P L D 1973 Lahore 762 (PLP)

"Whereas tie Federal Government is of the opinion that with a view to prevent Mr. Malik Mahboob Khan, son of Malik Bagh Ali, resident of Gujar Khan, from acting in a manner prejudicial to the interest of Pakistan, it is necessary to detain him. Now, therefore, in exercise of the powers conferred by sub‑rules (1) and (4) of rule 32 of the Defence of Pakistan Rules, the Federal Government is pleased to direct that the said Mr. Malik Mahboob Khan be detained. Hs shall remain in the custody of D. I. G., Special Branch, Lahore, for a period of three weeks, from the date of execution of this order."

3. The memorandum of grounds furnished to the detenu reads as follows:‑ "You. Mr. Malik Mahboob Khan, have been ordered t4 be detained by the Federal Government under clause (b) of rule 32(1) of the Defence of Pakistan Rules, vide its order No. 8/3/73‑SP (P), dated 2nd February 1973, with a view to preventing you from acting in a manner prejudicial to the interest of Pakistan in that you have been actively assisting In the escape of Bengal from Pakistan and have also been engaged in illegal transfer of their money out side Pakistan and thus acting against the interest of Pakistan. (2) The Federal Government is further of the opinion that in view of your past activities unless you are detained as aforesaid there is a real danger of your further acting in a manner prejudicial to the interest of Pakistan, as aforesaid. (3) The above grounds for your detention are being com municated to you as required by Article 9(5) of the Interim Constitution to enable you, if you so wish, to make a representation against the order of your detention 'the representation should be addressed to the Secretary, Interior Division, Government of Pakistan. (4) A copy of the detention order is enclosed."

4. The petitioner has come up in writ petition against the above‑quoted detention order. The present judgment will dispose of this matter. The relevant facts and the stages through which the detenu passed are given in detail in the earlier W. P. No. No. 116/[

973. The present judgment should be read to continuation of the order passed by me in that case on 2‑2‑1973 for facility of reference.

5. In my opinion, the impugned order is without lawful authority and the detention of the detenu has been brought about in an unlawful manner and my reasons for so holding are as follows :‑‑ (a) That the earlier order of detention which was passed by the District Magistrate, Rawalpindi, on 23‑1‑1973 was declared by me to be with jut lawful authority and of no legal consequence against the detenu. The said order was in force uptill 2‑2.1973 when I quashed it, but prior thereto on 1‑2‑73 a decision had been taken to issue the presently impugned detention order. The impugned detention order, therefore, is in effect nothing but a continuation of the earlier illegal detention and from this point of view is without lawful authority. See Begum Sardar Muhammad Hayat Khan of Tamman v. Government of West Pakistan and another P L D 1969 Lah. 985, The Government of East Pakistan v. Mrs. Rowshan Bilaya Shaukat Ali Khan P L D 1966 S C 286, Basanta Chandra Ghose v. Emperior A I R 1945 F C 18 and Naranjan Singh Nathawan and others Y. State of Punjab A I R 1952 S C (Ind.) 106. (b) That an order of preventive detention under rule 32 of the Defence of Pakistan Rules can be passed when the Central Government is satisfied with respect to any particular person that with a view to prevent him from acting in a manner prejudicial to the security, the public safety or interest or the Defence of Pakistan, the Maintenance of Public Order, Pakistan's relations wits any other powers, the maintenance of peaceful conditions In any part of Pakistan, the maintenance of essential supplies and services or the efficient conduct of military operation or prosecution of war, it is necessary to detain him. However, where the order is passed merely for the purpose of enabling Investigation of the offences already allegedly committed, the order is illegal. In S. Dilbagh Singh v. Emperor A I R 1944 Lah. 373, it was held:‑ "They have been detained in order to enable the police to carry on Investigation of offences of cheating unhampered and further to enable the police to interrogate the detained men when and as often as then like. In other words, the whole object of the detention is to ensure complete freedom for the police to investigate the alleged offences. In my judgment R. 129 was never made for that purpose and the Rule cannot be used legally for any purpose other than that for what It was intended, namely, to ensure inter alia the security of the State and the efficient prosecution of the war." At page 375, it was again held t‑ "In my judgment it is abundantly clear in this case that there has been an abase of the power given to the police by rules 129, Defence of India Rules. Admittedly, they have used their power under these rules not for any purpose connected with the defence of India or the efficient prosecution of the war but merely to enable them to investigate a crime under the Penal Code more easily and possibly more efficiently." In Yeshwani Deshpande v. Emperor (A I R 1945 Neg. 8), it was held that, "If either the police or the Provincial Government desire the investigation into any offence, whether under the Penal Code or under the Defence of India Rules, then they are bound to conduct their enquiry in accordance with the provisions of the Criminal Procedure Code. They cannot call in aid their powers of detention and under the guise of exercising these powers conduct a secret investigation into a crime. If they have information, that the detenus have committed crimes or offences, they are not bound to investigate into them, they can rest content with detaining them under rule 26 or 129 of Defence of India Rules. But if they want an investigation they must proceed in accordance with the provisions of the Criminal Procedure Code. If they do otherwise, it is a fraud upon the Act, and their action is not taken in good faith. They cannot make the best of both worlds". The proposition of law hereinbefore referred to is so well -settled that I need not burden this judgment with more case -law on the subject. As is self‑evident from the extracts repro duced from the notings of the relevant file, the detention of the detenu, in the instant case, has been brought about with an ulterior motive of interrogation and investigation, and, therefore, being against the relevant provisions of the Defence of Pakistan Rules, cannot be upheld. That in the instant case the purpose of detention was ulterior is corroborated from another circum stance and that is that the custody of the detenu has been directed to remain with the D. I: G. of the Special Branch of the Police namely, the same Agency, which was investigating F. I. R. No. 6 of 1973 and F. I. R. No. 20 of 1973, the details of which have been given in my earlier judgment. (c) Another thing to be noticed is (and it was conceded before me by Mr. Muzaffar Hussain Section officer, Ministry of Interior Division, who appeared with the relevant record which was shown to the Court), that at the time when the order of detention in this case was passed, it was not brought to the notice of the Central Government that a case about the detention order, passed by the District Magistrate, Rawalpindi, was sub, judice in this Court. The Police kept this matter hidden from the Central Government. Similarly, it was further conceded that the detaining officer was not informed that on 2‑2‑1973 this Court had set the detenu at liberty. It is obvious that the order produced by the Police by concealing the relevant facts from the detaining authority, cannot be said to be a validly passed or procured order.

6. When confronted with the above situation, learned counsel for the respondents argued that there was enough material before the detaining authority on the basis of which the impugned order had been passed and from this point of view, there existed no defect in the detention of the detenu and that the same should not be interfered with. He referred to Annexs. "A", A/2, B, C, D, E, F, G, H, and some tape‑record conversation. I need not deal with the above quoted material because as to what worth or relevancy the said material was for the purpose of passing a detention order, was mainly the concern of the detaining authority to judge. For my purpose, it is enough that on the basis of the aforesaid material there were registered various cases which were the subject‑matter of the two F. I. Rs., herein, before mentioned. In my previous judgment, I have already mentioned as to how and when the detenu was arrested in connection with those cases and how the various bail orders passed therein were frustrated by the Police. It was to frustrate these orders again that the presently impugned order was passed, the object of which was quite different from the one laid down in rule 32 of the Defence of Pakistan Rules. Learned counsel for the respondents argued that if nothing else at least the allegation of apprehended involvement of the detenu in the escape of Bengalis, the transfer of their money outside Pakistan and his past activities were sufficient by themselves to justify the impugned order. I have already held that these allegations were used as a cloak to retain custody of the detenu for investigation of cases earlier registered against him and it is not possible for me to endorse such an action of the Police on the ground which is being advanced by the learned counsel.

7. The upshot of the above discussion is that the impugned order is declared to be without lawful authority and of no legal affect against the petitioner and his detention is declared to have been brought about is an unlawful manner. The writ petition is accepted, the impugned order is quashed and It is hereby directed that the detenu should be set at liberty forthwith if not required in any other case in accordance with law. . There shall be no order as to costs. K. B. A. Petition accepted.