZAL ZULLAH, J.-The alleged detention of the petitioner Mian Mahmud All Kasuri in case F. I. R. No, 351 dated 13-5-1975 under rule 49, D. P. R., Police Station, Yakki Gate and Air Marshal (Retd.) M. Asghar Khan in cases F. I. R. No, 475 dated 2-7-1975 under rule 49, D. P. R., Police Station, Yakki Gate and F. I. R. No, 168 dated 15-3-1977 under rule 49, D. P. R., Pace Station, Old Anarkali has been called in question in this constitutional petition. It is necessary to give the background, brief facts and circumstances relating to this matter.
2. Several persons including the two detenus were arrested by the police on the night of 17-3-1977.
A Writ Petition No, 526/R-77 having been moved on 18-3-1977 is pending hearing before this Bench.
The State In a preliminary objection submitted in writing on 23-3-1977 took up the position that the detenus therein including Mian Mahmud All Kasuri and Air Marshal (Retd.) M. Asghar Khan were in fact accused persons in case F. I. R. No, 199 dated 17-3-1977 and were accordingly arrested in that case. No mention was then made that these two detenus had also been arrested in any other case. Subsequently on 29-3-1977 during the hearing of that writ petition, the learned Advocate- General, as noted in the order passed on that day, informed the Court that "Air Marshal (Retd.) M.
Asghar Khan has also been arrested in two more cases, namely, F. I. R. No, 163 dated 15-3-1977 and F. I. R. No, 475 dated 2-7-1975 and further that Mian Mahmud All Kasuri, another detenu, has been arrested also in case F. I. R. No, 351 dated 13-5-75. These arrests in three cases, two relating to Air Marshal (Retd.) M. Asghar Khan and one relating to Mian Mahmud Ali Kasuri, according to him, took place on 21-3.1977". The records produced by the Deputy Superintendent of Jail in this case show that three Robkars dated 21-3-1977 were sent by Sub-Inspectors of Police informing the Superintendent Jail, Kot Lakhpat, that the two detenus herein, who were in custody in pursuance of arrest (presumably in case F. I. R. No, 199/77), were also required in the aforementioned cases against them, therefore, the Superintendent Jail was requested not to release them physically even if they were to be released on ball (in the said case F. I. R. No, 19)) unless they were released on bail in these three cases. The language of all the three Robkars is identical. The Jail entry on one Robkar is K. L. J. 1145/19-3.1977 and on the two others is KU 1147/19-3-1977.
3. The perusal of relevant police files Inter alb shows that t ' Case F. I. R. No, 475 dated 2-7-1975 under rule 49, D. P. R., etc. Police Station, Yakki Gate against Air Marshal (Retd.) M. Asghar Khan and another was prima facie ripe for securing attendance of accused before the police in July, 1975. A learned Magistrate refused request for warrants of arrest on 15.7-1975 (page 26). He was again approached through a second application for warrants, on which he by order dated 12-9.1975 disagreed with the ground taken in the application that the accused were intentionally avoiding arrest. He also held that the police itself was avoiding to effect the arrest (cage 36). It is clear from the file that the S. P. City did not agree with the learned Magistrate's view. The Investigating Officer was told by him to file another application and that he, in the meanwhile, would discuss the matter with the learned Magistrate (page 39). The investigating Officer submitted yet another application for obtaining warrants of arrest with a note in the police file that as ordered by the S. P., he was making this move because "in such cases action was to be taken under the policy of the Government" (page 40). The learned Magistrate, it is clear from the file, avoided passing any order because he thought that it was necessary to discuss the matter with his District Magistrate (pages 40-41). On 6-12-75, the Investigating Officer noted that he had been told by the learned Magistrate that the matter having been brought to the notice of the District Magistrate, the latter had observed that the case related to leading political figures and that in the prevailing circumstances it was not proper to issue warrants of arrest. However, "if the Home Secretary of Punjab orders so, Ilion the warrants could be issued as such cases are connected with Government policy" (page 42). Accordingly, the request for warrants of arrest was again refused. Nothing tangible was done by the police for a very long time when on 9-2-1977, i,e,, about a month before the general elections, the challan was prepared by the S. H.
0. For submission in Court. Curiously enough, on the last page of the police We, in the proceedings dated 9-2-1977 it is also mentioned that the accused had been allowed bail before arrest by the High Court but no particulars of the bail proceedings are mentioned therein. This case registered on 2-7-1975, it is pertinent to note, relates to some public speeches made by the accused on 9-2- 1975.
' Case F. I. R. No, 168 dated 15-3.1977 under rule 49, D. P. R., Police Station, Old Anarkali against Air Marshal (Retd.) M. Asghar Khan relates to a public speech made by him on 6-2-1977. It is clear from the police file that the main investigation was conducted on the same day, i,e,, the day of registration of the case. Site plan was prepared and statements of several witnesses were recorded under section 161, Cr. P. C. The last note by the Investigating Officer on the file made on the same day shows that he had brought the facts of the case to the notice of the superior authorities. It is further noted that on account of the reason that the accused is a leading political figure, further proceedings were to be conducted "with care". Nothing was done on this file till the submission of the record in the High Court on 19-3-1977, Le., two days after the arrest of the detenu in case P. T. R. No, 199.
' Case F. I. R. No, 351 dated 13.5-1975 under rule 49, D. P. R., Police Station, Yakki Gate against Mian Mahmud Ali Kasuri was with regard to a speech delivered on 11.10-1974. The initial investigation in this case including the examination of a witness under section 161, Cr. P. C. And preparation of the site plan was done on the very day when the case was registered. Thereafter, till February, 1976 nothing substantial was done In this behalf. In the meanwhile the accused was allowed bail before arrest in the case on 6-6-1975 by a former Chief Justice of this Court. The investigation was shown as complete on 14-2-1976 when a challan was prepared for submission in Court. Thereafter, is a gap of four months without any proceedings on the file. On 4.6-1976 two more statements were recorded under section 161, Cr. P. C. And another challan was prepared on 6-6.1976 for submission in Court treating this challan as complete and the earlier one as incomplete, presumably notionally. In this last challan the fact that the accused was on bail grated by the High Court is specifically mentioned. The above resume has been taken from the police file, the noting on the that page whereof shows that the case/challan is already in Court since July, 1976. And till 22-2- 1977 there have been eleven hearings but nothing is mentioned as to what proceedings were conducted on these dates. The position taken in the writ petition by Mian Mahmud All Kasuri in this behalf, as reproduced in para. 5 thereof is clear, namely, that in this case be has been appearing before the Tribunal "for nearly a year" and that "the Tribunal has never cancelled the bail order or even contemplated issuing a notice to the petitioner to cancel the bail granted by the High Court".
This position has not been controverted and also finds support from the aforementioned noting on the first page of the police file.
4. Although the arrest and detention to which the present controversy relates is not connected with case P. I. R. No, 508 dated 29-12-1974 for offences under section a 307, 353/332, 148/139, P. P. C., Police Station, Yakki Gate against several persons including three M. N. As, one of whom is Mian Mahmud All Kasuri the present petitioner ; yet its police file being in Court, some information relevant to the instant case is available on that file. The question of arrest of the accused was raised by the Investigating Officer in this case also. It remained pending for a long time after the main investigation, which was complete by middle of 1975. The file, it is noted therein, was kept pending 'awaiting orders of superiors'. Then there is a gap of one year and five months. In note dated 26-11-1976 (page 30), the Investigating Officer remarked that he had brought the case to the notice of the P. D. S. P., who had observed that "on account of the case being of political nature, It had to be processed in accordance with the Government policy, therefore, the matter was to be discussed with the S. P. And action would be taken on his directions". Ultimately, on 16-12-76 (page 32), the Investigating Officer noted that he had discussed the matter with the S. P. Who had reminded him that in such like cases there were Government directions with regard to arrest and summoning of the accused, presumably with an indication to follow the same.
5. In the writ petition, a specific complaint has been made that despite the release orders (subject to submission of bonds) passed by the High Court in case F. I. R. No, 199/77, the petitioner Mian Mahmud All Kasuri had been informed by the Advocate-General that they were "also being held in some D. P. R. Cases". On this the petitioner made inquiries from the Jail Authorities about the warrants of detention who showed him the three Robkars marked A, B and C earlier referred to in this judgment. A specific assertion was made in para. 6 of the petition that "these letters from Sub- Inspectors are the only authorities on the basis of which freedom is being denied to the Air Marshal and the petitioner. These letters were allegedly received in Kot Lakhpat Jail on 19-3-1977 and have not been followed or authorised by any Court orders". In para. 7, it is further asserted that from enquiries made from the Special Tribunal dealing with D. P. R. Cases it has been ascertained that the Tribunal has no case against Air Marshal Asghar Khan on its file and has issued no warrants of his arrest. So far as the petitioner Is concerned the Yakkt Gate Police Station case under rule 49, D.
P. R. Has been before the Tribunal for nearly a year and the petitioner has appeared before the Tribunal. He is on bail granted by the High Court and the Tribunal has never cancelled that bail order or even contemplated issuing a notice to the petitioner to cancel the bail granted by the High Court". It was also asserted in pars. 9 that the petitioner had sent telegrams to Punjab Government, the Advocate-General and the Jail Authorities, protesting against illegal detention. After finding no response he, on 21-4-1977, sent a letter to the Jail Superintendent copy of which was placed on record by the Deputy Superintendent Jail during the inquiry. It reads as follows t- "The Superintendent, Lakhpat Jail, Lahore. Dear Sir ' You have already received orders from the High Court that I was bailed out in Case 199/1977 of Mozang Police Station registered on 17-3-1977. I did not sign the personal bond because I was informed that I would not be released because I have been arrested in another case of Yakki Gate P. S. No, 351 dated 13-5-1975.
' I told the Advocate-General that in the Yakki Gate P. S. Case I was bailed out nearly two years ago by order of the High Court. I have now seen the document under which I am to be held. It is an order from a S. I. Dated 18-3-1977 received in Jail on 19-3-1977. The document is merely a scrap of paper and the S. I. Had no jurisdiction to issue such an order and to overrule the order of High Court granting me bail.
' I hold the Jail authorities, the S. I. And the Punjab Government responsible for my illegal detention in Kot Lokhpat Jail for every single minute of unlawful detention, (Sd.) Mahmud Ali Kasuri 21-4-1977."
' This letter was sent in original by the Superintendent Jail to the Home Secretary on the same day, i,e,, 213-1977 but, as it would appear from the deposition made by the Deputy Superintendent Jail, there was no response from the Provincial Home Department.
6. In the petition factual and legal questions were raised including ; that no Court orders had been passed authorising the arrest/detention of the detenus ; that the Robkars of Sub-Inspectors marked A, B and C were not enough to deny freedom to the detenus 1 and further that no police officer can keep any person in custody for more than 24 hours nor can ho authorise his custody in prison,
7. The learned Advocate-General, in reply, submitted as follows :- "(I) That the petition in so far as it relates to Air Marshal (Retd.) M. Asghar Khan, he would oppose on various grounds including the one that he has chosen not to prosecute and pursue the other Writ Petition (No, 526/H-77) wherein his release was sought by the petitioner therein. On merits also, he states, he would make submissions in so far as the question of his present detention in two cases which are the subject-matter of this petition, is concerned.
(ii)That in so far as the arrest of Mian Mahmud All Kasuri in case F. I. R. No, 351 dated 13-5-1975 of Police Station, Yakki Gate is concerned, he was on bail by virtue of an order passed by the then learned Chief Justice in Criminal Miscellaneous No, 2180/B-75. Mr. Justice Gulbaa Khan has, in Writ Petition No, 259 of 1977, held that notwithstanding the subsequent amendment in the Defence of Pakistan Ordinance, the bail orders as in this case would continue in operation. Therefore, unless the said judgment is set aside in an appeal, a move in which behalf has already been made through a special leave to appeal petition, the law as laid down by his Lordship would operate.
' WO That with regard to the Robkar sent by the Sub-Inspector of Yakki Gate Police Station on 21.3- 1977 to the Jail Authorities, the position is that ordinarily the Sub-Inspectors do obtain orders from the Court for detention of an accused person who is already in Jail in connection with another case. In this case relating to Mian Mahmud Ali Kasuri, the Sub-Inspector had not obtained any such order."
' The learned Advocate-General could not maintain the above position, after the admissions made in the depositions, reproduced in the next paragraph.
8. The Deputy Superintendent of Jail was formally examined on oath. His deposition reads as follows "The Jail Authorities have so far acted on the three Robkars now marked A, B and C in so far as the detention of Mian Mahmud All Kasuri and Air Marshal (Retd.) M. Asghar Khan in cases F. I. R. Nos. 351, 475 and 168 respectively is concerned. Actually this detention in these cases has not commenced because these two persons have not been physically released from Jail in case F. I. R. No,
199. In connection with these three cases, we have already sought a clarification from Home Department, but no clarification has so far been received. In such like cases when the accused is already in detention in jail in connection with one case, we do not detain the accused in other cases without there being an order of a Magistrate/ Court. In these three cases, no such orders have so far been sent to jail. The only documents so far received are the Robkars-A, B and C-sent by the concerned Sub-Inspectors.
' In a similar case of Qureshi Brothers, the Home Department had informed us that the bail granted to them earlier in a case had become ineffective on account of the Fifth Amendment. It is on account of this reason that we had sought clarification from Home Department which has not so far been received. Q. Should it be presumed that till a clarification is received from the Home Department, the two detauns in these three cases have not been formally detained by you ?
A. In fact the detention has not yet commenced and moreover the clarification has not yet been received.
(On suggestion by Mian Mahmud All Kasuri)
Q. Did Mian Mahmud All Kasuri write a letter to the Superintendent of Jail informing him that he was being illegally detained notwithstanding the fact that the High Court had ordered his release on bail in case F. I. R. No, 199/77?
A. Yes.
No written reply was given to Mian Mahmud Ali Kasuri nor any verbal reply was given. We have sent the original letter of Mian Mahmud Ali Kasuri to the Horne Department.
(The Deputy Superintendent of Jail has been directed to place on record a copy each of the letter of Mian Mahmud Ali Kasuri as also the reference they made to the Home Department."
9. Several questions arise in this case
(I) Whether Jail Authorities can detain any person on an intimation received from a police o car including investigating/station house o I cer that he is required in a criminal case ;
(ii) Whether it is not necessary for the Jail Authorities to insist on a Magisterial/Court authorisation for such detention ;
(id) Even if a Police Officer physically effects arrest in jail of a person who is already in detention in connection with another case, whether custody/detention in pursuance of such arrest can endure for more than 24 hours without obtaining a Magisterial/Court order ;
(iv) Whether the formal commencement of detention in these oases would make any difference if in answer to the above questions it is held that the detention was illegal and without lawful authority ;
(v) Whether, keeping in view the facts and circumstances of each one of the three cases, the arrest/detention of the two detenus sought to be effected through the aforementioned Robkars can be considered as in bona fide exercise of any lawful authority ; and
(vi) Whether bail orders passed by the High Court had automatically become ineffective on Third Amendment of Defence of Pakistan Ordinance brought about by Ordinance XXXIX of 1976 and what is the effect of the judgment of this Court in Begum Parveen Malik v. The State and others (Writ Petition No, 259 of 1977 decided on 1-4-1977.
10. The statement made by the Deputy Superintendent of Jail must be read and considered in the context of the law relating to detention and custody of under trial prisoners in jail as contained in the Prisoners Act, 1900; the Punjab Jail Manual ; and the High Court Rules and Orders, Volume III (hereinafter referred to as the Act, the Manual and the Rules respectively). Section 3 of the "Act" provides that the officer-in-charge of a prison shall receive and detain persons duly committed to his custody, under the Act or otherwise, by any Court through a writ, warrant or order. Under section 4, the said officer is enjoined to return the writ, etc., after due execution or discharge, to the Court by which the same were issued or made, together with a certificate showing the manner of execution.
These two provisions fall under Part II with heading "General". Another Part, namely, IV deals with "Execution of sentences". The first relevant section 15 deals with "power for officers in charge of prisons to give effect to sentences of certain Courts" ; section 16 with " warrant of officer of Court to be sufficient authority" ; and section 17 deals with "procedure where officer-in-charge of prison doubts the legality of warrant sent to him for execution under this Part", i,e,, Part IV (relating to execution of sentences). Section 15 inter alia stipulates that the said officer "may give effect to any sentence or order or warrant for the detention of any person passed or issued"-by any Court or tribunal acting under the authority of Central or Provincial Government, or by Courts or Tribunals in Acceding States. Section 16 refers to warrant under the official signature of an officer of the aforementioned Court or Tribunal having sufficient authority for holding any person in confinement, or for sending any person for transportation, in pursuance of sentence passed upon him. It is provided in section 17 that where an officer-in-charge of a prison doubts the legality of a warrant or order sent to him for execution under the foregoing provisions ; or, the competency of person whose official seal or signature is affixed thereto to pass the sentence and issue the warrant or order, he shall refer the matter to the Provincial Government, by whose order on the case he and all other public officers shall be guided as to the future disposal of the prisoner. Pending such reference, the prisoner shall be detained in such manner and with such restrictions or mitigations as may be specified in the warrant or order.
11. In a preliminary note to Chapter 3 of the "Manual" dealing with admission of prisoners generally, it is provided that sections 3,15 and 16 of the Prisoners Act, 1900 empower officers-in-charge of prisons to give effect to any sentence, order or warrant for detention of persons duly committed to their custody. In para. 15 under this Chapter, there is a definite prohibition, namely, that no prisoner shall be admitted into any Jail except under a lawful warrant or order of commitment issued by a competent Court addressed to the Superintendent of Jail. Under para. 16, proper check is to be made in order to ascertain whether the name and particulars of the prisoner, being admitted in Jail, correspond with those entered in the warrant or order. Para. 27 provides that the authorities concerned shall examine the warrant of every convicted person for the purpose of satisfaction with regard to several aspects including the date of sentence, particulars of the convict, period, nature or order (consecutive or concurrent) of imprisonment. It is in this connection that the Superintendent, Jail has been allowed under para. 28 to return "the warrant for correction to the officer who issued it, if by any error or omission, the warrant is defective in form or otherwise irregular". And if the Superintendent doubts the legality of any warrant or order sent to him for execution, or the competency of the person whose official seal and signature are affixed thereto, to pass the sentence and- issue such warrant or order, he shall under para. 29 refer the matter to the District Magistrate or Government, if necessary, for orders. Pending such a reference, the prisoner shall be detained in such manner and with such restrictions as may be specified in the warrant or order. In a note appended under this para., it is provided that the District Magistrate being empowered to remove certain irregularities in the warrant, it is only when an irregularity exists that cannot be otherwise set right, that a report should be made to Government under section 17 of the Prisoners Act, 190). Under para. 30, the Superintendent is not permitted to refuse to admit a prisoner in whose warrant or order omissions and irregularities exists, but be should draw the immediate attention of the Magistrate concerned to the defects and ask for rectification at once, sending at the same time a copy of his letter to the District Magistrate for his information. He has, however, been permitted to refuse to receive or detain a prisoner in jail whose warrant is affixed not with original signature but by means of a seal or stamp. Ordinarily, para. 30 further provides, the Superintendent should in such cases also adopt the procedure detailed in para.
29. Apart from these provisions dealing with prisoners generally, Chapter 15 of the Manual deals specifically with undertrial prisoners. In para. 364 thereunder, the- jail authority is required to satisfy itself with regard to name and particulars recorded in the warrant. In case of any discrepancy, the same would be reported immediately to the Magistrate who issued the warrant. Similarly under para. 366, it is to be seen that "the warrant authorising the prisoner's detention in the jail lock up bears the date of committal and the date on which the prisoner is to be produced before the Court.
When a warrant is incomplete or the remand granted is for an indefinite period, the Superintendent shall, as soon as possible, return the warrant for correction to the Court which issued it."
12. Chapter 27 of the "Rules" deals exclusively with judicial lock-ups. It is provided in para. 1 (i) thereunder that "in a judicial lock-up no prisoner can be kept without the written order of a Judicial Officer to the Jailor or other officer in charge, stating the offence for which he is detained and whether bail is allowed or not, nor can a prisoner be removed without such written order". Under this Chapter are also detailed "Rules regulating the management of, and control over, judicial lock- ups and the treatment of undertrial .Prisoners". Rule 17 provides it in a firm negative that "undertrial prisoners shall not be received into or removed from a judicial lock-up except on the written order of a Magistrate". The order should be on a prescribed form of warrant which, when the prisoner is sent to the Magistrate should be sent with him to the Magistrate "for the purpose of having the return endorsement made thereon by the Magistrate, as noted on the form". Rule 26 provides for the maintenance of a register in the prescribed form, showing every admission to and removal from a judicial lock-up.
13. At this stage, it is necessary to make reference to some of the provisions of the Criminal Procedure Code which relate to arrest and detention. Section 46 provides for the manner of arrest.
It is effected by actually touching or confining the body of the person to be arrested unless there be a submission to the custody by word or action. A Police Officer can arrest any person without warrant under section 54, provided the conditions specified in the nine sub-clauses thereof as the case may be are satisfied. Such arrest shall have to be reported to the District Magistrate or on his direction to Sub-Divisional Magistrate. The person arrested shall also be produced without avoidable delay and, in any case, within twenty-four hours before a Magistrate who can direct, by a special order, detention not exceeding fifteen days in the whole provided certain specified conditions are fulfilled. The Magistrate shall have to pass a speaking order in this behalf and shall also forward a copy thereof "with his reasons for making it" to the Sessions Judge (sections 61-62 and 167-as amended). The custody thus authorised would be the police custody and the accused would have to be detained in a police lock-up as distinguished from judicial lock-up. The other custody, namely, judicial pending trial is provided in section 344, Cr. P. C. If, for reasons stated therein, the inquiry or trial has to be postponed, the Magistrate may, through a speaking order, adjourn the case and also by a warrant remand the accused, if in custody, for a period not exceeding fifteen days at a time. This remand would be to a judicial lock-up, a reference to Rules relating to which has already been made in the preceding paragraph.
14. The statement of Deputy Superintendent of Jail reproduced in para. 8 above leaves no doubt with regard to the fact that except for the three Robkars (intimations) marked A, B, C sent by the Police Officers, there was absolutely no writ, warrant or order with the Jail Authorities for detaining the two detenus. This must have been understood by the concerned authorities that the said documents were not enough authority to clothe the detention with lawful authority. That is why, two positions were taken by the Deputy Superintendent Jail one, that a reference had been made to the Home Department seeking clarification in this behalf and two, that the detention impugned in this petition had not formally commenced although this latter position was contrary to what the learned Advocate-General had taken in this Court as also what the detenus were informed by all concerned before the institution of this petition.
15. It can be straightway held that the reference to the Home Department under section 17 of the Prisoners Act was not enough to furnish lawful authority for the detention in this case even for the period that the reference remained unanswered. Section 17, as already noted, falls in the Chapter relating to execution of sentences and from the context of the previous sections, particularly section 15, it is obvious that it would not apply to the undertrial prisoners. There is no doubt about the fact that in the three cases about which Robkars were sent to the Jail Authorities, the detenus were required to be detained as undertrial prisoners-they had not yet been tried/convicted. The provisions of the Prisoners Act which would be relevant and attracted to the present case are sections 3 and 4 which clearly prescribe that only persons duly committed to the custody of the officer-incharge of a prison by a Court in accordance with its writ, warrant or order shall be "received and detained" in Jail. The phrase "under this Act" would not be attracted in this case because, admittedly, the impugned detention related to a Court case and the persons concerned were to be treated as undertrial prisoners.
16. Sufficiently clear provisions have been made to deal with arrest, the receipt and custody in Jail of undertrial prisoners. In particular, section 3 of the Prisoners Act, Para. 15 of the Jail Manual; Clause XVII of the Undertrial Prisoners Rules (in Chapter 27 of the High Court Rules and Orders, Volume III) ; read with sections 46, 54, 61, 62, 167 of the Criminal Procedure Code can be referred to for answering the questions arising in this case. In the light of the foregoing discussion, it is held : "(a) that the Jail Authorities cannot at all detain an undertrial prisoner except on an authorization through proper warrant or special order of the Magistrate/Court concerned. The Magistrate/Court concerned is required to pass a speaking order for detention ;
(b) that no police officer as such of any rank whatsoever has the authority to direct the detention of an undertrial prisoner in Jail by any B order in any form including the Robkars (intimations) like those involved in this case (marked A, B, C). This would also apply to any other officer of the State including the Advocate-General. This last observation has been necessitated in this case on account of the peculiar position taken by the learned Advocate-General at different stages of the proceedings.\
(c) that it would not be possible under the law for a police officer to effect arrest of a person who is lodged in Jail as an undertrial prisoner in another case, without observing the provisions of the Criminal Procedure Code relating to arrest, For example, it would be essential for such police officer for the purpose of effecting arrest to follow the method of arrest provided in section 46, Cr. P. C. ; though keeping in view the reality of the accused being already in custody in Jail, the said provision would apply mutatis, mutandli in so far as the second and third methods of confining the body of the person to be arrested and the submission of the accused by word or action are concerned. In addition to the provisions which would ordinarily safeguard the interest of a free person against arrest and detention, in the above visualised situation, the police would face further obstacle in a case where the accused is already in detention in Jail under Court orders. Firstly, the fresh arrest and poli custody would, in some manner, encroach upon the judicial custody; and, secondly, it would disturb the prison arrangements which must already be in force in pursuance of the writ of the Court or its warrant/order. The fresh arrest thus cannot be effected by the police unless a specific Court order is obtained in this behalf. Not only this, an order permitting fresh arrest simpliciter would not authorise the police to take the accused out of Judicial custody and bring him under police custody without a proper remand order of the Court, even if it is for only twenty- four hours. The Jail Authorities under the law would not be competent to hand over the custody of the accused to the police without the orders of the Court for any period of time whatsoever. It may be clarified here that the police is not bound under the law to resort to the power to arrest under section 54, Cr. P. C., in every case where they are permitted to do so. They have the discretion either not to arrest or to arrest under or without warrant. The discretion is wide. There is no compulsion that it must always be exercised in one manner, namely, of effecting physical arrest without warrant. Therefore, in most of the cases, it would not be necessary for the police to go through the ritual of formally arresting a person who is already in detention in Jail as an undertrial prisoner in other case. As a corollary, it would follow that it would not be necessary for the Court to permit such an arrest in every case. The facts and circumstances of the case necessitating such action by the police would have to be kept in mind consistent with the principle that in case of detention for trial of an offence (subject to the facts and circumstances of the case and/or legal provisions relating to bail) detention in police custody is only an exception to the normal course of judicial custody, if at all the prisoner cannot be allowed to remain at liberty ;
(d) that the postponement of the formal commencement of the detention to a date and time when the accused are to be released in another case would not make any difference in so far as the authority to detain is concerned. It would not be possible to circumvent the above declared law by merely postponing a formality, as in this case. If the intention underlying such a postponement is to avoid the issuance of a proper writ by this Court, the law does not permit it to be achieved in this manner. The Robkars are dated 21-3-77 and in so far as their contents are concerned, the police officers did not leave any doubt that the detenus were to be detained in the specified three cases also. Not only this, learned Advocate-General made a definite statement in this Court that the two detenus had in fact been also detained in the three cases. That being so, it became necessary to consider the question whether the detention, impugned in this petition, was with or without lawful authority."
17. In this matter, admittedly, no Court order had been passed by any Court or tribunal nor any such orders had been conveyed to the Jail Authorities so as to authorise the detention brought under challenge in this petition. As discussed earlier, the reference to the Home Department would not authorise the detention of the accused even temporarily under subsection (2) of section 17 of the Prisoners Act as such a course of action is permissible only with regard to execution of sentences and for that matter also only if the competent Jail Authority has bona fide and reasonable doubt D regarding to the Legality of a Warrant or Order, sent to it for execution under Part IV of the Prisoners Act, or the said authority has similar doubt with regard to the "competency of the pets )n whose Official Seal or Signature is affixed, to pass the sentence and issue the warrant or order. It is not on every type of doubt, whimsical urge, or motivated desire that reference can be made to the Provincial Government so as to invoke the provisiors of subsection (2) of section 17 to detain a person for a period when the answer to the reference is awaited. This provision which would have to be treated as an exception to the main rule would have to be construed very strictly as, apart from other reasons, it impinges upon liberty of a citizen. The protection under section 17 is any how not at all available to the authorities concerned in this case. Had it been so, a serious question of the bona fides would have arisen. There was no warrant or order of a Court, the lega'ity whereof could have been brought under any doubt by any authority nor competency of a person affixing any seal or signature on any such warrant was in question. Thus, in so far as the three cases, namely, F. I. R. Nos. 475/2-7 75, 168/15-3.77 and 351/13-5-75 are concerned, the Jail Authorities have no authority to detain the detenus nor they had any such authority on or after the data mentioned in the Robkars A, B, C or stated by the Advo cate-General, namely, 21-3-77. The same, therefore, is held as without lawful authority. They shall be deemed to be at liberty in these three cases and would be sot at liberty accordingly, if not required to be detained in any other case.
18. In view of our decision on questions Nos. (I) to (iv) visualised in Para. 9 above, it is not necessary in so far as the executory aspect of this judgment is concerned, to discuss in detail the remaining two questions. It is, however, essential to point out that in two of the cases, as noted in para. 3 from the police files, the accused were on bail granted by the High Court and in one of them, namely, F. I.
R. No, 351 against Mian Mahmud Ali Kasuri, he had been appearing before the Tribunal concerned for about a year when the Sub-Inspector took it upon himself, as if he were a superior authorty than the Tribunal and the High Court, to direct the Jail Authorities not to release the accused He clearly acted beyond his authority. Thus the Robkar marked issued by the Sub-Inspector/S. H.
0., Police Station, Yakki Gate was palpably without lawful authority. It will, however, be not out of place to observe that the Sub-Inspectora alone cannot be held responsible for this highhandedness. The proceedings taken by the Investigating Officers in such like cases in so far as the question of arrest is concerned, as noted with particularisation qui each case in para. 3 above, present a most sad and unfortunate picture. These officers are not being allowed to exercise their own judgment and discretion. They are told to synchronise their action with policy of the Government to be ascertained through the Home Department. The various steps taken bycthe Investigating Officers during the investigation, in so far as the arrest of the accused in F. I. It Nos.
475/2-7-75 and 508/29-12-74 and recorded in the police files is concerned, present a clear picture that these officers were obliged by their superiors to follow the Government policy as determined by the Provincial Home Department. So much so that even a judicial officer exercising powers of Section 30 Magistrate, as has been discovered from the record of events maintained by the Investigating Officers in this behalf, having been approached by a senior Police Officer thought it fit to seek guidance in matter of issuance of warrants of arrest of one ' of the detenus herein, from his District Magistrate; who again, in his turn, followed the Government policy and advised the Magistrate accordingly. We have decided to examine the question whether it is not necessary to initiate proper proceedings for Contempt of Magistrate's Court. It is high time that the Magistracy and police are allowed to function within the four corners of law uninfluenced by the side-winds and shocks emanation from political fights and controversies. One of us had put a word of caution in a similar case of political overtones, namely, PLD 1975 Lah. 210, as follows ' I am constrained to remark that any misuse of police for from any side for unlawful purposes, when it is on large scale or to a long period, can irreparably damage the image thereof, with, if not more at least, equal corresponding loss of hope in, and respect for, legal processes, in public mind.
In that case the resultant harm to the rule of law and social order and structure can be colossal."
' In recent past, the country has seen and suffered not only side-winds and shocks but also severe jolts. It is necessary to reiterate the same observation with the emphasis that the use by any party for political ends, of the police and/or Magistracy which perform a very vital function in the social and moral sectors, would be immensely harmful for the growth of democratic institutions and national goals. This time we would not stop at mere caution-it should be treated as a warning. As we have decided to initiate proceedings in this case, superior Courts will not hesitate to take action as and when such a matter is brought to their notice.
19. There is some conflict of view in the two cases earlier referred to with regard to the effectiveness of bail orders passed in cases under rule 49, Defence of Pakistan Rules, prior to the amendment of Defence of Pakistan Ordinance, 1971 through Ordinance N. XXXIX of 1976. It is stated that the question is now pending consideration before the Supreme Court. As it is not essential to decide and resolve this controversy for determining the legality or otherwise of the detention impugned in this case, we would refrain from making any comment in this behalf.
20. In the light of the foregoing discussion, we hold that the purported arrest and/or detention of the two detenus in pursuance of Robkars marked A, B and C sent by the Police Investigating Officers to the Jail Authorities and affirmed by the learned Advocate-General, as noted in the facts part of this judgment, is without lawful authority. Consequently, this petition is allowed with the short order of release which has already taken effect. There shall be no order as to costs.