1. ' This judgment will dispose of criminal revision application under section 435/439 read with section 561-A, Cr.P.C. Preferred by the State/applicant, against the order, dated 8-9-1997 passed by the learned Sessions Judge, Karachi South.
2. ' Briefly stated the background of the matter is that respondent Asif Ali Zardari alongwith other accused is facing trial in Sessions Case No,761 of 1996 State v. Wajid Ali Durrani and others, and at the relevant time the case was pending on the file of learned Sessions Judge, Karachi South. While the respondent was lodged in District Jail, Malir, his learned counsel submitted application on 23- 8-1997 for restraining the Jail Authorities not to shift the respondent from Malir Jail to Central Prison, Karachi. The learned Sessions Judge after hearing the learned counsel for the parties passed the impugned order. The operative part of this order reads as under:-- .. I am of the opinion that U.T.P./accused Asif Ali Zardari cannot be shifted from the prison where he was in the first instance committed/confined under warrant of the Court without the permission of the Court. Since none of the parties have produced the order by which allegedly U.T.P. Was to be transferred, as such believing the statement of Mr. Farooq H. Naik that a Special Ward has been made in the Central Prison to put accused/U.T.P. Asif Ali Zardari, and going through the two newspapers cuttings, I direct the Jail Authorities not to shift the accused/U.T.P. Asif Ali Zardari without the permission of the Court as the accused/U.T.P. Under the rules discussed above cannot be transferred.
3. ' The application in hand stands disposed of in terms of above order."
4. ' I have heard Mr. Muhammad Saleem Sammon, learned A.A.-G. For State as well as the respondent in person, and perused the record.
5. ' The short point involved in this revision is whether the learned Sessions Judge while passing the impugned order failed to consider the provisions contained in Rule 158 of the Pakistan Prison Rules and instead of following this rule misapplied Rule 161-A of the said rules.
6. ' Learned A.A.-G. Submitted that the impugned order is bad in law having been passed by misreading of the provisions of Prison Act 1894 (Act IX of 1894), Prisons Act, 1900 (Act HI of 1900), as well as Pakistan Prison Rules. The respondent submitted application for adjournment which was rejected and he conceded that sufficient time was given to him to prepare his case. Ultimately he supported the impugned order and relied upon the counter-affidavit filed by him.
7. ' The Act IX of 1894 was enacted to provide rules for the regulation of Prisons while the object of the Act III of 1900 was to consolidate the law relating to prisoners confined by an order of a Court. The relevant sections and rules relied upon by the learned A.A.-G. And the respondent read as under:-- "Section 29. Removal of prisoners.--- (1) The Governor-General in Council may, by general or special order, provide for the removal of any prisoner confined in a prison (unconvinced criminal prisoner):--
(a) under sentence of death, or
(b) under, or in lieu of a sentence of imprisonment for transportation, or
(c) in default of payment of fine,
(d) in default of giving security for keeping the peace or for maintaining good behaviour, to any other prison in British India.
(2) The Local Government, and (subject to its orders and under the control) the Inspector-General of Prisons may, in like manner provide for the removal of any prisoner confined as aforesaid in a prison the Province to any other in the Province."
8. 35 Power for Civil Courts to require appearance of prisoner to give evidence.--- Subject to the provisions of section 39, any Civil Court may, if it thinks that the evidence of any person confined in any prison within the local limits of its appellate jurisdiction, if it is a High Court or, if it is not a High Court then within the local limits of the appellate jurisdiction of the High Court to which it is subordinate, is material in any matter pending before it, make an order in the form set forth in the first schedule, directed to the officer-in-charge of the prison.
36. District Judge in certain cases to countersign orders made under section 35.--- (1) Where an order under section 35 is made in any civil matter pending:--
(a) in a Court subordinate to the District Judge, or
(b) in a Court of Small Causes outside a Presidency town, it shall not be forwarded to the officer to whom it is directed, or acted upon by him, until it has been submitted to, and countersigned by--
(i) the District Judge to which the Court is subordinate, or
(ii) the District Judge within the local limits of whose jurisdiction, the Court of Small Causes is situate.
(2) Every order submitted to the District Judge under subsection (1) shall be accompanied by a statement, under the hand of the Judge of the subordinate Court or Court of small Causes as the case may be, of the facts, which in this opinion render the orders necessary, and the District Judge may, after considering such statement decline to countersign the order.
37. Power of certain Criminal Courts to require attendance of prisoner to give evidence or answer to charge.--- Subject to the provisions of section 39 any Criminal Court may if it thinks that the evidence of any person confined in any prison within the local limits of its appellate jurisdiction, if it is a High Court or, it is not a High Court, then within the local limits of the appellate jurisdiction of the High Court to which it is subordinate, is material in any matter pending before it or if a charge of any offence against such person is make an order in the form set forth in the first or second schedule, as the case may be, directed to the officer-in-charge of the prison: Provided that if such criminal Court is inferior to the Court of a Magistrate of the First Class, the order shall be submitted to, and countersigned by the District Magistrate to whose Court such Criminal Court is subordinate or within the local limits of whose jurisdiction such Criminal Court is situated: 38.
9. 39.(1) Procedure, where removal is desired of person confined in Presidency town or more than one hundred miles from place where evidence is required (1) whereas a person is confined in a prison within a Presidency-town, or in a prison more than one hundred miles distant from the place where any Court, subordinate to a High Court in which his evidence is required, is held the Judge or Presiding Officer of the Court in which the evidence is so required, shall, if he thinks that such person should be removed under this Part for the purpose of giving evidence in such Court, and if the prison is within the local limits of the appellate jurisdiction of the High Court to which such Court is subordinate, apply in writing to the High Court, and the High Court, may, if it thinks fit, making an order in the form set forth in the first schedule, directed of the officer-in-charge of the prison.
(2) The High Court making an order under subsection (1) shall send it to the District or Sub- Divisional Magistrate within the local limits of whose jurisdiction the person named therein is confined; or in the case of a person confined in a prison within a Presidency-town to the Commissioner of Police and such Magistrate or Commissioner shall cause it to be delivered to the officer-in-charge of the prison in which the prisoner is confined.
40. Person confined beyond limits of appellate jurisdiction of High Court.--- Where a person is confined in a prison beyond the local limits of the appellate jurisdiction of a High Court any Judge of such Court may if he thinks that such person should be removed under the Part for the purpose of answering a charge of an offence or of giving evidence in any criminal matter in such Court or in any Court subordinate thereto apply in writing to the Local Government of the territories within which the prison is situate, and the Local Government may, (direct that the persons be so removed) regulating the escort of Prisoners as the Governor-General in council may prescribe."
10. A plain reading of the above sections makes it clear that these relate to the prisoners who are required to be produced to give evidence before the concerned Court. These provisions are not attracted to the facts and circumstances of the instant case. The respondent is an undertrial prisoner and as per press reports allegedly he was being shifted from Malir Jail to Central Prison, Karachi on administrative grounds. Under section 3 of the Act III of 1900, officer-in-charge of Prison is empowered to detain undertrial prisoner in accordance with the warrant issued by the Court till he is discharged or removed in due course of law. Now the crucial question is what are the powers of the Inspector-General (Prisons) regarding detention and transfer of prisoners. In this regard Rule 158 of the Pakistan Prison Rules reads as under:-- "158. Nothing contained in these rules regarding the confinement of prisoners in Prisons, shall be deemed in any way to interfere with the powers of the Inspector-General to direct, in his discretion, by general or special order, that any class of classes of prisoners shall be confined or transferred to any prison or class or prisons.
11. ' Provided that in the case of an undertrial prisoner who is transferred to another jail, the Court trying such prisoners shall forthwith be informed of such transfer." (Proviso added by Notification No,SO(POS.III)11- 94, dated 13-5-1996).
12. The above rule empowers the I.-G. (Prisons) to direct, by general or special order that any class or classes of prisoners may be confined in or transferred to any prison or class of prisons (See in re: Human Rights cases by Syed A. Tajwar, Lawyer, Ansar Burney Welfare Trust and another 1994 SCM R 1527). The obiter dicta, of the Honourable Supreme Court is binding on the subordinate Courts, but the learned trial Court failed to consider the case-law reported in 1994 SCM R 152./ (supra) as was rightly contended by the learned A.A.-G. And misapplied Rule 152 which deals with the classes of prisoners required to be transferred when necessary to undergo sentences. Likewise under Rule 161, which is "subject to provisions of Rule 152, prisoners shall not ordinarily be transferred from the prison to whom they were in the first instance committed until the result of the appeal is known and if appeal is not preferred the time for appealing has elapsed". The case of the respondent is not covered by these two rules because he is still an undertrial prisoner and not a convict. See also Malik Ghulam Jilani v. The Government of Pakistan PLD 1976 Lah.
38. In this case the legality of detention of under trial prisoners was assailed on three grounds. One of them was that the prisoners being under trial prisoners could not be taken outside the territorial jurisdiction of the Courts before whom they are to be tried. This ground was repelled by a learned D.B. Of the Lahore High Court and it was observed as under:-- "So far as the first ground is concerned the learned counsel for the prisoners was unable to point out any provision of the law which compels the detaining authority to detain the prisoners within the territorial jurisdiction of the trial Magistrate. All that was submitted was tlit section 29 of the Prisoners Act, 1900, which authorizes the Provincial Government to determine the place of detention of prisoners or custody of prisoners, was not applicable, because it applied to custody of persons who are already convicted or those who have been ordered to give security and not to under trial prisoners. He was, however, unable to point out the law applicable to the undertrial prisoners... It appears to us that where an accused person is remanded to judicial custody, there is no fetter on the power of the detainer, subject to the provisions relating to reception and detention of prisoners and the exigencies of the warrant, as to the place where he might be detained."
13. The upshot of the above discussion is that subject to Pakistan Prison Rules (as amended) the Inspector-General (Prisons) Sindh was competent to order for transfer of the respondent from Malir Jail to Central Prison, Karachi where the respondent is presently confined. It would not be out of place to observe that without first getting the news item on the subject verified the impugned order should not have been passed in undue haste by misreading the provisions of Pakistan Prison Rules.
14. In such matters, while considering the relevant rules the other allied factors such as security, law and order situation, and imminent danger to the life of the under trial prisoner may also be given due consideration to ensure fair trial of an undertrial prisoner. ' Accordingly, this revision is allowed and the impugned order is set aside.
15. ' At the conclusion of the arguments the respondent also submitted that he is suffering from some E.N.T. Problems and he may be allowed the facility of medical treatment. This request being reasonable is allowed. The record shows that on 23-12-1997 this Court had ordered for providing medical treatment to the respondent at Jinnah Post Graduate Medical Centre, Karachi.
16. Accordingly, the Director J.P.M.C. Is directed to depute a senior physician for examining the respondent in the Jail Hospital. The Superintendent, Central Prison is directed to take further steps for providing treatment to the respondent in the light of the medical report. The office is also directed to send immediately the extract of these directions regarding medical treatment to the Director J.P.M.C. As well as the I.-G. (Prisons), Sindh and the Superintendent, Central Prison, Karachi for compliance.
17. Revision .