1993 P Cr (PLP)

NASIR A. ZAHID, C.J.

This petition had been registered on the basis of a telegram received from petitioner Muhammad Aslam son of Muhammad Rasheed, detained at Central Prison, Hyderabad, which read as follows:-- "Humbly prayed that my case which is pending in Tando Adam registered at Police Station Tando Adam under section 3/4, Pakistan Control of Entry Act may kindly be quashed as earliest as possible as I have not been produced before any Court of law since my arrest. At present I am under-trial prisoner since 11-7-1989 at Central Prison, Hyderabad." After the petition was registered, notice was issued to the learned Advocate-General who has assisted us in the decision of this matter. For the first time, this matter was taken up on 2-8-1992 when it was noted that the case had been registered against Muhammad -Aslam and some other persons alleged to be Bengali Nationals under section 3/4 of the Pakistan (Control of Entry) Act, 1952. It was also noted that the petitioner had been in custody for over three (3) years, whereas, section 3/4 of the Pakistan (Control of Entry) Act, 1952, provided for a maximum punishment of one year. Considering these facts as scandalous, we directed the concerned S.D.M. to be present alongwith the record. Yesterday, Mr. Muhammad Bachal Janwari, S.D.M. Tando Adam and Mr. Abid Hussain, S.D.M. Shahdadpur appeared with the record. The three petitioners were also produced. The Advocate-General, on instructions, stated that the other 7/8 co-accused had been granted bail and thereafter they were not traceable. Admittedly, the three petitioners produced in custody yesterday and today have been confined in Central Prison, Hyderabad, since July, 1989, when they were arrested. Yesterday, Mr. Muhammad Bachal Janwari, S.D.M. Tando Adam, had brought the Court file of the case registered against them under section 3/4 of the Pakistan (Control of Entry) Act, 1952, which provides maximum period of punishment of one year for the alleged offence, as observed earlier. The S.D.M. Tando Adam informed yesterday that the case of Babul and Wilayat had been disposed of by him by orders, dated 20-1-1992. The record brought by him has shown that on 20-1-1992, the two detenus were produced before him. The charges were framed against them to which they pleaded guilty but the judgment/order of the S.D.M. was not available on record as, strangely, according to the S.D.M., he had sent the original judgment to the Home Department, Government of Sindh. Even a copy of the judgment had not been kept in the Court file by the S.D.M. According to the S.D.M., by judgment, dated 20-1-1992, on the plea of guilt by the two detenus, namely, Babul and Wilayat, he (S.D.M.) convicted them and sentenced them to R.I. for three (3) months. We had asked the learned S.D.M. whether he was aware about the maximum punishment for the alleged offence for which they were charged and convicted and he replied that the maximum period was one year but despite this, he awarded further punishment for three months' R.I. which meant that the detenus were to remain in custody for a total period of three years and three months as they had already been in custody for three years prior to the judgment. On further query, the learned S.D.M stated that he had been called by the learned District Magistrate, Imdad Ali Sayer, who directed him that Bengalis who had entered Pakistan without any permit/visa are not to be set free. Then it was noted that even the period of three months sentence awarded by the learned S.D.M. was over on 1-4-1992 but still the two detenus were in custody in Central Prison, Hyderabad. The letter of the Superintendent, Central Prison, Hyderabad, with which the three detenus had been produced in Court showed that the detenus were involved in Crime No.108/1989 under section 3/4 of the Act of 1952 of Police Station Tando Adam. We admitted the petition to regular hearing and fixed it for today directing the Superintendent, Central Prison, Hyderabad, to be present. Major Ghulam Hussain Khoso, Superintendent, Central Prison, Hyderabad, is present today and he states that he had not yet been informed of the conviction of the two detenus by the S.D.M. and the last communication from the S.D.M. Tando Adam is dated 13-5-1990 that the detenus were involved in Crime No.108/89. According to the Superintendent, on account of lack of transport and escort not being available, it was not possible for him to get the detenus produced before S.D.M. Tando Adam and as such the three detenus were kept in custody for such long period. On further question from the Court, the Superintendent, Central Prison, states that he had not received any warrants from the Court directing the Prison Authorities to keep the detenus in custody for further period. According to us, the procedure adopted is not only irregular but is also illegal. As and when an under-trial prisoner is produced before a Court and the case does not proceed or does not conclude and the under-trial prisoner is to be sent back to the prison, he is to be directed to be produced on a date under section 344 of the Code of Criminal Procedure, which reads as follows:-- ?

344. Power to postpone or adjourn proceedings.

(1) If, from the absence of a witness, or any other reasonable cause, it become necessary or advisable to postpone the commencement of, or adjourn any inquiry or trial, the Court may, if it thinks fit, by order in writing, stating the reasons therefore, from time to time, postpone or adjourn the same on such terms as it thinks fit for such time as it considers reasonable, and may by a warrant remand the accused if in custody; Remand: Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time. (2)??????? Every order made under this section by a Court other than a High Court shall be in writing signed by the Presiding Judge or Magistrate.? In this case, neither S.D.M. passed any orders requiring further detention of the detenus in the Central Prison after the final remand, nor the Superintendent Central Prison, Hyderabad informed the S.D.M. that he is holding the detenus without any warrant of remand from the S.D.M. We have warned the Superintendent, Central Prison, Hyderabad that in future there should be not a single under-trial prisoner detained in his prison without a proper order or warrant of remand. In case for any reason the under-trial prisoner cannot be produced in Court, an intimation should be sent to the Court and an order of further remand be obtained from the Court or an effort should be made to produce the under-trial prisoner before the Court. Mr. Aftab Akhund, learned A.-G., today informs us that the entire proceedings initiated against the three detenus under the Pakistan (Control of Entry) Act, 1952, was without jurisdiction inasmuch as the said law applies to Indian Nationals and as the detenus are claimed to be Bengali Nationals, the law applicable to them is the Foreigners Act, 1946. In view of this statement, it is apparent that the entire proceedings undertaken against the detenus, their detention for a period of over three years, the trial of the two of the detenus by the S.D.M. and their conviction are wholly without jurisdiction. In our view, it is a scandalous exercise of power and abuse of the process of the Court. Mr. Aftab Akhund very fairly concedes that this is a fit case where the proceedings should be quashed and the detenus be set at liberty. However, the learned A.-G. informs that after the two detenus had been convicted by S.D.M. Tando Adam and Home Department was informed, a detention order under the Foreigners Act was passed directing the detention of Muhammad Babul and Willayat for a period of three months from the date and period of sentence awarded to the two detenus expired but that period of three months has also expired in the month of July, 1992. We have asked the learned A.-G. whether any orders have been passed by the Review Board extending the detention of the three detenus and the reply of the learned A.-G. is that so far no orders have been passed by the Review Board although some reference has been made by the Home Department. The position, therefore, is clear that today after quashing of the proceedings against the two detenus and also quashing the proceedings against petitioner Muhammad Aslam, the same being scandalous and without jurisdiction, and even after taking into consideration the period of detention order passed under the Foreigners Act, there is no provision of law under which the detention of the three petitioners can be sustained. In the circumstances, this petition is allowed. The proceedings taken against the three petitioners under the Pakistan (Control of Entry) Act, 1952, and the orders/judgments passed thereon are declared to be without lawful authority and to be of no legal effect. The period of detention under the detention order supposed to have been passed under. the Foreigners Act has also expired. The three petitioners are set free in Court today. as they are not required in any other case and it is confirmed by the Superintendent, Central Prison, Hyderabad, that according to his record no other case is pending against the A copy of this judgment may be sent to the Home Secretary, who may examine this case and also peruse the judgment and then, if necessary, pass orders to the effect whether it would be in the interest of justice that Mr. Muhammad Bachal Janwari, S.D.M. Tando Adam, is to be entrusted any judicial function or assignment in future. N.H.Q./M-1714/K ???????????????????????????????????????????????????????????????????????????? Petition allowed.