1969 P Cr (PLP)

SALAHUDDIN AHMED, J.‑

This Rule nisi calls in question the detention of Mr. Abdul Momen, an Advocate of the High Court of East Pakistan under Rule 32(1)(b) of the Defence of Pakistan Rules, 1965. The impugned order of detention hay been passed by the Deputy Commissioner of Dacca for the purpose of preventing the said detenu from acting in a manner prejudicial to Pakistan's security the public safety or interest, the defence of the District of Dacca, the maintenance of supplies and services essential to the life of the community and the maintenance of peaceful conditions in the district of Dacca. The first order of detentions under the aforesaid Rule was passed against the detenu in June 1966 and since then he hay been detained by successive orders of detention, the last of such order having been passed on 19‑11‑68 and it is to remain in force for a period of three months front the date of the service of the order on the detenu. The detenu is an Advocate of the High Court and was the Publicity Secretary of the East Pakistan Awami League. It is asserted on behalf of the detenu that the aforesaid orders of detention are mala fide, frivolous, motivated and have no reasonable basis to support them. Previously on behalf of the detenu two applications were made on two different occasions challenging the legality of his detention but on both the occasions the applications were rejected, in one case after a Rule had been issued. It is stated on behalf of the detenu that due to continuous detention the health of the detenu has been deteriorating everyday. On behalf of the respondents an affidavit‑in‑opposition sworn by a Section Officer, Home (Special) Department, Government of East Pakistan has been put in. Paragraph 13 of the affidavit has given the particulars upon the basis of which the detenu has been detained. It is stated that on 8‑4‑66 the detenu had addressed a public meeting organised by Awami League in Bogra Town and in his address "he bitterly criticised the present Government for its maintaining alleged disparity between the two wings of Pakistan and repressive and oppressive measures perpetrated on the people of Pakistan and by that he excited the people and brought hatred, contempt and disaffection in the mind of the ordinary law abiding people towards the Government established by Law and promoted feeling of enmity and hatred between different classes of citizens. It has been further stated that the detenu on 6‑5‑66 had addressed a public meeting at Sylhet town wherein "he bitterly criticised the Government and created contempt hatred against the Government established by law." The learned Advocate‑General appearing on behalf of the State has placed before us extracts of the aforesaid two speeches of the detenu and has also furnished us with an English transla tion of the same. Copies of the translation of the speeches have also been served upon Mr. M. H. Khondkar, learned Advocate appearing on behalf of the detenu. The translations have been kept on record. We have not found anything objectionable in the speech of the detenu delivered on 8‑4‑

68. There is absolutely no reference to "repressive and oppressive measures perpetrated on the people of Pakistan" and the learned Advocate‑General frankly conceded that there was no such reference. The sum and substance of this speech is that the Awami League has launched movements for the establishment of democracy and regional autonomy and that the movement should be continued through six point demand. It says that if the two wings of Pakistan are powerful, then Pakistan is powerful and that "at present all the powers were in the hands of Ayub Khan". In our opinion this speech can hardly lead a prudent person to think that the detenu has acted or is likely to act in a manner prejudicial to Pakistan's security or to the public safety or interest or the defence of the district of Dacca or to the mainten ance of supplies and services essential to the life of the community or to the maintenance of peaceful conditions in the district of Dacca. The keynote of the detenu's speech delivered at Sylhet town on 6‑5‑66 appears to be the predominance of West Pakistanis in the administration of the country. There is also a reference to "a group of exploiters who are mostly West Pakistanis are accomplishing their interest." In this speech the detenu has given his own estimation of things that have happened during the nineteen years of Pakistan's existence, and has concluded by saying that the six point is. "We want regional autonomy, we want autonomy of our country." He has finally exhorted the people to raise a strong demand so that the Government is compelled to concede to their demands. We do not think that this speech, too, furnishes any reason able basis for the detaining authority to think that the detenu acted or was likely to act in a manner prejudicial to the things mentioned in the impugned order of detention. It is true that there is an undertone of unfriendly feeling towards the West Pakistanis who predominated in the administration of the country. But the indication of such unfriendly feeling towards a particular class of West Pakistanis does not in our opinion lead a person to think that the detenu has acted or is likely to act in a manner prejudicial to the matters mentioned in the impugned order of detention. The detenu was the publicity Secretary of the Awami League and his opinion on a particular subject unattended by any reference to violence or to any unconstitutional act in the furtherance of the League's objective furnishes no reasonable basis for thinking that the detenu is a potential danger to the various matters mentioned in the impugned order. "The State" and "the Government" are two entirely different concepts, and danger to the latter is not necessarily danger to the former. It is true that words and acts are considered in the light of the conditions existing contemporaneously. Even so the learned Advocate General has failed to bring to our notice the existence of any such condition as made the utterances of the detenu meaningful and fraught with dangerous consequences. As long as the law of the land permits oppositional activities and some amount of freedom of thinking and expression, mere expression of opinion, however, much unpalatable it may be to the 6uvcrnluent of the day, does not in our opinion, call for any action under a special law like the Defence of Pakistan Rules unless such opinion tends to disturb the peace and tranquillity of any region, or creates a law and order situation or endanger the maintenance of essential supplies and services. The affidavit‑in‑opposition has further stated in paragraph 13 that for publishing a prejudicial leaflet' "Bhaisab Sati June Para Hartal Palan Karun" (brother, observe complete hartal on the 7th of June) a specific case was started against the detenu and he was convicted therein. We, therefore, think that the detenu has already been punished for publishing the said prejudicial leaflet, and therefore, the publication of the leaflet could hardly been ground for detaining the detenu for the purpose mentioned in the impugned order of detention. We, therefore, make the rule absolute. We are satisfied that the detenu Abdul Momen is being held in custody without lawful authority and in an unlawful manner, and we accordingly stake the declaration. AHSANUDDIN CHOUDHURY, J.‑

I agree. Rule made absolute.