P (PLP)

"Was it one of the factors influencing your decision to arrest Mr. Afghani that he was a member of the Civil Liberties Union, or that he belonged to the Progressive Writers Group, or that he was a Communist, or that he belonged to the Democratic Students Federation ?" The answer was " None of these factors entered into my consideration. My reasons for this arrest were totally different." On this the learned Chief justice passed the following order :‑ "A question has ‑arisen in this case in regard to the matters on which the authority ordering the arrest may be examined by the Court, while hearing a habeas corpus petition, which I do not wish to decide alone. The ‑case will, therefore, be heard by Mr. Justice Muhammad Sharif and myself on Monday, the 29th May. Mr. Habib Ullah, the officer ordering the arrest and the detenu Afghani may both be directed to be present ". On the 29th May 1950, Mr. Habib Ullah was further questioned by the Court. He was asked whether he suspected the detenu of being engaged in any anti-State activities at the instence of a foreign power. He replied that one of the activities of the detenu on the basis of which he was arrested, was that he was in league with a foreign power in doing ‑an act which would have jeopar dised public safety. He thus placed some material before the Court on the basis of which he was satisfied that the detenu should be arrested. In this case when the officer ordering the arrest was asked whether the apprehended prejudicial act was against the State or society, his reply was that the act was prejudicial to public safety ; and when asked how it was prejudi cial to public safety, he refused to answer the question. The two cases are, therefore, distinguishable. In the judgment delivered by the learned Chief justice in the above‑mentioned case. His Lordship observed that the officer ordering the arrest had stated that Mr. Afghani was suspected of having something to do with a country not friendly to Pakistan, though that was not the only reason for the arrest. Full reasons for the arrest were not disclosed by the officer on the ground that by so doing, he would be giving evidence from certain documents which are State documents and also contain confidential communications which are privileged under sections 123 and 124 of the Indian Evidence Act. No such reasons were given by the officer ordering the arrest in this case, The learned Chief justice proceeded to observe that "the present Punjab Public Safety Act owes its origin to and is also identical with the Punjab Public Safety Ordinance, 1946, and the Punjab Public Safety Act, 1947, both of which, it is common knowledge, were framed by the pre‑partition Governor who apprehended some sort of disorder preliminary to, or consequent upon, partition but not fully realizing the nature and extent of that disorder, was anxious to equip the executive with an armoury of emergency powers with little or no regard to its possible abuse. That such powers can be, and were, abundantly abused will be apparent from the records of a large number of cases that came up to this Court before the partition ............ The District Magistrates and the Superintendents of Police have been given the power to arrest, but the restrictions under which this power could be exercised under rule 129 of the Defence of India Rules, namely, that a person should be reasonably suspected of having acted, acting or being about to act in a manner prejudicial to public safety, have been done away with and the power can be exercised merely if the arresting authority is satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the public safety or public order, it is necessary to arrest him. The Act does not say that when the Provincial Government makes an order under subsection (4), it should be satisfied with respect to a particular person that with a view to preventing him from acting in any manner prejudicial to the public safety or the maintenance of public order it is necessary to detain him for further, period, and in my experience of hearing habeas corpus petitions not a single case has come to my knowledge where in an order under subsection (4) the Provincial Government ever stated that further detention of the person arrested was necessary to prevent him from acting in a manner prejudicial to public safety or the maintenance of Public order .....................Under the several Provincial Safety Acts in India, and at least under the Provincial Act in Pakistan i.e., the Sind Maintenance of Public Safety Act, the Provincial Government has to communicate to the person affected by the order, so far as such communication can be made without disclosing the facts which they consider it would he against the public interest to disclose, the grounds on which the order has been made against him and such other particulars as are in their opinion sufficient to enable him to make, if he wishes to make, a representation against the order; but under the present Act no such thing need be done ............The result, therefore is that, whereas in the case of persons detained under the Provincial Acts in India the detenu knows the grounds for his detention and can challenge their legality, as distinguished from their reasonableness, by a habeas corpus petition, no such course is open to a detenu under the Punjab Public Safety Act, and the High Court itself has no power to discover the particulars of the grounds on which the order of arrest or detention was made because the arresting authority, as in the present case, can refuse to disclose all information and claim privilege both under section 123 and section 124 of the Indian Evidence Act and render the Court powerless to consider the question whether the arrest was made for reasons which, came within the Act and whether the requisite satisfaction of the arresting authority, on which alone an order of arrest could be made, existed or not . Great stress has been laid by the learned counsel for the Crown on the passage that the High Court itself has no power to discover the particulars of the grounds on which the order of arrest or detention was made. It was probably overlooked that the judgment does not say that the High Court cannot discover the grounds on which the order of arrest and detention was made. It cannot discover the particulars, i.e., the details of the grounds on which the order was made. In the case before me not only the disclosure of particulars or details but of the grounds for the arrest has also been refused. The other passage in the judgment which was emphasised by the learned counsel for the Crown is that the arresting authority can refuse to disclose all information and claim privilege both under section 123 and section 124 of the Indian Evidence Act, and render the Court powerless to consider the question whether the arrest was made for reasons which came within the Act. This is perfectly correct. Certain witnesses can claim privilege under sections 123 and. 124, Evidence Act; provided that there are grounds for the claim. If the grounds do not exist there is no privilege. Section 123 of this Act says that no one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned who shall give or withhold such permission, as he thinks fit. In the case before me Agha Muhammad Ali Khan, Senior Superintendent of Police, did not say at any time that the information sought from him was contained in unpublished official records relating to affairs of the State, or that he required the permission of the officer at the head of his department, i.e., the Inspector‑General of Police, before he could give or withhold the information. Section 123, Evidence Act, has, therefore, no application to‑ the facts of this case. In Mohan Singh v. Emperor (A. I. R. 1940 Lahore 217), it was held that under section 123, Evidence Act, only documents dealing with affairs of the State could be claimed to be privileged and the diary of a foot constable who was shadowing the movements of a suspect could not be treated as a document relating to affairs of State. In the course of his judgment Dalip Singh, J., drew the attention of the Inspector‑General of Police and other heads of departments to the law on the subject which requires that, before privilege is claimed the head of the department should have the document in front of him, should give his attention to the matter, should weigh carefully whether the privilege should or‑ should not be claimed and unless he is satisfied that affairs of State are concerned, he should not claim privilege for a document or withhold from a Court the means of judging whether a witness's statement is true or not. If privilege is claimed some indication should be given to the Court as to the affairs of State which are involved in the matter. Without such indication there is always a danger that the Court may draw an adverse inference. In Henry Greer Robinson v. State of South Australia (A. I. R. 1931 P. C. 254), it was held that the privilege regarding the production of State papers is a narrow one and must be sparingly exercised. The principle and foundation of the rule is concern for public interests and the rule should be applied no further than the interests of the public require. The fact that the production of certain documents might prejudice the Crown's case or assist that of the other side is no reason for their non‑production. In truth, the fact that the documents if produced might have such effect upon the fortunes of litigation is of itself a. compelling reason for their production‑a reason which can be overborne only by the gravest considerations of, State policy or security. In the case before me reference has been made to the history sheet of Mehraj Din, and it is admitted by Agha Muhammad Ali that ordinarily complaints against him would be entered in his history sheet. This history sheet was in the possession of the witness and he was asked to state if there were any complaints regarding the molestation of women in the history sheet of Mehraj Din. He refused to look at the history sheet and answer the question. In the first place, it was not for the witness, but for the head of his department, i.e., the Inspector‑General of Police to claim privilege for the history sheet and in the second place, the history sheet of Mebraj Din was no more privileged than the diary of the police constable relating to the movements of the man mentioned in Mohan Singh's case. The history sheet of Mehraj Din is also a police diary presumably relating to his affairs and not to the affairs of State. In any case, the witness never said that it related to any affairs of State and information derived from it cannot be given without the permission of the head of his department. I am not aware of any law which makes it necessary for the Court to presume that all unpublished official records relate to affairs of Section 124, Evidence Act, has already been discussed by me and I am of the opinion that there is no material on the record to show that the witness was privileged under section 123 or section 124, Evidence Act to withhold the information sought from him. The learned Advocate‑General has cited two English decisions in support of his case; namely, Liversidge v. Sir John Anderson and Greene v. Secretary of State for Home Affairs reported in All England Reports a Volume 111 (1941) at pages 338 and 388 respectively. In Liversidge v. Sir John Anderson the appellant, who had been detained in prison under the Defence (General) Regulations, reg. 1813, claimed a declaration that his detention was unlawful and damages for false imprisonment. It was admitted that Sir John Anderson, Secretary of State for Home Affairs, had ordered the detention under the regulation. The appellant thereupon asked for particulars of the grounds on which the respondent had reasonable cause to believe the appellant to be a person of hostile associations, and of the grounds on which he had reasonable cause to believe that, by reason of such associations, it was necessary to exercise control over him. These were the matters which arose under reg. 1813. It was held (Lord Atkin dissenting), that such particulars could be ordered only if the onus was upon the respondent to prove the various facts which justified the making of the order for detention ; but the onus was not on him, and no order for particulars could be made. Where regulations are made for the safety of the realm and the administrative plenary discretion is vested in a Secretary of State, it was held to be a question for him to decide whether he has reasonable grounds, and to act accordingly. Viscount Mangham, giving reasons for his views, said that it is to be noted that the person who is primarily entrusted with these most important duties is one of the principal Secretaries of State, and a member of the Government answerable to Parlia ment for a proper discharge of his duties. He was not in the same position as; for example, a police constable. The Secretary of State is provided with one or more advisory committees and he has to report to Parliment at least once in every month as to the action taken and the orders made by him and as to the number of cases in which he has declined to follow the advice of the advisory committee.. it is obvious that the officer who ordered the arrest in this case, i.e , the Superintendent of Police occupies a very different position from that occupied by the Secretary of State for Home Affairs in England and, as pointed out by the learned Chief Justice in the case of Muhammad Hussain Ata (P. L. R. 1949 Lah. 497), the presumption attaching to official acts is variable and its strength depends upon the formality of the proceedings taken and the status of the authority of officer taking them. Lord Wright is reported to have said at P. 379 that the point which was emphasised by the appellant was that the language used in the earlier form of the regulation was different, in that it did not contain the word "reasonable". That regula tion said that the Secretary of State, if satisfied with respect to any particular person that with a view to _ preventing him from acting in any manner prejudicial to the public safety or the defence of the realm, may make an order for detention. It was contended that the change from "if satisfied "to" if he has reasonable cause to believe made all the difference, and converted the plenary power of the Secretary into a power the exercise of which was subject to the judgment of a Court of law. Such, it was said, was the compelling force of the word" reasonable "that by itself it overrode every consideration, however peremptory. It inexorably excluded the idea of a merely executive discretion, and introduced the opinion of a Court instead. This construction of the actual language in the present form of the regulation was rejected and it was observed by Lord Wright that the actual language is the acid test, and there was no ground for attaching so much weight to so slight a difference in words. "Satisfied "must mean" reasonably satisfied ". It cannot import an arbi trary or irrational state of being satisfied. The distinction between" reasonably satisfied "and" has reasonable cause to believe" was considered too tenuous and it was said, that if it were ever intended to make so drastic a change in the whole scheme as to make the Home Secretary's grounds of belief examinable by a judge, it should, and would have been enacted by express words. No importance was, therefore, attached to the question whether the word used are " satisfied " or " has reasonable cause to believe ". Their Lordships of the Privy Council have held in King Emperor v. Vimlabai Deshpande (I. L: R. 1946 Nagpur 651, that where a police officer makes an arrest under sub‑rule 1 of rule 129 of the Defence of India Rules, 1939, which required reasonable grounds of suspicion on the part of the arresting authority, the burden is on him to prove, to the satisfaction of the Court before whom the arrest is challenged, that he had reason able grounds of suspicion. If he fails to discharge that burden, the order made by the Provincial Government under sub‑rule 4 of rule 129 for the custody of the detenu is invalid. The learned Chief Justice whilst dealing with this decision of the Privy Council in Suraj Parash Ram Lal's case (A. I. R. 1948 Lab. 84), said " It is true that subsection (1) of section 3 of the Act differs from Rule 129 (Defence of India Rules) in this respect, that whereas what is required under subsection (1) is the satisfaction of the arresting officer, while in the case of an arrest under Rule 129 what was necessary was a reasonable suspicion on the part of the arresting officer. This, however., makes no difference so far as the burden of proof is concerned because in both cases the duty to defend the arrest is on the Crown though in one case this duty is discharged by proof of the fact that the arresting officer was satisfied that it was necessary to effect the arrest of the person concerned with a view to preventing him from acting in a manner prejudicial to the public safety or the maintenance of public order, while in the other it can be discharged by proof of the fact that the arresting authority reasonably suspected the person arrested of having acted, of acting, or of being about to act in a .manner prejudicial to the public safety ". It follows, therefore, from the observations of Lord Wright, the learned Chief Justice and Privy Council that the Crown must prove, to the satisfaction of the Court before whom the arrest is challenged, that the officer ordering the arrest was "reasonably satisfied", that the arrest was necessary in order to prevent the person arrested from acting in a manner prejudicial to public Home Secretary (All England Law Reports 1941 (Volume 111) p. 388), Sir John Anderson had made the following order on 22nd May 1940. Defence (General) Regulations, 1939, Detention Order. Whereas I have reasonable cause to believe Ben Greene of The Hall Cottage, Berkhampsted, to be a person of hostile associations and that by reason thereof it is necessary to exercise control over him ; Now, therefore, I in pursuance of the power conferred on me by the Defence (General) Regulations‑, 1939, reg. 18B, make the following order. I direct that the above-mentioned Ben Greene be detained." JOHN ANDERSON, One of His Majesty's May 22, 1940. Principal Secretaries of State. Under this order, the "appellant was detained in Brixton Prison. On March 26,1941, the appellant made an ex carte applica tion to the Divisional Court for the issue of a writ of habeas corpus. His application was supported by an affirmation of facts and circumstances. Consideration of the application was adjourned in order that notice might be given to the Secretary of State and to the Governor of Brixton Prison. At the adjourned hearing, the Attorney‑General appeared on behalf of the Secretary of State admitted that the order under which the appellant was detained was made by the Secretary of State, and submitted an affidavit by the Secretary of State in which he stated that he had received confidential reports which constituted reasonable cause for the belief expressed in his order. The Divisional Court refused the applicant's application, and the Court of Appeal affirmed the decision of the Divisional Court, but gave leave to appeal to the House of Lords. Reg. 18B (1), made by His Majesty in Council under the Emergency Powers (Defence) Act, 1939, provides that, if the Secretary of State has reasonable cause to believe any person, inter alia to be of hostile associations, so that, by reason thereof, it is necessary to exercise control over him, he may make an order against that person directing that he be detained. The main contention of the appellant in the House of Lords, as in the Courts below, was that the production of the Secretary of State's order of May 22, 1940, was not a sufficient justification of his detention. He argued that, while it was no doubt for the Secretary of State in the first instance to make up his mind as to whether he had reasonable cause to believe the relevant matters, he was not the final judge and had to satisfy the Court that he had in fact such cause as would induce belief in an ordinary reasonable man. To enable the Court to judge of this, he must produce the information on which he formed the belief which he professed to entertain. In Liversidge's case, the same point was the subject of consideration, and the House had decided that the interpretation which the appellant sought to place upon the language of the regulation was in law untenable. The reasons for that decision were considered to be applicable to Greene's case and it was held that the Secretary of State was not bound to disclose or to justify to any Court the grounds on which he conceived himself to have reasonable cause to believe that the appellant was a person of hostile associations and that by reason thereof it was necessary to exercise control over him. The production of the Secretary of State's order, the authenticity and good faith of which were in no way impugned, constituted a complete and peremptory answer to the appellant's application. That order justified the appellants detention, in the absence of any relevant challenge of its validity. There was no such challenge and it was not considered necessary for the Secretary of State to file even an affidavit in support of the action taken by him. It was, however, observed by Lord Macmillan that if the law required him to justify the reasonable ness of his cause of belief, an affidavit such as he had submitted would not enable the Court to pass judgment on the matter, for it did not set out the information which he possessed when forming his belief. It was only an assurance of the thoroughness of the investigation which the Secretary had made, and not a disclosure of what that investigation yielded. The decision in Greene v. Home Secretary was based on the findings in Liversidges' ease and that was not considered a safe guide for this country by the Privy Council in Vimlabai Deshpande (I. L. R. 1946 Nag. 651), where it was held necessary for the police officer ordering the arrest to justify the reasonable ness of his belief, to the satisfaction of the Court in which the arrest is challenged. Lord Wright has, however, emphasised in Liversidge's case, that there is no difference between being "satisfied" and "having reason to believe" because "satisfied" must be construed to mean reasonably satisfied. It follows, therefore; that the order of arrest and the affidavit of the officer ordering the arrest, which do not disclose the information which the officer possessed when he ordered the arrest, do not enable the Court to pass judgment on the matter in issue, nor do they discharge the onus which, according to the learned Chief Justice in Suraj Parkash Ram Lal's case, rests on the Crown. Lord Wright in Greene's case said that the only possible enquiry of fact, once the authority of the order and its application to the appellant are conceded or established, is as to whether the Home Secretary had in his own mind what appeared to his mind to be reasonable cause. He conceded, however, that the state of a man's mind is capable of determination and is as much a fact as the State of his digestion and if the Home Secretary mis-represented the state of his mind, that would be fraud. This was not alleged in Greene's case and the question was not considered by the House of Lords. In the case before me that is the main question. The detention is challenged as being ultra vires, improper and unjust. Agha Muhammad Ali Khan was asked why he did not give the real reasons or, at least, some of the real reasons for arresting Mehraj Din in his affidavit when he knew that it had been alleged that in arresting him he had acted unjustly, improperly and as a tool of Asghar Ali Sub‑Inspector. His answer was that he thought his merely saying that he was satisfied, was quite enough. I was inclined to ask the witness to sate the grounds on which he claimed privilege and, if the grounds were invalid, to direct him to disclose the reasons for which he arrested the detenu. I was also inclined to call for proof of the assertions made by him as provided by section 4 of the Evidence Act. I might have also presumed, according to illustration (h) of section 114, Evidence Act that information which the Crown could legally withhold, if disclosed, would have gone against it. But, in a recent case decided by the Federal Court of Pakistan, it was held that the officer ordering arrest under section 3 (1) Punjab Public Safety Act cannot be asked the reasons for the arrest. (P. L. D. 1950 Federal Court p. 1.) This was an appeal against the judg ment of the. High Court, Lahore, dismissing a petition presented under section 491 of the Code of Criminal Procedure for the release of Maulana Maudoodi who had been arrested and detained in pursuance of an order under section 3, Punjab Public Safety Act The detention was challenged on three grounds, viz., (a) that it was Gala fide, (b) that it was a fraud on the statute and (c) that the Maulana had never acted nor intended to act in a manner prejudicial to public safety or to the maintenance of public order, It was observed in the judgment disposing of this appeal that all the three objections involved questions of fact and were repelled for lack of proof by the learned Chief Justice of the High Court, who had heard the petition. The judgment proceeded to lay down that it should not be understood that the result would have been any different if the allegation in regard to (c) had been substantiated ; for, under section 3 (1) of the Act, it was for the Provincial Government, the District Magistrate, or any other servant of the Crown authorised in this behalf to be satisfied whether it was necessary to arrest the Maulana with a view to preventing him from acting in any manner prejudicial to the public safety or the maintenance of public order and it teas not possible for a Court to usurp this function or to substitute its judgment for that of any of the authorities referred to in the section. Reference was made to Liversidge v. John Anderson, Greene v: Secretary of State and King Emperor v. Sibnath Banerji, Which I have considered above. The learned Advocate‑General argued that even if a detenu proves that he had never acted nor did he intend to act in a manner prejudicial to public safety or order, then too, his detention cannot be set aside because it is for the Provincial Government, the District Magistrate or any other authorised servant of the Crown to be satisfied whether it was necessary to arrest him and it is not permissible for a Court to go into that question. I asked whether a man by proving a fact does not disprove the opposite of it; for example, does not a man by proving that a document is genuine disprove that it is forged ? Similarly, does not a man by proving that he had never acted nor did he intend to act in a prejudicial manner disprove the allegation that he would have so acted unless prevented by arrest and detention ? Suppose a man arrested on the night between 16th and 17th June proved that he had an excellent record in the college and on 17th June he was booked to leave by Air for Karachi from where he was to leave the same day for America for a course of threw years studies : would that not disprove the allegation that his arrest was necessary to prevent him from acting in a manner prejudicial to public safety and order within the jurisdiction of the officer who ordered the arrest ? This was not contested by the learned Advocate‑General, but he maintained that the meaning of the Federal Court's decision is that once an order of arrest, in a proper form, issued by virtue of authority conferred by the Punjab Public Safety Act, and containing the recital about satisfaction is produced in Court the presumption is that the arrest was made for the purpose of the‑ act, as stated in the order ; and the arrest and detention cannot be set aside on the ground that the officer ordering the arrest was not satisfied, or that he had no reasons to, be satisfied. The order can be set aside in such a cases only if it is proved that the officer ordering the arrest had acted mala fide or had committed a fraud on the statute. It was urged on behalf of the petitioner that if it is established that the officer ordering the arrest had no reason to be satisfied that the arrest was necessary, for the purpose of the Act; then the arrest was obviously 'a fraud on the statute and mala fide. In reply, it was urged by the learned Advocate‑General that if this result flowed from the substantiation of the assertion made in clause (e) of the objections the judgment would have said so. The, judgment merely says that in spite of the proof of the assertion in (c) the order of detention cannot be set aside by a Court. By implication, it cannot be treated as ultra vires or mala fide. The learned counsel for the petitioner urged that even if the observation is capable of the meaning attached to it on behalf of, the Crown, it is an obiter dictum and not binding on this Court. I do not agree with this. It has been repeatedly held that even the obiter dicta of the Privy Council are binding on the Courts in India. If an, authority were needed for this, there is a Full Bench case Lala Mahadev and others v. Ranbir and others (A. 1 R. 1914 Lah 220.) The most important thing to be remembered, however, is that in Maulana Maudoodi's case the officer ordering the arrest disclosed the information which he had received and which led him to order the arrest. The judgment under appeal says :‑ When questioned by the Court, the Superintendent of Police stated that he had received reports from his subordinates to the effect that the Maulana was dissuading persons from joining the Pakistan armed forces till it was declared that the Constitution of Pakistan would be based on Islamic Laws. It was also reported to him that the Maulana was against Government servants taking an oath of loyalty to the Pakistan Government until they were assured that the Pakistan Constitution would be based on Islamic Laws. A further report was received by him that the Maulana was of the opinion that the Muslims by taking part in the Kashmir activities were not conducting Jehad. It was as a result of these reports that he was satisfied, with respect to the Maulana, that with a view to preventing him from acting in any manner prejudicial to the public safety or the maintenance of public order it was necessary for him to arrest him. He, therefore, made the arrest . The learned Chief Justice of Lahore High Court (now Chief Justice of Pakistan), held that the alleged activities of the Maulana were prejudicial to public safety and order. The present case is, therefore, clearly distinguishable from Maulana Maudoodi's case on facts. Here no prejudicial acts have been alleged or proved. The Federal Court has, however, laid down (at page 13 of the report, A. P. L. D. (1950) Federal Court 1), that the reasons for the arrest cannot be asked and it is for the detenu to prove that he was arrested for reasons for which ha could not be arrested or detained. I, therefore, refrained from compelling the officer ordering the arrest to disclose the information or the reasons on the basis of which he ordered the arrest. The; petitioner has given no proof that Mehraj Din was arrested for reasons for which he could not. be arrested or detained. It. has not. been proved that Asghar Ali Shah did in fact demand any illegal gratification from Mehraj Din or that in consequence of its refusal he became antagonistic to Mehraj Din ; nor is there any proof that Agha Muhammad Ali Khan, Senior Superintendent of Police arrested or detained Mehraj Din in order to oblige Asghar Ali Shah, Sub‑Inspector. The petition is, therefore, dismissed. A. H. Petition dismissed.