1976 P Cr (PLP)

S.491 read with Defence of Pakistan Rules, 1971, r. 39 and Constitution of Pakistan (1973), Arts. 10 & 233(2)‑Habeas corpus peti tion‑Rule 39 applicable to foreigners only‑Detenu a bona fide citizen of Pakistan being detained for more than a month under D. P. R. without examination of his case by appropriate Board and extension of period by Review Board‑Contention that proclamation of emergency being in existence, Court could not be moved for enforcement of fundamental rights conferred by Chap. 1 of Consti tution‑Provisions of Art. 10(4), held, still alive and having been contravened, detention, illegal.‑[Preventive detention‑Habeas corpus]. Muhabbat Shah v. Government of N.‑W. F. P. through Secretary, Home Department. Peshawar and 2 others P L D 1974 Pesh. 24 and Mrs. Habiba Jilani v. The Federation of Pakistan through The Secretary Ministry of Interior, Government of Pakistan Islamabad P L D 1974 Lah. 143 ref. R. A. Awan for Petitioner. Ch. Zafar Yaseen for the State. Mst. Bakhtawar moved this application under section 491, Cr. P. C. for the issue of direction in the nature of habeas corpus petition for the production of Riaz Ahmad, who was detained in District Jail. Kotlakhpat, Lahore, and for order of his release. Notice of the application was given to the respondents. The record was produced before me on 27‑6‑1974. Arguments have been heard. ‑The learned counsel for the petitioner contended that Riaz Ahmad detenu was being detained illegally and he has a right to be set at liberty. The learned counsel for the petitioner urged that provisions of Article 10 of the Islamic Republic of Pakistan had been violated as no person could be detained in custody for more than a month even under Defence of Pakistan Rules unless his case was examined by the appropriate Review Board and period extended by the Review Board after affording the detenu an opportunity of being heard in person. According to the learned counsel, the case of the present petitioner was not examined by the Review Board and thus, the detention was illegal. In order to meet the objection of the other side that due to the proclamation .of emergency, which was still in existence, nobody could move the Count for the enforcement of fundamental rights conferred by Chapter 1, the learned .counsel urged that only the right to move Court for enforcement of fundamental right were suspended but where proceedings taken up by the Executive violated the provisions of Article 10 of the Constitution, notwithstanding the embargo put on citizens against enforcement of fundamental rights, State would still be bound not to make any law or Executive to take any action, in contravention of the provisions of Constitution and the detenu detained for indefinite period and case not referred to Review Board as required by 'Fundamental Right No. 10, Constitution of Pakistan, the detention was with out lawful authority and of no legal effect. The learned counsel cited Muhabbat Shah v. Government of N. W. F. P. through Secretary, Home Depart ment, Peshawar and 2 others (P L D 1974 Pesh. 24). In order to afford an opportunity to respondents to meet the arguments of the learned counsel for the petitioner, I adjourned the petition to 2‑7‑1974. In order to appreciate the arguments, it is necessary to give the facts of the case in brief. On 1‑5‑1974, Riaz Ahmad was received at Wahga Border as an internee from India. He was brought in the dispersal camp. He was interrogated by the concerned authorities and according to said authorities, the detenu could not satisfy them about his antecedents and thus was being detained under Rule 39 of the Defence of Pakistan Rules, 1971. On the other hand, it was pointed out that Riaz Ahmad detenu who was a bona fide ,citizen of Pakistan and was issued a passport in 1964, had twice visited to India in 1964 and 1965. I was also informed by the detenu that on crossing the border, he handed over the copy of the judgment of Indian High Court whereby he was convicted under section 120‑B Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years. I inquired from the D. S. P. who bad brought the file with him, if the detenu had supplied him a copy of the judgment, who gave the reply in the negative. The common ground between the parties is that the case of the detenu has not been referred so far to the Review Board. The Investigating Officer informed me that Riaz Ahmad was being detained under Rule 39 of the Defence of Pakistan Rules, 1971. When the case came up before me today, the learned counsel appearing on behalf of the respondent, made statement that the investigation against Riaz Ahmad had been completed and he was going to be released. I inquired from him if the copy of the judgment of the Indian High Court was on the file or not. The copy of the judgment was found in the file and placed before me. Riaz Ahmad detenu was challenged under section 3 of the Official Secret Act and under section 120‑B of the Indian Penal Code. He was acquitted of both the charges by the learned Additional Sessions Judge Delhi, on 21‑10‑1969. State filed an appeal against his acquittal. State appeal was accepted by the High Court, Delhi, on 20‑4‑1971, and Riaz Ahmad detenu was convicted under section 120‑B of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years. One thing is dear that the D. S. P. was irresponsible in making incorrect statement on 27‑5‑1974 that the judgment was not with him. A glance at Rule 39 of the Defence of Pakistan Rules would show that the provisions of Rule 39 were meant to impose restrictions on foreigners. Riaz Ahmad was national of Pakistan and a passport had been issued in his name in year 1964. The question is as to whether he could be detained beyond a period of one month in contravention of the provisions of Article 10 of the Constitution. It is clearly laid down in sub‑article (4) of the Article 10 of the Constitution that no law providing for preventive detention shall be made except to deal with persons acting in a manner prejudicial to the integrity, security, or defence of Pakistan or any part thereof, or external affairs of Pakistan, or public order, or the maintenance of the supplies or services, and no such law shall authorise the detention of a person for a period exceeding one month unless the appropriate Review Board has, after affording him an opportunity of being heard in person, reviewed his case and reported, before expiration of the said period, that there is, in its opinion, sufficient cause for such detention and, if the detention is continued after the said period of one month, unless the appropriate Review Board has reviewed his case and reported, before the expiration of each period of three months, that there is, in its opinion sufficient cause for such detention. Now I would advert to Article 233 (2) of the Constitution where it is laid down that while a proclamation of emergency is in force, the President may, by order, declare that the right to move any Court for the enforcement of such of the fundamental rights conferred by Chapter I of Part II as may be specified in the order, and any proceedings in any Court which is for the enforcement, involves the determination of any question as to the infringement, of any of the rights so specified, shall remain suspended for the period during which the proclamation is enforced, any such order may be made in respect of the whole or any part of Pakistan. It is clear from sub‑Article (2) of Article 233 of the Constitution that during the substance of emergency, no person has a right to move the Court for the enforcement of fundamental rights conferred by Chapter 1, Part II as may be specified by the order. Although the right to move the Court for the enforcement of fundamental rights remains suspended during the subsistance of emergency, the provisions of Article 10 of the Constitution, are very much alive and the State would not be at liberty to take an executive action in contravention of the provisions of Article 10 of the Constitution. In support of my view, I refer Mrs. Habiba Jilani v. The Federation of Pakistan, through the Secretary, Ministry of Interior, Government of Pakistan, Islamabad (P L D 1974 Lah. 1443) and Mohabat Shah v. Government of N. W. F. P. through Secretary, Home Depart ment, Peshawar and 2 others (P L D 1974 Pesh. 24). In the case in hand, admittedly Riaz Ahmad detenu was detained o 1‑5‑1974. His case has not been referred to the Review Board as contemplate by Article 10 of the Constitution. Rule 39 of the Defence of Pakistan Rules is applicable to the foreigners whereas the petitioner is a Pakistani by nationality and domiciled in Pakistan and was issued a passport in 1964. On account of the antecedents of Riaz Ahmad, he could not be detained and if detained, h could not be detained for more than one month without having his case examined by the Review Board. The provisions of Article 10 (4) of the Constitution of Islamic Republic of Pakistan bad been contravened and the detention of Riaz Ahmad is illegal. He is set at liberty. The petition o Mst. Bakhtawar is accepted. Petition accepted.