P L D 1957 (W (PLP)

KAYANI, J.‑

These are two petitions for a writ, largely of habeas corpus by Khan Ghulam Muhammad Khan of Loondkhawar (for shortness called Loondkhawar) and three other residents of Mardan District against their detention under section 3, N.‑W. F. P. Public Safety Act, XXI of 1948. The petitioners were originally detained on 23rd December 1956 for a month by order of the District Magis trate of Mardan and removed to the Central Jail at Rawalpindi. On the 1st of January 1957 they sent a petition to the High Court, which appears to have been received here on the 8th of January. On the 9th January it was placed before a Judge in Chamber, who directed the production of the detenus on 15th January. Meanwhile, on the 31st December 1956, the Provincial Government, operating through the Home Secretary, had passed another order of detention under section 3 aforesaid, but this was for a period of six months. It was an independent order and had no reference to the previous order of the District Magistrate. This appears to have been served on the detenus on 4th January 1957, whereupon they submitted another petition to the High Court on the 6th January, and it was received in the High Court on the 10th. On the 15th January, when the matter was placed before a Division Bench, the detenus were absent and the Assistant Advocate‑General had not received any instructions from Government. The case was adjourned to 17th January. On the same day, that is, 15th January, the Home Secretary took steps to serve on the detenus the grounds of their detention, and they were actually served on the 16th January. The only ground stated was that "you have been fomenting agrarian trouble between landlords and tenants in Mardan district and inciting the tenants in a manner likely to endanger peace and tranquillity." When the detenus appeared before the Bench on the 17th January, we bailed them out after indicating to the! Assistant Advocate‑General, that the order of detention was prima facie bad, because the grounds of detention having been communicated after sixteen days, there was no com pliance with clause (5) of Article 7 of the Constitution, which requires that such grounds shall be communicated "as soon as may be" and the detenu shall be afforded "the earliest opportunity of making a representation against the order"; further, the grounds were not stated in such detail as to make an effective representation possible. The petitioners, however, did not seem to be satisfied with a release order which would be based on a formal non- compliance with the provisions of Article 7, and wished to produce evidence of bad faith against the Chief Minister and the District Magistrate. The two petitions from jail are identical in subject -matter. They state that so far as the petitioners could make out from press reports, the had been detained because they were alleged to intent picketing the'' house of the Nawabzadas of Hoti, on the occasion, of the visit of Mr. Chou En Lai, Prime Minister of Chini. (The Provincial or Central Government had arranged that Mr. Chou En Lai should have lunch with the Nawabzadas on 25th December 1956.) This, the petitioners stated, was a false report, though they did send telegrams to the Central Government and the Chinese Ambassador that the selection as hosts, of the Nawabzadas of Hoti, who had no national service to their credit, was an insult on the one hand to a communist Prime Minister, on the other to the public of Mardan district. The real reason for detention was the personal animosity of Dr. Khan Sahib, the Provincial Chief Minister, at whose instance the Deputy Commissioner had acted. The reason why Dr. Khan Sahib was inimical was that the petitioners had stoutly opposed the anti‑Unit and anti‑Pakistan activities of his brother, Khan Abdul Ghaffar Khan, whose present arrest was regarded by Dr. Khan Sahib as the result of the petitioners propaganda. The Deputy Commissioner of Mardan (Mufti Abdul Majid) was (according to the petition) a very junior officer and was anxious to please Dr. Khan Sahib in order to retain his post. Thus, in order to please Dr. Khan Sahib, he had illegally ejected thousands of the tenants of the Nawabzadas and, as Cane Commissioner under the N,‑W. F. P. Sugar Factories Control Act, 1950, he had issued identity cards in the names of the Nawabzadas and not of their tenants. It was because the petitioners had protested in speeches against these immoderate acts that they had been incarcerated. The petitioners (it was added) had proclaimed public meetings on 25th December at Takhtbai and on 26th December at Charsadda, and they were arrested on 23rd December. It was also feared that if Loondkhowar, who had been to China twice and knew Mr. Chou En Lai, met him at the Peshawar University lunch on 24th December, he was likely to tell Mr. Chou En Lai that it would be wrong for him to attend the lunch party at the Nawabzadas' house. As the case developed during the recording of evidence, the issues which presented themselves for adjudication were the following: (1) Whether the period of sixteen days taken in com municating the grounds of detention to the detenus satisfies the constitutional safeguard contained in Article 7, clause (5) that such grounds should be communicated "as soon as may be": (2) Whether the grounds furnished to the detenus were the grounds on which the detaining authority had made the order of detention. (3) Whether the grounds furnished were such as would afford to the detenus "the earliest opportunity of making a representation against the order", within the meaning of clause (5) of Article 7. (4) Whether the order was prompted by bad faith on the part of the Chief Minister. (5) Whether there was any rational connection between the grounds on which the detaining authority had acted and the objects which were to be prevented from being attained. Section 3 of the relevant Safety Act empowers the Provincial Government to arrest and detain any person for any length of time "on being satisfied" that he has committed "a prejudicial act" or that arrest and detention are necessary with a view to preventing the commission of a prejudicial act‑a term which has been defined, so far as relevant, as an act which is intended or is likely (i) to prejudice the relations of Government with a foreign power, or (ii) to endanger public safety or the maintenance of public order, or (iii) to promote feelings of enmity or hatred between different classes. The powers of the Provincial Government may be delegated to any authority under section 28 of the Act, and have been delegated to the District Magistrate up to a limit of one month's detention. It will be noticed, however, that the order of detention passed by the District Magistrate does not show that he was "satisfied" either that any prejudicial act had actually been committed or that arrest and detention was necessary in order to prevent the commission of such act. The order merely says: "With a view to preventing Ghulam Muhammad Khan . . . from committing any prejudicial act and from endangering public safety and maintenance of public order, I, Abdul Majid Mufti . . . . order the arrest without warrant of the said Ghulam Muhammad Khan . . . . . ." No order under section 3 can be passed unless the Provincial Government‑and, by delegation, the District Magistrate‑is satisfied of its necessity, and it is because of that subjective satisfaction that the Courts are precluded from examining the adequacy of the material on which satisfaction is based. Where, consequently, there is no record of satisfaction, the order is ab initio void. It is a bad order on another ground also: The District Magistrate did not communicate to the detenus the grounds on which the order of detention was based. The constitutional guarantee con tained in clause (5) of Article 7 was thus violated. Thus detention between the 23rd December 1956 and the 4th January 1957, when the order of the Government was served, was illegal, and if the second order had been a continuation of the first, that also would have become illegal. In his evidence as P. W. 7, Mufti Abdul Majid state's that he had made a report to the Commissioner urging the necessity of detention on the Provincial Government, and that he had based his recommendation on the following grounds "(1) Telegrams sent by Mr. Ghulam Muhammad khan to‑the Prime Minister and others ‑protesting against the proposed lunch to Mr. Chou En Lai by the Nawabzadas of Hoti. (2) On 21st December 1956, Mr. Ghulam Muhammad Khan addressed a public meeting at Katlang protesting against the aforesaid lunch. (3) Report of the local C. I. D. that Mr. Ghulam Muhammad Khan was likely to hold another meeting on 24th December for organizing a demonstration on the occasion of Mr. Chou En Lai's visit. (4) Mr. Ghulam Muhammad Khan's demonstrations at the Mardan Telegraph Office, where he kicked up a row with the postmaster and wildly abused the Deputy Commis sioner of Mardan for having intercepted his messages, threatening the staff of the telegraph department with dire consequences. (5) In my report I referred to previous reports about the activities of Mr. Ghulam Muhammad Khan, particularly to a wide spread agitation by the tenants which he had organized against the Landlords last winter. I added that this year he had delivered a number of speeches urging the cane‑growers to boycott the sugar factories. In the end I stated that all these incidents led me to conclude that Mr. Ghulam Muhammad Khan was capable of staging a demonstration on the occasion of the visit of the Chinese Premier. I added that as long as his activities were not effectively curbed, it would be difficult to maintain law and order in the district." Later in his statement, he added another ground: "I have mentioned in my report to the Commissioner that on the 20th December 1956, it was reported that Ghulam Muhammad Khan wanted to lead a mob of cane- growers to Takhtbai Sugar Mills against the management of the Mill and that the Station House Officer, Takhtbai, had intervened. The report to which I have referred was a police report." With this report he went to the Commissioner, Mr. Zuberi, who recorded his agreement on the report and took Mufti Abdul Majid to Doctor Khan Sahib's village, Utmanzai, where the latter happened to be. Dr. Khan Sahib recorded the following order "I agree. Action should be taken. H. S. should issue the necessary orders." This was on 22nd December. Mufti Abdul Majid sent the report and the Chief Minister's order to the Home Secretary at Lahore, but as Mr. Chou En Lai's visit was imminent, he himself made a month's detention order on the 23rd December, and referred the case for "further extension" to the Home Secretary. The Home Secretary (Mr. Muhammad Husain Sufi, P. W. 6) received the report on the 26th December. He states that normally, when a case for extension of the term of detention comes to him, he consults the Chief Minister, but that in this case, as Dr. Khan Sahib's orders had already been obtained at Peshawar, there remained only formal orders to be issued. He adds, however, that the study of the file did disclose to him sufficient grounds for detention. But the grounds of arrest furnished by the Home Secretary to the petitioners gave only one ground, namely, "the fomenting of agrarian trouble between landlords and tenants in Mardan district and inciting the tenants in a manner likely to endanger peace and tranquillity." This, he says was in his opinion the main ground of detention "particularly when the matters connected with Mr. Chou En Lai's visit had already passed". It will be noticed that, of the five grounds stated by the District Magistrate in the first instance, the first four relate to the visit of Mr. Chou En Lai, The fifth ground is based on "previous reports", with a reference to a widespread agitation of tenants against landlords, organised by Loondkhawar "last winter", which would mean, in the context of December 1956, the winter of 1955‑

56. There is also refer ence in the fifth ground to speeches intended to incite cane- growers against sugar factories. The sixth ground added later in his statement by the District Magistrate refers to Loondkhawar's intention to lead a mob of cane‑growers against the management of the sugar mill at Takhtbai. It was suggested to him that the report of the 22nd December 1956 made by him to the Commissioner was expressly intended to prevent a demonstration on the occasion of Mr. Chou En Lai's visit on, the 25th. He admitted that the immediate cause of the report was the visit, but referred to the latter part of the report, according to which "there would be no peace in the district so long as Loondkhawar was at large". The "previous reports" referred to in the fifth ground had a bearing only on incidents of "last winter", and‑ apart from the new tune of 1956, the intention to march on the management of the Takhtbai Mills‑whatever weighed immediately with the District Magistrate was the impending visit of Mr. Chou En Lai. Here is a man (said the District Magistrate to the Chief Minister, in effect) with such antecedents‑see my previous reports‑and who is going to make a musical display at the lunch party. I suppose at least now you would be "satisfied" that a good reason exists for detention. And the Chief Minister naturally does not wish to have a display before a distinguished foreign visitor. So he passes the order. Hut would he have passed the order in the absence of the four matters connected with the visit ? The fifth ground itself says that there were "previous reports", on which, apparently, the Chief Minister had not acted in the past. Mufti Abdul Majid says that he had joined the district on 28th November 1955, and that since 15th January 1956 he had been writing to Government regularly every fortnight that action should be taken against Loondkhawar. But neither was any action taken nor did anything prejudicial happen for a year. These fortnightly diaries bore fruit only on the 23rd December. 1956, when the Chinese Prime Minister decided to have a little lunch party at Hoti. But while we do not entertain any doubt that what impelled the Chief Minister to issue the order of detention was the thought of disorder at the diplomatic lunch party, we have not asked him whether he would have acted in the absence of that consideration, and the State counsel is therefore entitled to argue that we cannot so analyse that mental process called the Chief Minister's satisfaction as to make it lean entirely on the Chinese visit. Let it be noted, however, that while the Chief Minister had‑on this argu ment been motivated by five or six considerations, the Home Secretary selected only one of these. The petitioners, on receipt of the "grounds" of detention, believed that the only thing which had weighed with Government was the agrarian trouble. They might have been able to explain away the agrarian trouble, as they have explained it away to us, but that would not have been good enough for the Chief Minister, who could legitimately say to himself : "And what about the scene at the telegraph office ; the telegrams to the Prime Minister and the press and the Chinese Ambassador the intended demonstration at the launch party and the intended march o sugar mills ?" But the petitioners knew nothing about these matters and were deprived, there fore of "the earliest opportunity of making a representation" in respect of them. And this is no formal matter. Article 7 of the Constitu tion, in clauses (1) and (2), confers upon every citizen a fundamental right, upon being arrested, to be informed of the grounds for his arrest "as soon as may be", to consult and be defended by a counsel of his choice and to be produced before the nearest Magistrate within twenty‑foul hours. At this stage it should be, pointed out that the words "as soon as may be" would normally produce effect before the prisoner is taken to a Magistrate, that is to say, within twenty four hours. To this matter I shall advert later. Clause (3) excludes the operation of this fundamental right from any law providing for preventive detention, but clauses (4) and (5) restore it in a modified form. Firstly, if preventive detention is to exceed three months, it must have the approval of an Advisory Board constituted by the Chief Justice, and you could safely swear on the Constitution that the Chief Justice will keep only judicial officers on the Board. The present Provincial Board, it may be pointed out, consists of two Judges of the High Court. This reduces the "satisfaction" of Government to a period of three months, and it is pertinent to remark that the halo of subjectiveness and immunity from judicial scrutiny with which judicial authority has surrounded it since the last Great War, both here and in England, has suffered perceptibly in visual charm by reason of this constitutional safeguard. It is as though the Constitution were saying to the detaining authority: "I appreciate the occasional urgency of a situation when you may be called upon to take away the liberty of a citizen on your own responsibility for law and order, but my experience of your past, what with your implicit trust in police reports and what with your doubtful morals in the political field, constrains me to rely on your discretion for no more than three months." Secondly, the detaining authority should, as soon as may be, communicate to the detenu the grounds on which the order has been made and shall afford to him the earliest opportunity of making a representation against the order. If either condition is not fulfilled, then whether the non- fulfilment has made any difference to the detenu or not, the detention is illegal. That is because a constitutional safeguard has been violated. How can it be said that the grounds of detention were furnished "as soon as may be" when they were furnished sixteen days after the detention ? What would the detenus be thinking of all these sixteen days ? If the original order had not been replaced, there would be only a month of detention, and by the time a representation was ready, the month would have run out. I have already pointed out, while dealing with clause (1) that the words as soon as may be" used iii that' clause ought to be interpreted with reference to the period of twenty‑four hours within which the prisoner will be produced before a Magistrate. For a prisoner is not produced before a Magistrate merely to inform him that there are Magistrates in the land, this one being the nearest of them in geographical proximity ; he is produced so as to enable him to complain to the Magistrate if there is ground for any complaint. And the first complaint which a prisoner will make will be Why have I been arrested ? And if the Magistrate cannot tell him why, there is no charm in styling this production a fundamental right. The ground of arrest should thus become known to the prisoner in any case within twenty four hours. If these words" as soon as may be"‑have the same meaning III clause (5) as they have in clause (1), or at least as near there as may be, then a delay of sixteen days clearly violates the constitutional safeguard. The grounds on which the detain ing authority makes the order must be known to it on the day when the order is made, and can ordinarily be served on the detenu along with the order of detention. We were referred by the learned counsel for the State to a decision of the Indian Supreme Court‑2arapada De v. State of West Bengal (AIR1951SC 174) in which a delay of sixteen days was not held to violate the Constitution "under the circumstances of the case". The circumstances were these. "Under the Bengal Criminal Law Amendment Act, 1930, a very large number of persons were detained. The validity of that Act was being challenged in the High Court, and the judgment was expected to be delivered towards the end of February 1950. The Preventive Detention Act, 1950 was passed by the Parliament of India in the last week of February 1950 and these orders on all those detenus (100 persons) were served on 26th February 1950. Having regard to the fact that the Provincial Government had thus suddenly to deal with a large number of cases on one day, we are unable to accept this contention." Their Lordships might have added that the detenus having already been under detention under another enactment the words "as soon as may be" were robed of practical value, The delay in the present case resulted from ordinary, dilatoriness in various offices and cannot be allowed to invade a fundamental right. While examining the quality of these rights, we should place ourselves in the position of the detenu and assume that we are the innocent victims of a misunderstanding of intrigue. If then we are kept in the dark even for a single day as to the reason for our arrest, should we not feel that we are still in the dark ages ? Next the object of furnishing us with the grounds of detention would be to enable us to tell the detaining authority that he has been misinformed, assuming that he has been misinformed. Therefore, the grounds furnished to us must be the grounds on which the authority has acted, because it is the cumulative effect of all the grounds which has created in the detaining authority the subjective state of satisfaction that our remaining at large is prejudicial to peace and tranquillity. Here, while the Chief Minister had acted on five or six grounds, four of which related to the visit of Mr. Chou En Lai, the Home Secretary regarded only one of them to be adequate for a detention order. But the Home Secretary was issuing merely a formal order. He was not substituting his own satisfaction for the satisfaction of the Chief Minister. Even, therefore, if he were satisfied that the single ground of detention was adequate, the actual detention had resulted from the satisfaction of a different authority, and having been based on several other grounds, gave a' right to the detenus to be supplied with all those grounds. Thus another constitutional safeguard was violated. There is then left the agrarian trouble which the petitioners were alleged to be fomenting, and we are of the opinion, on the evidence of the District Magistrate himself, that there is no rational connection between this agrarian trouble and the end sought to be achieved by the order of detention. We asked the Home Secretary‑to explain to us the precise nature of the agrarian trouble and he put it in these words : "Mr. Ghulam Muhammad Khan was inciting cane‑growers (tenants) not to sell cane to the mills and to make gur in order to force the mill management to raise the price of cane. He further incited them to use violence if they were forced to sell cane." To understand this, it is necessary to explain that under the N.‑W. F. P. Sugar Factories Control Act the Cane Commissioner‑the Deputy Commissioner of Mardan in this case‑can fix an area which must grow cane and supply it to one or other of the three sugar factories at Mardan, Takhtbai and Charsadda at a price not below that fixed by a notification. The area allotted to each mill would normally be the area surrounding it. The Home Secretary's statement would give an impression that although the Cane Commissioner had prescribed a cane -growing area for each mill, creating an obligation on the growers to sell and on the mills to buy cane, Loondkhawar was inciting the growers not to sell it but to convert it into gur so as to force the mills to raise their prices. In actual fact, however, the complaint was that the Cane Commissioner had not reserved any area for cane‑growing until very late in the season, with consequences injuries to the growers, as will presently appear. The following extracts are from the statement of the Deputy Commissioner: Q. In what manner did Mr. Ghulam Muhamr4ad incite the cane‑growers ? A. He protested against the alleged atrocious treatment of the mill management towards the cane‑growers, and urged them not to sell their cane and to use violence against the mill management. Q. In what manner were the cane‑growers treated 'atro ciously.? A. The allegation was that they had to be kept waiting at the mill before their cane was purchased and that at times their cane was rejected as inferior and re‑purchased on pay ment of a bribe to the management. Q. Did you take any action against the management of the mills in regard to the complaint that they reject cane unjustifiably A. These complaints are made every year and every indi vidual case is dealt with on its merits by the Cane Assistant who goes to the spot to investigate the matter. In other words, he took only formal action. The Cane Assistant goes, just as "the rainbow comes and goes", and there is sunshine afterwards, and the Cane Assistant reports that there is no truth in the complaint. For if the Cane Com missioner had taken any action beyond sending the Cane Assistant to the spot, he would have told us. The pathos of the answer lies in the fact that "these complaints are made every year"‑and we are used to them. Then we come to the reservation of a cane‑growing area, called the "gate area": Q. Have you reserved any gate area under the Sugar Factories Control Act ? A. Yes, I did so as Cane Commissioner in January. Q. Why did you not reserve it earlier, although the crush ing season had already begun ? A. I had to obtain the. consent of the Secretary, Food and Agriculture. It was suggested to him that he had delayed reservation in order to favour the Nawabzadas of Hoti, who hold the larger part of shares in the Charsadda mill, and who would be enabled, by reason of non‑reservation of area, to send their cane from Mardan to Charsadda. He denied this, but admitted that the effect of non‑reservation was that the Charsadda mall was not bound to, accept the cane of neighbouring growers. "There is a complaint against each of these mills that they reject the cane of the growers, small or big, unjustifiably and then buy it chew". No reservation would obviously enable the mills first to reject and then buy cheap. It happens thus: A small grower brings his load from a distance of two, three or ten miles and the mill rejects it as inferior. Where should he go ? He cannot go to another mill thirty miles away. He cannot sell it in the market, as it is not chewing cane. He has not arranged for the manufacture of gur and when Loondkhawar advises them to convert it into gur, the Govern ment of West Pakistan is "satisfied" that he is inciting the grower to naked revolt. So he goes back half a furlong and, then returns to sell it to the mill at whatever price is offered. If on the other hand, the Cane Commissioner has reserved the area, the mill cannot buy below a fixed minimum price. The Cane Commissioner's explanation that he could not reserve the gate area because he had to obtain the consent of the Food and Agricultural Ministry raised the question whether such consent could not be obtained earlier and whether he had applied for it in time. Could there be any doubt that the complaints were genuine ? The cane‑growers said: "The mill management keep us waiting for hours, and then they reject our cane. We cannot dispose of it and therefore sell it cheap. "Mr. Loondkhawar said "Don't sell it to the mills; convert it into gur. And if they force you, why, you also can use force." Why should the cane‑growers be grumbling con stantly, if indeed they are not kept waiting and treated "atrociously"? Why should Loondkhawar be constantly incit ing them not to sell cane, if it can be sold for a good price? The truth and genuineness of the complaint is inherent in the complaint itself. But let us go on :‑ Q. Did ever a deputation from Hatian Zone come and complain that not even 1/8th of their production of cane had been bought of them by the Premier Sugar Mills ? A. Yes. Hatian is not in the Gate Zone but falls out of it. In respect of the area beyond the Gate Area, there is no compulsion on the mill to buy its produce of cane. Q. Is it a fact that during the last ten years the Sugar Factories Control Act was so operated that the sugar‑cane growing area was divided into three zones, namely, the Gate Zone, the B Zone and the C Zone, requiring the mill to buy 75 per cent, from the Gate Zone, 60 per cent. from the B Zone and 40 per cent. from the C Zone, and that Hatian fell in the C Zone ? A. This is correct, but this year we have made only one zone. Q. Why did you alter the system which held good for ten years ? A. This decision was taken as a result of two conferences in which representatives of the Provincial and Central Governments also sat together with the representatives of sugar factories and the cane‑growers. Places like Hatian were clearly hit. Hitherto they had been selling 40 per cent‑ to the mills. They grew cane on this assumption. This year the Cane Commissioner threw them out of the zones and they sold only 12 per cent. The Cane Commissioner said: You sell your cane to the factory at Leiah, how many hundred miles away. Q. Did you during the present crushing season allot Hatian sugar‑cane to the factory at Leiah ? A. I had made a proposal to that effect, but the Leiah mill did not accept that. Q. Is it not a fact that Mr. Dildar Ahmad, the Central Food Minister, told you that it was a wrong decision ? A. He just asked me whit the position was and I explained it to him. He did not ask me to allot this cane to the Premier Sugar Mills, Why should Mr. Dildar Ahmad ask "what the position was", if the position was satisfactory ? Mufti Abdul Majid was examined as a witness by the petitioners, and we must say they succeeded in building up a large part of their case on his admissions. In "cross-examination", the Assistant Advocate‑General tried to qualify these admissions by making helpful suggestions. Thus Q. Is it a fact that the system that had been in vogue for the last ten years was not satisfactory to the cane‑growers and that they had been protesting against it ? A. That is so. Q. Can you give the comparative prices of last year and the present year ? A. Last year it was Rs. 1‑8‑0 per maund and this year Rs. 1‑12‑0 per maund. Q. What is the reason for this rise in price ? A. Because last year some Punjab mills also had bought sugar cane from the Frontier area and the actual prices had gone up to Rs. 1‑14‑0; the Government, taking into consideration this fact, fixed the present minimum price at R s. 1‑12‑

0. The answer to the first question could very well have been made when Mufti Abdul Majid was asked by the petitioners counsel ; "Why did you alter the system which held good for ten years?" But there he did not say that the system was unsatisfactory. The rise in the minimum price from Rs. 1‑8‑0 to Rs. 1‑12‑0 was due to purchases last year by certain Punjab mills and does not, in any case, help the growers who fall out of the gate zone. If Mufti Abdul Majid's statement that the former B and C zones, by being excluded this year, enjoy the advantage of selling to the Punjab Regions, has any value, why did the deputation from Hatian complain that they had been able to sell only one‑eighth of their production? While stating to the Assistant Advocate‑General that "already the mill at Leiah had started making purchases from Mardan district", he forgot having stated earlier that his proposal to allot the sugar cane of Hatian to the Leiah factory had not been accepted by the latter, and that Mr. Dildar Ahmad had also found it necessary to ask him "what the position was" in respect of these surpluses. What have the petitioners done? They have made speeches emphasizing the "atrocious" treatment of the cane -growers by the mill management. The treatment is certainly atrocious. Small growers are kept waiting for long hours with their bundles, and ultimately send back. They are forced by the pressure of circumstances to sell at cheap rates. From the Cane Commissioner they obtain no substantial relief. In fact, he adds to their misery by delaying the reservation of gate area, and when at last he reserves it, he reduces the area. In these circumstances, Loondkhawar tells them not to sell their cane to the mills, but to convert it into gut. When the mills also do not buy the cane, is it not the growers' right to dispose of it in any manner suitable to them? To this the Cane Commissioner adds: The growers were incited to use violence if they are forced to sell. How does any question arise of their being forced to sell, when they want to sell and complain that the area has been reserved late and has been reduced ? And if this question does not arise, how does any question arise of their using violence against the mill management ? A question also arises, is this an agrarian trouble ? A matter is agrarian if it relates to "alter", which means a field. An 'agrarian agitation" according to the Standard Dictionary, pertains to general partition and distribution of lands or to a communal acquisition of lands, and "agrarian crime" is crime due to disputes between landlords and tenants. We do not apply this term to the produce of land, and in the present case the second party‑the mill management‑has no concern with the land. The grounds of detention served on the petitioners charged them with "fomenting agrarian trouble between landlords and tenants," while the actual trouble was between tenants and the manage ment of the mills. The grounds are defective in this particular also. We are firmly of the opinion that the right of free speech could be exercised to great advantage for bringing into the limelight the corruption practised by the management of the mills and for criticising the administration of the Sugar Factories Control Act, and if the lawful exercise of a lawful right is regarded as "prejudicial" activity, then the grounds on which the satisfaction of Government is based are not such "as a rational human being can consider connected in some manner with the objects which were to be prevented from being attained." Kania C. J. in State of Bombay v. Atma Ram (AIR1951SC157 at p.160). Viewed in true perspective, the position is that whenever Loondkhawar makes a speech reproaching the Cane Commissioner for favouring a mill management at the expense of cane‑growers, the Government is "satisfied" that he has committed or is about to commit a "prejudicial" act. We can see quite clearly that he was likely to commit a prejudicial act on the occasion of Mr. Chou En Lai''s visit. It is true that there was something to be said for Loondkhawar's protest that the Prime Minister of a communist country should not be entertained by a capitalist. It was a remarkable decision by Government. But right or wrong, Mr. Chou En Lai was coming to have lunch at Hoti, and Loondkhawar was rightly prevented from embarrassing both him and the Government. That incident passed, there was no occasion to keep him further in detention. These further acts‑‑‑in addition to those connected with the Chinese visit‑had been complained of by the Deputy Commissioner all through the year, and the Government had not thought much of them. Lastly, there is the question whether Dr. Khan Sahib had a personal motive in detaining Loondkhawar. We are not convinced that any such motive has been established. It was alleged by Loondkhawar that he had made no secret .of opposing Dr. Khan Sahib's appointment as Chief Minister of the West Pakistan Province in 1955, and had been telling all and sundry, including the Prime Minister and the Presi dent, that his appointment will strengthen the cause of his brother, Khan Abdul Ghaffar Khan, and revive the Red Shirt movement with its consequential demand for Pukhtoonistan. Loondkhawar and his witnesses further con tended that although ostensibly Dr. Khan Sahib was an upholder of "One Unit" and an opponent of Pukhtoonistan, his secret sympathies were still with his erstwhile colleagues, the Red Shirts, now re‑orientated as the National Party. Evidence was led to prove that although the Red Shirts were a banned organisation, they were the most favoured "nation", the "royal" party, and treated to licences for arms, including sten guns, under the orders of Dr. Khan Sahib. One witness said that Dr. Khan Sahib and Khan Abdul Ghaffar Khan were like two players in a game of see‑saw, where, if one of them went down, the other went up. So much evidence has been led by the petitioners that it is only fair to examine some aspects of it in detail. Ch. Muhammad Iqbal Cheema (P. W. 1) an Advocate of Sialkot and formerly a Muslim League M. L. A. and Mr. Muhammad Abdullah Butt, Editor of the Weekly Inqilab, are witnesses of a conversation which took place at the house of Chaudhri Muhammad Ali, former Prime Minister, on the occasion of his daughter's marriage early in 1956. In their presence, as also in the presence of Mr. Suhrawardy. Loondkhawar told Ch. Muhammad Ali that if Dr. Khan Sahib continued in office, the One Unit Province will disintegrate and Pukhtoonistan will become a reality. There is no evidence that either Ch. Muhammad Ali or Mr. Suhrawardy appraised Dr. Khan Sahib of the feelings of fellow‑ship which Loondkhawar entertained towards him, but there is other evidence, in the plethora of press reports, of Loondkhawar having expressed himself in these terms on all possible occasions, and it was argued to be unlikely that these reports did not come to the notice of Dr. Khan Sahib. Mr. Said Akbar Khan, pleader of Mardan and a member of the Awami League, averred that Dr. Khan Sahib was in fact opposed to One Unit, though ostensibly he supported it with a view to strengthening the conception of Pukhtoonistan. To illustrate his point, the witness referred to a press inter view in which Dr. Khan Sahib was reported to have approved of his brother's conduct in these glowing terms : "No one can forget the role of Khan Abdul Ghaffar Khan and his colleagues who laid down their lives in thousands in the heroic struggle which finally forced the British Imperialism to surrender power and retreat." This was said in answer to Pandit Nehru's reported criticism that whereas the leaders of India had passed through a revolution, Pakistan's leaders had brought silver spoons in their mouths. When it was pointed out to the witness that in this context Dr. Khan Sahib was not referring to the Pukhtoonistan activities of his brother, he replied that "Pandii Nehru's reference was to the present leadership, and if in that context Dr. Khan Sahib admired his brother, he was to all appearances approving of the present creed." While this attitude of admiration does not escape attention, we could not but ask the witness whether the prosecution of Khan Abdul Ghaffar Khan by a Government of which Dr. Khan Sahib was at the helm did not mean that he was no longer sympathetic with his brother. He replied that in a speech at Peshawar Dr. Khan Sahib had made it clear that the prosecution had been directed by the Central Government: that is to say, pursuant to the agitation in the press that Dr. Khan Sahib had allowed his brother to preach Pukhtoonistan unbridled, the Central Government had pressed, him to save appearance by directing prosecution. Khan Mukarram Khan (P. W. 5) of Shabkadr, President of the District Muslim League and formerly a Red Shirt, stated that he had not felt that the Red Shirts were under any virtual ban since the establishment of West Pakistan, for they still hold 'Meetings, use red flags and raise Pukhtoonistan slogans, sometimes even shouting "Pakistan murdabad". The police are generally present, but they do nothing as, according to a Pushto saw, the village Malik's brother is a bigger man than the Malik himself; More or less to the same effect is the evidence of Agha Khan Baba Khan (P. W. 8), joint Secretary of the former N.‑W. F. P. Muslim League, Khan Amir Sultan Khan (P. W. 10), a Muslim League M.LA, Abdul Raziq, (P. W. 11), a Muslim League Zamindar and Pir Ghazan Khan (P. W. 12), local Sardar of the Awami League. But these witnesses may not be regarded as altogether disinterested by reason of their political affiliations, though we must say they have not exposed themselves to any charge of inconsistency in their evidence. There is one witness, however, the Deputy Commissioner of Mardan‑who cannot be regarded as partial to Loondkhawar because, according to his own admission, Loondkhawar had complained against him to Mr. Suhrawardy in October 1956 that he "favoured" the Red Shirts. Questioned about this organisation, he stated that they had a substantial following in Mardan district, but that at the moment they were peaceful. They hold meetings and raise slogans of Pukhtoonistan zindabad, one Unit murdabad (but not Pakistan murdabad). By demanding Pukhtoonistan they want "to carve out a separate State, but they try to explain that they want an autonomous Province of that name." He admitted that although he had been reporting to Government regularly about the Red Shirts, he had never reported that their activities were prejudicial, except in two cases which had resulted in conviction after trial and a third which was under trial. As we could not reconcile ourselves to the inherent anomaly of a situation which, although it was regarded by the Deputy Commissioner as peaceful, involved the carving out of .a separate State and the 'disintegration of Pakistan, we ourselves put the following questions to him, and below each we record‑his answer too To Court: Q. You have told us that your own impression about the Red Shirts' demand for Pukhtoonistan was that they wanted to carve a portion out of Pakistan and make it a separate State. Did you convey your impressions to Government in any diary or letter ? A. No, but without telling the Government what the real conception of Pukhtoonistan was in the minds of the Red Shirts, I did say in my diaries relating to the period prior to the arrest of Khan Abdul Ghaffar Khan that their activities were prejudicial to the State. Q. What were the activities which you reported to be prejudicial ? A. The speeches of Khan Abdul Ghaffar Khan to, the effect that they must get Pukhtoonistan. Q. Did the Red Shirts in their meetings during the period when Khan Abdul Ghaffar Khan was under trial in the High Court, continue their demand for Pukhtoonistan as you understand it ? A. Yes. Q. Did you distinguish these latter meetings which you have described as "peaceful" from the earlier meetings which you reported to Government as "dangerous" ? A. There is no distinction between them. Q. Has Khan Abdul Ghaffar Khan spoken after his release ? A. Yes. He made one speech in my district on 17th February. Q. When did the Red Shirts become the "National Party" ? A: This happened while Khan Abdul Gaffar Khan was under trial. Q. Did they hold any meetings thereafter ? A. Yes. Q. Were those meetings of the same character as the earlier meetings of the Red Shirts ? A. Yes. After these answers, we must say we have not been able to make up our minds whether the situation is peaceful or dangerous. There is another little matter the arms licences‑which has left us in a state of uncertainty. It was alleged by the petitioners that licences were given to Red Shirts, and certain persons were named. Two of them, Muhammad Ibrahim and Muhammad Akbar Khan, received sten gun licences. By way of a parallel, the Deputy Commissioner added that a certain Muhammad Hasan Khan had also received a licence for a 9 m.m. bore rifle (a prohibited bore) during the Chief Ministership of Khan Abdul Qayyum Khan. These, however, are minor favours. We were told by the Arms Licence Clerk of Mardan District that a certain Amir Nawab Khan of Mian Isa had come to him thrice in connection with a single batch of one hundred and forty eight applications for pistol licences and told him that the applicants were "his own men". The petitioners claimed that Amir Nawab was a Red Shirt and that these applicants Were Red Shirts. We, therefore, summoned the Deputy Commissioner again with the applications and obtained from him the following information: Firstly, there was a batch of 115 applications for pistols (except one, which was for a gun) which had been presented to Dr. Khan Sahib on the occasion of his visit to Loondkhawar village in November 1956. The Deputy Commissioner had seen ' Amir Nawab collecting them and presenting them to Dr. Khan Sahib who bade him present these to the Deputy Commissioner and asked the Deputy Commissioner to consider" them. The Deputy Commissioner marked them to the Superintendent of Police for report. With the exception of five, the police recommended all of them for licences. The police described all the applicants collectively as belonging to the Republican party, which is the party in power. On 7th February 1957 the Deputy Commissioner directed that "for the time being'", licences be issued to Nos. 1 to

10. He did not want to issue 110 licences in one locality all at once, though he intended issuing them ultimately. On 19th March he issued another ten. Then there is another batch of applications, 48 in number, for gun licences. These also were collected and produced by Amir Nawab Khan, on the occasion of Dr. Khan Sahib's visit mentioned in the last paragraph. Each of these has a note by the police that the applicant belongs to the Repub lican party. There is an office note in February 1957 on both groups of applications repeated in March, that Amir Nawab Khan was diligently pursuing them and that he had told the clerk on the second occasion that the Deputy Commissioner had promised to sanction these applications. The Deputy Commissioner said he did not remember making any definite promise. We have never appreciated such indefinite answers. He knows Amir Nawab Khan. He knows that Amir Nawab was formerly a Red Shirt, but he does not know his present political creed. He does not even know why Amir Nawab was interested in these appli cations and did not even ~ ask him why he was interested. But it is suggested on behalf of the petitioners that the reason why he had issued only ten licences in the first instance was that he knew on the 7th February 1957 that he was appearing in this Court as a witness‑the order summoning him had been issued on 20th January‑and that, consequently, he did not wish to create evidence against himself of favouring the Red Shirts, or at least Republicans. We do think this is unusual, and the licence clerk also says that applications have never before been kept pending after a police report. We also note that the Deputy Commissioner does not know that Zarin Khan, uncle of Amir Nawab, is an ex M. L. A. Zarin Khan 'has been admittedly a Red Shirt all his political life and an M. L. A. for ten years. He is, according to his own nephew, "a famous man", and a Deputy Commissioner ought to know him as a prominent person. Amir Nawab also said, unguardedly, that the Deputy Commissioner must be knowing him because in February last, when Sardar Abdul Hamid Dasti went to have tea at Zarin Khan's hujra, the Deputy Commissioner accompanied him. In fact, even in September last, he had gone to Zarin Khan's hujra with Khan Khuda Dad Khan, the Health Minister, to have tea. This was said to us by Amir Nawab before the fifteen minutes' interval. When we came back after the interval, the Assistant Advocate‑General asked him whether he had introduced Zarin Khan to the Deputy Commissioner when the latter went to the hujra. As though a Deputy Commis sioner would not know a person in whose hujra he is having tea. We told the Assistant Advocate‑General that some thing discreditable had happened during the interval, and that it pained us to see that he was putting such an unfortunate question. However, Amir Nawab Khan replied that as there were three or four hundred persons in the hujra, it was not possible to introduce people to one another. In reply to our question, he admitted that Zarin Khan was the host, but explained that he was ill and just sat in a corner. If the Assistant Advocate‑General thought that our scepticism could accommodate him to this extent, how could we com plain of Amir Nawab Khan ? And we must say that Amir Nawab Khan is an interesting witness. His talent to find extraordinary explana tions for ordinary human phenomena has relieved the dullness which characterises a witness's cross‑examination. The petitioners claim that his influence with Dr. Khan Sahib lies in his instant Red Shirtism, while he himself started by disowning even a distant allegiance to that creed. We questioned him as to his political creed, and he made the following answers ; Q. Do you belong to any political party ? A. No, not now. Q. Were you connected with any political party ? A. In 1930 I was a jarnail of the Red Shirts. I remained a jarnail until 1942 when I was sentenced to a term of three years' imprisonment. I came out after a year. I was not given any rank after my return from jail and remained an ordinary Surkhposh until 1947. In 1947 I took up trade in gur and became so busy with it that I did not devote any time to the Surkhposh Movement. Q. If you are asked whether in 1950 you were a Surkhposh, what would be your answer ? A. I was not doing the work of a Surkhposh. Q. We do not ask you whether you were doing the work of a Surkhposh ? A. My ideology, of course, was that of a Surkhposh. Q. Are you still a Surkhposh ? A. No. Q. When did you cease to be a Surkhposh ? A. .After the formation of One Unit. Q. What are you now ? A. I am a supporter of One Unit. It will be noticed' that when his political biography reached 1947, he so compounded it with the gur trade as to make it indistinguishable from gur and when we asked him whether he was a Surkhposh in 1950, he replied that he was not doing the work of a Surkhposh. In cross‑examination by Ch. Nazir Ahmad Khan, however, he admitted that even in 1952 he had been arrested under the Safety Act as a Surkposh, which means that he was active even then. Mark the apparently ingenuous ingenuity of his answers Q. What is the ideology of the Red Shirts ? A. That Abdul Ghaffar Khan is our leader. Q. What is the ideology of Khan Abdul Ghaffar Khan himself ? A. I do not know. Q. Is it not the ideology of the Red. Shirts that they should make Pukhtoonistan ? A. Yes, it is. Q. What do you understand by Pukhtoonistan ? A. I do not know. Q. But you have been a Surkhposh yourself and ought to know what Pukhtoonistan means to them ? A. Just as the Sindhis had their own Province and the Punjabis had their own, so the Pathans also waned a Province of their own, Q. But this Province already existed as the North‑West Frontier Province ? A. We did not want it to be called N.‑W. F. P. or Suba Sarhad. We wanted it to be called Pukhtoonistan. Q. Has your leader ever given a statement that by Pukhtoonistan he meant only a change of name ? A. No. Q. Do you still consider Abdul Ghaffar Khan one of the principal leaders of Pakistan? A. Yes, he is a. buzurg. I respect him as I respect other leaders, but I do not agree with his present views. But the reason why we had summoned him as a witness was to enlighten ourselves as to the 148 odd applications for arms licences which he was piloting. We have seen the Deputy Commissioner's version that he had seen Amir Nawab Khan collecting these applications on the occasion of Dr. Khan Sahib's visit and presenting them to him. Amir Nawab's version is that Dr. Khan Sahib had told the applicants that he had empowered the Deputy Commissioner to give licences and further, that it was Dr. Khan Sahib who had asked him, Amir Nawab, to collect the applications, and take them to the Deputy Commissioner. In other words, he had no interest in collecting and was merely obeying Dr. Khan Sahib. In fact, he expressly stated this, and the meandering alleys through which Ch. Nazir Ahmad Khan chased his explanation may best be traced in the exact answers made by him Q. Did your interest in the applicants arise only out of the fact that Dr. Khan Sahib had asked you to collect the applications. ? A. Yes, I had no other interest in them. Q. If that was the case, why did you ask the Deputy Commissioner whether he had issued licences ? A. That was because people came to me again and again and asked me what had happened to their applications. Q. Did you not tell them that you had entrusted them to the Deputy Commissioner and that your duty ended there ? A. I thought since I had occasions to meet the Deputy Commissioner I could ask him about the applications. Q. Did you not ask Inayat Ullah, Arms Licence Clerk, Deputy Commissioner's Office, that these were your own men" and that their applications should be put up before the Deputy Commissioner ? A. No. To Court: Q. If Inayat Ullah says that you went to him, will you deny it ? A. I did go to him once and asked him what had happened to these applications. After three more questions had been put, he admitted having gone to the licence clerk a second time in the following month. We have already seen that according to the licence clerk, the applicants for licences were Amir Nawab Khan's "own men". Asked Whether these applicants were his "former asso ciates as Red Shirts", witness replied: "It was a miscellaneous (mutafarriq) group, including the Red Shirts, Awami Leaguers, Muslim Leaguers, etc". Q. If the Deputy Commissioner says the applicants for licences were Republicans according to the police reports, what would you say ? A. I cannot guarantee their political faith. They keep on changing like the members of the Assembly and the Ministers. I considered them a miscellaneous group. We have seen that the police reports show them to be Rapublican‑party men. But we cannot help admiring the ready wit of Amir Nawab Khan. With two exceptions, these applications do not bear the ordinary Court‑fee label of two annas. Even if the licences were being given at the biding of Dr. Khan Sahib, the Deputy Commissioner ought to have required the applicants‑through Amir Nawab obviously‑to affix the Court‑fee labels. However, that is an incidental observation. Other common characteristics of these applications are that they appear to have been written by one person‑the Deputy Commissioner also is of that opinion‑and that the good character of each one of the applicants was attested by Shirin Khan Lambardar, another uncle of Amir Nawab Khan. But although Shirin Khan is a Lambardar of Mian Isa, he is not a Lambardar of Loondkhawar and Parkho villages, to which the applicants belong, and Loondkhawar alone has some eighteen Lambardars of its own. When asked why Shirin Khan had attested the good character of all these applicants, Amir Nawab pertinently replied: "This question should be put to the police who asked Shirin Khan to attest" their character. We have reproduced all the evidence which in our opinion, had relevancy to the contention raised on bad faith. It is true that Amir Nawab Khan has as shown himself to be as near the Red Shirts as a Red Shirt can be, and that the Deputy Commissioner also has not yielded to us any infor mation with that willing assistance which we should have expected of him: But on the best assumption for the petitioners we can hold no more than that Amir Nawab Khan still belongs to his old creed and that Dr. Khan Sahib has still a partiality for him. It may be that the same persons are Republicans with Dr. Khan Sahib and anti‑Units with his brother. Amir Nawab may be one of these. He said he could not guarantee the political loyalties of the common people, the M. L. As., the Ministers. Perhaps he could not guarantee his own loyalty also. Licences were granted not alone to the Repub licans, for the Deputy Commissioner has brought with him a list of 38 applications sanctioned in favour of the Muslim Leaguers and four applications sanctioned in favour of the Awami Leaguers. It is also true that the evidence both of the Deputy Commissioner and Amir Nawab Khan took a turn which created doubts in our minds, particularly as to the true character of the Red Shirt organization, and whether it was a peaceful or a dangerous body; but having given our best thought to the matter, and to the various circumstances brought out in evidence, we are not prepared to hold that in passing the order of detention Dr. Khan Sahib was prompted by personal motives. One strong circumstance in favour of this view is that he had ignored the Deputy Commissioner's repeated warnings about Loondkhawar for a whole year; another circumstance is that the order was passed only two days before Mr. Chou En Lai's visit. We repeat that in our belief Dr. Khan Sahib was not likely to have passed the order in the absence of the circumstances which Loondkhawar created in relation to that visit. The fault with the Khan of Loondkhawar is that he has an unbridled tongue, and sometimes uses it in the manner of Caliban. This he confessed before us, and we advised him restraint. While we appreciate his services to the cause of cane‑growers, including himself, scenes like the one made by him at the post office, where he abused both the postmaster and the Deputy Commissioner, cannot but earn from us a sharp rebuke. We told him how useful he could be to society with the exercise of restraint, and we hope there is much to be said for the familiar adage that it is never too late to mend. For the reasons already given, we accept the petitions. We' reproduce these reasons for the sake of, convenience, The first reason is the delay of sixteen days in communicating to the detenus the grounds of detention. The second reason is that the grounds on which action had been taken were note the grounds communicated to the detenus, who were, consequently, deprived of the earliest opportunity of making a representation against the order. The third reason is that there was no rational basis for the satisfaction of Government. The petitioners are already on bail, and will now be discharged from the obligations attending their bail bonds. A.H. Petitions accepted.