Petition for habeas corpus under section 491, Cr.P.C. Is filed by Mst. Memoona Javed Hashmi, daughter of Makhdoom Javed Hashmi.
2. Petitioner stated that Makhdoom Javed Hashmi is her real father and is an elected Member of National Assembly. On 29th of October, 2003, at about 10-45 p.m. While her father was going out of the main gate of Federal Lodges alongwith his driver, some unknown persons forcibly abducted him by throwing him into their own vehicle and took away to some unknown place. The petitioner further stated that reportedly her father is detained in Sihala Rest House, Islamabad and a case is reportedly registered against her father. It is also stated that she tried her level best to obtain copy of F.I.R. From the respondents but despite her repeated efforts no F.I.R. Has been provided by the respondents, as such she presumes that no case has been registered against the petitioner's father.
3. Petitioner also stated that from the news items appearing in the newspapers her father was supposed to be produced before the Court of law for remand but despite petitioner's keeping on waiting alongwith her counsel Syed Zafar Ali Shah, Advocate Supreme Court of Pakistan outside the Court's premises petitioner's father was not produced before any Court of competent jurisdiction at Islamabad. As such, she submitted that the detention of her father in Sihala Rest House, Islamabad is totally illegal and Constitutional and fundamental rights of her father guaranteed under Articles 4 and 9 of the Constitution for life and liberty have been infringed. Thus, finally it was prayed as under:-- "It is, therefore, respectfully prayed that this petition may kindly be accepted and the petitioner's father Makhdoom Javed Hashmi, M.N.A., may kindly be recovered through bailiff of this Honourable Court from the illegal detention of the respondents and he may be produced before this Honourable Court for further proceedings in accordance with law."
4. Notice was issued to the respondents and respondent No,2, S.H.O., Police Station Secretariat, Islamabad was directed to appear in person to show if there is any case registered against the detenu vide order of this Court dated 3rd of November, 2003. S.H.O. Appeared on 4th and stated that a case was registered against the detenu.
5. On 5-11-2003 the respondent State was directed to file a copy of the F.I.R. And remand order up to 7-11-2003. The learned A.A.-G. Complying the order of this Court filed a copy of the F.I.R. And orders of remand dated 30-10-2003 and 4-11-2003. On-10-11-2003 the learned counsel appearing for the petitioner sought time to examine the F.I.R. And orders of remand and address additional arguments. On their request, the case was adjourned to 13-11-2003. Both the sides have addressed arguments in detail.
6. Zubair Ahmad, Inspector/S.H.O., Police Station Secretariat, Islamabad appeared along, with Assistant Advocate-General and Mr. Munir Ahmad Bhatti, Advocate for respondent. One of the learned counsel representing respondents. Mr. Mtinir Ahrnad r3hatti at the outset stated that F.I.R.
No,326, dated 29th October, 2003, is registered with Police Station Secretariat Islamabad under sections 131, 124-A, 468, 469, 471, 500, 505 and 109, P.P.C. And Makhdoom Javed Hashmi was arrested in the said case on 29th of October, 2003. It is also stated by the learned counsel that remand was also obtained from the Court of competent jurisdiction on 30-10-2003, where he has also appeared. Learned counsel also stated that he had the 'opportunity of talking with Makhdoom Javed Hashmi at the time of obtaining remand. Again on 4-11-2003, remand was obtained by the police from the Judicial Magistrate and on 12-11-2003 under the order of the Judicial Magistrate the detenu was sent to judicial lock-up. According to the learned counsel for the respondent, it was stated that Makhdoom Javed Hashmi is now in the Adyala Jail under the judicial remand in the case against him.
7. In the light of these facts stated, the learned counsel representing the respondents argued by making a reference to paras. 4 and 5 of the petition that the petitioner had full knowledge about the registration of the case and arrest of Makhdoom Javed Hashmi for offences referred by him. He pointed out that Makhdoom Javed Hashmi is an elected Member of National Assembly and an application was submitted to the Speaker of National Assembly for his production in the Assembly whereupon prima facie the Speaker National Assembly observed that production of a Member during the period of physical/judicial remand has no precedent and the case was referred to the .Law Division. The learned counsel pointed out that all these facts have extensively appeared in the NationalPress and every newspaper is carrying these facts. He also placed on record certified copy of a Report No,40 dated 29th of October, 2003 and stated that the arrest of Makhdoom Javed Hashmi was made at 10-50 p.m. On 29-10-2003 and information thereof was given to the Speaker National Assembly and also to a servant of Makhdoom Javed Hashmi as well as to the petitioner.
Next it is contended that fact of lawful registration of a case against the person alleged to have been detained provides a complete answer to the petition of habeas corpus and the arrest of the petitioner is lawful and the petition be dismissed with special cost.
8. A large number of counsel represented Makhdoom Javed Hashmi but the arguments were advanced by Mr. Aitzaz Ahsan the learned senior counsel appearing for the petitioner. Repelling the arguments of learned counsel for the respondents, it was argued that paras. 4 and 6 of die petition merely disclosed state of mind of the petitioner and the information gathered by her from various sources including media but she had no positive knowledge about the registration of case nor she was provided any copy of F.I.R. Despite her repeated requests nor she or her any other relative or the counsel of Makhdoom Hashmi was provided an access to him. So the petitioner did not know whereabouts of her father and she has waited uptil 8 p.m. On 30th of October, 2003 alongwith her counsel Syed Zafar Ali Shah to have a vigil' on the production of her father before Ilaqa Magistrate.
But he was not produced and only conclusion which was drawn by her was that her father was illegally detained without any order of remand by respondents. Adding to his arguments the learned counsel submitted that under Article 10 of the Constitution of Islamic Republic of Pakistan it is fundamental right of Makhdoom Javed Hashmi to consult and be defended by legal practitioner of his choice and he could not be kept in detention or in custody without producing him before the Magistrate within a period of 24 hours of such arrest. On this premises learned counsel argued that as the respondent has neither produced the F.I.R. Nor the remand order, therefore, it may be presumed that his detention and arrest is improper and unlawful within the scope of section 491(b), Cr.P.C. The learned counsel relying on the case of Farooq Bedar v. Inspector-General of Police PLD 1969 Lahore 1020, argued that mere registration of case has not made the petition for habeas corpus infructuous and this Court can enter into an inquiry to find out whether basic right of the detenu as to whether he was informed with offences charged and whether the order of remand was passed in accordance with law, can be scrutinized and examined while dealing with the petition of habeas corpus under section 491, Cr.P.C. It is also argued that if as a result of such inquiry it is found out that the detention and arrest of the petitioner's father was not in accordance with law, the instant petitioncan be converted into a bail application and Makhdoom Javed Hashmi be granted bail. The learned counsel in support of his arguments referred to the cases Farooq Bedar v. Inspector-General of Police PLD 1969 Lah. 1020, Government of Sindh v. Raeesa Farooq 1994 SCMR 1283, Mst. Razia Shaheen v.The State PLD 1997 Lah.659, Mst. Meeran Mai v. Station House Officer PLD 2001 Lah.
459. On the other hand, from the respondents' side cases of 1999 PCr.LJ 592, Muhammad Sadiq v.
S.H.O. 1999 PCr.LJ 1439, Muhammad Sadiq v. S.H.O., Police Station Saddar, Arifwala 1999 PCr.LJ 1786; Wajid Abbas v. Raja Waheed, Sub-Inspector 1999 PCr.LJ 194, Zabih Ullah v. S.H.O. 1999 MLD 399, Mst.
Fatima v. Kamil Shah and others 1996 PCr.LJ 325, Arbab Khan v. The State 1996 PCr.LJ 703 were referred.
9. Relying on sub-clause (b) of section 491, Cr.P.C. M. Aitzaz Ahsan, Advocate argued that detenu was illegally and improperly detained in custody, therefore, he may be directed to be produced in the Court and be set at liberty. For demonstrating the detention of the detenu as illegal and improper, the learned counsel contended that initially F.I.R. Was not produced nor remand order was brought in this Court and now the F.I.R. And the remand order placed on the file shows that one Khurshid Ahmad whose adthoss is given in the F.I.R. Has lodged but no such person as Khurshid Ahmad is available at the address given in the F.I.R. Secondly a bare reading of the F.I.R. Would show that no offence is made out against the detenu. Next it was contended that despite the order of this Court the complete F.I.R. Was not filed in the Court. The letter which was alleged to have been distributed by the detenu was a part of the F.I.R. But it was not produced. He added that it constitutes non-compliance of the order of this Court on one hand and on the other hand, reflects ill-will on the part of the prosecution who have deliberately withheld the letter in question and that he has serious apprehension that the said letter would be interpolated to strengthen the case of the Government against the detenu.
10. Next it was argued that remand order dated 30-10-2003 did not bear any stamp or name of the person from whose Court purported remand was produced. Referring to the signatures of the Magistrate on the remand order it was submitted that even the signatures are not legible. So no authenticity can be presumed against remand order. Thus according to the learned counsel it clearly proved that detention of the detenu was illegal and improper from 29-10-2003. Further it was argued that Makhdoom Javed Hashmi is a Member of National Assembly. He was elected six times from his constituency and that his arrest was patently mala fide and it was a political victimization of the Government in power. Reiterating his contentions, the learned counsel urged that it was the fundamental right of the detenu to have consultation with the legal expert and has a counsel of his own choice which was denied tohim. His family is also declined an excess and that the Government is actinic mala fide. For all these reasons the learned counsel contended that the detention of the detenu is illegal and improper, therefore, he may be directed to be produced in the Court and be set at liberty. Mr. Aitzaz Ahsan, Advocate next argued that if request for producing of the detenu in the Court and setting him at liberty does not find acceptance, then in the alternative this petition be converted into a bail application and that Makhdoom Javed Hashmi be released on bail. For this he has relied on the case of Mr. Farooq Bedar.
11. The learned Advocate-General, Punjab and Mr. Munir Ahmad Bhatti, Advocate representing the respondents on the other hand argued that Makhdoom Javed Hashmi was specifically nominated in F.I.R. No,326, dated 29-10-2003 under sections 131, 124-A, 468, 469, 471, 500, 505-A read with section 109, P.P.C. Registered against him at Police Station Secretariat, Islamabad and that his remand was procured from the Judicial Magistrate on 30-10-2003 and thereafter on 4-11-2003 and he was sent to judicial lock-up on 12-11-2003 and presently he is confined in the Adyala Jail. It was argued that habeas corpus petition under section 491 has a limited scope and the registration of the case and the proceedings of remand is a complete answer as such the habeas corpus petition has become infructuous. Next it was argued that in view of a proper case registered against the detenu on the basis of a tangible evidence in the form of a letter purported to be a forged one on the letter-head of G.H.Q. To create disaffection and abet mutiny in the Armed Forces of Pakistan, it would be a fantasy to state on the part of the petitioner that the case against the detenu does not exist. M. Munir Bhatti, Advocate referring to the letter purported to have been circulated by the detenu in the Press Reference in the Cafeteria of the National Assembly argued that there were reasonable grounds to believe that the detenu has committed the offence which is cognizable by the police, hence a case was registered against him. He further added that this forged letter was owned by Makhdoom Javed Hashmi, detenu and this fact was given out by him to the Press. It was further submitted that as a case has been properly registered against the detenu on the basis of valid reasons and grounds, therefore, it cannot be termed as illegal or improper detention . He next submitted that the expression "illegal and improper" in sub-clause (b) to section 491, Cr.P.C. Are used in relation to the custody and not in relation to the registration of the case. Further it was argued that once it was shown that a proper case has been registered and that a judicial remand from the Court of competent jurisdiction has been procured, the habeas corpus petition has become infructuous. In support of his contentions, he relied on the judgment in the cases of Wajid Abbas v. Raja Waheed, Sub-Inspector 1999 PCr.LJ 194, Sardar Sultan Ahmad v. Ch. Muhammad Mushtaq, S.H.O. PoliceStation Sadar, Okara 1999 PCr.LJ 592; Muhammad Sadiq v. S.H.O. 1999 PCr.LJ 1439, Zabih Ullah v. S.H.O. 1999 MLD 399), Mst. Fatima v. Kamil Shah and 5 others 1996 PCr.LJ 325, Arbab Khan v. The State 1996 PCr.LJ 703, Mst. Bachino v. Abdul Hakim, A.S.-I.PLJ 1976 Lah.155.
12. I have examined the record and considered the arguments addressed by the learned counsel for both the sides. It is clear from the record that F.I.R. No,326 dated 29-10-2003 under sections 131, 124-A, 468, 469, 471, 500, 505-A read with section 109, P.P.C. Was registered against Makhdoom Javed Hashmi, detenu at Police Station Secretariat, Islamabad. The record further shows that an application for seeking 10 days remand was moved before the Judicial Magistrate, it was forwarded by the Public Prosecutor and D.S.P. Investigation produced the accused before Judicial Magistrate on. 30-10-2003. Order of the Magistrate shows that 5 days' physical remand was given.
Again D.S.P. Investigation, placed a request for further remand on 4-11-2003 and the Judicial Magistrate vide his order passed on the same day granted physical remand for 9 days. This remand had to expire on 13-11-2003. The police has again produced the detenu before the Ilaqa Magistrate on 12th, a day before the expiry of the remand and he was sent to judicial remand and it is stated by the learned counsel for the respondents that the detenu presently is confined in the Adyala Jail as he is on the judicial remand in the case registered against him.
13. Thus from the record it is observed that the detention of the detenu was in pursuance of a case registered against him and that he was taken into custody in the said case and that his remand was obtained and he is now on the judicial remand in Adyala Jail.
14. The question which begs answer in the present case is whether detention/arrest of the detenu was lawfully and properly made and that there exist any circumstances which may bring the arrest of the detenu as illegal and improper. There is no cavil to the principle that it is inalienable right of every citizen to be treated in accordance with the law and only in accordance with the law. To my mind, arrest or detention would be lawful if it is made in accordance with the law. In the instant case a written complaint was filed by one Khurshid Ahmad before the S.H.O. Police Station Secretariat, Islamabad, who after examining the contents of the application and allegations contained therein considered that a cognizable offence is said to have been committed and proceeded to register a case against Makhdoom Javed Hashmi. The complainant has also produced a copy of the letter purported to have been circulated by Makhdoom Javed Hashmi during his Press Conference in the Cafeteria of the National Assembly. At this juncture, it would not be appropriate to discuss the offences described in the F.I.R. But it would be suffice toobserve that on the complaint, the S.H.O. Concerned formed reasonable opinion that a cognizable offence was committed. He proceeded to register the F.I.R. And the detenu was arrested in pursuance of the F.I.R.
On 29-10-2003 at 10-50 p.m. Soon after his arrest Report No,40 was entered in the police station and intimation about the arrest of Makhdoom Javed Hashmi was conveyed to the Speaker National Assembly on his Telephone No,9221549, at the residence of the detenu at Telephone No,9223636 and to his daughter, the petitioner on her Telephone No,92228040. Next day the detenu was produced before the Judicial Magistrate, Islamabad and physical remand for 10 days was given. A day before the expiry of the remand on 12-11-2003 the detenu was produced before the same Judicial Magistrate and he was sent on judicial remand and ever since he is in the judicial lock-up. While appearing before the Judicial Magistrate request for treatment was made and the detenu was medically examined in the Federal Government Services Hospital, Islamabad on 12-11- 2003. Under section 154, Cr.P.C. After recording the F.I.R. And producing Makhdoom Javed Hashmi under section 167, Cr.P.C. Before the Judicial Magistrate for remand shows that prima facie action in accordance with the law was taken against him and there is neither sufficient material on the record to hold that in the instant case the police acted contrary to law. Mere version of the petitioner that she waited up to 8-00 p.m. Outside the Court of the Magistrate would not be sufficient to repel that judicial remand on 30-10-2003 was not obtained by the police. Arrest was shown to be made at 10-50 p.m. On 29-10-2003 and within 24 hours Makhdoom Javed Hashmi was produced before the Judicial Magistrate and remand was taken. In the presence of copy of the remand order of the Judicial Magistrate it is difficult to disbelieve the version of the prosecution.
The second remand order dated 4-11-2003 and the third remand order dated 12-11-2003 was not seriously denied by the petitioner. As such I am of the view that the arrest of the detenu and his detention was not improper.
15. Expression "illegally" used in section 491, sub-clause (b) connotes an act which is contrary to the law or prohibited by law and resort thereto led to detention of a detenu. I do not find any substance in the contention of the petitioner that detention/arrest of Makhdoom Javed Hashmi can be taken as illegal. To support his argument the learned counsel for petitioner read the F.I.R. As well as the contents of the letter and submitted that it only contains opinion of the complainant. Firstly referring to an offence under section 124-A, P.P.C. The learned counsel submitted that no case can be registered against any person under section 124-A unless a complaint is made by the Central Government or the Provincial Government. The question whether an offence is made out from the contents of the F.I.R. And the material placed by the complainant before the S.H.O./Investigating Officer is a question which is subject-matter of investigation and any observation about these facts would not be proper and appropriate as it may cause serious prejudice to either of the parties. Suffice it to say that there was a complaint and on the basis of complaint, taking it as an information about commission of a cognizable offence on the basis of reasonable belief the police registered a case which is taking its own course. The police is vested with the jurisdiction to act on the information in respect of cognizable offences and after registering the case proceeding with the investigation, such conduct of the police prima facie was in accordance with the law and nothing was brought on the record to show that the police was guilty of the act which they have performed, but was not warranted under the law. As such there is no premises to hold that the detention/arrest of Makhdoom Javed Hashmi was illegal in the context of section 491(b), Cr.P.C.
16. As regards conversion of this petition into a bail, to my mind, this request is not tenable for the reason that for seeking bail a proper remedy has been provided under sections 497 and 498, Cr.P.C. This Court while regulating its jurisdiction has to act in manner whereby normal scheme of law is not disturbed. Although in Farooq Bedar's case bail was granted by the High Court in a petition under section 491(b), Cr.P.C. But that was a case in which on holding an inquiry the learned Judge came to the conclusion that the alleged remand was improper and illegal and victimization was manifested from the circumstances of the case. In the instant case on the basis of some admitted facts like holding of a Press Conference and distribution of a letter by Makhdoom Javed Hashmi and a registration of a case on the basis of said act of circulation of a letter, which is alleged to be forged makes the present case distinguishable and it does not make out a case of conversion.
17. The upshot of the above discussion is that the arrest and detention of Makhdoom Javed Hashmi was in pursuance of a case registered against him vide F.I.R. No,326 dated 29-10-2003 under sections 131, 124-A, 468, 469, 471, 500, 505 read with section 109, P.P.C. Registered at Police Station Secretariat, Islamabad, as such it was not a case of illegal or unlawful detention and the petition for habeas corpus petition was, therefore, misconceived and the same is dismissed.
18. As regards the conversion it is held that it is not tenable in the circumstances of the case, therefore, this request is also rejected.