P L D 2009 Supreme Court 507
HUMAN RIGHTS COMMISSION OF PAKISTAN and 2 others----Appellants
Versus
GOVERNMENT OF PAKISTAN and others---Respondents
(a) Bonded Labour System (Abolition) Act (III of 1992)------Preamble---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was
granted by Supreme Court, inter alia, to consider the "exact scope of the Bonded Labour
System (Abolition) Act, 1992 and its effect on the provisions of the Sindh Tenancy Act,
1950 and other laws".
(b) Bonded Labour System (Abolition) Act (III of 1992)------Preamble---Bonded Labour System (Abolition) Act, 1992 is a piece of welfare
legislation enacted only for the welfare of a disadvantaged section of the people aimed at
curbing certain abominable practices.
(c) Bonded Labour System (Abolition) Act (III of 1992)-----Ss. 5, 2(b)(c), 6 & 8---Constitution of Pakistan (1973), Arts. 11, 15 & 23--All
contracts whereby a person agrees to render services without wages or for nominal
wages, forfeits the freedom of employment or movement or forfeits the right to
appropriate or sell, at market value, any of his property or product of his labour, was
void---Bonded Labour System (Abolition) Act, 1992 basically gives effect to the mandate
of Art. 11 of the Constitution prohibiting forced labour, of Art.15 guaranteeing freedom
of movement and Art.23 guaranteeing the right to hold and dispose of property which
indicates that the Legislature in its wisdom envisaged an obligation to work against one's
wishes for settlement of a private debt not to be one created for a public purpose nor a
fetter upon the right of movement in the said context as a reasonable restriction in the
public interest---While forced labour and clog on the freedom of movement by way of
consideration for the repayment of debt would be impermissible, the outstanding amount
could be recovered through normal legal channels---Principles.
It is evident from a bare reading of section 5 of the Bonded Labour System (Abolition)
Act, 1992 that even a voluntary contract whereby any person is required to render
services as a bonded labourer will be void and inoperative. Section 2(d) defines a bonded
labourer as a labourer who incurs or is presumed to have incurred a bonded debt. Under
section 2(b) a bonded debt means an advance obtained by a bonded labourer under the
Bonded Labour System which has been exhaustively defined in section 2(c). It is,
therefore, evident that all contracts whereby a person agrees to render services without
wages or for nominal wages, forfeits the freedom of employment or movement or forfeits
the right to appropriate or sell, at market value, any of his property or product of his
labour, must be held to be void. To this extent the statute basically gives effect to the
mandate of Article 11 of the Constitution prohibiting forced labour of Article 15
guaranteeing freedom of movement and Article 23 guaranteeing the right to hold and
dispose of property. It indicates that the Legislature in its wisdom envisaged an obligation
to work against one's wishes for settlement of a private debt not to be one created for a
public purpose nor a fetter upon the right of movement in the said context as a reasonable
restriction in the public interest'.
The above, however, could only lead to the conclusion that while forced labour and clog
on the freedom of movement by way of consideration for a repayment of debt would be
impermissible, the outstanding amount could be recovered through normal legal
channels. Nevertheless, taking into consideration the magnitude of exploitation of
disadvantaged people arising from unequal bargaining position as can be, inter alia,
inferred from the pronouncement of the Supreme Court and the report forming the basis
of the final order in Darshan Masih's case PLD 1990 SC 513 the Legislature has moved a
step further towards eliminating the abominable practice of bonded labour. It is in this
context that sections 6 and 8 have to be seen. Section 6(1) stipulates that every obligation
to repay a bonded debt or such part of the debt that has remained unsatisfied on the date
of the commencement of the Act, shall stand extinguished. Section 6(2) bars any suit or
proceedings before Civil Court or other Tribunal for recovery of any bonded debt and
section 6(9) provides for abatement of such suits pending on the date of commencement
of the Act. Section 8 not merely forbids a creditor to accept any payment against a
bonded debt but also provides that doing so would render him liable to be punishable
with imprisonment, which may extend to three years.
Darshan Masih alias Rehmatay and others v. The State PLD 1990 SC 513 ref.
(d) Bonded Labour System (Abolition) Act (III of 1992)------S. 3---Constitution of Pakistan (1973), Art.143---Act to override other laws---Held,
on account of S.3, Bonded Labour System (Abolition) Act, 1992 explicitly conferring
overriding effect to its provisions, any provision in an earlier law repugnant thereto
would be void and inoperative---On account of mandate of Art.143, Constitution,
provisions of Bonded Labour System (Abolition) Act, 1992, would prevail upon any
existing law being made by a Provincial Legislation.
(e) Bonded Labour System (Abolition) Act (III of 1992)------Preamble---Sindh Tenancy Act (XX of 1950), Preamble---Held, in the absence of a
finding as to the existence of a tenancy under the Sindh Tenancy Act, 1950 the Bonded
Labour System (Abolition) Act, 1992 would be fully applicable.
(f) Sindh Tenancy Act (XX of 1950)---
----Preamble & S.13---Interpretation and scope of Sindh Tenancy Act, 1950--Tenancy
rights--Nature---Act does not create a pure employer-employee relationship between
landlords and tenants, on the contrary it creates a quasi-partnership whereby the tenant
acquires certain interests in the land and does not receive wages but only a share in the
produce, insofar as his obligations as a tenant are concerned---Tenant could not he forced
to perform his obligations under the Act---Obligation to cultivate land is a condition
precedent for protection of a tenant's valuable rights in property and in the event of his
failure to do so the consequences are spelt out in the Act itself inasmuch as his tenancy
could be terminated in accordance with S.13 of the Sindh Tenancy Act, 1950---Indeed, a
person may forfeit his legal rights acquired under a statute or a contract upon failure to
perform his obligations but there could be no justification for forcing him to work against
his will in flagrant violation of his fundamental rights guaranteed by the Constitution.
(g) Sindh Tenancy Act (XX of 1950)------S. 25(4)---Bonded Labour System (Abolition)Act (III of 1992), Preamble-Constitution of Pakistan (1973), Arts.11 & 24(2)---Law requiring compulsory service for
liquidation of individual debts would inevitably be ultra vires of Art. 11 of the
Constitution---Bonded Labour System (Abolition) Act, 1992 might not apply to tenants
under the Sindh Tenancy Act, 1950 in view of special relationship between parties
conferring interest in property created by latter statute but the moment that special
relationship ceases to exist upon the termination of a tenancy, a compulsion to work
towards settling liabilities under a private debt would obviously reduce the status of a
former tenant to that of a bonded labourer as such the Bonded Labour System (Abolition)
Act, 1992 would be clearly applicable and not merely the obligation to work would be
void but even the liabilities under the debt would stand extinguished---Principles.
(h) Constitution of Pakistan (1973)-----Art. 199---Writ of habeas corpus---Nature---Writ of habeas corpus, which is of ancient
origin, as distinguished from other prerogative writs, is one of right and not mere
discretion.
Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kasmiri
PLD 1969 SC 14; Ch. Manzoor Elahi v. Federation of Pakistan and others PLD 1975 SC
66 and The Law of Habeas Corpus (2nd Edn. 1989) ref.
(i) Criminal Procedure Code (V of 1898)------S. 100---Scope and application of S.100, Cr.P.C.---Section 100, Cr.P C. only relates to
issuance of search warrants and does not confer any judicial power in the proper sense; it
is merely an enabling provision for the enforcement of due process of law.
(j) Constitution of Pakistan (1973)------Art. 199---Writ of habeas corpus---Alternate remedy---Refusal to exercise jurisdiction
may be permissible only if the alternate remedy is adequate and equally efficacious.
Muhammad Azim Malik v. A.C. and S.D.M. Precdy (South), Karachi and others PLD
1989 SC 266 ref.
(k) Habeas corpus------No law authorises a private individual to keep a person who is sui juris in his private
custody.
Abrar Hasan v. Federation of Pakistan and another PLD 1976 SC 315 ref.
Imdad Hussain v. Noor 1tassan and 5 others PLD 1974 Kar. 485 per incuriam.
(l) Constitution of Pakistan (1973)-----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court was not
justified in dismissing the constitutional petition under Art.199 of the Constitution where
fundamental rights guaranteed, inter alia, under Arts.11, 14 & 15 of the Constitution were
sought---Apart from the jurisdiction vesting in the High Court by virtue of cls. (a) & (b)
of Art.199(1) of the Constitution a special jurisdiction is conferred by cl-(c) of Art.199
which a High Court shares with the original jurisdiction of Supreme Court under Art.
184(3).
(m) Constitution of Pakistan (1973)------Art. 199----Constitutional jurisdiction of High Court---Scope---Jurisdiction of High
Court is wider than that available under cls. (a) & (b) of Art.199(1) of the Constitution -"Enforcement of fundamental rights"---Meaning---Power to enforce fundamental rights
has been conferred upon the superior courts through Art.199(1)(c) of the Constitution--Even in the absence of cl. (c) of Art.199(1) any action by a person performing functions
in connection with the affairs of the Federation, a Province or Local Authority,
inconsistent with fundamental rights, is to he declared without lawful authority under
Art.199(1)(a) of the Constitution---Reach of Art.199(1)(c), however, is wider, it not
merely enables a court to declare an action of State functionary inconsistent with
fundamental rights to be unlawful but also enables a court to declare an action of a State
functionary inconsistent with fundamental rights to be unlawful but also enables the
courts to practically enforce such rights by issuing appropriate directives as is evident
from its language.
Benazir Bhutto v. Federation of Pakistan PLD 1989 SC 66 and Peoples Union for
Democratic Rights v. Union of India AIR 1982 SC 1473 ref.
(n) Constitution of Pakistan (1973)------Arts. 199, 11 & 22---Constitutional jurisdiction of High C o u r t - -Directions to private
parties---Scope---High Court has plenary powers to positively enforce fundamental rights
not merely against public authorities but even private parties---Directions for positive
enforcement of fundamental rights against private parties could only be given by the
High Court in respect of rights guaranteed, inter alia, by Arts. 11 & 22 etc. of the
Constitution which might, in most cases, require enforcement against such parties.
(o) Constitution of Pakistan (1973)------Art. 11---Bonded Labour System (Abolition) Act (III of 1992), Preamble---Slavery,
forced labour etc.---Words "detention" or "unlawful custody" do not merely relate to
physical confinement in a small place.
(p) Constitution of Pakistan (1973)------Art. 199---Criminal Procedure Code (V of 1898), S.491---Habeas corpus---Any form
of restraint on liberty is actionable both under Art. 199 of the Constitution and S.491,
Cr.P.C.
(q) Bonded Labour System (Abolition) Act (III of 1992)------Preamble---Sindh Tenancy Act (XX of 1950), Ss.23, 22 & 25---Criminal Procedure
Code (V of 1898), S.491---Constitution of Pakistan (1973), Arts.199(1)(b)(i) & (c), 11,
15 & 23---Bonded Labour System (Abolition) Act, 1992 not merely ensures that no
fetters on the workers rights guaranteed under Arts. 11, 15 & 23 of the Constitution are
placed, even through voluntary agreements but also wipes out any financial liability that
the worker might have incurred on the basis whereof such fetters have been imposed--Provisions of said Act are also applicable to all persons employed in agriculture other
than those enjoying rights as tenants under the Sindh Tenancy Act, 1950---Refusal of
tenant to work on the land of landlord---Consequence---Mechanism for appropriation of a
debt from a tenant to his landlord --Scope--wrongful detention or forced labour---Onus to
prove---Constitutional petition under Art.199(1)(b)(i) of the Constitution or petition
under S.491, Cr.P.C.---Duty of court---Jurisdiction of superior courts to enforce
fundamental rights---Scope---Summary of the conclusions of Supreme Court on the
subject provided.
Conclusion of the Supreme Court on the subject may be summarized as follows:-(i) that the Bonded Labour System (Abolition) Act, 1992 not merely ensures that no
fetters on the workers rights guaranteed under Articles 11, 15 and 23 are placed, even
through voluntary agreements but also wipes out any financial liability that the worker
might have incurred on the basis whereof such fetters have been imposed;
(ii) that the provisions of the aforesaid Act are also applicable to all persons employed in
agriculture other than those enjoying rights as tenants under the Sindh Tenancy Act;
(iii) that the above, however, does not mean that no credit could be advanced by an
employer to his employee but only that a condition making the employee subject to the
Bonded Labour System cannot be imposed. In cases of debts not accompanied by any
condition which makes an employee a bonded worker under the Act, may be enforceable
through ordinary legal channels;
(iv) that even the Sindh Tenancy Act does not empower a landlord to require a tenant to
work on his lands against the latter's will. The only consequence provided for a refusal on
the part of the tenant is forfeiture of his tenancy rights on grounds of abandonment etc.
and through mechanism provided for in section 23 of the Act;
(v) that even an undertaking by a tenant to work without remuneration or for
remuneration less than the amount stipulated in section 22(2) would be unenforceable;
(vi) section 25 of the Sindh Tenancy Act stipulates a mechanism for appropriation of a
debt from a tenant to his landlord. Subsection (4) only stipulates that upon termination of
a tenancy the entire outstanding amount of the debt would be recoverable
notwithstanding the provisions relating to appropriation through the normal legal
channels;
(vii) that in cases where wrongful detention or forced labour is complained, the onus to
prove that the person detained was a tenant would lie on the landlord. The person
detained would nevertheless invariably be entitled to restoration of his liberty and the
freedom of his movement and the only difference would be that in the event of proof of
his tenancy, the landlord would be entitled to recover the debt through normal legal
channels;
(viii) that in a petition under Article 199(1)(b)(i) of the Constitution or section 491,
Cr.P.C. it is the duty of the court to satisfy itself that a person allegedly deprived of his
liberty is detained under some authority of law;
(ix) that there is no requirement of taw that stricter scrutiny of a petition regarding
detention in private custody is to be made before issuing appropriate directions.
Nevertheless in cases where the right to keep a person in private custody- is claimed on
the basis of some authority in law, the court may require that such right be adjudicated
upon in properly held proceedings before the appropriate forum before issuing
directions under section 491, Cr.P.C., and
(x) the jurisdiction of superior courts to enforce fundamental rights under Article
199(1)(c) of the Constitution is not merely exercisable against persons performing
functions in connection with the affairs of the Federation or Province or a local
authority but against any person or authority including a Government. Some of the
fundamental rights by their very nature may be impaired by private persons and there is
no embargo on the powers of the High Court to issue such direction as may be
appropriate for enforcement of such rights.
Syed Iqbal Haider, Advocate Supreme Court for Appellant (In all appeals).
Aamir Raza Naqvi, DAG and A.S. K Ghori, Advocate-on-Record for Respondent No. 1
(in C.A. No.1139 of 2002).
Abdul Fateh Malik, Addl. A.-G. Sindh along with Qazi Muhammad Abbas, PDSP
Mirpurkhas, Altaf Hussain, D P.O Sanghar, Abdul Ghaffar Butt, ASI Tando Mitha
Khan and Sayed Fazil Shah, EDO District Government Sanghar for Respondents Nos.
2-13 (in C.A. No.1139 of 2002).
Nemo for Respondent No.14 (in C.A. No.1139 of 2002).
Abdul Fateh Malik, Addl. A.-G. Sindh for Respondents Nos.1-10 (in C.A. No.1140 of
2002).
Nemo for Respondents Nos. 1 to 3 (in C.A. Nos.1141 of 2002).
Abdul Fateh Malik, Addl. A. G. Sindh for Respondents Nos. 4 to 6 (in C.A. No.1141 of
2002).
Date of hearing: 18th November, 2008.
JUDGMENT
SABIHUDDIN AHMED, J.---These appeals through leave of this Court are directed
against a judgment of the High Court of Sindh, Circuit Bench, Hyderabad dated 9-12002 dismissing Constitutional Petition No.D-35 of 2000 preferred by the respondent
No.14 and about 94 petitioners either under Article 199 of the Constitution or section
491, Cr.P.C. calling in question the detention of large number of people in private
custody.
2. It may be mentioned that the respondent No.14 is an agriculturist had moved the
Court alleging that a large number of people having obtained loans from zamindars and
having contracted to render services being otherwise bound to do so under the Sindh
Tenancy Act, 1950 were misusing the provisions of section 491, Cr P.C. to avoid
repayment of the loans or to render services in accordance with the Tenancy Act and
the contacts voluntarily entered into by them. On the other hand, the other petitions
were preferred on behalf of the several individuals (hereinafter referred to as detenues")
alleged to be unlawfully detained by different land owners and subjected to forced
labour in violation of the fundamental rights guaranteed to them and the law included in
this Bonded Labour System (Abolition) Act 1992 It appears that only three of the
parties to the proceedings before the High Court namely the human rights Commission
of Pakistan being the respondent in Constitutional Petition No.D-35 of 2000 and the
petitioners in Constitutional Petitions Nos. 465 and 475 of 2000 namely Kanji and
Dongro have impugned the aforesaid consolidated judgment of the High Court. Leave
to appeal was granted by this Court inter-alia to consider the "exact scope of the
Bonded Labour System (Abolition) Act, 1992 and its effect on the provisions of the
Sindh Tenancy Act, 1950 and other laws."
3. There does not appear to be any serious dispute as to the factual matrix of the
controversy. The factum of indebtedness to land owners was not seriously questioned
by the detenues who only alleged that they or their family members were forced to
work on the lands against their will till debts were liquidated at the same time, as is
evident from para. 32 of the impugned judgment the landlord also did not seriously
dispute the existence of any restraint upon the movement of the detenues They only
alleged that the Habeas Corpus jurisdiction of the Court was being invoked for
exploiting the landlords who, on account of the refusal of the tenant to work of moving
away from the land, were required to hire other labour at heavy cost at the time of
harvesting the crop unless their tenants unreasonable demands were yielded to. It was
further contended that the Sindh Tenancy Act, 1950 contained inbuilt provisions for
resolving all disputes and the invocation of the jurisdiction of the High Court under
Article 199 of the Constitution or section 491, Cr. P.C. amounted to abuse of the process
of law.
4. None of the private respondents including Dr. Mir Amanullah Talpur has entered
appearance. However, we have heard apart from Mr. Iqbal Haider, learned counsel for
the appellant, Mr. Amir Raza Naqvi, Learned Deputy Attorney-General on behalf of the
Federal Government and Mr. Abdul Fateh Malik, Additional Advocate-General on behalf
of the functionaries of the Provincial Government. While the former fully supported the
appellant's case, the latter stoutly defended the impugned judgment and supported the
viewpoint of the landlords in the controversy before us.
5. Mr. Malik argued that miseries of tenants arose out of non-implementation of land
reforms stipulating maximum limit on the holdings of agricultural land and not from
issues raised in this appeal but unfortunately NGOs were not raising real problems and
were only supporting insignificant controversies. While we have great respect for the
views of the learned counsel particularly in view of his long-standing experience and his
struggle for the cause of the downtrodden but we reminded him that this Court was only
concerned with the lis before it and he was appearing as a law Officer of the Provincial
Government. Indeed, if he felt that the mandate of the law was not being enforced he
could well advice his clients to do so but we were only concerned with the present
controversy and could not pronounce upon extraneous matters.
6. Syed Iqbal Haider, learned counsel for the appellant mainly raised the following
grounds:-(i) that under section 5 of the Board Labour System (Abolition) Act, 1992 any custom or
practice or a contract whether entered into before or after the commencement of the Act
by virtue of which any person or a member of his family is required to do any work or
any service as bonded labour shall be void and inoperative and according to section 6 any
bounded debt that remained unsatisfied would stand extinguished;
(ii) that no obligation of hard to work against his will, stated to be created under the
Sindh Tenancy Act could remain valid and operative in view of the provisions of section
3 of the 1992 Act which has an overriding effect on all other laws; and
(iii) that in any event there was no justification for the honourable High Court to decline
relief to a person in unlawful confinement.
7. In support of his first contention learned counsel submitted that it might well be that
the haris or other persons employed in agricultural might have received loans from
landlords and might have also entered into contracts for rendering services as a
consideration for the same. Nevertheless by virtue of the specific provisions of sections 5
and 6 not only the contract became void but even the obligation to repay the debt stood
extinguished. In support of his contention learned counsel drew our attention to clauses
(a) to (e) of section-2, section 5 and section-6 (sub-sections (1) and (2) of the Act which
may be reproduced as follows:"Section-2.
(a) "advance (peshgi)" means an advance (peshgi), whether in cash or in kind, or partly in
cash or partly in kind, made by one person (hereinafter referred to as the creditor) to
another person hereinafter referred to as the debtor);
(b) "bonded debt" means an advance (peshgi) obtained, or presumed to have been
obtained, by a bonded labourer under, or in pursuance of, the bonded labour system;
(c) "bonded labour" means any labour or service rendered under the bonded labour
system;
(d) "bonded labourer" means a labourer who incurs, or has, or is presumed to have,
incurred, a bonded debt;
(e) "bonded labour system" means the system of forced, or partly forced, labour under
which a debtor enters, or has, or is presumed to have, entered into an agreement with the
creditor to the effect that,--(i) in consideration of an advance (peshgi) obtained by him or by any of the members of
his family [whether or not such advance (peshgi) is evidenced by any document] and in
consideration of the interest, if any, due on such advance (peshgi), or
(ii) in pursuance of any customary or social obligation, or
(iii) for any economic consideration received by him or by any of the members of his
family;
he would--(1) render, by himself or through any member of his family, or any person dependent on
him, labour or service to the creditor, or for the benefits of the creditor, for a specified
period or for an unspecified period, either without wages or for nominal wages, or
(2) forfeit the freedom of employment or adopting other means of livelihood for a
specified period or for an unspecified period, or
(3) forfeit the right to move freely from place to place, or
(4) forfeit the right to appropriate or sell at market value any of his property or product or
his labour or the labour of a member of his family or any person dependent on him, and
includes the system of forced, or partly forced, labour under which a surety for a debtor
enters, or has or is presumed to have, entered, into an agreement with the creditor to the
effect that, in the event of the failure of the debtor to repay the debt, he would render the
bonded labour on behalf of the debtor;
Section 5. Agreement, custom, etc., to be void.---Any custom or tradition or practice or
any contract, agreement or other instrument, whether entered into or executed before or
after the commencement of this Act, by virtue of which any person, or any member of his
family, is required to do any work or render any service as a bonded labourer shall be
void and inoperative.
Section 6. Liability to repay bonded debt to stand extinguished.--(1) On the
commencement of this Act, every obligation of a bonded labourer to repay any bonded
debt, or such part of any bonded debt as remains unsatisfied immediately before such
commencement, shall stand extinguished.
(2) After the commencement of this Act no suit or other proceeding shall lie in any Civil
Court, Tribunal or before any other authority for the recovery of any bounded debt or any
part thereof.
8. Surprisingly, it appears from the impugned judgment that the question of appellant of
the provisions of the above mentioned Act was not seriously taken up by the parties
before the High Court. At the same time there lordships too, though referred to a
precedent and mentioning some of its provisions, no effort to carefully examine the effect
of the statute which prima facie appears to have a direct bearing on the controversy, was
undertaken. Nevertheless, being a pure question of law and considering the principle that
a Judge is required to wear all the laws of the country on the sleeve of his robe, as well as
the fact that leave has already been granted to examine the provisions of this Act, we
have considered these provisions carefully with the assistance of learned counsel.
9. In the above context it needs to be observed that the abominable practice of bonded
labour was taken judicial notice of this Court in the well known case of Darshan Masih
alias Rehmatay and others v. The State (PLD 1990 SC 513) taken up by this Court in its
jurisdiction to enforce fundamental rights under Article 184 (3) of the Constitution by
way of public interest litigation. Apart from directing the release of the persons detained
in flagrant violation of their fundamental rights inter-olio guaranteed by Article-11 the
Court suggested effective measure to curb this practice through legislation, on the basis
of recommendations of a Committee constituted by the Court.
10. In the report of the Committee "the peshgi system" was described as a cruel method
of enslaving the workers for the rest of their lives. It was recommended, inter alia, that
the system of bonded labour in all walks of life be abolished the advances by way of
peshgis and rights accruing therefrom should stand extinguished and recovery of peshgis
be made offences under the law through appropriate legislation. The above background
needs to he kept in view which taking into consideration the provisions of the Act which
is undoubtedly a piece of welfare legislation enacted only for the welfare of a
disadvantaged section of the people aimed at curbing certain abominable practices.
11. It is evident from a bare reading of section-5 that even a voluntary contract whereby
any person is required to render services as a bonded labourer will be void and
inoperative. Section 2(d) defines a bonded labourer as a labourer who incurs or is
presumed to have incurred a bonded debt Under section 2(b) a bonded debt means an
advance obtained by a bonded labourer under the Bonded Labour System which has been
exhaustively defined in section 2(c) reproduced in para-6 of the judgment It is, therefore,
evident that all contracts whereby a person agrees to render services without wages or for
nominal wages, forfeits the freedom of employment or movement or forfeits the right to
appropriate or sell, at market value, any of his property or product of his labour must be
held to be void. To this extent the statute basically gives effect to the mandate of Article
11 of the Constitution prohibiting forced labour Article 15 guaranteeing freedom of
movement and Article 23 guaranteeing the right to hold and dispose of property. It
indicates that the Legislature in its wisdom envisaged an obligation to work against one's
wishes for settlement of a private debt not to be one created for a public purpose nor a
fetter upon the right of movement in the said context as a reasonable restriction in the
public interest.
12. The above however, could only lead to the conclusion that while forced labour and
clog on the freedom of movement by way of consideration for a repayment of debt would
be impermissible, the outstanding amount could be recovered through normal legal
channels. Nevertheless, taking into consideration the magnitude of exploitation of
disadvantaged people arising from unequal bargaining position as can be, inter alia,
inferred from the pronouncement of the Court and the report forming the basis of the
final order in Darshan Masih's case the Legislature has moved a step further towards
eliminating the abominable practice of bonded labour. It is in this context that sections
6 and 8 have to he seen. Section 6(1) stipulates that every obligation to repay a bonded
debt or such part of the debt has remained unsatisfied on the date of the commencement
of the Act shall stand extinguished. Section 6(2) bars any c suit or proceedings before
Civil Court or other Tribunal for recovery of any bonded debt and section 6(9) provides
for abatement of such suits pending on the date of commencement of the Act. Section 8
not merely forbids a creditor to accept any payment against a bonded debt but also
provides that doing so would render him liable to be punishable with imprisonment,
which may extend to three years.
13. Mr. Iqbal Haider appears to be correct to the extent that on account of section 3 of
the Act explicitly conferring an overriding effect to its provision, any provision in an
earlier law repugnant thereto would be void and inoperative. We may add that on
account of mandate of Article-143 of the Constitution, having been enacted by the
Parliament its provisions would prevail upon any existing law being made by a
provincial legislature. Nevertheless to determine the extent of inconsistency it was
imperative that a careful analysis of the provisions of the Sindh Tenancy Act was
undertaken. Unfortunately this was neither done in the impugned judgment nor
attempted by any of the learned counsel appearing before us. However, before
proceeding to do so for settling the law in terms of the leave granting order, we might
consider the alternate contention of the learned counsel for the appellant.
14. In the alternative Mr. Iqbal Haider urged that the appellants Kanji and Dongro were
not the recorded tenants of any landlord and as such the provisions of the Sindh
Tenancy Act were not attracted to their cases. Neither this contention was rebutted on a
factual plane nor did the learned Additional Advocate-General argue that the Bonded
Labour System (Abolition) Act, 1992 was inapplicable to the workforce in agriculture.
Unfortunately, the Honourable High Court recorded and omnibus order to the effect
that all disputes were to be resolved according to the mechanism provided in the Sindh
Tenancy Act, without caring to arrive at a finding of' fact in each case whether a
landlord tenant relationship in terms of the aforesaid Act existed to confer jurisdiction
upon the Tribunal to resolve the dispute. We are therefore of the view that in the
absence of finding as to the existence of a tenancy under the Sindh Tenancy Act the
Bonded Labour System (Abolition) Act, 1992 would be fully applicable to the case.
15. Coming to the question of conflict between the two laws. It is evident from the
preamble of the Sindh Tenancy Act that the statute was enacted with the object of
regulating the rights and liabilities of agricultural tenant and their landlord in the
Province. Section-3 speaks of two classes of tenants i.e. permanent tenants and tenants
at will who are entitled to occupation of land only for a cropping season under section
16 and liable to ejectment upon the end of the season. However in terms of section 8 a
tenant at will acquires the rights of a permanent tenant in case he cultivates land of at
least four acres for the same landlord for a continuous period of three years. When a
tenant at will acquires the status of a permanent tenant under section-8 or is granted
permanent rights upon the landlord under section-7, he acquires valuable interest in the
land including the right to possession, the right to transfer (with the permission of the
landlord) and devolution of tenancy rights upon a lineal descendant in the event of his
demise of incapacity. Sections 4 to 7 and 10 to 12 elaborately describe the rights of a
permanent tenant. Section 9 requires that the names of permanent tenants shall be
entered in the record of rights maintained in a prescribed manner.
16. Sections 13 and 14 are the only provisions enabling termination of rights of a
permanent tenant. Under section 14 a landlord may terminate the tenancy in case of
bona tide requirement of land for self cultivation, a non-agricultural purpose or other
specified reasons after giving the tenant one year's notice in writing stating the reasons.
The bona-fides of the landlord are justiciable before a 'Tribunal constituted under
section 26 upon an application preferred by a tenant. In case the landlord fails to use the
land for the purpose mentioned in the notice within one year from the date of taking
possession, the tenant is entitled to restitution upon the same terms as existed at the
time of termination.
17. Section 13 however stipulates termination of tenancy on grounds of certain acts of
commission or omission of tenant i.e. abandonment of tenancy, using land for nonagricultural purposes without permission of the landlord, failure to cultivate the land
personally, failure to pay the due share of produce to the landlord or doing an act
injurious to the land. Such ejectment can be caused through an order of the Tribunal
where obviously the landlord would be required to establish that any ground for
ejectment has taken effect. Sections 23 and 24 contemplate certain duties on the part of
the tenants and the landlords respectively. Section 22 contemplates that notwithstanding
any agreement usage or custom the landlord could not take any free labour from a
tenant and any wages in respect of labour undertaken by the tenant shall he paid to him
on the same day at determination of each day's work in accordance with the rates
prevailing in the locality.
18. From the above provisions were are of the opinion that the Sindh Tenancy Act does
not, strictly speaking, create a pure employer employees relationship between landlords
and tenants. On the contrary it creates a quasi-partnership whereby the tenant acquires
certain interests in the land and does not receive wages but only a share in the produce in
so far as his obligations as a tenant are concerned. This nevertheless does not lead to the
conclusion that a tenant could be forced to perform his obligations under the Act. The
obligation to cultivate land is a condition precedent for protection of a tenant's valuable
rights in property and in the event of his failure to do so the consequences are spelt out in
the Act itself inasmuch as his tenancy could be terminated in accordance with section-13.
Indeed a person may forfeit his legal rights acquired under a statute or a contract upon
failure to perform his obligations but there could be no justification for forcing him to
work against his will in flagrant violation of his fundamental rights guaranteed by the
Constitution. The landlord's contention in the para-32 of the impugned judgment,
therefore, merited outright rejection.
18. Mr. Iqbal Haider also appears to be right to the extent that the High Court was plainly
wrong in assuming that every detenue was a permanent tenant of the respective landlord
under the provisions of the Tenancy Act. In this context it was incumbent upon their
lordships to examine in each ease whether the detenue was recorded tenant of the
landlord in terms of section 9 of the Sindh Tenancy Act and whether he enjoyed
occupancy rights in respect of at least four acres of land. Obviously in the absence of
such facts the landlords could not rely on the provisions of Tenancy Act.
19. It appears from the impugned judgment that reliance was placed on section 25 of the
Sindh Tenancy Act for contending that a tenant could be forced to work on the land
owners land till his outstanding liability from the debt owed by him was liquidated. It
may therefore be necessary to examine the provisions of section 25 carefully, which are
reproduced as follows:-"25. General Provisions regarding debt.--(l) The produce of a tenant after deducting
such portion thereof as is necessary for the purposes of providing until the next harvest of
the due cultivation of the land and for the support of the tenant and his family may be
appropriated towards the debt due from the tenant to his landlord.
Explanation.--For the purpose of evaluating in cash the produce of the tenant, the
wholesale control price fixed for the locality by the Government, and if no such price is
fixed, the wholesale price prevailing in the local market shall be taken as the basis.
(2) After making recoveries set forth in subsection (1), the balance of debt, if any, shall
be deemed to be a floating debt recoverable, from the tenant's share of other crops.
(3) In case a tenant is indebted to his landlord, it shall be his duty to deposit his share of
cotton in the landlord's store. Such cotton shall remain in the joint possession of the
tenant and the landlord until it is divided or until delivered is taken by the buyer.
(4) On termination of his tenancy, a tenant, if he be indebted to his landlord, shall be
liable to pay off his debt before leaving."
21. It appears to have been inferred by the Honourable High Court on the basis of the
language of the above quoted subsection (4) that even on termination of his tenancy the
tenant, in the event of indebtedness to the landlord, could not leave prior to settlement of
his outstanding liabilities under the debt and as such could be forced to continue
rendering services.
22. In the above context, it needs to he seen that the fundamental rights guaranteed by
Article-11 prohibits all forms of forced labour subject to the exception that compulsory
service by a person under going punishment for offence or required by any law for a
public purpose is permissible. The expression "public purpose" appears elsewhere in the
Constitution i.e. Article 24(2) and other constitutions and statutes and has been
interpreted by superior Courts. In the case of Huma Bai Framjee v. Secretary of State for
India reported in (42 1.A. 44 PC) it was held by the privy council that "public purpose"
would mean an object or aim in which general interest of the community as opposed to
particular interest of individuals is directly and vitally concerned. The same view was
followed inter alia by the Supreme Court of India in the case of State of Bihar v.
Kameshwar Singh reported in (AIR 1952 SC 252) and a full Bench of Lahore High Court
in the case of Allah Ditta v. Province of Punjab reported in (PLD 1997 Lahore 499). We
are not aware of any precedent where a different view has been taken. Therefore a law
requiring compulsory service for liquidation of individual debts would inevitably by
ultra-vires Article 11 of the Constitution.
23. Moreover, while we have held that the Bonded Labour System (Abolition) Act, 1992
might not apply to tenants under the Sindh Tenancy Act in view of the special
relationship between parties conferring interest in property created by latter statute it is
evident that the moment that special relationship ceases to exist upon the termination of a
tenancy, compulsion to work towards setting liabilities under a private debt would
obviously reduce the status of a former tenant to that of a bonded labourer. As such the
Act would be clearly applicable and not merely the obligation to work would be void but
even the liabilities under the debt would stand extinguished. Therefore, we are entirely
unable to uphold the inference drawn by the honourable High Court from section 25(4) of
the Sindh Tenancy Act.
24. Being conscious of the obligation of a Court to make effort to save the
constitutionality of a statute and applying the rule of harmonious construction we are of
the view that reading section 25 as a whole shows that a debt incurred by a tenant is to be
settled through appropriation in the manner contemplating by subsections (1) to (3).
Subsection (4) only contemplates that the outstanding balance becomes due and payable
upon termination of the tenancy and could be recovered through normal legal channels.
The words "before leaving" only signify that the financial liability of the tenant accrues
before the termination actually comes into effect. Practically the only effect of tenancy
under the Sindh Tenancy Act is that a tenant incurring a debt during the subsistence of
tenancy in his favour continues to remain liable for the payment whereas a bonded debt
in terms of the Bonded Labour System (Abolition) Act, 1992 is not recoverable at all. In
either case however any obligation to work cannot be enforced.
25. Finally learned counsel for the appellant argued that the Honourable High Court was
required to examine each of the petitioners under Article 199 of the Constitution and
section 491, Cr.P.C. after issuing rule-nisi for the production of the detenues, on merits
and instead of dismissing them through an omnibus order on the grounds of existence of
alternate remedies. It was contended that the alternate remedies suggested in para 36 (g)
were neither adequate nor equally efficacious in the circumstances. Moreover when
appellants Kanji and Dongro had explicitly sought enforcement of their fundamental
rights guaranteed, inter alia, under Articles 11 and 15 of the Constitution, the High Court
was the only appropriate forum to grant redress. Learned Additional Advocate-General,
however, supporting the observations in the impugned judgment emphatically argued that
in matters of private detention, as distinguished from detention by public authorities, a
notice rather than a rule-nisi should issue because the latter is likely to cause harassment
of citizens. Indeed this contention was seriously questioned by learned counsel for the
appellant.
26. We have carefully considered the contention raised and have examined the law on
this aspect of the matter and are constrained to observe that the approach of the High
Court was entirely erroneous. In the first instance, it ought to be kept in view that the
Habeas Corpus jurisdiction of the High Court is borrowed from the English Legal System
upon which our legal system is founded as repeatedly observed by this Court, inter alia,
in the full Court judgment in the case of Government of West Pakistan and another v.
Begum Agha Abdul Karim Shorish Kasmiri (PLD 1969 SC 14) and Ch. Manzoor Elahi v.
Federation of Pakistan and others (PLD 1975 SC 66). It is a settled principle of English
Law, which has also adopted by our Courts that the writ of habeas corpus, which is of
ancient origin, as distinguished from other prerogative writs, is one of right and not mere
discretion. It may be of interest to mention that the Habeas Corpus Act of 1679 required
penalization of a Judge refusing to issue a writ without proper grounds. R.J. Sharp in his
book "The law of Habeas Corpus (Second Edition, 1989)" summed up the English law in
the following w o r d s " : - - -
"In principle Habeas Corpus is not a discretionary remedy, it issues ex debito justitiae on
proper grounds being shown…….Since Habeas Corpus is not a discretionary remedy the
existence of alternate remedy does not afford grounds for refusing relief of habeas
corpus."
27. In view of the above clear statement of law, the observation of their lordships in Para13 to the effect that directions under section 491, Cr.P.C. could only issue in a case of
self explanatory allegations without seeking explanation from those charged with illegal
detention are entirety unwarranted. This Court in the case of Muhammad Azim Malik v.
A.C. & S. D. M. Preedy (South), Karachi and others reported in (PLD 1989 SC 266
summarized the law relating to detention in the following words:-"The duty is that of the Court, to satisfy itself with regard to the jurisdictional aspect and
with regard to the lawfulness of the manner of detention. The law laid down by the Court
further makes it clear that once the attention of the Court is properly drawn to a case of
detention, the onus immediately shifts to the detaining authority to show the lawfulness
of its authority in detaining the detenue. The duties are, therefore, specifically that the
Court and the detaining authority in the first instance and it is only incidentally that the
relator or the applicant comes to the forefront in such a situation. These features
distinguish all the cases relied upon by the learned counsel representing the Federal
Government on the questions on acquiescence in jurisdiction, estoppel, approbation and
reprobation."
28. From the above it is apparent that the petitions could not be dismissed on the ground
that alternative remedies were available to person held to be unlawfully detained.
Nevertheless even if it be assumed otherwise learned counsel seems to be right in
contending that such remedies could hardly be considered adequate or equally
efficacious. Their lordships have referred to section-100, Cr.P.C. and section 341 and
345, P.P.C. in this context. It needs to be kept in view that section-100, Cr.P.C. only
relates to issuance of search warrants and does not confer any judicial power in the
proper sense. It is merely an enabling provision for the enforcement of due process of
law. Obviously such Magistrate has no authority to direct the release of the person
unlawfully detained but could at best ensure his appearance before the competent Court.
Sections 341 to 345 P.P.C. on the other hand stipulate punishment for persons found to
have kept others under wrongful restraint or in wrongful confinement. They only provide
that in case the respondents were found guilty of the offences they could be punished
under the law after a proper trial. The persons confined nevertheless would continue to
suffer unlawful detention. We are somewhat surprised how their lordships considered the
aforesaid remedy as adequate for persons stated to be unlawfully deprived of liberty. It is
well settled that refusal to exercise jurisdiction may be permissible only if the alternate
remedy is adequate and equally efficacious.
29. Learned Additional Advocate-General attempted to defend that distinction drawn by
their lordship between private custody and public custody and supported the view that
stricter scrutiny needs to be undertaken before issuing rule-nisi to private parties alleged
to have wrongfully detained a person. We are afraid the distinction sought to be made
does not appear to be premised on any legal principle. It cannot be overlooked that
whereas the law confers powers upon public authorities to arrest and detain individuals
under certain circumstances i.e. as under trial prisoners or under the laws enabling
preventive detention, there appears to be no law authorizing a private individual to keep a
person who is sui-juris in his private custody. This Court in the case of Abrar Hasan v.
Federation of Pakistan and another reported in (PLD 1976 SC 315) observed that even if
a Judge of a superior Court were to Illegally confine his domestic servant for
misbehaviuor, a writ of Habeas Corpus would lie against him.
Indeed there is a large number of cases relating to minors and women where the Courts
have declined to exercise jurisdiction under section 491, Cr.P.C. requiring the matter to
be adjudicated in the fora established by law. Nevertheless invariably in all those cases
the respondent have claimed a legal right to the custody of the person allegedly detained.
The basis of distinction in our humble view is not that of a person's detention in public or
private custody but the fact that the respondent has asserted a legal right to keep the
person allegedly detained in his custody, and therefore the courts have rightly required
that disputes as to such rights need to be adjudicated upon by the appropriate forum i.e.
family Courts. In the case at hand however it was evident that a landlord could not detain
a tenant under any legal authority and as such the analogy was totally inapplicable. At the
juncture we may observe that the observations of the Honourable High Court in the case
of Imdad Hussain v. Noor Hassan and 5 others reported in (PLD 1974 Karachi 485) at
page 489 are contrary to the law declared by this Court and ought to he treated as per
incuriam.
30. There .also seems to be force in the contention that the Honourable High Court was
not justified in dismissing petitioners under Article-199 of the Constitution where
enforcement of fundamental rights guaranteed inter alia under Articles 11, 14 and 15 was
sought. In the above context it needs to be kept in view that apart from the jurisdiction
vested in the High Courts by virtue of clauses (a) and (b) of Article 199(1) a special
jurisdiction is conferred by clause (c) (which a High Court shares with the original
jurisdiction of this Court under Article 184(3)] in the following words:-"On the application of any aggrieved person, make an order giving such directions to any
person or authority, including any Government exercising any power or performing any
function in, or in relation to, any territory within the jurisdiction of trial Court as may be
appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1
of Part-II
31. It needs to be explained that in matters pertaining to fundamental rights the
jurisdiction of the High Court is wider than that available under clauses (a) and (b). In
this context the true meaning of the expression "enforcement of fundamental rights"
needs to be ascertained. For doing so a comparison of the provisions pertaining to
fundamental rights in the Constitutions of US and Pakistan may be appropriate. For
instance, the 13th Amendment to the US Constitution forbids slavery and forced labour
but provides that the Congress has the power to enforce this Article through appropriate
legislation. Similarly in the 14th Amendment section-1 requires that any State shall not
deprive any person of life, liberty or property or equal protection of laws. Section-5
however requires that the Congress shall have the power to enforce by appropriate
legislation. These provisions show that while State-action violating or ignoring
provisions of the Constitution may be struck down by Courts exercising normal judicial
power, the power to positively enforce the rights through appropriate sanctions could be
exercised by the Congress alone. It is for this reason that the US Supreme Court was able
to give effect to the 14th Amendment in respect of racial segregation in the absence of
legislation, only through extending the concept of State-action to State-aided school etc.
32. On the other hand, in the scheme of our Constitution, the power to enforce
fundamental rights has been conferred upon the superior Courts through Articles 199(1)
(c) and 184(3). It may be seen that under Article 4 everybody has to be treated in
accordance with the law and under Article-8, a law inconsistent with fundamental rights
is to be treated as void. Therefore, even in the absence of clause (c) any action by a
person performing functions in connection with the affairs of the Federation, a province
or local authority, inconsistent with fundamental rights is to be declared without lawful
authority under the clause (a) of Article 199.
33. The reach of clause (c) however is wider. It not merely enables a Court to
declare an action of a State functionary inconsistent with fundamental rights to be
unlawful but also enables the Courts to practically enforce such rights by issuing
appropriate directives as is evident from its language. Accordingly, this Court after
having earlier held that the fundamental rights guaranteed by Article-17 included
the right of a political party to contest elections as a collective entity was able to
issue mandatory directives in the case of Benazir Bhutto v. Federation of Pakistan
reported in (PLD 1989 SC 66) to the election authorities to amend the election rules
to provide for the same under its powers to enforce fundamental rights under
Article-184(3) of the Constitution. Moreover, such directives could be issued to any
person including the Government. In the case of Peoples Union for Democratic
Rights v. Union of India reported in (AIR 1982 SC 1473) it was held that though
some of the fundamental rights imposed negative obligation on the part of the mate
not to encroach upon individual's liberty etc., there were others, which were
positively enforceable against the whole world. We are therefore clearly of the view
that' the High Court has plenary powers to positively enforce fundamental rights not
merely against public authorities but even private parties. Accordingly direction for
positive enforcement of fundamental .rights against private parties could only be
given by the High Court in respect of rights guaranteed, inter alia, by Articles 11, 22
etc. which might in most cases require enforcement against such parties.
34. Another small point arising from the observations of the High Court in para -15
may also be dealt with. It seems that their lordships were also swayed by the
consideration that there was no reliable evidence of physical imprisonment with the
persons allegedly detained. In the above context we are of the view that the words
detention or unlawful custody do not merely relate to physical confinement in a
small place. In a number of cases decided by the Lahore High Court i.e. Rao Mahroz
Akhtar v. The District Magistrate Dera Ghazi Khan and the Province of West
Pakistan (PLD 1957 Lahore 676), (ii) Ch. Muhammad Anwar v. Government of
West Pakistan (PLD 1963 Lahore 109) (iii) Begum Nazir Abdul Hameed v. P akistan
(Federal Government) through the Secretary, Interior, Division Islamabad and
another (PLD 1974 Lahore 7) and (iv) Major General (R.) Ghulam Jilani v. Federal
Government (PLD 1975 Lahore 65) it was held that any restrain on the part of a
person would be actionable under Article 199 of the Constitution. In the last case
the petitioner was only restrained from leaving the municipal limits of Lahore
without permission from certain authorities. Moreover in almost all cases where
jurisdiction under 491, Cr.P.C. relating to custody of minor has been exercised there
is rarely an allegation of confinement within particular four walls. We find no
reason to take a different view and would hold that any form of restraint on liberty
is actionable both under Article 199 of the Constitution and section 491, Cr.P.C.
35. Our conclusion from the above somewhat lengthy discussion may be
summarized as follows:-(i) that the Bonded Labour System (Abolition) Act, 1992 not merely ensures that no
fetters on the workers rights guaranteed under Articles 11, 15 and 23 are placed,
even through voluntary agreements but also wipes out any financial liability that the
worker might have incurred on the basis whereof such fetters have been imposed;
(ii) that the provisions of the aforesaid Act are also applicable to all persons
employed in agriculture other than those enjoying rights as tenants under the Sindh
Tenancy Act;
(iii) that the above however does not mean that no credit could be advanced by an
employer to his employee but only that a condition making the employee subject to
the Bonded Labour System cannot be imposed. In cases of debts not accompanied
by any condition which makes an employee a bonded worker under the Act, may be
enforceable through ordinary legal channels;
(iv) that even the Sindh Tenancy Act does not empower a landlord to require a
tenant to work on his lands against the latter's will. The only consequence provided
for a refusal on the part of the tenant is forfeiture of his tenancy rights on grounds of
abandonment etc. and through mechanism provided for in section 23 of the Act;
(v) that even an undertaking by a tenant to work without remuneration or for
remuneration less than the amount stipulated in section 22(2) would be unenforceable;
(vi) section 25 of the Sindh Tenancy Act stipulates a mechanism for appropriation
of a debt from a tenant to his landlord. Subsection (4) only stipulates that upon
termination of a tenancy the entire outstanding amount of the debt would be
recoverable notwithstanding the provisions relating to appropriation through the
normal legal channels;
(vii) that in cases where wrongful detention or forced labour is complained of the
onus to prove that the person detained was a tenant would lie on the landlord. The
person detained would nevertheless invariably be entitled to restoration of his liberty
and the freedom of his movement and the only difference would be that in the event of
proof of his tenancy, the landlord would be entitled to recover the debt through normal
legal channels;
(viii) that in a petition under Article 199(1)(b)(i) of the Constitution or section 491,
Cr.P.C. it is the duty of the court to satisfy itself that a person allegedly deprived of his
liberty is detained under some authority of law;
(ix) that there is no requirement of law that stricter scrutiny of, a petition regarding
detention in private custody is to be made before issuing appropriate directions.
Nevertheless in cases where the right to keep a person in private custody is claimed' on
the basis of some authority in law, the court may require that such right be adjudicated
upon in properly held proceedings before the appropriate forum before issuing directions
under section 491, Cr.P.C.; and
(x) the Jurisdiction of superior courts to enforce fundamental rights under Article
199(1)(c) of the Constitution is not merely exercisable against persons performing
functions in connection with the affairs of the Federation or Province :or a local authority
but against any person or authority including a Government. Some of the fundamental
rights by their very nature may be impaired by private persons and there is no embargo
on the powers of the High Court to issue such direction as may be appropriate for
enforcement of such rights.
35-A. For the foregoing reasons we would allow these appeals and set aside the
impugned order, Syed Iqbal Haider concerned before us that he has lost contact with
appellants Kanji and Dongro however since the question of cherished rights of liberty of
citizens in involved, we would direct the concerned District Police Officers to inquire
whether the aforesaid persons are still in the custody of the respondents and if so, cause
their production before the High Court Bench at Hyderabad for appropriate orders in the
light of the above conclusions.
36. A copy of this judgment may be transmitted to the Honourable Chief Justice of the
High Court of Sindh so as to enable him to circulate amongst his colleagues and to the
learned Sessions Judges in the Province (who are now empowered to exercise jurisdiction
under section 491, Cr.P.C.) for appropriate guidance in matters of like nature arising in
future.
M B.A./H-3/S
Appeals allowed