P L D 1973 Lahore 473 (PLP)

Malik Muhammad Qasim, an Advocate, and General Secretary of the Muslim League (Convention) and Nawabzada Nasrullah Khan. President of the Pakistan Democratic Party, have moved this petition under Article 201 (2) (b) of the Interim Constitution of the Islamic Republic of Pakistan, 1972, for a direction to the Province of the Punjab through Its Home Secretary, to produce Nawab Muzaffar Mussain, M. P. A., so that the Court may satisfy itself that he Is not being held in custody without lawful authority or in an unlawful manner.

2. Nawab Muzaffar Hussain, it was alleged, was on his rosy to Lahore from Hyderabad when he was arrested at Multan Airport. It was farther alleged that the arrest of Nawab Muzaffar Hussain under the Defence of Pakistan Rules was not competent, and the act was malicious because he was working for the national welfare inasmuch as he was mobilising public opinion against the imposition of Sindh as the official language in contravention of the provisions of Article 267 of the Interim Constitution.

3. The petition was filed on the 10th of August 1972 and it was laid before me the same day, when, after hearing Mr. M. Anwar who appeared on behalf of the petitioners, I directed the Additional Advocate‑General to obtain Instructions‑

"(a) whether any order of detention has been passed by the Government of the Punjab; and (b) whether the detenu is being detained within the Province of Punjab" It was directed that if Nawab Muzaffar Hussain was being detained within the Province of Punjab, he would not be removed till the 15th of August 1972, for which date the case was fixed for hearing. On the 15th of August 1972, a request was received from the learned Advocate‑General for adjournment of the case. The case was accordingly adjourned to the 17th of August 1972, when the learned Advocate‑General placed on record a letter from the Superintendent of Police, Multan, addressed to him, relevant part of which is to the following terms:‑ "On 8‑8‑1972, Secretary, Government of Sind, Home Department, Informed the Superintendent of Police on tele phone that detention Order No. 8208, dated 8.8‑1972 was issued by the Government of Sind directing the detention of Nawab Muzaffar Khan under rule 32 of the Defence of Pakistan Rules, 1971 read with rule 213 of the said Rules. He also informed the undersigned that Nawab Muzaffar Hassaln Khan has left Hyderabad for Lahore by Air Flight No. PK‑

602. He desired that Nawab Muzaffar Khan be arrested if available at Multan. He farther desired that detenu be sent to Sukkur and handed over to Superintendent of Police of the District. The undersigned went to the Airport and found that Nawab Muzaffar Hussain Khan had alighted from the Aeroplane and had occupied a seat in a car. He was conveyed the order of the Sind Government and after arrest was sent through a Special Guard to Sukkur on that very night. He was handed over to the police at Sukkur on 9‑8‑1972 at about 9 a. m."

4. The petitioners were afforded an opportunity to controvert the statement of fact contained in the aforementioned letter, but they have failed to do so. Admittedly, there fore, Nawab Muzaffar Hussain was not within the territorial limits of the Province of Punjab and thus not within the jurisdiction of the Lahore High Court, on the 10th of August 1972 when the petition for habeas corpus was moved or an interim order was passed by this Court. The first and the foremost question which, in the circumstances, falls for determina tion is whether this Court has any jurisdiction to issue a writ of habeas corpus.

5. In Extraordinary Legal Remedies by Ferris (1926 Edition) it was observed at page 47: "The Court neat, of course, as in other cases, have jurisdiction of the person, the subject‑matter and. jurisdiction to render the particular judgment, and is con fined in its jurisdiction to the limits of the sovereignty which confers the power". In V. M. Sarangapani v. Emperor (A I R 1946 Nag. 20) it was held that a writ of hebeas corpus can be issued only with reference to persons who are within the jurisdiction of the High Court, and whom the Court regards as having been illegally detained." A similar view was earlier expressed in Leo Zepantis v. Emperor (A I R 1944 Cal. 76).

6. It is, however, contended by the learned counsel that since Nawab Muzaffar Hussain was arrested at Multan Airport and that being the original place of his arrest and confinement, I should regard the detenu still constructively within the jurisdic tion of this Court. The contention is devoid of any force. It is clearly laid down in Article 201 (2) (b) (1) that a High Court may, if it is satisfied that no other adequate remedy is provided by law, on the application of any person, make an order "directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner". It is a fundamental principle that a writ of habeas corpus shall be immediately served and made effective. But when the detenu is not within its jurisdiction, a writ of habeas corpus issued by a Court would simply lie in the office because it can neither be served nor made effective. In Rex v. Pinckney ((1904) 2 K B (A C) 84) it was held: "There is no power in the Court or a Judge to order the issue of a writ of habeas corpus directed to a person who at the date of the order is out of the jurisdiction." Vishambhar Dayal Tripathi v. U. P. Government (A I R 1945 Oudh 117) was a case under section 491 of the Code of Criminal Procedure, which is a provision empowering the High Court to direct that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law, and the facts were quite similar to those of the present case. The writ of habeas corpus was refused by observing: "Under section 491 the persons concerned must be within the limits of the appellate criminal jurisdiction of the Court In these cases the persons concerned were arrested and some of them were at first confined within these limits, but they are not at present confined within them. Mr. Bahadurji has suggested that the Court ought to consider only the place of arrest and original confinement and regard these persons as still constructively within the limits of its jurisdiction, but we are clearly of opinion upon the terms of the section, which are quite clear that this view is not tenable". The fact of the matter is that Nawab Muzaffar Hussain had been removed to Sukkur before this petition could be presented by the petitioners on the 10th of August 1972. In the circum stances, no writ of habeas corpus can validly be issued against the Government of the Punjab by this Court.

7. I find no merit in this petition which is hereby dismissed In limfne. S. A.S. Petition dismissed.