P L D 1969 Peshawar 55 (PLP)

This is a petition under Article 98 of the Constitution of the Islamic Republic of Pakistan by Hakim Muhammad Anwar Babri challenging as illegal the order of detention dated 26th July 1968 passed by the District Magistrate, Hazara, under section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960 (hereinafter to be referred to as the Ordinance), under which Maulana Abdus Sattar Khan Niazi was arrested and detained for a period of one month. The principal attack directed against the order of detention was that the grounds which weighed with the District Magistrate in passing the impugned order were not relatable to the objects of section 3 of the Ordinance. In a meeting of the Pakistan Democractic Movement held on 9th July 1968, in Baghi Jinnah, Abbottabad, the detenu is reported to have made a speech casting aspersions on the person of the President of Pakistan, and on the information furnished by the Superintendent of Police the District Magistrate, Hazara, passed the order of detention which, is reproduced below in extenso Whereas I, Khanzdda Abdus Salam Khan, District Magistrate, Hazara, am satisfied, on information received from the Superintendent of Police, Hazara, that Maulvi Abdus Sattar Niazi of Tehsil lsaklhel, District Mianwali, delivered a public speech on 9‑7‑1968 in a meeting of the P. D. Movement at Haghi Jinnah, Abbottabad, in which, he cast aspersions on the person of the President of Pakistan by name saying that the President managed to win the election at the cost of his conscience and other higher values and that the President after winning the Presidential elections could not enjoy peaceful sleep. In this public speech the aforesaid Maulvi Abdus Sattar Niazi maligned the person of the President by attributing to him acts which were most likely to bring the lofty personality of the President into public contempt. The aforesaid Maulvi used such language as to whether after death the name of the President shall come on the list of the followers of the Holy Prophet or shall be borne on the list of those who crushed and dishonored the nation. Maulvi Abdus Sattar Niazi in the aforesaid speech used a scandalous language of making it look that the head of the State and his sons made fortunes by unfair means. In the same speech, with a threatening gesture, he pointed out that Malak Amir Muhammad Khan, the Ex‑Governor was assassinated by his own son, that the head of the State should disgorge the wealth amassed by him and restore it to the nation and that the Opposition was not aiming at snatching the power from him but were out to advise the Head of the State to manage to save himself from the fire and torture of Hell. Now, therefore, I, Khanzada Abdus Salam Khan, District Magistrate having carefully considered the above speech, as reported by the Superintendent of Police Hazara, am satisfied that it is highly prejudicial to the maintenance of public order, peace and public safety; as the aforesaid orator brought into contempt the lofty personality of the Head of the State and attributed to him acts which are most derogatory to the high office of the head of the State. Thus Maulvi Abdus Sattar Niazi rendered himself liable to action under the provisions of the West Pakistan Maintenance of Public Order Ordinance and accordingly I order that the aforesaid M. Abdus Sattar Niazi shall be arrested immediately by the Officer I/C of the Police Station Cantonment, Abbottabad and shall be detained in the District Jail, Abbottabad, for a period of one month with effect from the date of his arrest . . . . . "

3. The grounds on which the illegality of the detention order is assailed are given in paragraphs 6 to 11 and read as follows : "

6. That assuming the allegations made above are true they do not disclose a legal cause for ordering preventive detention of the Maulana.

7. That there is not even an allegation that there was a breach of peace at the public meeting which was attended by thousands. No one even protested violently or otherwise against what was said is the course of Maulana's speech.

8. As a consequence of the delivery of the Maulana's speech, no breach of peace or public safety or public order took place in Abbottabad. That the speech was delivered on 9‑7‑68 and the arrest was made on 26‑7‑1968. In fact even such an allegation has not been made in the order.

9. That the order is clearly mala fide and has been passed by an officer who is out to please those m power by prosecuting those who do not agree with the Government and who erroneously but obviously believes that he has the authority to detain a person who brings the Head of the State into public contempt. Fortunately such is not the law. Besides fundamental right ton (10) dealing with freedom to profess, practice and propagate religion is still in force. The advice in the fact was given to save the President and in satisfaction of a religious obligation.

10. That it is quite evident from the order that it seeks to punish the Maulana without trial for delivering a speech which Khanzada Abdus Salam Khan, District Magistrate of Hasars did not like.

11. That the order does not even state that the District Magistrate believes the information which was given to him by the Superintendent of Police to be true and it does not purport to have been passed upon satisfaction that the passing of such an order was necessary with a view to prevent the Maulana from acting in any manner prejudicial to the public safety or to the maintenance of public order. The detention of the Maulana is apart from otherwise contrary to the Constitution and in particular Article 2 and Article 6.".

4. Mian Mahmood Ali Qasuri, learned counsel for the detenu, vehemently argued that the orders under preventive detention laws were designedly intended to prevent future mischief prejudicial to public safety or maintenance of public order and are clearly distinguishable from punitive or penal provisions of law which punish certain acts and omissions under the law of a country. It was contended that on a reading of the impugned order it was plain that the District Magistrate did not at all apprehend any act prejudicial to public peace or tranquility or maintenance of public order consequent to the speech delivered by the detenu casting what might be called very provocative and grossly violent and uncalled for aspersions on the Head of the State, but on the contrary the District Magistrate had been labouring under the misconception that having cast the aspersions the detenu had "rendered himself liable" for punishment under section 3 of the Ordinance. To put it differently, it was argued that the District Magistrate did not visualise a situation that the detenu having made unjustified and uncalled for aspersions on the Head of the State was likely to repeat the same aspersions in future and this was likely to endanger the public safety or maintenance of public order. It was also argued that since the preventive detentions were designed to curtail the personal liberty of the citizen, the burden of proof lay on the detaining authority to show that the grounds of detention were relatable to the objects enumerated in section 3 of the Ordinance.

5. The learned counsel wound up his arguments by arguing that even in the written statement the District Magistrate had never made any suggestion that the order of detention was passed with a view to preventing the detenu "from acting in any manner prejudicial to public safety or the maintenance of public order."

6. Sardar Fakhre Alam Khan, Additional Advocate-General, on the other hand, in justification of the order of detention argued that as the President was held in high esteem by all sections of people in Pakistan and since the detenu had indulged in grossly intemperate and provocative language casting uncalled for aspersions on him, the District Magistrate on the report of the Superintendent of Police rightly pressed into service section 3 of the Ordinance and passed the detention order with a view to preventing the detenu from acting in any manner prejudicial to public safety or maintaining o! public order by repeating the same aspersions in another speech.

7. On a careful scrutiny of the impugned order and after giving the arguments addressed at the Bar my earnest con sideration I have formed the opinion that the tenor of the impugned order clearly indicated that it did not at all operate in the mind of the detaining authority that consequent to the speech casting violent aspersions on the Head of the State there had occurred any breach of peace or there was any likelihood of breach of peace on the ground of the detenu repeating such aspersions in future, or else that consequent to the speech the people or a section of them were so excited as to prejudice the public safety in case the detenu repeated the aspersions in another speech. To put it differently, the mind of the District Magistrate did not at all visualise that with a view to preventing the detenu from "acting in any Manner prejudicial to public safety or the maintenance of public order", it was necessary to detain him on the ground that he was likely to make another speech repeating the aspersions which were likely to endanger public safety or maintenance of public order. Neither in the grounds of detention furnished to the detenu nor in the impugned order itself the District Magistrate had shown any awareness, whatsoever, that the order of detention related to any of the objects enumerated in section 3 of the Ordinance much less that he apprehended any breach of peace, or danger to maintenance of public order. It is important to observe here that the District Magistrate even in the written statement did not suggest that the impugned order was passed with a view to preventing the detenu "from acting in any manner prejudicial to public safety or maintenance of public order" in future.

8. One of the fundamental distinctions between "preventive detentions" and "punitive laws" is that the preventive detentions are designed to apprehend mischief relating to public safety or the maintenance of public order in future as against the t" penal laws which punish certain acts and omissions of a person in the past.

9. Since the "preventive detention laws" are designed to curtail the personal liberty of the citizen, the burden of proof lies heavily on the detaining authority to show that the detention order relates to the statutory objects enumerated in section 3 of the Ordinance and the Courts while considering the validity of such an order have to see that the impugned order is a "speaking order" in the sense that the grounds of detention must be clearly stated in the order and the same must be related to the purposes listed in section 3 of the Ordinance.

10. The learned Additional Advocate‑General had been at pains to emphasise that since the President was held in very high esteem by people, the provocative speech which cast grossly unjustified aspersions on him as Head of the State was bound to be resented by a large section of the people and the public safety and the maintenance of public order would be put into great jeopardy, and therefore the impugned order was to be read in that context. I heartily agree with the argument the President is held in high esteem and that the aspersions cast in the instant case which were couched in most intemperate an provocative language were likely to put public safety and the maintenance of public order into jeopardy, but it is for the detaining authority to have said specifically that the detention order was intended to prevent the detenu from acting in a manner prejudicial to public safety or the maintenance of public order in future and the speech already made by him itself furnished sufficient material for the detaining' authority for passing the order. It is one thing to say that the detenu was likely to act "in any manner prejudicial to public safety or the maintenance of public order" in future, and quite a different thing that: he had already so acted. In the former case, the order of detention would be a valid order, but in the latter case it will] not be relatable to the objects of section 3 of the Ordinance unless it was specifically stated by the detaining authority that the step was necessitated to prevent a similar performance in future which was likely to endanger public safety, peace or maintenance of public order.

11. There is another fundamental distinction between the "penal law" and the "preventive law" and it is that in appeal against conviction under the penal law, the Court can sustain the order of conviction on grounds other than those which prevailed with the trial Court provided the reasons can be spelled out by any evidence, or the record but not so in the case of preventive detention in spite of the fact that such grounds were readily available to the detaining authority to base the order of detention thereon but has not done so.

12. There is another aspect of the case and it is that while considering the legality or otherwise of an impugned order, the grounds of detention must be stated specifically in the order and E the Court cannot read into the order any words, for in that eventuality the Court would not be construing the impugned order but reconstructing it.

13. On the point that the grounds of detention should be within the four corners of section 3 (1) of the Ordinance, I may profitably borrow the observations of Cotton, L. J. in Dale's case ((1881) 6 Q B D 376): "I quite agree with Brett, J., that when persons take upon themselves to cause another to imprisoned, they must strictly follow the powers under which they are assuming to act, and if they do not, the person imprisoned may be discharged, although the particulars in which they have failed to follow those powers may be matter of mere form. Here, however, the departure from the correct procedure is not in my opinion a mere matter of substance." I may also reproduce the pithy observations of Sardar Muhammad Iqbal, J. in Maulvi Farld Ahmad v. Government of West Pakistan (P L D 1965 Lab. 135). In this case too incidentally Maulvi Farid Ahmad had used very violent language and cast aspersions on the Head of the State. At page 142, his Lordship speaking for the Full Bench summed up the discussion thus‑ "The grounds, therefore, must be grounds which lead to the inference that the person concerned is likely to act in a manner prejudicial to the objects mentioned in section 3." As already stated, the District Magistrate never gave any indication even in the written statement that the detenu was likely to act in a manner prejudicial to the objects of section 3 of the Ordinance.

14. The decision of Dawood v. The Chief Commissioner of Karachi (P L D 1956 Kar. 313) is also very pertinent to the point under discussion. This is an extreme case in the sense that notwithstanding the fact that in the beginning of the order the detaining authority had stated that the detenu has acted and was acting in a manner prejudicial to the public safety and the maintenance of public order "and supplies and services essential to the community", but since in the operative part of the order the words "and supplies and services essential to the Community" having been omitted, the Bench was easily persuaded to strike down the detention order as illegal holding that since in the operative part of the order externing the petitioners the detaining authority had stated that the order was made "with a view to preventing them from acting in a manner prejudicial to public safety and the maintenance of public order", but really, as dis closed by the official affidavit filed in reply to the writ petition, with a view to thwarting their smuggling activities, attracting application of the ground bearing on the "maintenance of public supplies and services" was not sustainable.

15. I would wind up the examination of authorities by extracting the following observations of Gwyer, C. J. in Keshav Talpade v. Emperor (A I R 1943 FC 1) from page 8‑ "If a detaining authority give 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 been made at all if only one or two good reasons bad been before them. We confess that an order in the terms of that under which the appellant in the present case had been detained fills us with uneasiness." It follows from this authority that even if some of the grounds of detention are relatable to the purposes of the preventive laws, the same are to be struck down as illegal notwithstanding that some of the other grounds were relatable to the purposes of the preventive laws.

16. In my short order dated 22nd August 1968, the impugned order was held to be illegal and consequently the order of detention set aside. This judgment would furnish the reasons. S. A. H. Petition accepted.