P L D 1974 Karachi 81 (PLP)

This is indeed a strange incident that Retired General Akbar had been caught as the ringleader of first conspiracy against the integrity of the country namely the Rawalpindi Conspiracy. He had been convicted by a Military Court in this very city alongwith his entire gang and now again in Rawalpindi alone another Conspiracy against the integrity of the country has been detected during the ministerial tenure of Mr. Akbar Khan. Again this too is a strange incident that it was Russia alone which had its hand in the Rawalpindi Conspiracy during the regime of Shahid‑e‑Millat Liaquat Ali Khan and it is Russia again when its arms were discovered from the Iraqian Embassy. Akbar Khan and Faiz Ahmad Faiz were there holding responsible posts then and even today they are holding important posts of the Government in Rawalpindi and their third partner Major Ishaq is crowned with the leadership of workers and peasants having the blessings and support of the Peoples Party and the organization performs its feasts under the direction of the same Peoples Party. We do not know why the Government which chose to obtain the services of the notorious lot of people like Najaf Khan, Mian Anwar Ali, Haq Nawaz Tiwana and Mashkoor Hussain found it in its interest to select the convict of Rawalpindi Conspiracy Akbar Khan and on what peculiar qualification of his he was regarded as the most appropriate person for holding the Ministry of Internal Security. Look at the irony of facts that the person who proved himself to be a threat for the internal security and who was once convicted by the Military Court for hatching a dangerous conspiracy was first made the Chief of Peoples Guard in the name of the People's welfare and has gathered round him in the organisation all the notorious gangsters and Goondas of the country, trained them for murder hooliganism and terrorist activities, collected arms and thus created a terror for the internal security. When he had performed all these tasks of national terror he was given the responsibility of the Ministry of Internal Security so that he might use all the available official resources in completing the planning of running countrys security as well as the security of its people. Ever since Akbar Khan held the ministry his activities have been very mysterious. He is the only Central Minister who has been kept off the voice of Radio, the screen of Television, the pages of newspapers and the eyes of news Cameras. Activities and engagements of even the most insignificant ministers are widely publicized but Akbar Khan's face or his name is never brought before the people. This act of concealing and veiling him itself proves that his activities are hidden from the people and it is attempted that he must be kept aloof from drawing attention of the people." The incident of Iraqian Embassy was a test for Akbar Khan. The people were shocked to observe that Akbar Khan was nowhere to be seen in the whole propaganda campaign of the Government let loose from the ministerial level down to that of the Peoples Party workers although his reaction was expected to be first and prima as he happened to be the Minister‑in‑charge of Internal Security. His mysterious silence and again his inspection of the Intelligence Bureau and then at. once his proceeding on a month's leave are incidents too significant to be ignored in the context of the discovery of Russian Arms from the Iraqian Embassy. If we take into consideration Akbar Khan's one-month leave in order to grasp the incident of Iraqian Embassy we find some new aspects coming up which are indeed very alarming. According to B. B. C. the Iranian Intelligence had pre‑informed the Government of Pakistan about the Russian Arms. Iran had held Russia to be really responsible for this. Iranian newspapers say that Russia has been sending these arms to Pakistani for the last one year. Formerly these arms were carried to the dens near Qutar wherefrom they used to be dispatched to Pakistan. We had asserted in the very first part of our editorials in series on the conspiracy of arms that we must recognise the real enemy and that the Centre of Conspiracy is Russia and not Iraq." With regard to the second article, the one published on 24‑2‑1973, there is controversy between the parties with regard to the correctness of the English translation of the article annexed to the counter‑affidavit of the Home Secretary, Government of Sind, filed in Court on 21st March 1973. On behalf of the petitioners a separate translation was produced before the Court. However, for purposes of this judgment we may adopt the translation annexed to the Home Secretary's affidavit. This translation reads as follows: "This Tyranny Will Blossom Forth" "Sleeping and drowsing people of Pakistan; Today our culture and sense of decency has been buried deep. Today chaos and wilderness are dancing and humanity is singing its martyrdom. Barbarity and heartlessness is reigning and benevolence and gracefulness are being destroyed. Harken to This? God's noble creature, his faithful being a Darwesh‑like creature Mian Tofail Mohammad, the Amir of the Jammat‑i‑Islami of Pakistan has been undergoing what hardships? This embodiment of purity and virtuousity was subjected to humiliation when his sublime beard was pulled out and he was slapped on the face‑sanctified face, and his venerable personality was welcomed by filthy abuses; and this Mujahid who was following the path of God, was threatened with dire consequences of death. People: Islam is our Dear Democracy is our statesmanship and socialism is our Economic policy. Those who raise these slogans, question them is this their Islam? This is your Democracy? This is your Socialism? We spite and condemn this Democracy. We decry your Socialism. We declare la'anat on those persons who are a disgrace to Islam. And listen dagger drawn drunkards Tyrants. Hear with open ear. You have not insulted Mian Tufail but you have humiliated the Sunnat‑i‑Rasool. Now none elso can save you from the wrath of God. Your time hat\ almost arrived for a fall. The law of God is awaiting for retribution of your pernicious deeds. You have already moved mountains of terror tribulations on the people belonging to God Almighty. You have exhibited your great qualities of governances. Now God's soundless wand is to come in action soon. You will find no place for shelter‑where else can you escape its grasp? Zalimo (Tyrants). You shall have to account for the (innocent) and sacred blood of Doctor Nazir Shaheed, Khawaja Rafique Shaheed and Abdul Waheed Shaheed; and also for the blood of the innocent labourers of Sind; the students who were martyred in linguisitic disputes; then account for the woeful sighs of mothers and sisters; of the solicitations of the widows and of the pitiable voices who are down trodden; and now of the venerable Quaid of the Nation Mian Tufail Muhammad on whom barbarious torturous attacks were made ; for this too you shall have to render account. Power drunk Administrators, beware! Now we cannot even pray God to put you on the right path and save you from his anger ; you have by your misdeeds and degrading actions made our hearts bleed. Oh God: Save us from these Zalims (Tyrants). W e seek protection from you Oh Lord; against the Tyrannous and inhuman behaviour of these Rulers. Amin!"

3. Elaborate and able arguments were addressed to us by Mr. Khalid M. Ishaq and Mr. A. H. Memon, Advocate‑General of Sind on these contentions. In particular, Mr. Khalid M. Ishaq emphasized the contention that resort to the West Pakistan Maintenance of Public Order Ordinance 1960, to prohibit the publication of JASARAT is not permissible in the presence of a special law, that is, the West Pakistan Press and Publications Ordinance, 1963 (XXX of 1963). Mr. Khalid M. Ishaq supported his argument by reference to the judgment of their Lordships of the Supreme Court in Saiyyid Abul A la Maudoodi v. The Government of West Pakistan (P L D 1964 S C 673) in which Hamoodur Rahman, J.‑(as he then was) made the following observation: "If the intention was really to bring about an end of the Jamaat‑i -Islami as a political party upon these grounds, action should, in my opinion, have more appropriately been taken under the Political Parties Act, particularly, since the latter Act made express provision for its dissolution and grounds upon which action was sought to be taken really came within the mischief of section 3 thereof . . . . . . . . This is another aspect of the matter which does not appear to have received consideration in the High Courts, namely, as to whether where action producing the same result in pith and substance is possible under two different statutes upon the same grounds it would not be legitimate to hold that action should more appropriately be taken under the special statute dealing specially with the subject‑matter by expressly specifying the grounds upon which action can be taken and providing a special method of action rather than under a general statute, particularly, where the special statute provides a more beneficial remedy or method of taking action. In such circumstances I would have no hesitation in holding that where a special statute dealing with a special subject created special liabilities as also provided a special remedy or procedure for the enforcement of that liability then in order to bring about the consequences contemplated by that statute for the breaches of its provisions recourse should be had to that statute and to no other statute."

4. However, it is not necessary to decide all the contentions raised in this petition, as the judgment in this case can rest only on one question, that is, whether the impugned order is ex facie valid and in conformity with the provisions of section 6 of the West Pakistan Maintenance of Public Order Ordinance, 1960. With regard to this aspect of the case, Mr. Khalid M. Ishaq referred to the proviso of subsection (1) of section 6 of the Ordinance, which requires that no order made under subsection (1) shall remain in force for more than two months from the making thereof. To understand this argument, we may reproduce here the relevant part of section 6 of the Ordinance: "6. (1) Government or any authority authorised by it in this behalf, if satisfied that such action is necessary for the purpose of preventing or combating any activity prejudicial to the maintenance of public order, may, by order in writing addressed to a printer, publisher or editor‑ (a) . . . . . . . . . . . . (b) . . . . . . . . . . . . (c) . . . . . . . . . . . . (d) prohibit for a specified period the publication of any newspaper, periodical, leaflet, or other publication, or the use of any press ; (e) . . . . . . . . . . . . (f) . . . . . . . . . . . . Provided that when an order is made under clause (a), (e) or (d)‑ (i) no such order shall remain in force for more than two months from the making thereof; Mr. Khalid M. Ishaq referred. us to the judgment of a Division Bench of this Court, presided over by the learned Chief Justice of the High Court of Sind & Baluchistan in Muhammad Wassan v. Deputy Commissioner and District Magistrate, Sanghar (Constitution Petition No. 495 of 1972). Mr. Khalid M. Ishaq relied on the following part of this judgment: "We are, however, for reasons, which we are due to state, clearly of the view that the law does not authorise the period of detention to commence from the service of the order. The object of a law of preventive detention is not to punish but to prevent certain activities, which the law allowed the detaining authority to treat as sufficient basis for detention. It seems to us clear, therefore, that the period of time during which the order of detention has been passed under any such law is to be computed not as a quantity of time which the detenu must suffer in detention whensoever it starts but rather a period of time commencing at the beginning of that particular time and ending on a particular date. Obviously, therefore, when the detaining authority passes an order it has in mind a certain situation and comes to the conclusion that until a particular date it is necessary to curb the activities of the detenu. The case of a sentence by a Court is of a wholly different character; the purpose of such a sentence is to award punishment and it is obvious that the basis of punishment must be to mete out to the culprit a period of imprisonment such as the Court thinks is sufficient measure for the crime he has committed; of course maximum being set by the law . . . . In case of a detention, on the other hand, the foreseen situation is up to a given date although it can be expressed by a particular number of days weeks or months." This observation has reference to section 3(1) of the Ordinance, which reads as follows: "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, subject to the other provisions of this section, be specified in the order and Government, if satisfied that for the aforesaid reasons it is necessary so to do, may extend, from time to time the period of such detention for a period not exceeding six months at a time." Now, action under section 6 of the Ordinance is as much preventive as action under section 3 of the Ordinance, and, further, the proviso to subsection (1) of section 6 of the Ordinance expressly requires that no order made under this subsection shall remain in force for more than two months from the making thereof. Therefore, the observations in Muhammad Wassan v. The Deputy Commissioner, Sanghar are equally applicable to orders made under section 6 of the Ordinance prohibiting the publication .of a. newspaper. The Advocate‑General, however, contended that the observations made in this case must be considered in the light of the fact that the order of detention was made on 15th September 1972 and was to run for one the, and, by the time the petition came to be heard on 15th October 1972, the period of one month had already expired. According to the Advocate‑General, in this case, the period of two months during which the newspaper "JASARAT" cannot be published has not so far expired, and therefore the most that can be contended is that the period of two months shall remain in force from the date of the order and not from the date of the service of the order, and, in the instant case, the order was, in fact, served on the date it was made. It is correct that the instant case is different in this way from Muhammad Wassan v. The Deputy Commissioner, Sanghar. But the observations of their Lordships, which we have re‑produced above, are of general application, in that their Lordships have expressly held that the law does not authorise the period of detention to commence from the service of the order, as the object of preventive action is not to punish but to prevent certain activities. The Advocate‑General referred us to a Dacca case, Abdul Hannan and another v. The Government of East Pakistan and others (P L D 1959 Dacca 279) in which relying on The King v. Governor of Lewes Prison Ex parte Doyle ((1917) 2 K B 25), it was held that the Court may not interfere only if there are technical defects in the warrant of commitment. But the English case as well as the Dacca case are distinguishable. In the English case, which was found to be a case of commitment after conviction, it was held that, in such circumstances, the conviction itself must be looked at. In the Dacca case also, the detenu had been committed to prison after he had been found guilty and convicted under the Prevention of Smuggling Act by a Magistrate of first class. We do not think that these two cases would apply to an order made under a preventive law. The orders under a preventive law are an infringement on the basic liberties of a subject, and therefore the rule to be applied in such cases is that laid down in the following words in Dale's case by Cotton, L. J. "I quite agree with Brett, L. J., that when persons take upon themselves to cause another to be 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 matters of mere form." We may also refer to the observation of the Privy Council in Nazir Ahmad v. King‑Emperor (A I R 1936 P C 253(2)) that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Under section 6(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960, read with the proviso thereto, an order prohibiting the publication of a newspaper can be made effective for two months only from the date of the order, and not from the date of the service of the order. Apart from the fact that the period of time under a preventive order should not be computed as a quantity of time, the requirement of law itself is that the order should be effective for two months from the date of the making of the order. On its very face, the order in this case does not comply with this requirement, and is therefore liable to be quashed. Before we part with this case, we may note two contentions of the Advocate‑General. According to him, the petitioners are not aggrieved persons, as they are neither editors, nor publishers nor printers of the newspaper "JASARAT" who alone could have locus standi under the West Pakistan Press ands Publications Ordinance, 1963. But we are of the view that the petitioners No. 1, being the owners of the newspaper "JASARAT" can be treated to, be the aggrieved persons within the meaning of Article 201 of the Interim Constitution. The Advocate‑General's second contention is that the petitioners have not availed themselves of the alternative remedy of making B representation to the Government against the impugned order. But we are of the view that this objection cannot prevail in a case where the order is on its face repugnant to the provisions of the law under which it purports to be made. Accordingly, we are of the view that the order, for the reason that it is effective from the date of service of the order, and not made from the date of the making of the order, is ex facie invalid and is contrary to the require ments of section 6 of the West Pakistan Maintenance of Public Order' Ordinance, 1960. We accordingly declare that this order is without lawful authority and is hereby quashed. S. A. H. Petition allowed.