P L D 1969 Supreme Court 210 (PLP)

MUHAMMAD YAQUB ALI, J.‑This appeal by special leave of the Court calls in question the order of a Division Bench of the High Court of West Pakistan quashing under Article 98 of the Constitution the order of the Government of West Pakistan dated 12th March 1968, whereby the period of detention of Mr. Haider Bakhsh Jatoi, respondent No. 1, was extended under section 3 (5‑d) of the West Pakistan Maintenance of Public Order Ordinance, 1960 (hereinafter referred to as the Ordinance) as without lawful authority. The respondent was on the 19th December 1967, detained under section 3 (1) of the Ordinance for a period of three months by the following order of the Provincial Government Home Department (Special‑1) Lahore, the 18th December 1967. ORDER No. 3‑231‑H‑Spl‑I/67.‑Whereas it has been brought to the notice of the Governor of West Pakistan that Mr. Haider Bux Jatoi son of Allah Dad Khan Jatoi, residing near Electric Supply Company, Hyderabad, has delivered provocative speeches and has written, recited, circulated or caused to be circulated poems calculated to arouse feelings of hatred, ill‑will and mistrust among different sections of public and has also instigated them to acts prejudicial to public safety and maintenance of public order. And whereas, the Government of West Pakistan is satisfied that with a view to preventing the said Haider Bux Jatoi from acting in a manner prejudicial to public safety and the maintenance of public order, it is necessary so to do; Now, therefore, in exercise of the powers vested in him under subsection (1) of section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960, the Governor of West Pakistan is pleased to direct that the said Haider Bux Jatoi shall be arrested and detained for a period of three months with effect from the date of service of this order upon him and committed to the custody of the Supdt., Central Jail, Mach. He will be treated as `C' Class convict." On the 26th December 1967, the Home Secretary to the Provincial Government communicated to the respondent the following grounds on which the above order was based (1) That on 25‑10‑1967, you attended a reception given to Mr. Shamim‑ul‑Hasan Wasti at Orient Hotel, Hyderabad, and addressed the gathering bitterly criticizing the present regime and dubbed it as "Dictatorship". You also prayed for the tyrant's down‑fail. (2) That you, on 13‑11‑1967, delivered a provocative speech in a public gathering arranged to celebrate "Syed Hassan Nasir Shaheed Day" at Hyderabad and excited hatred against "One Unit" and suggested that more blood‑shed was required for achieving disintegration of `One Unit'. (3) That you have written/recited and circulated or caused to be circulated, amongst other, the following hand‑bills and posters (i) Hand‑bill captioned "Salam‑E‑Sind" (in Sindhi). (ii) Hand‑bill captioned " Baluchistan Zindabad " (in Sindhi). The contents of these posters and hand‑bills criticized the Sindhis for accepting the "One Unit" and described the "Waderas" as yes‑men of Government. They also instigated the people of Sind to wake up and do something as done by Viet Namese.

4. That you have been generally associating, organizing groups and individuals to spread feeling of hatred, ill‑will and mis‑trust among different section of public and to cause disaffection in the public mind against the Government established by law. Some of the instances are mentioned below (a) On 7‑8‑67, you attended a reception given in honour of Mir Rasul Bakhsh Talpur by the Sind Students' Group at Orient Hotel, Hyderabad, where speeches, condemning the arrest of Mir Rasul Bux Talpur and demanding the undoing of "One Unit" were made. (b) On 14‑10‑67, you attended a `Sindhi, Mushaira' held in the office of Sindhi Adbi Sangat, Bathoro, District Thatta, where speeches were made demanding disintegration of "One Unit" and condemning alleged domination of Punjabis and Pathans. (c) On 11‑11‑67, you participated in a "Ma hfil‑e‑Mauseeqi" held in Basant Hall at Hyderabad, where poem written by you captioned "Salam‑e‑Sind Jai Sindh" was recited by one Suleman and his party. (d) On 1‑12‑1967, you participated in a private meeting at the International Hotel where Sind University arranged for observance of "Sindhi Sham". You recited a poem narrating allegedly deplorable conditions prevailing in Sind and exhorted the people to work for the liberation of Sind. (2) That on the grounds stated above, it is necessary to prevent you from acting in a manner prejudicial to public safety and the maintenance of public order and that the order of detention under the law referred to above has been passed. (3) The above grounds are being communicated to you in pursuance of the requirement of subsection (6) of section 3 of the aforesaid Ordinance, with a view to enabling you to make, if you so desire, a representation to the West Pakistan Govern ment against the aforesaid Order of the Governor, West Pakistan, and you are hereby informed that you are at liberty to make such a representation to Government against the said order." In reply to the grounds set out above the respondent on January 22, 1968, sent a detailed representation to the Home Secretary, Government of West Pakistan, which need not be reproduced in extenso as it also deals with extraneous matters, such as, non‑payment of maintenance to his family members and the ill‑treatment allegedly meted out to him by the Jail authorities. The specific grounds on which the order of detention proceeded were replied to as under The One Unit set‑up has been established by questionable methods. A wrong cannot b., righted by mere lapse of time or by interested persons' statements, full of volte faces. Those who have liquidated the smaller provinces to centralize all authority in Lahore, cannot escape the criticism of being called "provincialists" par excellence. Those who are struggling for the break‑up of One Unit are really fighting against "provincialism" that has been generated as a. conse quence thereof, they cannot be condemned as provokers of "provincialism" or "parochialism". The boot is on the other leg. One Unit is not, after all, a thing of sanctity and externity that must be saved at all cost. Within the fraternity of Pakistan, Sind claims to be, not a subordinate, but a partner, as originally conceived and proclaimed by Quaid‑e‑Azam, called the Founder of Pakistan and the Father of the Nation, and as assured and enshrined in the covenant of the Pakistan Resolution of 1940. Nowhere in the modern world has such an operation been carried out as One Unit. New provinces or states have been created, new sovereign States have been carved out, of a size smaller than Sind, but nowhere have States or provinces been liquidated, to satisfy the major provinces. (a) Mir Rasul Bux's arrest and detention were condemned by several men of note, and the numerous receptions arranged in his honour by the people are a public certificate that the Government action was wrong. (b) I did speak against One Unit set‑up, but I never used the words "Punjabi" or "Pathans". In fact many Pathans or Pakhtoons are against One Unit set‑up and hundreds, if not thousands, of them have, on that account, suffered jails, forfeitures of properties and what not. Here, again the Government have been mis‑informed by the C. I. D. staff. Of all the speakers I have been singled out for victimization. (c) In my presence the above poems were not recited, I have no knowledge of it, after my poem "Salam‑e‑Sind" was prescribed by Government; I had advised my co‑workers and friends not to use it. The other poem is not "Jai Sind" as mentioned in the Memorandum; it is "Jee‑ai‑Sind". This poem has not been prescribed as far as I know. (d) In this "Mashairah" I recited my poem "Haiwan Insan" amidst applause, which in brief instances gives a general survey of the evolution of man And his decline in some ways. I was lately threatened with a fine of Rs. 10,000 by the District Magistrate, Hyderabad (Mr. A. Raza) for some of its verses. Under his orders I had sent my explanation to you, Mr. Home Secretary, in this behalf; and no action was taken against me or the poem. This is my representation. I had no intention of making it, knowing, in advance, what its fate would be, but now I am making it, lest my silence may be misconstrued as a plea of guilty. The intentions of the Government against me are clear, further from the following." The Government being desirous of detaining the respondent for a period exceeding 3 months referred the case to the Review Board for their opinion whether there was sufficient cause for his detention. The Board on considering the material produced by the Superintendent of Police, Special Branch, and on questioning the respondent "as to his intention and objectives" expressed the following opinion " . . . . . The material on the basis of which the order has been passed, as presented to us by the Government Repre sentative Mr. Muhammad Aslam, Superintendent of Police, Special Branch, reveal that Mr. Jatoi is a irreconcilable opponent of One Unit and has been openly preaching its liquidation and the liberation of Sindhis from Non‑Sindhis. He has also been criticizing the present regime in aggressive terms as autocratic and dictatorial. Instances have been cited where Mr. Jatoi has attended public meetings and given free vent to his hostility against One Unit, and where he has been indulging in open condemnation of what he has expressed is domination of Punjabis and Pathans over the Sindhis. He is the author of a poem captioned "Salame Sind Jie Sind" some verses of which convey a clear impression that he is a protagonist of Akhand Bharat wishing for the revival of old Hind, which means the undoing of Pakistan. We questioned Mr. Jatoi as to his intentions and objectives. He did not make any secret of the fact that he is an open Advocate of the disintegration of One Unit and the revival of the old Province of Sind. However, he defended his actions on the strength of his Constitutional right as a free citizen entitled to hold his own opinions, little realizing that the law must step in to check his activities and his opinions if they are anti‑national and entail disturbances and breach of peace in the land. We have no hesitation in holding that there is sufficient cause for his preventive detention and we therefore, certify that the order of the Governor has proceeded on sufficient cause." On the basis of this opinion the Provincial Government on 12th March 1968. extended the detention of the respondent for a further period of three months with effect from 18th March 1968. The operative part of the order provides as under : And whereas the Board constituted under subsection (5) of section 3 of the said Ordinance, after considering the case of said Mr. Haider Bakhsh Jatoi in pursuance of sub section (5‑d) of section 3 of the said Ordinance has reported that, in its opinion, there is sufficient cause for the detention of said Haider Bux Jatoi; And whereas the Governor of West Pakistan is satisfied that with a view to preventing the said Hyder Bukhsh Jatoi from acting in a manner prejudicial to public safety and the maintenance of Public Order, it is expedient and necessary to extend the period of detention; Now, therefore, in exercise of the powers vested in him under subsection (1) of section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960, the Governor OF West Pakistan is pleased to extend the period of detention of said Mr. Haider Bakhsh Jatoi for a period of three months: with effect from 18‑3‑1968 and to commit him to the custody of the Superintendent, Central Jail, Mach. He will be treated as class III detenu Being aggrieved by the order extending the period of the respondent's detention, his son Dadan Khan Jatoi, respondent No. 2, moved a petition for habeas corpus under Article 98 (3) of the Constitution in the High Court on a large number of grounds including the pleas that his poems and writings were deliberately `misread', `misconstrued' and `improperly' translated by the officials of the Provincial Government as well as by the Members of the Review Board who in approving of his further detention were influenced by "something which was external and unfounded on the material before them i.e., the allegation of dubbing him as a propagandist of Akhand Bharat, wishing for revival of old Hind, which meant undoing of Pakistan." The learned Judges found that the opinion of the Board on which the impugned order extending the detention of the respondent beyond the period of three months rested was outside the scope of subsection (5‑d) of section 3 of the Ordinance inasmuch as the Board had based its opinion on a ground on which the original order of detention was not based and which ground was not communicated to the respondent. The order dated the 12th March 1968, was, accordingly, set aside as illegal and the respondent directed to be released forthwith. Leave to appeal was granted to consider the contentions raised on behalf of the appellant that (i) Government had inter alia acted on an interpretation of a poem written by the respondent placed on it by the Review Board to whom the case was referred under sub section (5) of section 3 of the Ordinance, but the learned Judges had substituted their own interpretation of the poem for that of the Board without examining whether the view that prevailed the Board was a possible view or not; (ii) the other grounds of detention did not receive conside ration in the High Court; and (iii) it is within the competence of the Board to ascertain on inquiry grounds other than those on which the Government has relied in support of their opinion that there is within section (5‑d) of the Ordinance sufficient cause for the detention of a person whose case is referred to them under section (5‑b). Before examining the grounds on which the High Court has struck down the order dated 12th March 1968, it will be advantageous to refer to the relevant provisions of the Ordinance. Section 3 (1) which confers power to arrest and detain on the Provincial Government provides "3 (1) Government, if satisfied that with a view to preventing any person from acting in any manner prejudicial to public safety or the maintenance of public order, it is necessary so to do, may, by an order in writing, direct the arrest and detention in such custody as may be prescribed under subsection (7) of such person for such period as may be specified in the order, and Government, if satisfied that for the aforesaid reasons it is necessary so to do, may, subject to the other provisions of this section, extend from time to time the period of such detention for a period not exceeding six months at a time." Subsection (1) is followed by an explanation of an "act prejudicial to the maintenance of public order" which is not relevant for the purposes of this order. Subsection (2) enjoins District Magistrates to forthwith refer to Government for orders cases of persons whom they have reasons to believe have acted, are acting or are about to act in a manner prejudicial to public safety or the maintenance of public order. Sub section (3) deals with arrest of persons in pursuance to orders under subsection (1). Subsection (4) provides that on receipt of a reference under subsection (2) Government may reject the reference or make an order of arrest and detention in terms of subsection (1). Subsections (5) and (6) which are more pertinently in point may be reproduced in full "(5) Government shall constitute a Board consisting of a Judge of the High Court of West Pakistan who shall be nominated by the Chief Justice of that Court, and a senior officer in the service of Pakistan who shall be nominated by the Governor of West Pakistan. (5‑a) No person shall be detained for a period exceeding three months unless the Board has reported, before the expiration of the said period of three months, that there is, in its opinion, sufficient cause for such detention. (5‑b) Where a person is to be detained for a period exceeding three months, Government shall, before the expiration of the said period of three months, refer his case to the Board. (5‑c) A person whose case has been referred .to the Board under the provisions of subsection (5‑b), shall not be entitled to appear by any legal practitioner in any matter connected with the case referred to the Board. (5‑d) The Board shall, after considering the material placed before it and the representation, if any, made by the person whose case has been referred to it, hearing such person, if he so desires, and calling for such further information as it may require from Government or may be placed before it by the person detained, submit its reports before the expiration of the period of three months specified in sub section (5‑b), to Government whether in its opinion there is sufficient cause for the detention of such person. (5‑e) The proceedings and the report of the Board excepting that part of the report in which the opinion of the Board is specified, shall be confidential. (5f) If in any case the Board reports that there is, in its opinion, no sufficient cause for the detention of the person whose case has been referred to it, for a period exceeding three months, Government shall rescind the detention order and direct such person to be released on the expiry of the said period of three months. In case the Board reports that there is, in its opinion, sufficient cause for the detention of such person, Government may, subject to the provision of subsection (1) continue to detain him for such period as it may deem lit. (6) Where a detention order has been made under this section the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made, inform him that he is at liberty to make a representation to Government against the order and afford him the earliest opportunity of doing so Provided that the authority making any such order may refuse to disclose facts which authority considers it to be against public interest to disclose. (6‑a) Where a representation is made to Government under subsection (6), Government may, on consideration of the repre sentation and giving person detained an opportunity of being modify, confirm or rescind the order." The position which emerges from a close study of the provisions of section 3 of the Ordinance reproduced above is (i) the satisfaction of the Provincial Government is not subjective, but must be based on grounds set out in sub‑section (1) of section 3 and supported by material which will satisfy the Board that there is sufficient cause for detention; (ii) the person detained has a right to contend against the grounds of detention both before the Provincial Government and the Board; (iii) the opinion of the Board must rest on the material produced before it or the material called for by the Board ,4 which is relatable to the grounds on which the order of detention is based and against which the person detained has been given an opportunity to represent; (iv) the proceedings before the Board are of quasi judicial nature and amenable to judicial review by superior Courts; and (v) the authority of the Provincial Government to extend the period of detention is derived from a favourable opinion given by the Board and not under the preliminary power conferred by subsection (1) of section

3. Having referred to the relevant provisions of the Ordinance we can now examine the reasons on which the order of the High Court is based. After giving a narrative of the facts the learned Judges observed as follows "Having gone through all this material in the light of the contention raised by the detenu as well as the learned Additional Advocate‑General for the respondents. We are of the opinion that it is not necessary for the purpose of decision of this case to dispose of all the contentions raised in the petition as it can be disposed of on the short legal ground that the report of the Review Board recommending the extension of detention is not valid in law and it cannot, therefore, infuse life into the initial order of detention passed by the Government which expired on the 18th March 1968. As would be seen from above, the Review Board formed the opinion that the petitioner "is the author of a poem captioned "Salame Sind" "Re Sind" some verses of which convey a clear impression that he is a propagandist of Akhand Bharat wishing for the revival of old Hind, which means the undoing of Pakistan." We called upon the learned Additional Advocate‑General to show us anything from these poems, or from any other material produced before the Review Board, to support this view. All that the learned Additional Advocate‑General pointed out was the following line from the poem captioned "Jee‑A Sind" Jee‑as Hind, Jee‑as Sind, Jee‑as Jee‑as Mitho Har Hand." We have read this poem captioned `Jee‑as Sind', which in Sindhi language is different from `Jie‑Sind'. It reads from the beginning, as follows "On you Sind, thousand Salams, May you be happy and Bagh‑o‑Bahar for ever May you remain enchanted in peace, "Long live Sind, Long live Sind. "Every Human being is our Brother This is, our `Iman' (Faith) This is, our Islam, Long live Sind, Long live Sind. Intrigue and jealousy be `Barbed' "Affection and love, Zindabad." This is, our Pegham, Long live Sind, Long live Sind, Long live Sind, Long live Sind, Let Sind drink Bowl of love, Let Khas‑o‑Aam drink this Bowl, Long live Sind, Long live Sind. Long live Hind and long live Sind Long live sweet life (lovable‑being) everywhere, Let love spring out, Aam‑o‑Jam, Long live Sind, Long live Sind." We have reproduced in original the above stanzas of the poem along with the rough translations to be able to bring out prominently the purpose of the stanzas on which the learned Additional Advocate‑General placed reliance for purposes of treating it as material for the allegation regarding the detenu being a propagandist for Akhand Bharat. It is quite evident to us that the poem is written in praise of Sind, the home land of the detenu, and it is in this context that the detenu has wished well, in the stanzas relied upon, all the lovable persons living all over the world, including India. This can be the only meaning that can be attached to the stanza relied upon. By no stretch of imagination can any interpretation be placed on it so as to mean and include propaganda for Akhand Bharat. If this stanza were to convey the sense the learned Additional Advocate‑General wants us to infer, we are sure the Government would have been made aware of it, and the Government in that case would have considered the propaganda for Akhand Bharat as the foremost ground for basing the order under section 5 (i) of the Ordinance upon. The Government rightly did not place the interpretation which the learned Additional Advocate General wants to put on this stanza." On receipt of the opinion recorded by the Board the Government had extended the period of detention for a further period of three months on the same grounds as already communicated to you'. With reference to this order the learned judges remarked "Even after the Review Board had recommended the extension for detention of the detenu, the Government did not consider it worthwhile to include the ground of the detenu being propagandist of Akhand Bharat obviously because the Government did not consider this stanza to be interpreted as meaning propaganda for Akhand Bharat. The learned Additional Advocate‑General has admitted before us that besides this stanza there is nothing available with the Government to be used as material for reaching the conclusion that the detenu indulged in propaganda for Akhand Bharat. He has also admitted before us that besides this stanza there was no other material placed before the members of the Review Board. We have, therefore, no hesitation in reaching the conclusion that it would be far from truth to say that by the use of the word `Hind' in this passage, the detenu meant to propagate Akhand Bharat or the revival of Hind and thus preach undoing of Pakistan." In conclusion the learned Judges held that as the Board had formed its opinion on the ground "that the detenu was a propagandist of Akhand Bharat, wishing for the revival of old Hind which meant undoing of Pakistan" for which there was no basis or justification and it could not be said how far the Board was influenced by this ground, the opinion of the Board that there was sufficient cause for detention of the respondent was outside the scope of subsection (5‑d) of section 3 of the Ordinance. Reliance was placed on the view expressed by a Full Bench of the High Court in Rehmat Maki v. Government of West Pakistan (P L D 1965 Lah. 112) that wrongful inclusion of ground render orders of arrest and detention under section 3 of the Ordinance illegal. It was said in that case that if there are more than one grounds on which the order of detention is based then each ground has contributed to the satisfaction of the detaining authority and no ground can be excluded from consideration in judging the legality of the order of detention in conformity with this view the learned Judges quashed the order of the Government dated 12th March 1968, extending the period of respondent's detention for three months with effect from 18th March 1968, and directed that he b: released forthwith. In the light of the construction we have placed on section 3 of the Ordinance both the grounds raised in support of the appeal nave no substance. The first contention that the learned Judges in the High Court had substituted their own interpre tation of the poem `Jie Sind' for the interpretation of the Board without examining whether the view adopted by the Board was a possible view is ruled out by the reason that under subsection (5‑d) of section 3 the Board could not act on a ground which did not form the basis of the order of detention e passed by the Government and against which the person detained had no opportunity to make a representation. The next contention that other grounds of detention bad received no consideration in the High Court and it was omitted from notice that while forming its recommendation the Board could have called for other material to satisfy themselves that the detention was proper, has also no force. It has been seen that in finding sufficient cause for detaining the respondent the Board acted on three grounds : (i) that the respondent was an "irreconcilable opponent of One Unit and has been openly preaching its liquidation and liberation of Sindhis from non -Sindhis ;" (ii) that "he has been criticizing the present regime in aggressive terms as autocratic and dictatorial;" and (iii) that "he is a protagonist of Akhand Bharat wishing for the revival of old Hind, which means the undoing of Pakistan." In Keshov Talpada v. Emperor (A I R 1943 F C 1) Gawyer, C. J. expressed the opinion "if a detaining authority gives four reasons for detaining a man without distinguishing between them, and any two or three of the reasons are held to be bad, it can never be certain to what extent the bad reasons operated on the mind of the authority or whether the detention order would have c been made at all if only one or two good reasons had been before them." In Rafique Ahmad Sheikh v. The Crown (P L D 1951 Lah. 77) Mr. Justice Muhammad Munir the then Chief Justice of the High Court of Judicature at Lahore considered that the proposition was stated somewhat broadly and expressed the view "that the legal result of the rule enunciated in the aforesaid case if applied in an unqualified manner would be that, if among ten reasons for the arrest of a person who was believed to be acting in a manner prejudicial to public safety was an insignificant reason that in addition to the other acts which were calculated to prejudice public safety, he was also engaged in an activity not within the power of the Provincial Government to prevent, the order of arrest will have to be held to be wholly unsustainable. Any such result in my opinion has to be avoided, because, otherwise, the High Court while hearing a habeas corpus would in such a case be substituting its own judgment for the judgment of the arresting authority in holding that the remaining nine reasons anyone of which could have been a good reason for the arrest were not, individually, or collectively in fact the reasons on which he could have been arrested, and thus that Court would be taking upon itself a responsibility which under the Statute rests on and vests in some other authority." Even if the latter view was adopted it will not advance the case of the appellant as the grounds that the respondent was an irreconcilable opponent of One Unit or that he criticized the Government as autocratic and dictatorial were hardly grounds on which the satisfaction of the Board could be based that there was sufficient cause for detaining the respondent. The primary ground on which the Board acted was that the respondent was a protagonist of Akhand Bharat and undoing of Pakistan which amounts to high treason and would call for al most stringent punishment not to speak of mere detention for three months. The opinion of the Board was, therefore, largely based on a ground which could not be said to be insignificant or not to have contributed to the satisfaction of the Board. The contention that the High Court could not substitute its own interpretation of the poem for the interpreta tion placed on it by the Board, therefore, hardly arises for consideration. The last ground that the Board could form its own independent opinion as to the existence of sufficient cause for detention is based on the provisions of subsection (5‑d) of section 3 of that the Board may call such further information as it may require from Government or may be placed before it by the person detained. The construction of the clause "as it may require from Government or may be placed before it by the person detained" suggest that such information is relatable to the defence set up by the person detained in his representation or made orally before the Board. In any case "such further information" must relate to the grounds on which the order of detention is based or else the Board instead of exercising an advisory jurisdiction will be assuming to itself the powers of detention under subsection (1) of section

3. Such a result is clearly not contemplated in subsection (5‑d) of the Ordinance. In the view formed by us the High Court has rightly quashed the order of the Provincial Government dated the 12th March 1968, extending the period of detention of respondent No. 1 for three months with effect from 18th March 1968. In the result the appeal is dismissed with costs. Respondent No. 1 who is present in Court shall be released forthwith. K.B.A. Appeal dismissed.