P L D 1980 Lahore 162 _` (PLP)

The petitioner is father of Muhammad Shahbaz one of the two under-trial prisoners for whom the present application has been made. Both of them are lodged in Kot Lakhpat Jail, Lahore, at the moment and are facing trial under section 302/307/324/34, P. P. C. before the learned Additional Sessions Judge-111, Sheikhupura. Muhammad Shahbaz is also involved in two other cases under sections 307, P. P. C. and 307/326, P. P. C. pending in two other Courts at Sheikhupura.

2. The two undertrial prisoners had been originally confined in the District Jail, Sheikhupura, since 16th May 1977. It is alleged that the jail administration had no complaints against them. Despite that they were suddenly transferred to Central Jail, Faisalabad, vide order dated 18th February 1979, passed by the Superintendent of Jail, with the approval of the District Magistrate, Sheikhupura, allegedly on the ground that they were being shown undue favours in the local Jail. They have been further transferred to Kot Lakhpat Jail.

3. It is contended by the learned counsel for the petitioner that according to rule 147 of the Prison Rules, the transfer of a prisoner from one prison to another, within the Province, could take place under the orders of the Inspector-General of Prisons only. He also referred to rule 368 to say that as the prisoners are also facing trial in the Sessions Court they are . entitled to prepare for the defence at Sheikhupura and their removal to another District would prejudice that important right. Reliance was also placed on the case of Ziauddin v. Superintendent, Camp Jail (1) to argue that the undertrial prisoners cannot be shifted or transferred from the custody of the officer incharge of prison save by order of the trial Court. Sections 3 and 29 of the Prisons Act, 1900, read with its rule 148 and section 344 of the Cr. P. C. were referred to in the above judgment.

4. According to the learned Assistant Advocate-General the above judgment had lost its effect because of an amendment introduced later in section 29 of the Prisoners Act, 1900. This was done by the Governor of Punjab in exercise of his powers conferred by section 60 of the Prisons Act, 1894. 1t empowers the Provincial Government to remove any prisoner confined in any prison, by a general or special order, to any other prison in the Province. It appears at page 47 of the P L D 1978 Punjab Statutes and is in fact a notification and reads as under : "No. Prs. I(M)15/72.-In exercise of the powers conferred by section 60 of the Prisons Act, !894 (IX of 1894), the Governor of the Punjab is pleased to direct that in the Prisoners Act, 1900, the following amendment shall be made : (1) In section 29 of the Prisoners Act, 1900 in sub-clause (c) the word 'or' shall be deleted. , (2) The following sub-clause (e) may be added in. clause (i) after sub-clause (d) 'Un-convicted Criminal Prisoners'." He also referred to rule 224(1)(b) of the Prison Rules to state that there is no difference between an un-convicted prisoner and an undertrial prisoner so that the Provincial Government had the same power in respect of both. On a question of fact, the learned Assistant Advocate-General submitted that the impugned orders of transfer had been passed by .the Inspector General of Prisons and not the Superintendent Jail, Sheikhupura.

5. It is to be seen that the term 'un-convicted criminal prisoner' has not been defined in the Prisons Act, 1894, or the Prisoners' Act, 1900. The clauses (a) to (d) of section 29(11 of the Prisoners Act referred only to a 'prisoner'. In any case section 60 under which the above notification had been issued was repealed by A. O., 1937 and so was not on the statute book The so-called amendment has not been introduced under the Ordinance making power of the Governor. It could at the most be considered to be a notification under a repealed provision of the Prisons Act, 1894 and even if valid, could not have its status higher than a subordinate legislation. The effect of any enactment could not be whittled down by it.

6. On the other hand, section 3 of the Prisoners Act, 1900, obliges the Officer Incharge of a prison to receive and detain, all persons duly committed to his custody, under that Act or otherwise by any Court, according to the exigency of any writ, warrant or order, by which such person has been committed or until such person is discharged or removed, in due course of law. Under section 4, the officer-in-charge has to return, such writ or warrant other than writ or warrant of commitment, for trial to the Court issuing it, together with a certificate that the same had been executed or why a person committed thereby had been discharged. The above provisions, therefore, go to show that the officer-in-charge of a prison has to act in accordance with the writ or warrant issued. (1) P L D 1976 Lah. 93 .

7. Further, according to section 334, Cr. P. C. the trial Court has the custody of an under-trial. prisoner and in case it has to postpone or adjourn! the trial it may by a warrant remand the accused, if in custody. Sections 3 and 4 of the Prisoners Act come into play thereafter. Thus sections 3 and 4 of the Prisoners Act read with section 344 of the Cr. P. C. do go to show that an undertrial prisoner is subject to the conditions of the warrant issued for his detention by the Court and the officer incharge of the prison cannot transfer him, save with the order of the trial Court.

8. Seen in the light of above, it may be argued that there is a justification for the officer incharge of the prison to transfer or remove a person with the approval of the District Magistrate who is awaiting trial before Courts subordinate to the District Magistrate. The same, however, cannot be said about those prisoners who are facing trial in the Court of Sessions Judge.

9. Again, there is no power vesting with the Inspector-General of Prisons under section 29 of the Prisoners Act to transfer any unconvicted prisoner from one prison to the other, as even the abovesaid notification of the Governor, issued under a non-existent provision of law, conferred that power only on the Provincial Government. Going further, one may conclude that the above notification, even if it had been made under a valid power, could not and would not have been intended or contemplated to take away the power conferred by section 344 of the Code of Criminal Procedure. Thu3 the legal situation at the time of the decision of the Ziauddin's case remains unchanged and I respectfully agree with the view taken therein. Consequently, the orders of transfer, in case of both the prisoners, are without lawful authority and are, therefore, of no legal effect.

10. It may further be noted that the reason of transfer stated by the learned Assistant Advocate-General before me was that as the local prison staff was extending to the two prisoners such facilities as were not permissible to them, they had to be transferred. This is not only an admissi3n of the failure on the part of the Officer Incharge of the Prison, to exercise proper control on his staff but amounts to penalizing the prisoners and their visitors for the delinquent conduct of their staff: Consequently, the reason advanced not only fails to bring in any credit for the local administration but supports the plea of. the petitioner that the reason of the prisoners' transfer was not lawful. For the reasons given above, the impugned orders of transfer of the two under-trial prisoners are declared to be without lawful authority and of no legal effect. The respondent shall also pay the costs. M. A. K. Petition accepted.