P L D 1954 Lahore 142 (PLP)

S. A. RAHMAN, J.‑This order will dispose of a habeas corpus petition presented on behalf of Sayed Sibte Hasan, a detenu under section 3 of the Security of Pakistan Act, 1952, (herein. after referred to as the Act). He is being detained in this Province though the order in question was passed by the Central Govern ment. Notices were, therefore, issued on the petition to the Advocate‑General, Punjab as well as to the Advocate‑General Pakistan and they both appeared to oppose the petition. The facts which are now admitted by both parties are that the petitioner was first arrested in Lahore on the 19th of April 1951, on a warrant issued under section 3 of the Punjab Public Safety Act by the Punjab Government. Contemporaneously, it seems, an order was passed by the Central Government (Defence Ministry) on the same date, at Karachi, directing the arrest and detention of the petitioner under the Bengal State Prisoners Regulation, 181.8. This order, however, was not served on the petitioner till sometime in May 1951. The order under the Bengal Regulation was withdrawn by the Central Government on the 29th of August 1951, on the ground that the Central Government was satisfied that reasons for placing Sibte Hasan alias Masud alias Arshad alias Murad alias Imtiaz alias Shaukat, son of Ali Mehdi, formerly of Azamgarh. U. P., now of Lahore, under further restraint under the provisions of Bengal Regulation had ceased to exist. It was, therefore, directed that Sibte Hasan be released from such personal restraint forthwith. The original order under the Bengal State Prisoners Regulation had mentioned that it was necessary to place the petitioner under personal restraint at the Lahore Fort for reasons connected with "defence". After the withdrawal of this order, another order was passed by the Central Government (Ministry of the Interior, Home Division), on the 29th of August 1951, under section 3 of the Pakistan Public Safety Ordinance 1949 (XIV of 1949) for detention of the petitioner in any jail in the Punjab, after arrest by an officer not below the rank of a Sub‑Inspector. The reason given was that the Central Government was satisfied that it was necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the public safety and the maintenance of public order. Then there is an order dated the 6th of March 1952 by the Government of Pakistan, Ministry of the Interior, purporting to be passed under section 3 of the Pakistan Public Safety Ordinance, 1952, (VI of 1952), directing Sibte Hasan petitioner's detention in any jail in the Punjab, for reasons similar to those mentioned in the order dated the 29th of August 1951. Apparently Pakistan Ordinance VI of 11952 had replaced Pakistan Ordinance XIV of 1949 which had been declared ultra vires the Central Government by the Federal Court of Pakistan, on a habeas corpus petition of Sabbomal Gyanchandani of Sind, on March 3rd, 1952. The order dated the 6th of March 1952 was succeeded by another order dated the 24th of May 1952 passed by the Government of Pakistan, Ministry of the Interior, under section 3 of the Security of Pakistan Act, 1952 (XXXV of 1:952) which had by then replaced the previous Ordinance. In this order also it was declared that the Central , Government was satisfied the, the petitioner was acting in a manner prejudicial to the security of Pakistan and that it was necessary to prevent him from acting in the manner aforesaid. As required by section 6 of the Act, the grounds of detention were also furnished to the petitioner by an order of the same date. This order recites as follows ;‑ "The Government of Pakistan are satisfied that you were engaged, in conspiracy with other Communist leaders, in planning to overthrow the Government by law established in Pakistan. They were and are, therefore, satisfied that your activities were and are prejudicial to the security of Pakistan. In pursuance of section 6 of the Security of Pakistan Act, 1952, you are being informed of the above‑mentioned reasons for your detention to enable you to make, if you wish, a representation in writing against the order of detention. You are also hereby informed that you have the right to make such a representa tion." The petition attacks these grounds of detention as vague and indefinite and, according to the petitioner, as totally baseless. The petition recites that as far as the petitioner could guess, the Government of Pakistan by implication were probably referring to the so‑called Rawalpindi Conspiracy‑Case in which two com munist leaders bad been prosecuted. He has hazarded the guess that the petitioner was being charged with complicity in that plot along with those communist leaders and emphatically denied the allegation. He pointed out that he had not been put on trial along with those leaders in the Rawalpindi Conspiracy Case or even subsequently. It was suggested that the real motive behind the petitioner's detention was a desire to deprive him of the opportunity to carry on his political and journalistic activities which constituted his constitutional right. He avowed himself to be a communist, but protested that he was a loyal and peace‑loving citizen of Pakistan and bad never done anything to the prejudice of the safety and the security of Pakistan. He was working as the Editor of the communist party newspaper at the time of his arrest and had championed the cause of peace both at home and abroad In any case it was added that even if his activities were prejudicial to the security of Pakistan at the time of his arrest, he failed to comprehend how his activities continued to have the same character while he was under detention for the last two and a half years. He, therefore, urged that his detention was unlawful and mala fide. Subsequently his learned counsel, Mr. Mahmud Ali, was allowed to add the following additional grounds to support the petition :‑ (1) That the petitioner was being detained for purposes ulterior to the Act. (2) That the continuation of the detention is in any case illegal. (3) That the orders of review made by the Central Govern ment under section 8 of the Security of Pakistan Act were not in accordance with law and vitiate the detention. Section 6 of the Act requires that in every case where a detention order has been made under clause (b) of subsection (1) of section 3, as in the present case, the authority making the order shall, within one month of the date of the order, communicate to the person affected thereby the grounds on which the order has been made, to enable him to make, if he wishes, a representa tion in writing against the order and it shall be the duty of such authority to inform the person concerned of his right of making such representation and to afford him the earliest opportunity of doing so. The proviso to this section declares that nothing in the section shall require the authority to disclose facts which it consi ders to be against the public interest to reveal. Section 7 (1) of the Act lays a further duty on such authority to place before an Advisory Board constituted under section 5 of the Act, within three months of the issue of the order, the grounds on which the order had been made and the representation, if any, made by the person affected by the order. Section 8 of the Act provides that the Advisory Board shall, after considering the materials placed before it and, if necessary, after calling for such further infor mation from the Government or from any person concerned or affected, as it may deem necessary, submit its report to the Central Government. Subsection (2) of this section declares that the report of the Advisory Board shall specify in a separate part thereof the opinion of the Board as to whether or not there is sufficient cause for the passing of the order and except for that part of the report in which such opinion of the Advisory Board is specified, the report shall be confidential. Subsection (3) of the section lays down that a person against whom an order under clause (b) of subsection (1) of section 3 has been made, shall not be required or permitted to attend in person or to appear by any legal representative before the Advisory Board or to produce any witness before that Board. Subsection (4) finally enacts that on receipt of the report of the Advisory Board, the Central Government shall consider the same and shall pass such order thereon as appears to it to be just and proper. To this a proviso is added to the effect that the Central Government shall review all such orders every six months from the date of the order, unless revoked earlier, and shall, in the case of an order under clause (b) of subsection (1) of section 3, inform the person affected by the order, of the result of the review. Section 9 of the Act contains a special provision for detention in certain contingencies even without consultation with the, Advisory Board for a maximum period not exceeding one year from the date of detention. It is clear that by serving the petitioner with the grounds of his detention under section 6 of the Act on the same day as the order of detention was passed, there has been formal compliance with the provisions of that section. It is, however, urged that the grounds mentioned are indefinite and vague and, therefore, do not constitute sufficient or substantial compliance with the law It is stressed that no particulars of the alleged co‑conspiracy were given. No time or place or names of the co‑conspirators were furnished and consequently the petitioner was left very much in the dark as to the grounds of his detention. It was contended that this procedure made the right of the petitioner to make a representation illusory and the detention was consequently bad. It was pointed out that there were no express words do the alleged grounds suggesting that the petitioner contemplated the overthrow of Government by unlawful means, In this connection reliance was placed on Inder Parkash v. Emperor (A I R 1949 All. 37 (S B).), S. G. Sardesai v. The Provincial Government (A I R 1949 All. 395 (S B).), Durgadas v. Rex (A I R 1949 All. 148 (F B).), In re Rajdhar Kalu Patil (A I R 1948 Bom 34 (F B).), In re Atmaram (A I R 1951 Bom. 266 (D B).) Jusab Alatakha v. The State (A I R 1951 Saurashtra 13 (D B).) Kulamoni Mohanty v. The Sate (A I R 1951 Orissa 20 (D B),) and Ananta Charan v. The State (A I R 1951 Orissa 27 (D ‑B).). Out of the cases cited, Nos. 1, 2 and 3 are decisions under the U. P. Maintenance of Public Order (Temporary) Act (IV of 1947). That Act is apparently not in pari materia with the Security of Pakistan Act, 1952. The U. P. Act in its section 5, makes it incumbent upon the District Magistrate not only to supply the grounds on which the order of detention is based, but also such other particulars as may be necessary in his opinion to enable the detenu to make a representation. The language of that Act is much wider than the corresponding provisions of the Pakistan Act. These cases, therefore, do not appear to me to be very much in point. The fourth case is from Bombay and pertains to the Bombay Public Security Measures Act (VI of 1947). The Act itself is not available to me, but from the judgment of the Bombay High Court it appears that section 3 of the Act lays a duty upon the Government to communicate to the person affected by the order of detention, the ground on which the order is made. It was remarked by the learned judges in that case that the grounds thus furnished to the detenu must be clear, precise and accurate and that the object of furnishing these grounds was to enable the detenu to make a representation to the Provincial Government against the order. It was observed that the grounds must be such as to make it clear to the person detained what he is charged with and what has moved the Government to deprive him of his liberty. At the same time the learned judges expressed themselves as follows in the course of their judgments‑

"It is also true that Government is also given the discretion to furnish only such particulars as are in its opinion sufficient to enable the detenu to make a representation to the Govern ment. Without encroaching upon the right of Government to decide what particulars to furnish and what particulars not to furnish, it is necessary to state that the grounds must be given with sufficient particularity for them to serve the purpose they were intended to serve. In our opinion grounds which are vague and indefinite and which contain no particulars whatever are no grounds at all within the meaning of section 3 of the Act. I notice, however, that the learned judges considered one of the grounds in that case, which merely charged the detenu with having "threatened public peace and tranquility of the Amalner Town by using violent methods" as a perfectly valid ground, though it contained no specification of dates, places and even the exact methods attributed to him. The fifth case relates to preventive detention under the provisions of the Indian Preventive Detention Act, 1950. That Act also requires grounds of detention to be furnished to the detenu. On the facts of that case, it was held that the grounds supplied to the detenu were not in compliance with the constitutional and statutory provisions and were insufficient to enable the person affected to make a representation to which he was entitled under the Act and the Indian Constitution. The reference apparently is to the fundamental rights incorporated in the Indian Constitution. The remaining three cases are also under the same Indian Act. In each of these cases it was ruled that vague and indefinite grounds would invalidate a detention. The question really turns on the facts of each particular case. Even in Durgadas v. Rex (Supra), where the learned judges of the Allahabad High Court were interpreting the provisions of the U. P. Act, whose language, as pointed out above, is wider than that of the Pakistan Act, it was remarked as follows :‑ "What information should be conveyed to the detenu which would be sufficient to enable him to make a proper representa tion would depend in each case upon the circumstances of that case and upon the grounds that had satisfied the detaining authority of the necessity for such detention. It is difficult to lay down any hard and fast rule about it." I find myself in respectful agreement with that view. It was recognised in that case that the grounds for satisfaction of the authority concerned may be the past activities of the detenu, or information about his future intentions, or his association with others who had been acting in a prejudicial manner. The test, therefore, is whether in any particular case the grounds supplied to the person affected by the order of detention were in facts such as would enable him to make an effective representation against his detention, to Government or not. It is argued on behalf of the Central Government that the objection taken in the present case was merely of a formal character and the petitioner understood very well what he was being charged with. The representation that he made to Government, it is pointed out, correctly referred to the fact that Government had in mind what is now known as the Rawalpindi Conspiracy Case. The language used by the Central Government, it is admitted, was not as precise and exact as it might have been. But it left the petitioner in no doubt as to what the accusation, against him was. The implication of unconstitutional methods is clear from the word "conspiracy" itself and the word "overthrow" used in the grounds would also connote seditious activity. The petitioner has further called some evidence in this Court to establish the alleged mala fides of his detention and it is in fact his case, as revealed in that evidence, that he was told while in detention that he was being detained on account of his association with the Rawalpindi Conspiracy Case prisoners. In these circumstances I am not impressed by the objection that the grounds furnished to the petitioner left him without the opportunity to make an effective representation. It is true that it is not stated in the grounds as for when, where and how the petitioner associated himself with, the activities of the Rawalpindi ‑Conspiracy‑Case prisoners, but it was not necessary for Government to reveal the evidence in, its possession which in its opinion would be against the public interest to disclose, by virtue of the proviso to section 6 of the Act. The legislature has provided sufficient safeguards in the Act to ensure that the detention is ordered on adequate grounds. The Advisory Board's opinion is normally to be obtained within three months of the detention order. The personnel of the Advisory Board is to be selected from persons having the highest judicial qualifications. The Advisory Board can call for such other information as it think fit from various sources before submitting its opinion to Government. After giving my best consideration to the facts and circumstances of this case, I do not find that the petitioner was prejudiced in the matter of submission of his representation against his detention, by the nature of the grounds furnished to him. I next take up the question of made fides or ulterior motives. The petitioner examined in this case, Mian Anwar Ali. Inspector General, Pakistan Special Police, Karachi, Mr. Muhammad Asghar, D. S. P, Special Duty, Lahore and Mr. Zulqarnain. Superintendent of Police, C. I. D., Lahore, besides giving his own statement in support of his contention. Mian Anwar Ali was Inspector‑General of Police, Punjab, in addition to holding the office of D. I. G., C. I. D., in 1952 and 1953, for considerable periods. He testified that Sayed Sibte Hasan was first detained under the Punjab Public Safety Act and subsequently under the Bengal State Prisoners Regulation. He admitted that the first arrests in connection with the Rawalpindi Conspiracy Case were made on the 9th of March 1951 and subsequently other arrests also took place. He saw the petitioner several times while he was under detention in the Lahore Fort. He acknowledged it as a fact that Syed Sibte Hasan had been sent for identification by witnesses at a parade held by a Magistrate in connection with the Rawalpindi Conspiracy Case and that later he was not sent up for trial. The witness had himself interrogated him about that case, but denied that he ever told him that he had been originally arrested in connection with the Rawalpindi Conspiracy Case. On the contrary, he made it clear that the petitioner's arrest was initially due to other reasons and later, some information had come to light showing his connection with the Rawalpindi Conspiracy Case. It was Mr. Muhammad Asghar, D. S. P., Special Duty Lahore, who had first arrested the petitioner under the Punjab Public Safety Act. He says he did not arrest him under the Bengal State Prisoners Regulation nor did be ever tell the petitioner during his interviews that he had with him in the Lahore Fort, that he had been arrested in connection with the Rawalpindi Conspiracy Case. Mr. Zulqarnain also could not recall having told the petitioner anything to that effect. The petitioner's statement, to the contrary, does not impress me as compared with the clarification of the position made by Mian Anwar Ali. The argument in consequence that really the detention of the petitioner was from its very inception, on account of the petitioner's alleged connection with the Rawalpindi Conspiracy Case and that the order passed by the Central Government under the Bengal State Prisoners Regulation having b3en withdrawn on the plea that reasons for his detention had ceased to exist, his subsequent detention was male fide, falls to the ground. There is nothing indeed in the evidence to show that the detention of the petitioner by the Defence Department of the Government of Pakistan under the Bengal State Prisoners Regulation, had anything to do with the Rawalpindi Conspiracy Case. On the contrary, the order itself mentioned reasons of "defence" as the ground for placing him under restraint. The withdrawal of the order under the Bengal Regulation, consequently, does not affect the position. In my opinion, it was open to Government to detain the petitioner for his activities, because of his association with certain persons who were tried in the Rawalpindi Conspiracy Case, although there may not have been enough judicial evidence to secure his con viction provided they were satisfied that his being at large would be prejudicial to the safety of the State. His original detention and arrest not being motivated by anything connected with the Rawalpindi Conspiracy Case and no reference being made in the order under the Bengal Regulation to such a conspiracy, the bona fides of the subsequent detention are really not open to question, on the mere plea that that order had been with drawn. The contention was then advanced that action under the Act was intended to be preventive rather than punitive and an order of detention could not have been passed in respect of a person who was already under detention and, therefore, could not from the very nature of the case, have engaged in any subversive activity prejudicial to the security of Pakistan. Reference was made in this connection to Haider v. State (A I R 1952 Assam 175 (S. B).). It would, however, in my opinion, be open to Government to consider the past antecedents of the petitioner to decide whether he was in their opinion a person likely to act in a manner prejudicial to the safety or security of Pakistan. This is in effect what they seem to have done and the Court cannot substitute its own opinion for that of the Government. I do not see any force in this objection. Government, however, would be well‑advised in giving serious consideration to the question whether they should afford a locus paenitentiae to the petitioner after some time by releasing him and putting his professions of loyalty to the State, to the test of actual experience. Mr. Mahmud Ali next argued that the statute provided for a review of all orders of detention every six months from ‑the date of the passing thereof and this the Government bad failed to do. He invoked to his aid the proviso to subsection (4) of section 8 of the Act in this connection.,, In my view, the contention is based on a misapprehension and misconstruction of this proviso. The expression "such order" occurring in the proviso has reference, in my opinion, to the order passed under the substantive part of subsection (4) of section 8 and not to the original order of detention The assumption, therefore, that the original order of detention is to form the subject of a review every six months is without substance. All that is necessary under the statute is that an order passed by the Central Government on receipt of the report of the Advisory Board, should be reviewed every six months and in addition, where there is as order of detention passed under clause (b) of subsection (1) of section 3, the result of the review is to be communicated to the detenu. What happened in the present case was that the Government, after the passing of the order of detention on the 24th of May 1952 under section 3 of the Act, referred the matter to the Advisory Board for opinion, on the 3rd of August 1952. This was done within the statutory period of three months. The opinion of the Board was received by Government on the 13th of September 1953 and a representation from the detenu was received on the 24th of September 1952. A second reference was then made to the Advisory Board so that the representation made by the detenu should also be considered. In this Government seem to have acted fairly. The final opinion of the Advisory Board was submitted to Government on the 17th of January 1953. On the 11th of March 1953 the Government passed an order confirming the previous detention order after taking into consideration the two reports of the Advisory Board. The result of this order appears to have been intimated to the petitioner by means of a letter dated the 13th of March 1953 in which the Government, however, mistakenly, as it appears, represented the order in question to be one passed under the proviso to sub section (4) of section

8. It was not actually a review order but an order passed on the opinion of the Advisory Board and the mis -description of the provision of law under which it was passed, does not really invalidate it. A review order had to be passed within six months of the 11th of March 1953 and this was apparently done on the 10th of September 1953, within the time allowed by law. The result of this review was sent to the petitioner during the pendency of the present proceedings. It is conceded that a letter embodying the result of the review has been received by the detaining authorities in the Punjab but the petitioner declined to take delivery of it on account of the fact that his petition was pending in this Court. There has been consequently no contraven tion of the mandatory provisions of subsection (4) or the proviso appended to it. Mr. Mahmud Ali also attempted to raise the question of vices of the Pakistan Security Act, 1952. His point was that Entry No. 1 in list 1 of Schedule VII to the Government of India Act, 1935, as adapted for Pakistan, did not empower the Central Government to enact any legislation concerning preventive deten tion, for reasons connected with the security of Pakistan. However, he seems to have referred to item No. 1 in list 1 of the 7th Schedule, as it originally stood, whereas it has been amended so as to specifically include "preventive detention for reasons of state connected with defence or external affairs, for the security of Pakistan or any part thereof as well as persons subjected to such detention". In the face of this amendment, the argument is devoid of all merits. Lastly, Mr. Mahmud Ali attempted to argue that the representation of the petitioner had been delayed in transmis sion to the Central Government, that an unconscionably long time had been taken in referring the matter to the Advisory Board and passing orders on receipt of its opinion anal that the delay in this behalf was sufficient to vitiate the detention. He suggested that Government could not prolong a man's detention unreasonably by such delays. This is, however, a new point which was not taken in the original petition or even in the additional grounds which were permitted to be added later. I am unable to allow learned counsel to raise this point at the fag‑end of the case. I would, however, like to impress upon the authorities concerned the desirability of dealing expeditiously with all papers concerning the detenu so as to avoid legal complications. In view of the above discussion, the petition fails as it cannot be held that the petitioner's detention is in any way illegal or improper. It is hereby dismissed. The result will be communicated to the petitioner. A. H, Petition dismissed.