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Criminal Miscellaneous Application No. 123 of 1967, decided on 26th May 1967.
, S. 491---Habeas corpus, writ of-Valid and legal order of detention prima facie passed with jurisdiction-Cannot be challenged in proceedings under S. 491---Illegal detention or wrongful confinement of detenus not proved---Petition dismissed.
Basanta Chandra Ghose v. Emperor A I R 1945 F C 18; Shad Muhammad v. The.Crown P L D 1950 Pesh. 22 and Qadir v. The State P L D 1958 Pesh. 38 ref.
Muhammad Ali for Applicant.
A. A. G. and Kazi Akhtar for Respondents.
Date of hearing: 26th May 1967.
This order will cover the 19 revision petitions detailed above. The applicants in all these applications under section 491, Cr. P. C. applied to this Court for the production of the detenus named in these petitions on the ground that each of these detenus received a salary of Rs. 70 per month but the work they were doing was of their own sweet will, that they were working on the Begari Bund and had been wrongfully removed from there and detained at the Chak P. S. by respondent No. 4, and coming to know of these detentions, the applicants had made attempts to meet these detenus, but the respondents, specially respondents 2, 3 and 4 had prevented them from doing so, and that the applicants in spite of approaching the various authorities had been unable to get any redress. It was stated that the detenus had been illegally detained since 11-4-67 without any legal or valid authority, and that they were so restrained and confined for wrongful purposes.
2. When these petitions were presented, a report of respondent No. 2, namely the S. P. of Sukkur was called for, and "there were subsequent hearings on 2- 5- 67 and on 10- 5-67. On the last date, an order was made that the alleged detenus be produced in this Court, and in consequence of this order and on the undertaking given on 10-5-67 by the D. I. G., Khairpur Police, who was present in Court, the 23 alleged detenus have now been produced in Court.
3. When this matter was taken up for hearing this morning, the learned A. A. G. Mr. Kazi Akhtar stated at the bar that in respect of the 17 alleged detenus, who were all alleged to be minors, the learned Joint Civil Judge and F. C. M., Sukkur, had passed an order in respect of each one of them under section 14(3) of the Bombay Children Act, 1924. Seventeen certified copies of these orders in respect of each of these minor-detenus have been produced before me. The orders in each case were passed on the production of these child-detenus who were prosecution witnesses in the case of State v. Imam Bux and others under sections 365, 366, 368, 344 and 374, P. P. C. pending before the learned Civil Judge and F. C. M. and as the detenus were destitute and had no home or abode of their own, the statements of the detenus had been recorded wherein they had expressed fear that if they were not properly looked after under an order and control of the Court they were likely to be again kidnapped by the agent of Umer Shah, who is a co-accused in the case earlier referred to, and that they should not be sent back to their relatives who were poor and would be unable to take proper care of them. The learned Civil Judge observed that the child-detenus were material witnesses in the case of Imam Bux and others, and as an offence in respect of them had been committed, it was expedient in their interest that an order should be made under section 14(3) of the Bombay Children Act, 1924. He, therefore, directed that each of these minor-detenus should be committed to the care and custody of the Idarah Khidmat-e-Khalq and that they should be placed under the supervision of one Mr. Bashir Ahmed who is the Managing Director of the Khairpur Textile Mills, who has volunteered to look after the minor detenus on humanitarian grounds. It was also ordered that Mian Bashir Ahmed should execute a personal bond in the sum of Rs. 1,000 to ensure the good behaviour, welfare and production of these witnesses in any Court whenever it is necessary to do so "till such time the custody is given to the relatives of the child by a competent Court."
4. The remaining six alleged detenus being majors were present in Court, and I have examined each one of them on oath including Abdul Razik son of Dad Muhammad who according to the learned A. A. G. has been similarly ordered by the learned Sub-Judge and F. C. M. under section 14(3) of the Children Act to be detained by Mian Bashir Ahmed, but who was also examined, as initially the learned A. A. G. stated, a medical certificate had been given in respect of this child detenu that he was 20 years of age. Apparently some mistake has taken place about the age of the child, but I have nevertheless recorded his statement, though not on oath. The rest of the six detenus produced are majors, all above 18 years of age, and although they spoke in Pushto, it was translated by an official translator of this Court, Pir Abdul Salam, who knows Pushto and who was given the oath before he translated to this Court the statements of each of them.
5. Learned counsel for the applicants, Mr. Muhammad Ali Sheikh, has contended that this Court must now determine whether the 17 orders passed by the learned Joint Civil Judge and F. C. M., Sukkur are valid orders of detention. I do not consider that it is necessary in these proceedings under section 491, Cr. P. C. to do so, for as the learned A. A. G. rightly points out, on the face of it the order of the learned Sub-Judge and F.C. M. in regard to the minor detenus is a valid order, and that if anyone, including the applicants is aggrieved with any order of detention, a revision can be filed against them under section 51 of the Bombay Children Act of 1924.
6. The position, therefore, is that these are not proceeding where the validity of what otherwise is a valid and legal order, can be challenged or examined as prima facie they appear to have been passed with jurisdiction.
7. The learned A. A. G. next contends that in view of the orders passed by the learned Civil Judge of Sukkur the petitions in respect of them have become infructuous against those 16 minor detenus. I feel that this is the correct position in law. The learned A. A.G. also relies on the following rulings:
(1) Basanta Chandra Bhose v. Emperor A I R 1945 F C 18;
(2) Shad Muhammad v. The Crown P L D 1950 Pesh. 22; and
(3) Qadir v. The State P L D 1958 Pesh. 38.
The two later rulings have followed A I R 1945 F C 18, which is the leading authority on section 491, Cr. P. C. Their Lordships there were considering the Restrictions and Detention Ordinance III of 1944 and Rule 26 of the Defence of India Rules, 1939, and an earlier order of detention under rule 25 which was held to be defective on formal grounds, the proper order having to be passed being one on pre-existing conditions. On page 21, Spence, C. J. went on to observe as follows:
"It was finally contended that as the previous order of this Court directed an inquiry into the validity of the detention of 19th March 1942, the decision, of the High Court must be limited to that question, and it was not open to the High Court to base its decision on the subsequent order of 3rd of July 1944. This contention proceeds on a misapprehension of the nature of habeas corpus proceedings. The analogy of civil proceedings in which the rights of parties have ordinarily to be ascertained as on the date of the institution of the proceedings, cannot be in voked here. If at any time before the Court directs the release of the detenu, a valid order directing his detention is produced, the Court cannot direct his release merely on the ground that at some prior stage there was no valid cause for detention. The question is not whether the later order validates the earlier detention, but whether in the face of the later valid order, the Court can direct the release of the petitioner. The appeal fails, and is dismissed."
This is precisely what has taken place in the present case. The applicants were present in this Court and notices have served on the respondents. At the earlier hearing of the applications, learned A. A. G. had stated at the bar that the detenus were not in the custody of any of the respondents, but that they had been handed over to Mr. Bashir Ahmed who as a philanthropist and on humanitarian grounds had undertaken to look after them and feed them, not restricting their movements, and this has been done since the investigations were proceeding against whose who had allegedly kept them in forced labour camps. Be that as it may, the factual position now is that a valid and legal order of the learned Sub-Judge and F.C. M., Sukkur for their detention had been made before they were produced here in this Court. The applications therefore in respect of the 16 minor detenus have been infructuous.
8. As far as the other major detenus are concerned, each one of them has stated before me that they are being housed, fed and looked after at Kotdiji by some Shahji and Mr. Bashir Ahmed, that their movements are not restricted in any way nor are they restrained from meeting anyone or going out anywhere. Clearly, therefore, there is no case of their illegal detention or of their being wrongfully confined, least of all, for illegal purpose. They are majors and masters of their own will sad they are at liberty to do what they like, These petition must fail in respect of all the detenus.
9. A notice to show cause was issued to respondent No. 2, Mr. Fazal Mahmood, the S. P. Sukkur, on the 10th of May 1967 Mr. Fazal Maim-hood has filed a statement tendering unconditional apology for the late submission of his report, further stating that the lapse on his part was not deliberate, and was due to a message received by him from the learned Assistant Advocate-General. He has further stated that he holds this Court in the highest respect, and that no such lapse will occur on his part in future. I, therefore, accept the apology, and discharge the notice.
10. Mr. Bashir Ahmed to whom notice was issued to be present here is also before me: He states that he is looking after the detenus entirely on his own on humanitarian grounds, and that he has placed no restrictions on them. The notice issued to Mr. Bashir Ahmed is also discharged.
Petitions dismissed.
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