' MUHAMMAD AFZAL ZULLAH, J.-A preliminary objection has been raised by the learned Advocate- General that this constitutional petition against allegedly mala fide and illegal arrest and detention "is infructuous because a case" was "registered" against the detenus for criminal offences. He has prayed for dismissal of the petition without any inquiry on merits.
2. On the disclosure of the grounds for arrest, namely, registration of case, learned counsel for the petitioner made further serious allegations of mala fides and also submitted an application on 22- 3-1977 seeking permission to demonstrate that the case was fabricated and registered after the arrest, in an attempt to oust the jurisdiction of this Court.
3. The objection is sought to be supported by: (a) an ouster clause (3-A) of Article 199 of the Constitution which was substituted by Fifth Amendment, and (b) some precedents wherein registration of case was considered as a reply to habeas corpus petitions mostly moved under section 491, Cr. P. C.
4. Clause (3-A) does not create any such bar. It provides that following orders only, cannot be passed under Article 199-
(i) an order for "release" ON BAIL oft (other release orders not affected)
(a) a detenu in cases coming under any law of preventive detention;
(b) an accused under arrest and/or in custody, against whom a case has been registered at a Police Station or a report/complaint in respect of any offence has been made before, or who has been convicted by a Court/Tribunal.
(ii) an ing the operation of (other reliefs including corrective not affected)
(a) an order for detention of a person passed under any law of preventive detention;
(b) an order for the custody of an accused, against whom a case has been registered at a Police Station or a report/complaint in respect of any offence has been made before, or who has been convicted by a Court/Tribunal.
(ill) an order prohibiting: (as anticipatory measure but subsequent annulment not affected)
(a) the making of an order for detention of a person passed under any law of preventive detention;
(b) the registration of a case at a Police Station or making of a report/ complaint in respect of any offence before a Court/Tribunal.
(c) all orders oft release on "bail"; "suspension"; and "prohibition", enumerated above in detail, in any other form whatsoever, providing temporary relief during the hearing of the main cause, i,e,, having effect for a time only, have also been barred by the ouster clause (3-A). For expample, in the specified field, bail; suspension; or prohibition orders 'ad interim', 'in the meanwhile', 'subject to notice', 'till further orders' - cannot be passed. The alternative interpretation of the word OTHER suggested by the learned Advocate-General would render interim bail and suspension, prohibition orders permissible, and the orders for production of the detenu in Court would then be without jurisdiction. It is agreed by him that at least these two results were never intended. We reject this interpretation.
5. The bar spelled out above does not affect the jurisdiction of the High Court under Article 199 of the Constitution to pass---
(i) appropriate orders and directions in respect of actions/orders which are coram non judice, without jurisdiction or mala fide;
(11) all other orders final or interim, corrective, mandatory, prohibitory, anticipatory or otherwise, which are permissible, or required to be passed as duty, under Article 199 of the Constitution.
' For example, all other interim and final orders; stopping torture prohibited by Fundamental Right of `Inviolability of dignity of man' as contained in Article 14(2) of the Constitution and similar other actions prohibited by law; preventing or suspending illegal punishment being awarded to a person in custody; preventive or otherwise prohibiting starvation and other similar deprivations, can be passed; as also, mandatory directions can be given for production/examination of a person in custody; and all orders otherwise permissible under Article 199 including those which are necessary for effective exercise of jurisdiction can still be passed in cases relating to custody and detention.
6. We arc of considered opinion that if there was any doubt about the scope of jurisdiction of the High Court under Article 199 to deal with grievances in respect of custody matters, in the field of preventive detention and criminal charge of offence, it has been removed by the newly substituted ouster clause, i,e,, (3-A) introduced by the Fifth Amendment. The particularisation of fields of ouster by the Legislature in this behalf has rendered the remaining field clear of all doubts and artificial bars and considerations which unnecessarily had made the jurisdiction under Article 199 less effective in this field. In reaching the above conclusions we have tried to construe the ouster clause (3-A) strictly in accordance with accepted principles of interpretation of ouster clauses, paying due care and attention to all important words and phrases used therein.
7. In view of the above explained constitutional position it is not necessary to discuss the cases cited by the learned Advocate-General mostly on the scope of section 491, Cr. P. C. The cases are lmdad Hussain v. Noor Hassan and 2 others (1); Haji Dilshad Islam v. Punjab Province etc. (2); Ghulam Mohammad v. Fakir Mohammad and another (3) and Farooq Badar v. I.-G., and others (4).
They are otherwise also not of any help, because the lPoliceaw in this behalf has been declared by the Supreme Court in the case of Shahnaz Begum (5). It was held that: "If an investigation is launched mala fide or is clearly beyond the jurisdiction of the investigating agencies concerned then it may be possible for the action of the investigating agencies to be corrected by a proper proceeding either under Article 98 of the Constitution of 1962 or under the provisions of section 491 of the Criminal Procedure Cede, if the applicant is in the latter case in detention, but not by invoking the inherent power under section 561-A of the Criminal Procedure Code."
' We do not accept the position taken by the learned Advocate-General that, as he said, it is only an observation' not binding on the High Court; nor do we agree with him that, if it is a law declared, it has been reviewed in the case of Malik Ghulam Ahrnad (6). Rather, with respect, the position is otherwise, as is apparent from the discussion of the principles enunciated and guidance given in some detail in the judgments of their Lordships of the Supreme Court in Ch, Manzoor Elahi v.
Federation of Pakistan etc. (7) and the latest ruling Zahur Ilahi v. State (8).
8. The outer particularised in clause (3 A) by the Legislature and spelled out above, operates only in so far as the jurisdiction of the High
(1) 1975 SCMR 163 (2) PLD 1975 Lah. 521
(3) PLD 1975 Kar. 118 (4) PLD 1969 Lah. 1020
(5) PLD 1971 SC 677 (6) PLD 1976 SC 271
(7) PLD 1975 SC 66 (8) PLJ 1977 SC 147 ' Court under Article 199 of the Constitution is concerned and not under any other provision of law.
9. None of the arguments raised by the learned Advocate-General has any force. We overrule the preliminary objection and proceed to examine the case on merits, While doing so, we would keep in mind and be guided by the law and principles laid down and practice envisaged in the rulings of the Supreme Court, some of which have already been noticed.
10. Before parting with this order, it needs to be observed that admittedly most of the other arguments and case-law cited from both the sides relate to the merits of the case, Leg any party might be prejudiced (before the hearing on merits, we have thought it fit to notice and consider them, if need be, when finally deciding the petition.
Objection overruled.