2002 P Cr (PLP)

MALIK HAMID SAEED, J.‑‑‑ Javed Ibrahim Paracha, a resident of Kohat City, claiming to be a qualified person and Member, National Assembly from Kohat District, is petitioner in this writ petition as well as in the connected Writ Petition No.39 of 2002, wherein he has questioned the alleged illegal detention of the person named to the two writ petitions. As both the writ petitions involve similar facts and questions for determination, therefore, the same are disposed of through this single judgment in Writ Petition No. 12 of 2002.

2. In Writ Petition No. 12 of 2002 the petitioner seeks relief from this Court for 57 foreigners, who belong to various Arab countries and according to the petitioner they have been arrested by the law‑enforcing and para‑military organizations and are now detained in District Jail, Kohat.

3. Similarly, in Writ Petition No.39 of 2002, the detention of about 145 Pakistanis has been questioned, who too are undergoing detention in District Jail, Peshawar.

3. The plea of the petitioner is that the aforesaid detenus have been denied the right of legal consultation and have also been denied medical treatment, over and above, that they are being kept in solitary confinement and nobody is allowed to interview them or talk to them. The petitioner further apprehends that the respondents are planning to hand over the detenus to U.S.A.

4. The respondents in their comments besides raising preliminary objections over the maintainability of the writ petitions, have also stated that the alleged detenus were arrested by the Political Authorities of FATA, while infilterating into Pakistani territory on the western border from Afghanistan, who are affiliated with terrorist groups in Afghanistan. It is also in the comments that the alleged Pakistani detenus have been booked under section 40, FCR and are under lawful custody of the relevant competent authorities. With respect to the foreigners (Arabs) the stand of the respondents is that though 43 persons (detailed in the comments with serial numbers) were taken into custody by the Pakistan Army in FATA, specially deputed to guard Pak‑Afghan Border against the infilteration of terrorist subversive and saboteur foreign elements, engaged in terrorist activities in Afghanistan at the behest of certain terrorist network like Al‑Quaida, yet after interrogation they were sent back to Afghanistan being unwanted terrorist/subversive elements.

5. We have heard the learned counsel for the petitioner and the Advocate‑General, N.W.‑F.P. for the respondents.

6. The learned Advocate‑General in his arguments vehemently questioned the locus standi of the petitioner in the matter and stated that he is not an aggrieved person within the meaning of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. In reply, the learned counsel for the petitioner relied on Article 199(b) of the Constitution and stated that the writ petitions are maintainable as the words "any person", have been used in Article 199(b), which makes the petitioner eligible to; competently ask for the relief prayed for.

7. As is evident from the material available on file, the petitioner is of District Kohat. In Writ Petition No.12 of 2002, the alleged detenus are not even nationals of this country as they are Arab nationals. So far as the alleged detenus mentioned in Writ Petition No.39 of 2002 are concerned, only their names have been given without any addresses as to which part of the country they belong. In these circumstances, the locus standi of the petitioner is of course of much importance in a petition of the, nature of habeas corpus. The criterion laid down by the superior Courts for filing habeas corpus petitions is that such‑like petitions should normally be made by relations of detenu or by a friend who can satisfy the Court that there is no one else amongst relations of detenu to challenge the detention order. In support of this view, we would like to refer to certain judgments, Indian as well as Pakistan jurisdiction, on this point. In AIR (Vo1.38) 1951 Tranvancore Cochin 125 the following observations have been made:‑‑ "(d) Where access is denied to a person alleged to be unjustifiably detained, so that there are no instructions from the prisoner, an application for the writ of habeas corpus may be made by any relation or friend on an affidavit setting forth the reasons for its being. But the Court will not grant a habeas corpus to bring up a prisoner for the purpose of being discharged on the ground that he is illegally in custody unless there be an affidavit from himself or it be shown that is so coerced as to be unable to make one." The observations recorded by their Lordships of the Dacca High Court in Aziz‑ul‑Haque v. Province of East Pakistan and another PLD 1968 Dacca 728 are to the following effect:‑‑ "Application challenging detention of a person‑‑‑Locus standi‑‑ Application should normally be made by relations of detenu sufficiently close to him or by a friend who can satisfy Court. that there is no one else amongst relations of detenu to challenge detention order‑‑‑Such friend should be very close to detenu knowing all facts and circumstances of case to help Court in coming to correct decision on facts alleged or controverted ‑‑‑Person pretending to be friend of detenu failing to establish friendship to satisfaction of Court‑‑‑Facts otherwise showing his doubtful connections with detenu and also existence of near relatives of detenu capable to challenge detention order‑‑‑Application from such person, in circumstances, rejected." The august Supreme Court of Pakistan in the case of Col. (Retd,) Muhammad Akram v. Federation of Pakistan through Secretary, Ministry of Defence and others 1998 SCMR 2073 has held as under:‑

3. We had called the petitioner to show as to how he can be treated as an aggrieved party in terms of clause (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan 1973, hereinafter referred to as the Constitution. His reply was that since it is the right of every citizen to get justice according to law and as the trial of the convict in question by the Field General Court Martial was not warranted by law, the petitioner as pro bono publico is entitled to agitate the legality of the trial and the conviction, under Article 199 of the Constitution. We are unable to subscribe to the above contention of the petitioner as the convict or his close relation could have filed the above writ petition but the petitioner has not been able to show any person interested in the convict of the nature warranting filing of the same. The case in hand involves trial and conviction of an individual person and hence the principle of pro bono publico cannot be invoked in aid. " From the above‑referred authorities, it can be said that for a habeas corpus petition the writ petitioner should be a person either closely, related to the alleged detenu(s) or a friend. The learned counsel for the petitioner could not produce a decided case in which the Court has gone to the extent of holding that any person, neither related to a detenu nor a friend of the detenu, could competently invoke the jurisdiction of this Court under Article 199 of the Constitution.

8. One cannot clothe his grievance with the interest or welfare of others merely because of his individual thinking in a matter against the interest of the community at large, as the entitlement of such a person could only be considered if he is a person with sufficient interest to bring claims on behalf of poor classes or economically or socially disadvantage sections of society. As stated above, the petitioner does not fulfil those requirements which have been enunciated by the superior Courts for invoking the principle of pro bono publico in aid of the action brought in this petition. Needless to say, if the alleged detenus are in custody of the law‑enforcing agencies for committing some breach of law, they would be dealt with in accordance with law and would not be deprived from any lawful right given to them by the Constitution or any privilege provided by the law. The writ petition is not maintainable, for, the petitioner is having no locus standi to invoke the Constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, hence the writ petitions are dismissed on this score. H.B.T./488/P Petitions dismissed.