P L D 1975 Karachi 1 (PLP)

TUFAIL ALI A. RAHMAN, C. J.‑This is a petition challenging the detention of Mir Abdul Baqi Baloch, which resulted from his arrest on the night between the 8th and 9th of March 1974. It was alleged that there was no order of detention in existence at that time nor any first information report which would justify the arrest ; clearly, therefore, as matters then stood, the appropriate remedy of the petitioner was by way of a petition to this Court under Article 199 of the Constitution though whether it A would have succeeded or not is a different matter. Since then, however, certain developments have taken place which alter the entire complexion o the matter. 2. .It is now conceded that not only has there been an‑ F.

1. R., though this is alleged to be after the arrest but also that the detenu is being. prosecuted under the Defence of Pakistan Rules before an ordinary criminal Court, that is to say, a Court of a Magistrate. It is, however, claimed that the proceedings before the Magistrate are illegal and in any case deserve to be quashed. On this basis this Court in the exercise of its powers. under the Criminal Procedure Code has ample authority to interfere and we, therefore, called upon counsel for the petitioner to show us why a we should entertain this matter any longer inasmuch as our jurisdiction, under Article 199 is available only if there is no other alternative adequate remedy available.

3. Learned counsel's first answer to this question was that the mere fact that there is an alternative remedy does not take away the jurisdiction! of this Court and he cited in support of his contention the case reported as Murree Brewery Co. Ltd. v. Pakistan (P L D 1972 S C 279), and particularly the following observation "It is thus evident that The appellant challenged the very jurisdiction of the Capital Development Authority (hereinafter referred to as `the C. D. A.') to make the impugned acquisition under the Ordinance. If it had succeeded in establishing that the impugned acquisition was ultra vires the Ordinance, its appeal under section 36 would have been an exercise in futility. It was held by the Supreme Court in Lt: Col. Nawabzada Muhammad Amir Khan v. Controller of Estate Duty and others that the rule that the High Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring jurisdiction but a rule by which the Court regulates its jurisdiction. It was further observed that one of the well‑recognised exceptions to the general rule is a case where an order is attacked on the ground that it was wholly without authority."

4. I feel extremely doubtful whether their Lordships of the Supreme Court were in fact holding that the existence of another remedy was not a bar to the High Court's constitutional jurisdiction for their Lordships are only quoting an observation from one of their own earlier judgments. in the case of Lt.‑Col. Nawabzada Muhammad Amir Khan v.. Controller of Estate Dun, and others (P L D 1961 S C 119). A reference to that case would show that it was the' power of the High Court under the Constitution of 1956, which was then in question. Article 170 of that Constitu tion conferred on the High Court a power of granting writs, the incidents of which were well recognised and established in English Law. The Article itself contained no such restriction as is to be found in Article 98 of the 1962 Constitution and corresponding Articles in the later Con stitution which make the absence of an alternate adequate remedy a condition precedent to the exercise of jurisdiction. The concept of writs as such is no longer stated in these Constitutions. It is in the context of the 1956 Constitution that in Muhammad Amir Khan's case the Supreme Court observed : "The rule that the Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring the jurisdiction of the Court, It is a rule by which the Court regulates the exercise of its own discretion. As stated in Halsbury at p. 107, 3rd Edn., Vol. II The Court will, as a general rule, and in the exercise of its discretion, refuse an order of mandamus, when there is an alternative specific remedy at law which is not less convenient, beneficial, and effective'.

5. In the subsequent case the Supreme Court has merely quoted this observation. Moreover in that case it was argued that the statutory appeal upon which reliance was placed for‑the Government was either not available or a mere futility since the order challenged, it was claimed, was without jurisdiction and, in that view of the matter, there could really be no appeal. In my view, therefore, the present: case is clearly distinguish able.

6. Reliance was next placed upon the case of Shahnaz Begum v. The Honourable Judges of the High Court of Sind & Baluchistan (P L D 1961 S C 677) in which at p. 693 their Lordships said : "If an investigating is launched mala fide or is clearly beyond the juris diction of the investigating agencies concerned then it may be possible for the action of the investigating agencies to be corrected by a proper proceeding either under Article 98 of the Constitution of 1962 or under the provisions of section 491 of the Criminal Proce dure Code, if the applicant is in the latter case in detention, but not by invoking the inherent power under section 561‑A of the Criminal Procedure Code."

7. This was a case in which the High Court had passed certain orders not indeed setting aside or modifying the order of any Court but examin ing the investigation of the case. The very passage upon which reliance is placed before us and which is reproduced shows that their Lordships held that section 561‑A of the Criminal Procedure Code would have no applica tion and in the present case the entire objection to our exercising jurisdic tion is the availability of power under the Criminal Procedure Code.

8. The last case which was cited before us was that of Ghulam Jilani v. Government of West Pakistan (P L D 1967 S C 373). Now this was a case of detention under the Defence of Pakistan Ordinance, 1965. It was claimed that there was a defect in the initial order and that this defect affected the validity of the order under which the detenu was held at the time when the question came up for consideration and, upheld this argument, it was observed : "A special argument advanced in respect of the detention order issued against the appellant, Nawabzada Nasrullah Khan requires to be noticed. It appears not to have been raised in the High Court. The delegated powers of the Deputy Commissioners under section 3 of the Ordinance are expressed to be exerciseable only within their respective jurisdictions. It follows that the detention orders were executable only in the Lahore District. The detention order for Nawabzada Nasrullah Khan was, however, taken by a police officer from the Lahore district to another district, namely, the Mazaffargarh district and there without the intervention of the local police, it was carried into effect by the same officer by the arrest of Nawabzada Nasrullah Khan. The learned Advocate‑ General was unable to meet the argument that the arrest was illegally effected That being the starting point of the detention, it must follow that the whole detention was vitiated thereby. The further order of the Home Secretary altering the place of detention to Kohat was ineffective to remedy the defect appearing at the first stage of the implementation of the Deputy Commissioner's detention order. It follows, therefore, that the detention of Nawabzada Nasrullah Khan under the Deputy Commissioner's order of the 16th February 1966, was illegal."

9. Now it is well established that in cases of detention it is the lega lity of the detention at the time when the petition comes up for hearing that is material and the illegality of a previous detention would not be relevant unless, as in Jilani's case , that illegality affected also the legality of the subsequent order. The present is not a case of this kind at all. The question before us is whether the present position is maintainable because if the proceedings before the Magistrate are illegal they can be corrected in the exercise of revisional jurisdiction of the powers. The petitioner is now being admittedly prosecuted before a regular Court and his detention cannot, therefore, be described as one without jurisdiction which is not of course necessarily to say that the proceedings are free from defect; that question, however, we are not examining.

10. The attack upon the legality of the present proceedings is, in the main, that the offence was not cognizable and that in any case the presen tation of the police report was a mala fide one. There can be no doubt that if this be so this Court could, in the exercise of revisional jurisdiction and if necessary in the exercise of its inherent jurisdiction, under section 561‑A interfere. Learned counsel attempted to pursuade us that the questions that would be raised in the course of any application made under the Criminal Procedure Code would be the same as he is now canvas sing before us and that we ought, therefore, to proceed to hear this matter. I am totally unable to agree ; as I have said before the availability of that remedy is a bar to our jurisdiction and the mere convenience, there fore, of hearing the case on merits just now cannot confer upon us a jurisdic tion which we do not otherwise possess.

11. I would, therefore, dismiss this petition. FAKHRUDDIN G. EBRAHIM, J.‑I agree. K. B. A. Petition dismissed.