P L D 1965 (W (PLP)

(2) That the petitioner was being made to travel between Karachi and Bahawalpur in Inter Class Compartment, though as a Member of the National Assembly he had a free travel pass in a First Class Compartment throughout Pakistan. That the petitioner was in bad health and this traveling and the manner in which it took place was causing him considerable inconvenience. (3) That the petitioner had been medically certified as being not fit to travel and attend the hearing at Karachi on 16th April 1964, and yet the Magistrate ordered the jail authorities at Bahawalpur on telephone to produce the petitioner at Karachi. It is these three points which have been pressed before me by Mr. Azizullah Shaikh, the learned counsel for the petitioner, though there are other grounds as well in the petition.

3. Before admitting the petition Kharal, J., had sent for a report of the Special Magistrate and had taken it into consideration at the time when he admitted this petition for regular hearing. In the admitting order there is reference to this report in more than one place. The gist of this report in so far as it is material to the grounds stated above is as follows:-- (i) That upon the request of the petitioner (accused) he had sent a direction on the "intermediate" warrant that he may be allowed to remain in Karachi Prison and this direction was obeyed on one occasion but when he made a similar endorsement on the second occasion the accused was not detained in the prison at Karachi but was sent to Bahawalpur Central Prison on the orders of the Provincial Government and that this must have been for administrative reasons. (ii) As regards the grievance of the petitioner that he was made to travel in Intermediate Class between Karachi and Bahawalpur on several occasions the Special Magistrate has stated in his report that he had made a reference in this regard to the District Magistrate who had replied that there was no objection to the accused travelling in First Class, provided he was prepared to pay the difference in the fare of Inter Class and First Class compartments for the police guard which accompanied him on such trips. The Special Magistrate has, however, added that it is doubtful whether the petitioner could use his First Class Pass as a Member of the National Assembly while travelling as an accused person. (iii) As to what happened on 16th April 1963, it is stated that when the Court assembled at Karachi the Magistrate received information from the Superintendent, Central Prison, Karachi that the petitioner had not been received from Bahawalpur. The case was, therefore, adjourned for the following day and in the meantime the Magistrate contacted the Bahawalpur Prison Authorities on telephone. As to what transpired in this conversation has not been stated. It is, however, added that a teleprinter message from the Superintendent, Central Jail, Bahawalpur dated 14‑4‑64 was received on 16‑4‑64 after the case had been adjourned but it was not accompanied with a medical certificate which, however, was also received later at 1‑0 p.m. the same day.

4. As to the report on the third point it may be stated that the petitioner had been admitted into the prison hospital at Bahawalpur and the jail doctor had certified that he was suffering from dysentery and unfit to travel. The learned Magistrate has not said so but the inference from the facts on the record is clear that when the Magistrate contacted the prison authorities at Bahawalpur he called upon them to have the accused produced before a medical board. This was done and the medical board opined that the accused could travel to Karachi provided he was accompanied by a medical attendant. Accordingly the accused ,was sent to Karachi and was brought to Court straight from the railway station unlike the previous practice under which he was first taken to the Central Jail, Karachi, and from there brought to the Court. The petitioner when he was brought to Court on 17th April an intimation was given by him to the Special Magistrate that he intended to move an application to the High Court for the At transfer of the case to another Court. Upon this being done St the case was adjourned. It may be added that the Magistrate got the accused examined by the Medical Superintendent, Karachi Jail who certified that the accused was "physically and mentally fit to perform the journey".

5. Mr. Azizullah, the learned counsel for the petitioner, contended that the petitioner was being subjected to inhuman treatment and all kinds of indignity and though it was within the power of the Magistrate to prevent this he had completely failed to use his powers under the law and preferred to submit to the directions of the Provincial Government under which the accused was being shunted forth and back between Karachi and Bahawalpur. This had raised a reasonable apprehension in his mind that he will not get a fair trial in the Court of the Special Magistrate. In the alternative it was prayed that if the case can't be transferred and the accused has to remain in the prison at Bahawalpur his case may be separated from the case of the rest of the accused and he may be tried at Bahawalpur. In the end Mr. Azizullah stated than if this harassment was stopped and the accused was during his trial at Karachi kept in the Central Prison, Karachi, he (counsel) would not further press for the transfer of the case When this statement was made Qazi Aslam, the learned Special Prosecutor in this case, obtained an adjournment from this Court to consult the Home Secretary of the Provincial Government and obtain his permission for the keeping of the accused in the prison at Karachi during his trial. On the next day he reported failure and said that the application will have to be decided on merits.

6. The main question which arises in this case is whether the Special Magistrate, while adjourning the case under section 344, Cr. P. C., had the power to commit the accused upon a warrant to the prison at Karachi and he having done so whether there was any power in the Provincial Government to have the accused taken from the prison at Karachi to the prison at Bahawalpur. The learned Magistrate on his own part had moved the District Magistrate, Karachi for the retention of the accused in the prison at Karachi. But it is clear from his report that he was powerless because of the order of the Provincial Government under which the accused was shifted from the Central Prison, Karachi to the Central Prison, Bahawalpur. It was the contention of Mr. Azizullah that the custody of an under‑trial prisoner had to be in accordance with the warrant issued by the Court and the Provincial Government had no over riding powers in this regard under any law.

7. It may be mentioned that in the report of the Special Magistrate there is reference to other criminal cases against the petitioner, but that matter is clearly irrelevant for present purposes because it is nobody's case that any of those cases were being tried during this time or that the accused was being shifted from one prison to another upon an order by any other Magistrate or Court. If that had happened the procedure to be followed is clearly set out in sections 37 and 38 of the Prisoners Act III of 1900.

8. Qazi Aslam appearing for the State rested his argument entirely on section 541 of the Criminal Procedure Code. Sub section (1) of this section upon which reliance was placed reads as follows:‑ "541. (1) Unless when otherwise provided by any law for the time being in force, the Provincial Government may direct in what place any person liable to be imprisoned or committed to custody under this Code shall be confined." The argument of the learned counsel for the State was that there is alternative provision either in the Criminal Procedure Code or in any other law which gave power to the Special Magistrate to transfer the accused from the prison at Karachi to the Bahawalpur Prison and as this measure was considered necessary on administrative ground by the Provincial Government it is that Government which had the power to direct in what prison the accused was to be confined. With due respect to the learned counsel it appears to me that this argument is completely misconceived. Section 541 of the Criminal Procedure Code has nothing to do whatever with the question of the transfer of a prisoner from one prison to another. This section appears in Chapter 46 of the Code of subsection (1) thereof merely empowers the Provincial Government, unless otherwise provided by any law, to direct in what place any person liable to be imprisoned or committed to custody under the Code shall be confined. This subsection, therefore, relates to the power of the Provincial Government to appoint a place of imprisonment. Indeed, this is the marginal note to this subsection. This becomes more clear when the rest of this section is examined. Subsections (2) and (3) provide for the removal to criminal jail of an accused or convicted person who may be in confinement in Civil Jail and upon release there from to be returned to the Civil Jail. In my opinion, the relevant provisions in this regard are those contained in the Prisoners Act. Section 3 of that Act may be conveniently quoted "(3) The Officer‑in‑charge of a prison shall receive and detain all persons duly committed to his custody, under this Act or otherwise, by any Court, according to the exigency of any writ, warrant or order by which such person has been committed, or until such person is discharged or removed in due course of law." A plain reading of this section in so far as it is relevant for the present case would make it clear that when an under‑trial prisoner is committed to a prison he has to be received by the officer in charge in accordance with the warrant issued by the Court. Such Officer is then to detain that person in that prison until he is discharged or removed in due course of law. Once such a warrant has been issued there is no power in the Provincial Government in the case of an under‑trial prisoner to order his shifting from one jail to another. There is also no power in the Provincial Government to direct the Magistrate to issue an "intermediary" warrant so that an under‑trial prisoner may be taken to one prison and from there shifted to another. The power of the Provincial Government for the, removal of any prisoner confined in a prison is also laid down in this very Act under section 29, but that power is exercisable only in the cases mentioned in clauses (a) to (d) of subsection (1), that is, when the prisoner is under sentence of death or is confined in lieu of a sentence of imprisonment or transportation or in default of payment of fine or in default of giving security for keeping the peace or for maintaining good behaviour. That is not the case here. Considering that the power of the Provincial Government for providing for the removal of any prisoner confined in any prison is limited under section 29 to the cases referred to above, it must B follow that no such power was intended to be conferred upon that Government with regard to the removal of under‑trial prisoners. The case of such a prisoner is to be governed by section 3 of the Act under which the officer in charge of the prison is to act according to the exigency of the writ, warrant or order of the Court concerned. Therefore when a Magistrate adjourns a case under section 344, Cr. P. C. and commits the under‑trial accused to prison and specifies the date for re‑appearance in Court the prison authorities have to comply with that order and detain the accused in that prison and produce him from there into Court according to the warrant of commitment. It follows that the removal of the petitioner from the Karachi Central Prison to the Bahawalpur Central Prison under the orders or directions of the Provincial Government was without any lawful authority.

9. The question which then arises is whether the conduct of the learned Magistrate in not preventing the removal of the petitioner from the Karachi Prison to Bahawalpur Prison and the long journey and resulting inconvenience to the petitioner is a sufficient ground upon which I should order the transfer of the case to another Court. It must be noted that all the evidence in this case had been concluded and the case is now for argument before charge and also considering that this point was not fully brought out before the learned Magistrate and also in view of the fact that the main anxiety of the petitioner as conveyed at the hearing by his counsel was to avoid the inconvenience and harassment caused by the journey to and fro between the hearings. I do not think it fit to order the transfer of the case to another Court. As regards the happenings on the 16th of April it may be that the Magistrate in his anxiety to get on with the case took it upon himself to get into contact with the jail authorities at Bahawalpur to procure if possible the attendance of the accused. It has to be remembered that the learned Magistrate has specially been appointed to do this case and I was informed at the Bar that he had fixed the case for three consecutive days at Karachi after which he had to go back to Multan. The anxiety of the learned Magistrate to make progress in the case is therefore understandable. The further question with regard to the right of the petitioner to travel in a First Class compartment loses its importance because of the order that I propose to make that he shall be committed to the Karachi Central Prison during the trial of this case.

10. For the reasons given I reject the application for the transfer of this case from the Court of the Special Magistrate but direct that he shall, during the trial of this case in which there is bound to be more than one hearing, commit the petitioner by warrant to the Central Prison, Karachi, from where he shall be produced in his Court from time to time until the trial is over. K.E.A. Application dismissed.