1989 P Cr (PLP)

Zahid Hussain v. Superintendent, New Central Jail, Multan and others 1982 P Cr. L J 1235 rel. ‑ Abdul Qayylun Awan for Petitioners. Muhammad Akbar for the State. In the early morning when the case was called learned counsel for the respondents was directed to produce any order of any competent authority under which the alleged detenus were being detained in jail. He has turned up now at 12 noon on the second call alongwith, Deputy Superintendent of Jail and produced Standing Order NoJB/G‑4/387/21253‑79, dated 16‑5‑1989 from Inspector General of. Prisons to all the Superintendents of Jails directing that all Bangladeshi Nationals who have completed their sentence and are waiting repatriation be kept in Central Jail, Rawalpindi. Further direction was given to shift all Bangladeshi Nationals to the said Jail. Admittedly the alleged detenus I were challaned under section 4 of the Pakistan (Control of Entry) Ordinance, 1952 who have been acquitted by the competent Court. On this petition having been filed the Superintendent of Jail reported that the detenus are Bangladeshi A Nationals. But there is nothing on the record to indicate that the detenus are Bangladeshi Nationals. The Magistrate presiding over the trial Court when contacted by the Superintendent Jail had simply reported that according to the police report and the F.I.R. the alleged detenus were Bangladeshis. The report of Khalid Amin, A.S.I., dated 12‑12‑1988 made to the S.H.O. Police Station Saddar, shows that he had taken into custody eight persons including the present three detenus who had stated to him that they had entered Pakistan through Jaipur State (India) reached Karachi, but found no place of residence or any employment and so they were waiting for the train for India. F.I.R., of course, has not been produced on the record of this Court nor is with any of the learned counsel appearing at the Bar.

2. Even if we take the alleged detenus to be foreigners, there being no proof that they are Indian Nationals, they are to be treated under the Foreigners Act, 1946. Section 3 thereof provides that the Central Government may by order make provision for prohibiting, regulating or restricting the entry of foreigners into Pakistan or their departure therefrom or their presence or continued presence therein. In exercise of the powers under the said section Foreigners Order 1951 was made by the Central Government. In Article 2(b) of this order a Civil Authority is to be appointed by the Central Government. The Civil Authority under Article 15 thereof is authorised to arrest or detain any foreigner in such manner and such place as may to such authority appear suitable. There is no order by any civil authority constituted either by the Central Government or he Provincial Government with respect to the present detenus. Learned counsel for the State referred to Jarnail Singh v. Superintendent, Central Jail Mach P L D 1983 Quetta

97. In this case Indian Nationals who had reached Iran under valid visas, on the expiry thereof, were pushed by the Iranian authorities into Pakistan, ere tried under sections 3 and 4 of Pakistan (Control of Entry) Act, 1952, convicted and sentenced. On the expiry of their sentences they were not released, as the deportation was being arranged with the Indian Government, the custody was not held to be illegal by the High Court and it was considered that the foreigners were being only kept as internees for repatriation to their country with no object to keep them in custody. The release was held by the Court to be uncalled for in the circumstances. On the other hand learned counsel for the petitioner has referred to Mansab Ali v. The N.‑W.F.P. Government P,,L D 1954 Pesh. 84 wherein the subject has been more exhaustively dealt with and the detention of the foreigner was considered to be without jurisdiction and illegal, in spite of the fact that he was being kept in custody under the order of the Chief Secretary of the Province, the release was‑ ordered forthwith. The case of the alleged detenus in the present petition stands on a rather better footing so far as the stand of the Superintendent Jail, Bahawalpur is concerned because there is no order of any competent authority either of the Federal Government or Provincial to keep the detenus as internees.

3. Thus, the legal position that emerges is that the detenus are being illegally detained by the Jail authorities without any order or warrants of any competent authority in Pakistan. However, two days are granted to the Superintendent Jail to contact the relevant and competent authorities in the Federation/Province to get any proper order to regularize the custody of the foreigners/alleged detenus, otherwise they will be ordered to be set free on 23rd August, 1989. 23‑8‑1989 (Sd.) Muhammad Amir Malik, Judge. Presence as before. No order from any competent authority has been produced by the Deputy Superintendent Jail and the statement at the Bar is that the District, Magistrate had been written a letter but without any reply. Hence, as already concluded, the detention/custody/confinement of the alleged detenus in jail is not warranted by any law of the land, and as settled m Zahid Hussian v_ F Superintendent, New Central Jail, Multan and others 1982 P Cr. L J 1235 they are ordered to be set free at once. However, the Federal/Central/Provincial Government would be at liberty to take any further action under the law of the land, with regard to the alleged detenus. N.H.Q./D‑45/L Petition accepted.