2009 Y L R 2497 Peshawar

Peshawar

Before Ejaz Afzal Khan and Abdul Aziz Kunehri, JJ

 

W.P No.2066/2009 Decided on 15th September, 2009


MURAD ALI---Petitioner

Versus

ASSISTANT POLITICAL AGENT, LANDI KOTAL and 2

others---Respondents


Frontier Crimes Regulation (III of 1901)----

---S.40---Constitution of Pakistan (1973), Arts.199 & 247(7)---

Constitutional petition---Administration of Tribal Areas---

Jurisdiction of Supreme Court and High Court---Petitioner had asked for the issuance of an appropriate writ directing the

authorities to set him free on the grounds that he had been incarcerated under S.40 of Frontier Crimes Regulation, 1901

without any rhyme or reason and without there being any material on the record---Counsel for the authorities had stated that since the

petitioner had also been involved in a case of Explosive Substances Act, 1908 he having been shifted to place 'Landikotal', High Court

had no jurisdiction to proceed in the matter in view of the provisions contained in Art.247(7) of Constitution---Petitioner

could have been required in the case of heinous nature, but no effort was made to shift him from judicial lock-up to the custody of

Investigating Agency for such a long time, despite he was charged with offences of heinous nature and required much greater

attention as compared to S.40 of Frontier Crimes Regulation, 1901, which did not deal with offences, but security measures for

maintaining law and order in the area---Fundamental rights were available even to the residents of Tribal Areas and the provisions

of the Constitution guaranteeing them were not only mandatory but self-executing---High Court had jurisdiction under Art.199 of the

Constitution to grant relief to a person incarcerated illegally---In the present case, it was otherwise, the fundamental rights with all

their guarantees in the Constitution would be reduced to a farce, which could never be the intent of its framers---Petitioner was

directed to be released on bail under S.40 of Frontier Crimes Regulation, 1901 and other offences.

Ch. Manzoor Elahi v. Federation of Pakistan and others PLD 1975SC 66 ref.


Mian Muhibullah Kaka Khel for Petitioner.


Iqbal Muhammad, D.A.-G. and Ikramullah Khan, A.A.-G. for

Respondents.


Date of hearing: 15th September, 2009.


JUDGMENT


EJAZ AFZAL KHAN, J.---The petitioner through the instant petition has asked for the issuance of an appropriate writ directing

the respondents to set him free on the grounds that he has been incarcerated under 40, FCR without any rhyme or reason and

without there being any material on the record, that he being a Government servant receives his pay regularly and that his service

itself is a far greater guarantee for his peaceful behaviour than a proceeding under section 40, FCR.


2. Mr. Iqbal Ahmad Durrani, Advocate, representing respondents Nos.1 and 2 appeared in this Court on 1-9-2009 and sought time to

lay his hand on the record. He, however, submitted that according to the information, he had from the respondents, the petitioner has

been incarcerated under 40 FCR. The case was, however, adjourned to 3-9-2009. The learned counsel appearing on the date

stated that since the petitioner has also been involved in a case of Explosive Substances Act, he has been shifted to Landikotal,

therefore, this Court has no jurisdiction to proceed in the matter in view of the provision contained in Article 247(7) of the

Constitution of Islamic Republic of Pakistan, 1973. When we inquired from Mr. Ikramukllah Khan, A.A.-G, as to when the

petitioner has been shifted to Landikotal, he after seeking the Jail record submitted that he has been in Jail from 18-5-2009 to 1-9-

2009 till one P.M. When we confronted Mr. Iqbal Ahmad Durrani, as to what was that extraordinary which necessitated his shifting

from the Central Jail Peshawar to Landikotal, that too, on 1-9-2009 soon after his appearance in this Court, the learned counsel could

not give any satisfactory reply except this that the petitioner was required in a case of Explosive Substances Act. On 9-9-2009 the

number of offences was tripled and quadrupled with the addition of section 392/121-A/148/149, P.P.C., read with 11 FCR. When we

inquired about the origin of these cases, the learned counsel submitted that it dates back to the days when the petitioner was

free. But when we asked him to produce something in black and white in this behalf, he produced a report purportedly based on the

reports of Agencies. No other material to substantiate the involvement of the petitioner in the cases mentioned above was,

however, produced before us.


3. We have gone through the record annexed with the petition and the one produced by the learned counsel for the respondents

carefully and considered the arguments addressed at the Bar.


4. Granted that the petitioner may have been required in the cases mentioned above, but why no effort was made to shift him from

judicial lock-up to the custody of the Investigating Agency for such a long time notwithstanding the offences he was charged with

were heinous in nature and required much greater attention as compared to 40 FCR which does not deal with offences but

security measures for maintaining law and order in the area. We also failed to understand how the petitioner has still been in the

service of the Government and has not been proceeded against despite the fact his track record as per reports of the Agencies is so

dismaying. Why did respondents Nos.1 and 2 remain in so deep a slumber, when the gravity of the offences mentioned above called

for immediate response and reaction in terms of investigation and inquiry? Failure on the part of respondents Nos.1 and 2 to answer

any of the questions mentioned above, inescapably leads us to the conclusion that it was nothing but a ruse and a ploy to take away

the petitioner outside the territorial jurisdiction of this Court. In such circumstances, we cannot sit with our eyes shut, with our

hands folded and with our legs crossed, so as to acquiesce to what is illegal altogether on the face of it.


5. The learned A.A.-G appearing on behalf of the State when faced with this state of things also raised the question of

jurisdiction of this Court by referring Article 247(7) of the Constitution but this will not help him, when the petition was taken

away from the jurisdiction of this Court illegally and even deceitfully after when it took cognizance of the prolonged

detention of the petitioner under section 40 of the FCR without requiring him to submit bond in accordance with the mandate of

the afore-said section. The learned A.A.-G also made a reference to the situation prevailing in the area, which, according to him, is

war like by every attribute, but it, to our mind, cannot influence the course of law, which is to remain alike whether it is war or peace.

Such phenomenon, thus, cannot defeat the enforcement of fundamental rights or even application of law. Nor can it deter the

Court from doing what it is required by law to do. Here I cannot do better than to quote the words of Lord Atkin who in the case of

Liverside-Vs-Anderson, while dealing with a similar situation held as under:--


"I view with apprehension the attitude of judges who, on a mere question of construction, when face to face with

claims involving the liberty of the subject, show themselves more executive minded than the executive...In England

amidst the clash of arms the laws are not silent. They may be changed but they speak the same language in war as in

peace."

 

6. With regard to the question of jurisdiction, I would like to refer to the celebrated judgment of Ch. Manzoor Elahi v. Federation of

Pakistan etc. PLD 1975 SC 66, wherein his lordship Mr. Justice Salahuddin, as he then was held as under:--


"It has been contended in this context that there is no remedy provided by the Constitution to enforce the rights and obligations

mentioned in Article 4. The contention is misconceived. In the first place, the injunctions contained in Article 4(2) are not only

mandatory but they are also clothed in prohibitory language which indicate that the provisions are self-executing and no legislation is

necessary to give effect to them. The rules of interpretation of a written Constitution as reproduced above support this view. Apart

from the question of any machinery to enforce the right or obligation, as I have said earlier, nobody is relieved of the

obligation to comply with them. In the second place, I am unable to conceive that a right or obligation so clearly and solemnly given

or put can be without a content, meaning or purpose. Unless, therefore, on an examination of the Constitution, I am led to the

inevitable conclusion that the Courts are powerless to enforce the inalienable right or the obligation mentioned in Article 4, I am of

the opinion that the Courts are bound to give the Article a meaning and a purpose. I have, however, already noticed that Article 199 of

the Constitution gives indeed wide powers to a High Court to act for the enforcement of the rights and obligations mentioned in

Article 4 of the Constitution."


While summing up his conclusion his lordship held as under:--


"Pakistan is governed by the rule of law, as embodied in Articles 4 and 5 of the Constitution. The Constitution creates no right and

imposes no duty in vain.


Remedy or no remedy, nobody is relieved of his basic obligation to obey the Constitution and law.


Each one of the three organs of the State-the Executive, the Legislature and the Judiciary is bound by the oath not only

to preserve, protect and defend the Constitution but also to abide by the Constitution and the law.


The `will' of the Constitution is supreme, and nobody can be permitted to flout the `will'. It is inconceivable that the

Constitution be not followed. Anything done in violation of the Constitution is void and has no existence in law. No

violation of the Constitution can be tolerated.


Fundamental Rights are available throughout Pakistan including the Tribal Areas and the Superior Courts have

jurisdiction to enforce them within the limits of their respective territorial jurisdiction including the Tribal

Areas.


A Fundamental Right not suspended under Article 233 of the Constitution remains fully operative, and every body in

Pakistan is under an obligation to respect it. The mere fact that an aggrieved person is temporarily prevented from

moving any Court for the enforcement of a Fundamental Right does not relieve an authority of its obligation to

comply with it.


A High Court has jurisdiction under Article 199 of the Constitution to grant relief to a person arrested illegally

within its jurisdiction although he is for the time being detained outside the jurisdiction.

A High Court has power to grant relief to a person, detained within its territorial jurisdiction although he was

arrested illegally outside the jurisdiction.


Where the liberty of a person is involved a High Court can exercise its jurisdiction under Article 199 of the

Constitution and grant him relief even though he has misconceived his remedy and come up with an application

under sections 498 and 561-A of the Code of Criminal Procedure.


Under Article 199 of the Constitution a High Court has a variety of powers, any one of which can be exercised to

grant relief to the aggrieved person.


Article 1999 of the Constitution is available not only for the enforcement of the Fundamental Right but also to enforce

the rights and obligations as contained in Articles 4 and 5 of the Constitution.


Frontier Crimes Regulation is `existing law' under Article 268 of the Constitution and it is continued in force subject

to the Constitution and until altered, repealed or amended, etc.


Section 11 of the FCR is not `law' within the accepted connotation of the term, and is, therefore, not `law' as

contemplated in Articles 4 and 5 of the Constitution. Where two kinds of procedures are applicable--one which is

normal, free from arbitrariness and consistent with reason and justice, and the other that is not so, the former should

be preferred."


7. It can thus be summed up that where fundamental rights are available even to the residents of tribal area and the provisions of

the Constitution guaranteeing them are not only mandatory but self executing, a High Court has jurisdiction under Article 199 of the

Constitution to grant relief to a person incarcerated illegally. In case it is otherwise as it is contended by the learned counsel for the

respondents and learned A.A.-G, the fundamental rights with all their guarantees in the Constitution would be reduced to a farce,

which we are afraid, can never be the intent of its framers.

 

8. We, therefore, allow this petition and direct that the petitioner be released on bail forthwith under 40 FCR and other offences

mentioned above on furnishing bond in the sum of Rs.4,00,000 with two sureties each in the like amount to the satisfaction of the

Additional Registrar (Judicial) of this Court.

H.B.T./178/P

Petition allowed.

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