' The petitioner through this writ petition has challenged the order, dated 13-12-2003 passed by the respondent whereby he directed holding of trial of the case titled State v. Nlakhdoom Javed Hashmi in Central Jail Adiala Rawalpindi, which was registered against him vide F.I.R. No,326, dated 29-10-2003 under sections I24-A, 131, 468, 469, 471, 500, 500-A read with sections 109, P.P.C. At Police Station Secretariat Islamabad.
2. Necessary facts as mentioned in the writ petition are that the petitioner is an elected member of National Assembly, Parliamentary Leader of ARD and acting President of Pakistan Muslim League (N). He has been the vanguard of the opposition movement against the Government's undemocratic manner of ruling the country. The country stands isolated in the comity of nations due to the short-sighted foreign policy. The petitioner was exposing the fallacious policies of the Government which is the prime duty of an opposition leader. He was faithfully carrying out his obligations and raised voice against the policies of the Government. To restrain him from pursuing his campaign, a false case has been registered which led to his arrest from the Parliamentary Lodges, Islamabad.
3. On 16-12-2003 when the petitioner's counsel appeared before the learned trial Court it was disclosed to him that the trial of the aforesaid case from henceforth will be held in Central Jail Adiala, Rawalpindi in view of the order dated 13-12-2003 passed by the respondent. Constitutional petition has been filed assailing the said order
4. Notice was issued to the respondent, who filed his parawise comments. It was pleaded, that Senior Superintendent of Police and Deputy Commissioner. Islamabad. Reported in their separate letters that holding of trial in the Court of learned Sessions Judge, Islamabad is not conducive.
Many supporters/workers of the PML(N) gathered in and around the Court premises on each date of hearing and create law and order situation. Partymen of the petitioner damaged public property including the vehicles parked in the premises. A criminal case vide F.I.R. No,304 under sections 188/427, P.P.C. Was registered at Police Station Margala, Islamabad, on 8-12-2003 against Syed Zaighum Ali Shah and others allies of the petitioner. The learned Sessions Judge, Islamabad, also observed that the atmosphere in and around the Court is crowded by some unruly elements and that the proceedings cannot be held comfortably.
5. The respondent has exercised the powers of Provincial Government under Islamabad Capital Territory (Administration) Order 1980 (President's Order 18 of 1980) promulgated on 31-12-1980.
Article 2 of which provides:- "The executive authority of the Federation in respect of the Islamabad Capital Territory shall be exercised by the President either directly, or to such extent as he thinks fit, through an Administrator (now Chief Commissioner) to be appointed by him . "
6. In pursuant of Article 2 of the aforesaid order, President made directions that Administrator shall have, all the powers and duties conferred or imposed on the Provincial Government under any law for the time being in force in Islamabad Capital Territory. The Office of Administrator was substituted by the Chief Commissioner. The petitioner had filed a revision through Mr. Hashmat Ali Habib, Advocate, seeking withdrawal of the order impugned herein, which was not acceded to resulting into dismissal of revision.
' Learned counsel for the petitioner has raised the following contentions:--
(a) That the respondent has no jurisdiction in law to direct holding of trial in jail. Subsection (2) of section 9 of the Code of Criminal Procedure empowers the Provincial Government alone to specify the places where the Court of Session shall hold its sitting. According to the learned counsel, the aforesaid provisions of law does not empower the Provincial Government to direct holding of trial of a case at a particular specified place and that the respondent is not a Provincial Government within the meanings of section 9(2) Cr.P.C.
(b) That the respondent did not pass a speaking order, it lacked reasons and is against the provisions contained in section 24(A) of the General Clauses Act.
(c) That the petitioner was condemned unheard in violation of the principle of natural justice.
(d) That the order has not been notified in the official Gazette, therefore, the same is liable to be struck down.
(e) That the open trial has been transformed into a secretive repressive which amounts to denial of justice. According to the . Learned counsel, the petitioner will be deprived of the services of the lawyers of his own choice.
(f) That there is no Court-room in the Jail premises and the Presiding Officer has to hold the Court in the office of Superintendent Jail.
' In support of his contentions, learned counsel has placed reliance on Shaikh Hafeez Ahmad v. The State through Secretary (Home), Government of the Punjab, Lahore PLD 1975 Lah. 1453, Akhlaq Ahmad v. Government of Punjab and others 1991 MLD 739 and Asif Ali Zardari v. Special Judge, (Offences in Banks) and 10 others PLD 1992 Kar.
437.
8. On the other hand the learned Special Prosecutor controverted the above contentions raised by the learned counsel for the petitioner. He submits that the respondent exercised the powers conferred through Islamabad Capital Territory (Administration) Order, 1980. He further submits that the respondent has given cogent reasons for passing the impugned order as he based his opinion on the report submitted to him by the Senior Superintendent of Police and District Magistrate, Islamabad. An F.I.R. Was also registered against some persons involved in causing damage to the public property. He lastly submits that the petitioner filed a revision petition through his counsel which was considered by the respondent and was dismissed giving detailed reasons. In support of his contentions, he relies on Shaukat Hayat v. Government of Sindh and another 1987 MLD 2783, Abdul Fatah and others v. The State 1990 MLD 1087 and Reference made by Sessions Judge, Larkana for transfer of cases 1990 PCr.LJ 1687.
9. I have considered the respective contentions of the learned counsel for the parties and perused the record with their able assistance.
10. The respondent has exercised the powers of Provincial Government conferred on him by Islamabad Capital Territory (Administration) Order, 1980 (P.O. 18 of 1980) published in Gazette of Pakistan on 31-12-1980. Article 2 provides that the executive authority of the Federation in respect of Islamabad Capital Territory shall be exercised by the President either directly or to such extent as he thinks fit through an Administrator to be appointed by him. The functions and duties of an Administrator under Article 2 were described further in notification published in extraordinary Gazette on 31-12-1980, which is reproduced below:- "In pursuance of Article 2 of the Islamabad Capital Territory (Administration) Order, 1980 (P.O.No,18 of 1980), the President is pleased to direct that, subject to such general or special instruction as may from time to time be given to him by the Federal Government the Administrator shall have in respect of Islamabad Capital Territory all the powers and duties conferred or imposed on the Provincial Government under any law of the time being in force in the Islamabad Capital Territory."
11. The above notification empowers the Administrator (Chief - Commissioner) to exercise all the powers and duties conferred or imposed on the Provincial Government under any law for the time being in force in the Islamabad Capital Territory. In view of the aforesaid notification, the respondent/Chief Commissioner is a Provincial A Government and under subsection (2) of section 9 of the Criminal Procedure Code is empowered to direct holding of trial of a case in the Jail premises. Therefore, the first contention of the learned counsel for the,petitioner is devoid of any force.
12. The petitioner's grievance that the impugned order does not contain reasons which a public functionary is required to give in view of the provisions of section 24(A) of the General Clauses Act is also not sustainable on the ground that the petitioner himself approached the respondent by way of filing a revision which fact finds mentioned in ground (g) of the petition. A detail order giving reasons was passed on his representation. The order impugned has been published in the official Gazette hence the contentions raised by the learned counsel for the petitioner in this respect are also without forte.
13. The contention of the learned counsel that the trial in Jail premises to denial of access to justice as a lawyer of his own choice is not available to conduct the case in Jail premises and that it is the Court alone to decide as to whether a case can be heard in open Court or to a place outside in view of the provisions of section 352, Cr.P.C. In PLD 1992 Kar. 437 the learned Division Bench of the Sindh High Court after considering various judgments from the Indian jurisdiction and placing reliance on PLD 1975 Lah. 1453 (supra) observed that for reasons of security for the accused or for the witnesses or for any other valid ground, the trial in Jail is legal, but the Presiding Officer of the Court must realize that the place where the trial is held must be something like an open Court to which the public in general may have access so far as the same may contain them. It was also observed that the Presiding Officers must see that proper facilities are given to the members of the Bar and the members of the Public and that they are not restricted by the Jail Rules or by the officer incharge in attending the Court. In nutshell, the observation in this case was that the decision to hold the trial in. Jail rests with the trial Court and the Government is not competent to issue such a direction.
14. In 1991 MLD 739 the provisions of section 352, Cr.P.C. Came up for examination before a learned Single Judge of this Court who while relying on the aforesaid authorities took the same view' It was observed that in certain eventualities the holding of a particular trial in the Courthouse may not be possible or practical keeping in view the security of the accused, the danger of their rescue or the law and order situation. The District Magistrate or Home Secretary holding an opinion that the trial in Court-house will be against the interest of security of the accused or that there is' some danger or law and order situation may place necessary facts to the notice of the Court concerned which alone under law is empowered to pass an order of holding trial in Jail or otherwise. In PLD 2003 Lah.
450 the learned Division Bench of this Court also reiterated the view that the trial is to be regulated by the Court with due regard to security of the parties, witnesses and the Court itself.
15. The judgments referred to by the learned counsel for the respondent on the controversy are: In 1987 MLD 2783 a Constitution petition was filed against the order of Government authorizing the Additional Sessions Judge to hold trial in Central Prison, wherein it has been observed as under:-- "The trial of the ,cases is to be conducted in open Court where the Court concerned normally holds but in exceptional cases a trial could be held in camera or at a place other than the normal Court- room. An open trial, could also be held in a prison if circumstances of the case so warranted."
16. The Constitution petition filed by the accused in the above case was dismissed by the Court by observing that commission of murders of two sisters after the alleged commission of rape and murder of their father in which the petitioner is allegedly involved resulted into public riots and therefore, the action of the Provincial Government seems to be bona fide in the interest of the petitioner. In 1990 MLD 1994 it was held that the Provincial Government is competent to appoint one or more Special Magistrate with special powers and limitations as deemed fit and proper for trial of cases specified in Notification even relating to different districts at a particular venue. In 1990 PCr.LJ 1687 it was held that the Provincial Government is competent to set up venue for the trial of cases of a particular accused and also nominate any Sessions Judge or Additional Sessions Judge to try those cases which are to be specified by the said Government in Notification/Notifications.
17. The proposition of law emerging after examination of the precedents cited at Bar is that the District Magistrate or Home Department or Home Secretary for reasons of security or law, and order situation or for any other valid reasons may conduct the inquiry and place the matter before the trial Court which alone shall be competent to B determine as to whether the trial should be held in open Court or in Jail premises and that the Provincial Government in suitable cases can pass an order for trial of a case at a particular place if the reasons are bona fides.
18. In the present case the Senior Superintendent of Police, Islamabad, requested the District Magistrate, Islamabad, for holding of trial in Jail premises. Who in turn requested the respondent Chief Commissioner to pass an appropriate order for holding of trial in Jail as the atmosphere in the open Court is not conducive and comfortable. Keeping in view the aforesaid situation, the Chief Commissioner has passed the impugned order. A revision filed by the petitioner against this order was dismissed with detailed reasons. The learned Sessions Judge has also passed an order, dated 16-12-2003. He held that in addition to the fact that the respondent decided to hold the trial in Jail premises vide order, dated 13-12-2003, he also intended to place on record that law and order situation had been created repeatedly by the supporters of the petitioner/accused and some unruly elements have disturbed the peaceful atmosphere of the Court, slogans are chanted by the workers of the petitioner's political party and trial cannot proceed under such circumstances. The learned Court directed that the proceedings of the case shall be held within the Jail premises.
19. To my mind it is not the impugned order of the respondent directing trial of the petitioner in Jail, but it has been supplemented by the order of the learned Sessions Judge himself, who disapproved in strong words the situation created by certain unruly elements as a result of which the comfortable atmosphere of the Court was disturbed. He held that the normal trial in Court- room will not be conducive. He was of considered opinion that the trial of the petitioner cannot be held in the Court-room at Islamabad in a peaceful atmosphere.
20. The upshot of the above discussion is that this petition is without any force and is dismissed.
However, before parting with this judgment, it is observed that proper facilities/arrangements be made by the Jail Authorities for the learned counsel for the petitioner and they are not restricted by the officers of the Jail, while attending the trial in any manner.