P L D 1973 Karachi 316 (PLP)

AGHA ALI HYDER, J.‑The language controversy which raged in the Province of Sind, in the month of July 1972, un fortunately took an ugly turn. Properties were pillaged, and blood was spilled. At long last, the district authorities decided to take action against those believed to have been fanning this feeling of mutual hatred. In the second week of August 1972, a number of persons came to be detained in the districts of Nawabshah, Hyderabad, Tharparkar and Larkana under the provisions of the West Pakistan Maintenance of Public Order Ordinance, 1960, or the Defence of Pakistan Rules, 1971 (the petitions before us pertain to these districts). The detentions were to last for a period of 30 days. Before the expiry of the said period, on the reference of the District Magistrates concerned, the Provincial Government extended their detentions for a further period of 2 months. Their detentions came to be challenged in separate constitutional petitions under Article 201 of the Interim Constitution of 1972. As agreed by the learned Additional Advocate‑General, the petitions dealing with the Nawabshah district were taken up first. The examination of the District Magistrate, Nawabshah was completed and arguments continued for about 2 weeks. On the day when the learned Additional Advocate‑General was expected to conclude his address he produced an order of this Provincial Govern ment releasing all the detenus from Nawabshah and some others. He further intimated that the release order of the other detenus, whose petitions were pending before us, would he issued in the course of a few days. On the receipt of these orders, we dismissed a number of petitions from Nawabshah, and almost all those from Hyderabad and Tharparkar, as becoming infructuous. The learned counsel for the detenus in these petitions however can vassed that as questions of grave constitutional importance were involved in the proceedings, we had better record a decision. I Propose to examine, how far this demand is justified.

2. The factual aspects, and the attack on the validity of the orders apart inter alia it was argued that the order of extension Passed by the Provincial Government was illegal as the Chief Minister, having tendered resignation, had lost his office. The acceptance of the resignation was not required under the Interim Constitution. It was further contended that the Fundamental Rights could not be suspended in the presence of Article 2 of the Constitution. Even the vires of tine Ordinance came under challenge. (The detentions In the Nawabshah District were ordered under its provisions).

3. Under Article 201(2)(b) of our Interim Constitution, if a person is in custody, an application can be made by any person, and the High Court may direct that the said detenu, if within the' territorial jurisdiction ox the Court, be brought before it, so that it might satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner. This concept of the freedom of the subject in case of unlawful detainment, either in prison or private custody originated from England, by means of writs of habeas corpus ad subjiciendune (that you have the body to submit or answer) which is commonly known as the writ of habeas corpus. It will therefore be to the fitness of Wings to enquire into the practice which has prevailed in the Courts of England in similar circumstances.

4. For centuries, the Judges of the High Court In England, at the instance of the subject, commanded the production of that subject to enquire into the causes of his imprisonment or unlawful custody. If the detention was unlawful and without jurisdiction, it ended in his release. No further consequences followed. However in Queen v. Barnardo ((1889) 23 Q B D 305), a different view was taken. In the precedent case, the mother of a female child by the name of Tye, gave the custody of the said child to the defendant under an, agreement, by which the latter was authorized to keep her in one of the destitute homes established by him and subsequently in an. Institution within the British dominion. The mother after her re marriage, being in a position to maintain the child, wrote to the defendant for her return to her custody. Within a week of the receipt of the letter, the defendant handed over the child to a lady, who left with her to the continent and therefrom to Canada. Shortly thereafter, on the application of the mother and the step father, a writ of habeas corpus was issued by a Judge in Chamber, directing the defendant to produce the child. The defendant made a return to the writ to the effect that as the child had been. handed over to the lady before the issue of the writ and taken abroad, in spite of his protests, and as he had the authority for the same under the agreement between him and the mother, he was not in a position to comply with the direction. The Divisional Court, on a motion, ordered the attachment of the defendant for the disobedience of the writ. An appeal was preferred against the said order, and came to be dismissed. Lindley L. J., one of the Judges constituting the Bench, as to be found on page 315 of the report, observed‑ "Here the defendant's inability arises from his having illegally sent the child abroad against the will of the lawful guardian, and that he did this before any legal proceedings against hire were commenced, is immaterial. Persons who illegally put a child out of their power, do so at their peril, and if they are ordered to produce the child, no excuse, founded on their own inability to comply with the order, will be held a sufficient answer to the writ."

5. A similar view was taken in Queen v. Barnardo ((1890) 24 Q B D 283) and came to be known as Gossage's case. In this case a further appeal came to be taken before the House of Lords and was allowed. It is reported as Thomas John Barnardo v. Mary Ford (1892 A C 326). It was observed by Lord Halsbury (p. 333)‑ "I cannot acquiesce in the view that some of the learned Judges below seem to have entertained that if a Court is satisfied that illegal detention before application for the writ has been made, nevertheless, the writ might issue in order to vindicate the authority of the Court against a person who has once, though not at the time of the issue of the writ, unlawfully detained another, or wrongfully parted with the custody of another. I think under such circumstance, the writ "ought not to issue at all, as it is not the appropriate procedure for punishing such conduct." The Noble Lord, however, went on to add, that in case of a counterfeited release, the Court may examine the facts. Lord Herscheil observed‑ "To use it as a means of compelling one, who has unlawfully parted with the custody of another person to regain that cus tody, or of punishing him for having parted with it, strikes me at present as being a use of the writ, unknown to the law and not warranted by it."

6. This view of the law prevails there, as borne out from Halsbury's Laws of England, 3rd Edition, Vol. XI, para. 44, p. 27, which reads as under :‑ "It (habeas corpus) is a writ of remedial nature and is not to be used as an instrument of punishment. It is inapplicable if the illegal detention has ceased before the application for the writ is made. When it is clear, that the person charged with un lawfully detaining another, whether a child or an adult, had de facto, ceased to have any custody or control, the writ ought not to issue. Where however a counterfeited release has taken place and a pretended ignorance of the place of custody or of the identity of the Custodian is insisted on, a Court may and ought to examine into facts, because the detention is in fact being continued by some one who is really the agent of the original wrongdoer."

7. A. T. Markose, in his Judicial Control of Administrative Action in India, 1956 Edition, p. 171, writes‑ "An involuntary or illegal confinement of the person in presenti is the particular concern of habeas corpus. The proceedings can be used only to decide the question of the right under which a person is kept in confinement whether he be a citizen or an alien, whether it be a private mansion or a public prison. But none can use the weapon to decide any thing else."

8. Luis Kutner, in his World Habeas Corpus, 1962 Edition, p. 95, says:- "The purpose of the writ of habeas corpus is to set a person free. Upon his release, the writ is purposeless. Since the writ inquires only into the legality of the restraint, the person must be in custody."

9. According to S. A. De Smith, as to be found in Judicial Review of Administrative Action, p. 391 :‑ "Although it is a function of the declaratory judgment to dispel doubts in legal relations, the Courts will decline to exercise jurisdiction in a situation that bears the essential characteristic of a lis inter partes."

10. A somewhat different view prevails in American Courts, as borne out from American Jurisprudence, 2nd Edition, para. 166, p. 167, Donald Kiser's Corpus Juris Secundum, para graph 86, p. 651, and the case of Philip T. Wales v. William S. Whitney, Secretary of Navy (29 U SR277). The following passage from Corpus Juris Secundum, paragraph 86, may be produced with advantage:‑ "Except where the custody of an infant is involved, writs of habeas corpus are subject to voluntary dismissal, but not with out an order of Court, touching the custody of the prisoner, where he has been released on bail. After a discontinuance and a dismissal of the writ, the Court is without authority to enter a decree as to the merits. The jurisdiction of the Court, issuing the writ cannot be oust ed after it has been served, by any act of the parties themselves and even the release of the prisoner from custody will not deprive the Court of jurisdiction."

11. The common law writ of habeas corpus did not run in this sub‑continent during the British rule. (The Supreme Court established by the East India Company had a limited jurisdiction and it can be left alone). However, an equally efficacious remedy was provided to the subjects, under the provisions of section 491 of the Code of Criminal Procedure. The marginal note to the section shows that this section empowered the High Courts to issue directions in the Nature of habeas corpus. The section being widely worded, the power granted thereby could be exercised to protect the liberty of the subject, whatever be the cause of its deprivation.

12. The first case relevant for consideration from that period would be that of Keshaw Talpade v. Emperor (AIR 1944 FC 24). The said Keshaw Talpade was detained under the Defence of India Rules and his application for writ of habeas corpus was dismissed by the Bombay High Court. An appeal was preferred to the Federal Court of India. However, on the very day when the appeal was filed, the detenu was released. In these circumstances, it was observed : ‑‑ "As the applicant is no longer in custody, his learned counsel admits that no order could thereafter be made on the habeas corpus application, but he nevertheless asked us to pronounce an opinion on the correctness of High Court judgment. We do not see our way to adopt any such course. All that can be done at this stage is to dismiss the appeal on the ground that no order on this application can now be made."

13. The other case having a bearing on the point is Homi Rustamji Pardivala v. Sub‑Inspector Baig and others (A I R 1944 Lah. 196). Mr. Pardivala, a counsel from Bombay, had gone to Lahore to conduct a detention case. When he left the Court premises he was escorted by the Police and arrested under rule 129 of the Defence of India Rules. While in custody, Mr. Pardivala expressed his wish to present an application in the High Court and send letters to the Advocate‑General of Lahore and Bombay. The papers were however not forwarded to the Courts. In the meantime, he was released and left for Bombay. There he learnt that the detaining authorities had suppressed the application to the Court. An application was thereafter filed against the 3 respondents for contempt of Courts, on the allegation that they bad grossly interfered with the course of justice. The learned Judged however, refused to go into the merits of the allegation, in view of the pronouncements in the case of Keshaw Talpade, referred to earlier.

14. The same view was taken in Amerandra Chandra v. Garrison Engineer (A I R 1945 Cal.340). In this very context, I might as Well add, that a similar approach was adopted by an Indian High Court in Kidar Nath Agarwala v. State of Punjab and others (A I R 1960 Pb. 122) where it declined to draw contempt proceedings or lodge a complaint under section 476 read with section 195 of the Code of criminal Procedure, for the filing of a false affidavit in the habeas corpus proceedings.

15. Coming to our country, Malik Ghulam Jilani v. Govern ment of West Pakistan (P L D 1967 S C 373) will be the leading case on the subject. The cases of Sardar Shaukat Hayat and Nawabzada Nasrullah Khan were disposed of in a common judgment. The three of them were arrested under the Defence of Pakistan Rules and the writ petitions filed on their behalf, were dismissed by the High Court. During the pendency of their appeals, the aforesaid detenus came to be released by the Provincial Government, The question arose, as to whether there was any necessity left to give a verdict in regard to the legality of their detentions. Their Lordships' reply was in the affirmative, for the reasons to be on page 400 of the report: "In the ordinary course, such release would have had the effect of causing the appeal to abate, taut in these cases, learned counsel urged that since in each case the detention had exceeded a period of 9 months, the detenus had thereby incurred disqualification in respect of their right to stand for elections to the representative offices, by the effect of section 53 of the Elec toral College Act and section 106 of the National and Provin cial Assemblies (Elections) Act. Each of them was a politician of standing . . . .

16. Then there is the recent case of Ziaur Rahman and others v. The State which is still to be reported. [Since reported as P L D 1972 Lah. 382] In this, the Editors, the Printers and the Publishers of the Urdu Digest `Zindagi' and the `Punjab Punch' came to be convicted and sen tenced by the Summary Military Court for offences under Martial Law Regulations 16‑A and

89. Some other persons, Including Mr. Mukhtar Rana, were convicted by another Special Military Court for offences under 16‑A, Martial Law Regulation and other sections of the Penal Code, and sentenced to various terms of im prisonment. Their convictions were challenged in separate writ petitions and heard by a Full Bench consisting of 5 Judges. Then arguments were concluded on 6‑6‑1972, and the judgment was to, be pronounced on 1‑7‑1972. However, the Editors came to be released on 28‑6‑1972. The question arose, whether in view of the release, the question of the validity or Invalidity of their convictions was at all needed to be examined. Four of the learned Judges adverted to this aspect of the matter. Due note was taken by them of the gravity of the constitutional issues involved and the time expended in the hearing of the petitions. One of the learned Judges, how ever, also found that at ft was not a case of full pardon, but of the remission of the unexpired portion of the sentence, the peti tions could not be considered to be infructuous. Another learned Judge observed, that if the sentences were allowed to stand, in the event of a subsequent conviction on the same charges, the possibi lity of an enhanced sentence had to be reckoned with.

17. Thus the trend of the authorities is clear. An application under section 491 of the Code of Criminal Procedure be comes infructuous, on the release of the detenu, but as the juris diction of the Court in a constitutional petition is wider, it can in such a petition proceed to pronounce judgment despite the release, if it considers it necessary In the interest of justice. How ever, the long established practice of our courts, is to refrain from recording its decision as merely an academic exercise when no grievances were left, as is to be found from Doaba Forwarding Agency Ltd. v. Province of Punjab and others (1971 S C M R 527 ) and The Collector of Customs and others v. S. M. Yousuf (1969 S C M R 595).

18. In Jilani's case, the detenu would have been disqualified from exercising his political rights but for the judgment of the Court. Similarly in the Lahore Full Bench case the apprehensions of the petitioners were not merely chimerical, if their convictions were allowed to stand. The question, therefore, arises whether the petitioners have been able to show that the detention order would jeopardise any interest or rights of theirs. Nothing could be pointed out that way to warrant the pronouncement of a judgment despite their release. As the matters stand, the peti tions have become infructuous and as such are liable to be dis missed. I, therefore, dismiss them.

19. Before parting with the case, I would like to express our indebtedness especially to Mr. Shariffuddin Pirzada for the very able assistance rendered by him, as amicus curiae, notwithstanding, a really short notice. DORAB PATEL, J.‑I agree.