P L D 1957 (W (PLP)

MUHAMMAD SHAFI, J.‑

Mst. Mumtaz Begum, who pre viously followed Sikh religion, but was subsequently con verted to Islam, was living along with her alleged husband. Sakhi Daler Khan, in Sarsawa, Tahsil Kotli, District Mirpur, in the territory popularly known as Azad Kashmir. On the 21st of July 1957, she was arrested by the Pakistan Police in Sarsawa and delivered to the custody of the officer in charge of a camp in Lahore established by the West Pakistan Government under section 3 of the Pakistan (Recovery of Abducted Persons) Ordinance VII of 1949, hereinafter referred to for brevity sake as the Ordinance. Her husband, Sakhi Daler Khan, has made an application in the nature of habeas corpus, under section 491 of the Criminal P. C., that Mst. Mumtaz Begum is illegally detained in the aforesaid camp, which amounts to detention in public custody within the criminal jurisdiction of this Court and so she should be set at liberty at once. The learned counsel appearing for the State has raised a preliminary objection that section b of the Ordinance takes away the powers of the High Court under section 491 of the Code of Criminal Procedure. He argued that the question whether a person detained in a camp is or is not an abducted person can only the decided by a Tribunal constituted for the purpose by the Pakistan Government and that the jurisdiction of the High Court in this matter is completely barred. Section 6 of the Ordinance reads as under :‑ "(1) If any question arises whether a person detained in a camp is or is not abducted person or whether such person should be restored to his or her relatives or handed over to any other person or conveyed out of Pakistan or allowed to leave the camp, it shall be referred to and decided by a Tribunal constituted for the purpose by the Central Government." "(2) The decision of the Tribunal constituted under subsection (1) shall be final. Provided that the Central Government may, either of its own motion or on the application of any party interested in the matter, review or revise any such decision." A mere reading of this section would show that it does not in any way oust the jurisdiction of the Court to question the validity of the detention. All that it lays down is that if questions envisaged in this section arise, then they must necessarily be referred to and decided by a Tribunal, and once the Tribunal gives its decision, it would be final subject to the review or revision by the Central Government. If those questions are not referred to the decision of the Tribunal"' within reasonable time, then the detention may for that reason become illegal ‑but it does not by any stretch of imagination mean that the exclusive powers to decide them have been given to the Tribunal and the jurisdiction of the Courts in respect of them is ousted, although it must at once be conceded that if they are decided by the Tribunal then the Courts' jurisdiction to give second decision on them will be barred. In this case, however, for .the reasons that follow Tribunal set up under the Ordinance will have no jurisdiction to deal with the matter even if they are referred to it, because the Ordinance does not apply to the detenu. The next section which is to be considered in this case is section 8, which is to the following effect :‑ "Notwithstanding anything contained in any other law for the time being in force, the detention of any abducted person in a camp in accordance with the provisions of this Ordinance shall be lawful and shall not be called in question in any Court." The scheme of the Ordinance is that if any police officer, not below the rank of an Assistant Sub‑Inspector or any other police officer, specially authorised by the Provincial Government in this behalf, has reason to believe that an abducted person resides or is to be found in any place, he may, without warrant, enter and search the place and take into custody any person found therein who, in his opinion, is an abducted person, and deliver or cause such person to be delivered to the custody of the officer‑in‑charge of the nearest camp with the least possible delay. This Ordinance applies to the Province of West Punjab (which has now merged into West Pakistan) and to such other areas as the Central Government by a special order published in the official gazette directs. Azad Kashmir is not a part of Pakistan, and, therefore, the Government of West Pakistan or the Centre has no authority over it. The Pakistan Police, therefore, had no jurisdiction to enter into that territory and arrest a person there for detention in a camp established in any part of Pakistan. The Government of Azad Kashmir has an Act of their own dealing with the abducted persons known as the Azad Kashmir Recovery of Abducted Persons Act, 1954. It has its own camps where the abducted persons, after they are arrested by the police officers not below the rank of Sub‑Inspector or specially authorised by the Government in this behalf, are detained. If, therefore, the Pakistan Police arrests a person in Azad Kashmir and brings that person to Pakistan then his or her detention in Pakistan will not be the "detention of abducted person in a camp in accordance with the provisions of this Ordinance." Before a person is' delivered to the custody of the officer‑in‑charge of a camp in West Pakistan, such person must be taken into custody under and in accordance with the procedure laid down in the Ordinance. Both the initial custody and the subsequent detention in a camp which are complementary to each other, must in order to be legal be under the Ordinance. If initial custody is bad, then the detention which follows it will automatically be rendered bad. Ordinance applies to Pakistan only, meaning thereby that the people living in this country alone are governed by it. It can have no application to the people living permanently outside Pakistan. It will, therefore, be completely wrong to take into custody a person living beyond the territorial jurisdiction of Pakistan, bring that person to Pakistan and then say that now the Ordinance governs that person. It is wholly an impossible and un acceptable position which cannot receive judicial recognition at all. It is contended that the initial custody in Azad Kashmir was with the permission of the authorities in that country, but even if it be so, it will not be the custody under the Ordinance, The learned counsel for the State has quoted before us a Privy Council authority, Rahim v. Emperor (AIR1944 PC 73), in support of his contention that where a person is arrested in a foreign State but brought to British India, then his detention cannot be said to be illegal. The facts of that case were that an accused person who was not a British subject, but a native of the Jind State, committed an offence within the jurisdiction of British Indian Court. He was arrested in the State of Jind by the British Indian Police, but before he was tried by a Court in British India, he was extradited and handed over to the nearest British Indian authorities. On these facts their Lordships of the Privy Council held that the detention of the accused in British India was not illegal, because he was properly extradited and handed over to the British authorities. In the case before us, there is no indication whatsoever that the Azad Kashmir authorities handed over the custody of Mst. Mumtaz Begum to the Pakistan authorities under any law. In fact, I know of no such legislation which legalises such handing over. I am, consequently, of the opinion that the detention of Mst. Mumtaz Begum, even if she is an abducted person, is not legal under the Ordinance, because she could not under the Ordinance be arrested in Azad Kashmir. There is, however, a stronger ground on which I am firmly of the opinion that Mst. Mumtaz Begum should at once be set at liberty. Under section 4 of the Ordinance it is left to the subjective consideration or satisfaction of the relevant police officer to form an opinion as a basic fact as to whether a particular person is or is not an "abducted person" in order to take such person into custody to be detained in a particular camp. It may not be a justiciable matter and the Courts may not go into the question whether there were or were not sufficient and reasonable grounds for such con sideration or satisfaction, but it does not mean that a free licence has been given to the detaining authorities to arrest any person that they like. The detention is not made under any executive order, but under a particular statute, which, if any, exists, must be enforced with special severity and watchfulness, because it interferes with the liberties of others. The authority which imperils such liberties should be able on demand to give a clear account of the source. text and scope of its authority. The detention may be dishonest and thus a fraud on a Statute or an abuse of the power given by the legislature. In such a case it has been held by a mass of authorities that the High Court has the power to scrutinise the detention and see whether it is in fact under a valid statute or not. Even if there is no malice or dishonesty on the part of the detaining authority, still human mind is admittedly fallible and there is the possibility of an occasional error and in order to guard against that error, the High Court have the power to look at the impugned order and set it aside if any patent defect is visible in it. Under the Ordinance, the relevant police officers can only take into custody "abducted persons" for the purposes mentioned in section

7. Although formation of the opinion is left to the subjective satisfaction of the police officer, still there should be some material upon which subjective consideration or satisfaction could be said to have been based or founded. If there is no material or the available material shows that a person is not an abducted person, then the police officers have no right whatsoever to arrest such person, and if in spite of it the arrest is made, it would not be under the Ordinance. It will then be open to the High Court to take cognizance of this fact and find that there was no material which could form the basis of the subjective consideration or the police officer. The definition of the "abducted person" given in the Ordinance is as under :‑ "Abducted person means a male child under the age of sixteen years or a female of whatever age who is, or immediately before the first day of March 1947 was a Hindu or Sikh and who on or after that day and before the first day of January 1949 has become separated from his or her family and is found to be living with or under the control of a Muslim individual or family and where any child has been born during the period of such separation to an abducted person who is a female shall include that child." In order to bring a certain person within the orbit of the above definition, the following three conditions must be specified :‑ (1) That such person is or immediately before the 1st day of March 1947, was a Hindu or a Sikh, and (2) Who on or after that day and before the first day of January 1949, has become separated from his or her family, and (3) is found to be living with or under the control of a Muslim individual or family. It will not be sufficient if one condition is satisfied and the other is not because the word used between one condition and the other is "and". All these conditions, in order to make the custody and the detention legal, must be scrupulously satisfied. The only material which is upon this record affecting these three conditions is the affidavit of the petitioner not controverted by any counter‑affidavit. According to this affidavit, Mst. Mumtaz Begum became a Muslim and married the petitioner in January 1947. The first question is Can it be said that Mst. Mumtaz Begum was a Hindu or a Sikh immediately before the 1st of March 1947? I maintain "Not". January 1947 can, by no stretch of imagination, be called "immediately before March 1947." The word "immediate" according to the Chambers's Twentieth Century Dictionary 1955 Edition, means "with nothing between." I regard the intervention of the month of February between January and the 1st of March as of vital importance. The conversion, having taken place ire January, cannot by any logic or calculation be said to have taken place immediately before the 1st of March 1947. So far as the second condition is concerned, it is clear that Mst. Mumtaz Begum had not on or after the 1st of March 1947, and before the first day of January 1949, become separated from her family. It would be absolutely wrong to say that a police officer can arrest a person who was perhaps about twenty years before a Hindu or a Sikh or was separated from her family since the same period in order to detain her in a detention camp and when such an order is impugned in a High Court, to argue that the High Court has no jurisdiction to go into the question whether the detention is legal of not, In my opinion, before the jurisdiction of the High Court is taken away under section 8 of the Ordinance, it must be shown that a person is " an abducted person " or at least has a semblance of it and his or her arrest has taken place under the Ordinance. If that cannot be shown on the available material, then the overall powers of the High Court vested in them under section 491, Criminal P. C., are not in any way affected. I am supported in this view of mine by an Indian authority, Mst. Rehmat v. Officer In Charge Muslim Recovered Women's Camp Muslim High School Building Patiala and another (A I R 1955 Pepsu 48). There are then certain fundamental rights guaranteed by the Constitution of Islamic Republic of Pakistan. It is argued by the learned counsel for the State that in actual fact all abducted persons are the citizens of India and they are taken into custody simply to restore them to that citizen ship. He contends that these fundamental rights are not available to the foreigners. It is not necessary to go into this question in this case whether all abducted persons are the citizens of India or not because Mst. Mumtaz Begum being admittedly a resident of Azad Kashmir, is in any case a foreigner in Pakistan. The perusal of Part II of Islamic Republic of Pakistan would show that where the fundamental rights are guaranteed to the citizens alone, (the term "citizen" having been defined in Article 2! 8 as meaning a person who is a citizen of Pakistan according to the law relating to citizen ship), it has specifically said so, but where the fundamental right is made available to all persons then the word used is "person". Under Article 5 (2) no person can be deprived of life or liberty, save in accordance with law. If an authority) deprives a person, whether a citizen or not, of his liberty in' flagrant violation of the law under which it purports to act, then the High Court will have the jurisdiction to interfere and make the fundamental rights available to such person. It, therefore, follows that if an authority acting under the Ordinance takes into its custody a person who is not an abducted person, then it deprives that person of liberty without any law, and this is what has happened in this case. There is then a fundamental right of vital importance‑ given to a person arrested and detained in custody by Article 7 of the Islamic Republic of Pakistan. According to it, no person who is arrested can be detained in custody without being informed as soon as may be (a term which has been explained in Criminal Miscellaneous No. 66 of 1957 Ghulam Muhammad Khan v. State (P L D 1957 Lah, 497), as meaning "within twenty‑four hours of the arrest") of the grounds of such arrest, nor he be denied the right to consult and be defended by a legal practitioner of his choice. He shall be produced before the nearest Magistrate within a period of twenty four hours of such arrest, excluding the time necessary for the January from the place of arrest to the Court of the Magistrate, and no such person shall be detained beyond the said period without the authority of a Magistrate. It is conceded in this case that Mst. Mumtaz Begum, who was arrested on the 21st of July 1957, in the territory of Azad Kashmir and brought two or three days later to Pakistan, has neither been informed of the grounds of her arrest, nor produced before any Magistrate so far. The fundamental right embodied in this Article has, thus, been violated which entitles Mst. Mumtaz Begum to be set at liberty at once. The learned counsel appearing for the State, however, has argued that the language of Article 7 indicates that it applies only to those cases where (It was the exact words of A I R 1953 S C (Ind.) 10, which the learned counsel has quoted in his favour) " there is an allegation or accusation of any actual or suspected or apprehended commission by the person arrested of any offence of a criminal or quasi‑criminal nature or any act prejudicial to the State or the public interest." I may with all respect to the learned judges who decided the above case atone say that I find it impossible, both in reason and expediency, to accept the position laid down by their Lordships in this judg ment. It is repugnant both to Islamic and British notion of justice and fair play that a fundamental right, so substantial in character, should be available only to the criminals, but not to the innocent people who are taken into custody which means the same thing as arrested and detained under one law or the other. Article 7, itself, does not limit its application to the criminals alone. As it stands it affords Pro tection to all persons arrested, whether criminal or not. Then to read something in it which is not there is against all recog nised canons of interpretation of the Statutes. In most of the cases where the people are arrested having been accused of any actual or suspected or apprehended com mission of any offence of a criminal or quasi‑criminal nature or in the public interest the Criminal P. C. at once comes into play. Under this Code, the arrest may be divided into two categories, namely, an arrest without a warrant or an order from a Magistrate and an arrest on a warrant issued by a Court of competent jurisdiction. In the first category of cases a police officer making an arrest shall without unnecessary delay take or send the person arrested before a Magistrate having jurisdiction in the case or before the officer‑in‑charge of a police station. Such a person cannot be detained in custody by the police officer for a longer period than under all the circumstances if the case is reasonable, which period shall not, in the absence of a special order of a Magistrate under section 167 of the Criminal P. C., exceed twenty‑four hours, exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court. The police officer in charge of the police station must report to the District Magistrate, or if he so directs, to the Sub‑Divisional Officer the cases of all persons arrested without warrant within the limits of their respective police stations. The Magistrate under section 167 of the Criminal P. C. before whom an arrested person is produced within twenty‑four hours may authorise his detention in police custody for reasons to be recorded by him for a period not exceeding fifteen days in the whole, After the expiry of these fifteen days, or before it, if the investigation of the case is completed, the case must be put in Court, where after under section 344 of the Criminal P. C., the Magistrate may, on account of the absence of a witness or another reasonable cause, but only if it is necessary or advisable, postpone the commencement of or adjourn any inquiry or trial. But. even in this case, the arrested person cannot be remanded to custody for a term exceeding fifteen days, In the second category of cases the warrant must be issued by the Court itself signed by the presiding officers, or in the case of a Bench of Magistrates, by any member of such Bench. The warrant must specify on the face of it the offence with which the accused person is charged. The police officer or any other person executing a warrant of arrest shall notify the substance thereof to the person to be arrested, and if so required, shall show him the warrant. Under section 81 of the Criminal P. C. the police officer or other person executing a warrant of arrest, shall (subject to the provisions of section 76 as to security) without unnecessary delay bring the person arrested before the Court before which he is required by law to produce such person. If a person is to be detained in custody after he has been brought to a Magistrate, then the same procedure is to be followed as the one which is to be followed in cases of arrest without warrant. People may also be arrested under the Civil P. C. If a person is to, be arrested in execution of a decree then under Order XXI rule 37 of the Civil P. C., a notice has to be issued to him, calling upon him to appear before the Court on a day to be specified in the notice and show cause why he should not be committed to the civil prison. He may be arrested under exceptional circumstances without this notice, but in that case, both under section 55 and Order XXI, rule 32, he must as soon as it is practicable, be brought before the Court. Similarly, if a person is to be arrested otherwise than in execution of a decree, previous notice must be given to him, and when arrested, he must be produced before a Court of Law with all convenient speed. From all this elaborate machinery which has been most carefully and laboriously laid down in the Criminal and Civil Procedure Codes, it will be abundantly and unmistakably clear the importance that the civilisation and the Legislature attach to the liberty of an individual. The sole purpose of the safeguard devised by law is to secure that no person is deprived of his liberty except under the law, and shall, in no circumstances be deprived of his liberty except under the law. and shall, in no circumstances be deprived of it for more than twenty‑four hours without a judicial mind examining it with regard to the legal authority of the person making the arrest and the regu larity of the procedure adopted by him. These safeguards are not empty phrases, but are designed to prevent injustice, because injustice is a great evil, however small its scope may be. In cases of arrests without warrants, the application of Article 7 cannot be attracted, because it will be senseless t I ask a Magistrate to apply leis judicial mind to a case twice in twenty‑four hours, The application of this Article to the second category of cases, both under the Criminal and Civil Procedure Code, will be equally meaningless, because the judicial mind has once been brought about to bear upon it, and to bring it into play a second time will not serve any useful purpose. In my view, Article 7 of the Constitution is meant to apply to all other cases in order to "ensure the immediate ap plication of a judicial mind to the legal authority of the person making the arrest and the regulating of the procedure adopted by him." I quote this phrase from the judgment of the Supreme Court of India. Liberty and freedom of movement is a most precious right of an individual. The time honoured maxim ubi jus, ubi remedium (where there is a right there is a remedy) has great wisdom in it, and should be applied with more severity now than it was done several centuries back. It is indefensible in logic to say that a person can be deprived of his liberty, but there is no remedy given to him. The learned Judges who decided State of Punjab v. Ajaib Singh A I R 1953 S C page 10, held that Article 22 of the Indian Constitution, which is practically in the same terms as Article 7 of the Constitution of Islamic Republic of Pakistan, does not apply to the cases which are covered by the Criminal and Civil Procedure Codes, and' also not to the arrest and detention under the Abducted Persons Recovery and Resto ration Act, but parried the question as to which particular cases then are covered by it, by making the following obser vations :‑- "It is not, however, our purpose, nor do we consider it desirable to attempt a precise and meticulous enunciation of the scope and ambit of this fundamental right or to enumerate exhaustively the cases that come within its protection." The argument which their Lordships have adopted in not affording the protection under Article 22 to a person arrested under the Abducted Persons Recovery and Restoration Act is that such person is not accused of any actual or suspected or apprehended commission of any offence of a criminal or quasi‑criminal nature or in the public interest to whom alone the necessary protection is afforded. Their Lordships formed this opinion on the following grounds :‑ (1) The right to consult a legal practitioner of his choice given by Article 22 is to enable the arrested person to be advised about the legality or sufficiency of the grounds for his arrest. The right of the arrested person to be defended by a legal practitioner of his choice postulates that there is an accusation against him, against which he has to be defended. It is a bit difficult for me to understand as to how a person who is accused of an offence is alone entitled to consult and be defended by a legal practitioner of his choice and the non‑criminals are not. The right to consult and be defended by a legal practitioner is open to and needed by all, whether they are accused of some criminal offence or are the innocent victims of the arresting authority or of some law. The language of Article 22 indicates that the funda mental right conferred by it gives protection against such arrests as are effected otherwise than under a warrant issued by a Court on the allegation or accusation that the arrested person has, or is suspected to have, committed, or is about or likely to commit an act of any criminal or quasi‑criminal nature or some activity prejudicial to the public or State interest. I respectfully agree with their Lordships that Article 22 indicates that the fundamental right conferred by it gives protection against such arrests as are effected otherwise than under a warrant issued by a Court, but 1 am unable to agree with their Lordships, if I may venture to say so, that it affords protection only to those envisaged in the above observation, and not to other persons who are arrested under the orders of the executive or other non‑judicial authorities. This position, in my humble view, would not emerge with credit from the test of pure reason. If their Lordship's view is accepted, it will mean that while the criminals are afforded double protection, one under the Criminal P. C. and the other under the Constitution, the persons other than criminals are given no protection under the law against illegal arrest and detention. In that case, the Ordinance itself will be hit by the first Part of Article 5 which lays down that all citizens are equal before law and are entitled to equal protection of law, for in certain cases, even the citizens will be covered by it. In fact, Article 7 in cases of certain laws will contradict Article 5 (1) which will be an impossible position. Their Lordships lend support to their opinion by the fact that it is not necessary to produce the persons arrested under sections 100 and 552 of the Criminal P. C. before a Magistrate under sections 60 and 61 of the same Code. Section 100 runs as under :‑ " If any Presidency Magistrate, Magistrate of the First Class, or Sub‑Divisional Magistrate has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue a search‑warrant and the person to whom such warrant is directed may search for the person so confined, and such search shall be made in accordance therewith, and the person, if found, shall be immediately taken before a Magistrate, who shall make such order as in the circum stances of the case seems proper." The learned Judges seem to have completely ignored the words "shall be immediately taken before a Magistrate" and their significance. In face of this provision adopting their own argument, there is less reason for making the production of such person before a Magistrate a matter of substantive fundamental right or a matter which is covered by section 60 or 61 of the Criminal P. C. Section 552 does not contemplate an arrest at all. It only lays down that upon a complaint made to a Presidency Magistrate or a District Magistrate on oath of the abduction or unlawful detention of a woman or of a female child under the age of sixteen years for any unlawful purpose, the Magistrate may make an order for the immediate restoration of such woman to her people, or of such female child to her husband, parent, guardian, or other person having the lawful charge of such child. For the above reasons I am of the opinion that the protection afforded by Article 7 of the Islamic Republic of Pakistan is equally applicable to a person arrested and detained under the Ordinance as it is to the criminals. To hold otherwise would, in my opinion, be a negation of justice. Now, there is no statutory obligation that a person arrested and detained under the Ordinance must be produced before the Tribunal. All that it lays down is that the question whether an arrested person is an abducted person or not, or whether such person should be restored to his or her relatives, or handed over to any other person or conveyed out of Pakistan, or allowed to leave the camp, shall be referred to and decided by the Tribunal, but it is nowhere laid down that it shall be done immediately or within any specified period. For example, in the case now under discretion, although Mumtaz Begum was arrested on the 21st of July, 1957, the relevant questions with regard to her were not referred to the Tribunal up to the time when this petition was heard by me. Can it be said that a person can be arrested under the Ordinance and detained for an unlimited period without a judicial mind ever considering and scrutinising her arrest and detention ? The arrest and detention may be a fraud on the Statute, a malice in law or in fact, or it may be that the arrest or detention was an abuse of process of law and without any apparent authority. Should a person arrested and detained under the Ordinance be condemned to detention, simply because it is his or her misfortune, if it can be said so, that he or she is not a criminal and is only detained under the Ordinance. I most respectfully observe that the answers to these questions in the affirmative would outrage my notion of justice and fair play. I cannot imagine for a moment that the law intended to afford no protection to these unfortunate creatures. They cannot be produced before a Tribunal, nor is it necessary to produce them before a judicial officer so they must be left to their fate. It is absurd to say that as their cases have to be examined by a Tribunal which is not a judicial body, therefore, the law considers it unnecessary to produce them before the Magistrate. It is equally ridiculous to urge that the Ordinance will not be smoothly worked if it was to be laid down that the arrested persons should be produced before a Magistrate. I do not see why should that be the case, but assume that it is, then does it mean that such detenu's case should not be judicially examined. This argument then can be raised in every case and thus the object of Article 7 completely frustrated. I am, consequently, firmly of the opinion that the protection afforded by Article 7 of the Constitution of Islamic Republic of Pakistan is applicable with all its force to a person arrested and detained under the Ordinance, and non‑compliance with it violates the fundamental right of great substance and vital importance. It, therefore, follows that even if Mst. Mumtaz Begum is arrested and detained under the Ordinance, still as she has not been produced before a Magistrate so far, her detention is absolutely against law. I find, therefore, that the case is not governed by the Ordinance, both for the reason that Mst. Mumtaz Begum is not an abducted person, and also that her detention in Pakistan is not under the Ordinance, I also hold in the alternative, that if Mst. Mumtaz Begum is detained under the Ordinance, the protection afforded by Article 7 of the Constitution of Islamic Republic of Pakistan, having not been afforded to her, her detention is completely illegal. I may mention here that Mst. Mumtaz Begum has most forcefully refused to go to India. This application is consequently accepted and Mst. Mumtaz Begum, who is present in Court, is set at liberty forthwith. A.H. Petition accepted.