1997 PLP 2062 (MLD)

‑‑‑‑Art.199‑‑‑Penal Code (XLV of 1860), S.302/148/149‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑‑‑Constitutional petition‑‑‑Unlawful detention‑‑ Both the judgments of Trial Court convicting the detenu had been quashed by High Court being without lawful authority and of no legal effect and he was not shown to have been arrested in any other case‑‑‑Detention of detenu in jail was, therefore, without lawful authority and he was set at liberty accordingly‑‑ However, in order to safeguard the interest of the prosecution which might ultimately decide to prosecute the detenu who was an accused in the said two cases, he was allowed bail in each case. M.A. Zafar for Petitioner. Ch. Muhammad Bashir, A.A.‑G. for Respondents. Tahir Nafees alias Prince the alleged detenu has been produced by Mr.Raza Mahmood Khan, Assistant Superintendent, Kot Lakhpat Jail, Lahore. When questioned as to under what authority of law the alleged detenu is being detained in the said jail, stated that he was lodged in the said jail in pursuance of judgment dated 26‑7‑1990 passed by Special Court under Suppression of Terrorist Activities (Special Courts) Act, 1975 in case F.I.R., No.214 dated 26‑6‑1989 registered under section 302/148/149, P.P.C., in which he was convicted and sentenced to death. He says that he is also detained in the jail in pursuance of judgment dated 23‑1‑1990 passed in F.I.R., No. 166 dated 30‑5‑1986, by the same Court in which he was convicted and sentenced to seven years' R.I., under section 13/20/65 of the Arms Ordinance. The said two judgments were quashed being without lawful authority and of no legal effect through judgment dated 21‑1‑1996 passed by this Court in Writ Petition No. 18417 of 1995, therefore, the very basis for detaining the alleged detenu in the said jail had vanished.

2. Mr. Raza Mahmood Khan, Assistant Superintendent Kot Lakhpat Jail, Lahore when questioned stated that after the said judgment was passed, the police did not approach him for arresting the alleged detenu in the said two cases though the cases registered through the said two F.I.Rs. had not themselves been quashed, therefore, he was not in jail as undertrial prisoner.

3. In view of the judgments dated 26‑7‑1990 and 23‑1‑1990 passed by the Special Court under Suppression of Terrorist Activities (Special Courts) Act, 1975 in the said two cases having been quashed in the alleged detenu having not been shown to have been arrested in the said cases or any other case therefore his detention in Kot Lakhpat Jail, Lahore is without lawful authority. He is set at liberty. He has been brought in handcuff which have been removed. The State may ultimately decide to prosecute the alleged detenu after considering the evidence available with it, therefore, in order to safeguard its interest in this matter, Tahir Nafees alias Prince the alleged detenu who is accused person in the said two cases is allowed bail in the sum of Rs.50,000 (Rupees fifty thousand only) in each case with one surety in the like amount to the satisfaction of Deputy Registrar (Judicial) of this Court.

4. Copy Dasti. N.H.Q./N‑16/L Petition allowed.