1982 P Cr (PLP)

The Government is further pleased to permit the interrogation of the above‑mentioned persons of the Assistant Inspector‑General of Police (Crimes) Muzaffarabad assisted by his staff as such interrogation is likely to lead to the disclosure of information which may help the effective defence and security of the State." The reproduction of the above orders of the Government is made just to determine their validity or otherwise in view of the section under which they are made. The section 16 of the Azad Jammu & Kashmir Main tenance of Public Order Ordinance, 1981 reads :‑ "Whoever‑‑‑ (a) makes any speech, or (b) by words whether spoken or written or signs or by visible or audible representations or otherwise publishes any statement, rumour report, shall be punished with imprisonment which may extend to three years, or with fine or with both if such speech, statement, rumour, or report‑ (i) causes or is likely to cause fear or alarm to the public or to any section of the public ; (ii) furthers or is likely to further any activity prejudicial to public safety or the maintenance of public order." Two of the applications were made by the very close relations of the detenus. The first application was filed on 24th March, 1982 at Mirpur and the second one on 3rd April, 1982 for release of the persons detained nemely Raja Muhammad Siddique Saoola and Muhammad Rafique Inqilabi. The third application by the detenus themselves dated 4th April, 1982 was forwarded to this Court by the Jail authorities which was received on 6th April, 1982. Two affidavits were also filed by the applicants controverting the allegations of the police which are stated hereto :‑ No counter‑affidavits were filed by the non‑applicants. After hearing the learned Advocate‑General and going through the records concerned with his help I find that police was unable to ascertain as to who was the person writing the pamphlets which were termed as anonymously written and enraging the public at large against the Govern ment thereby disturbing the public peace or order. We see that the impugned orders are not legal on their very face. No preventive detention could be ordered under section 16 of the Azad Jammu & Kashmir Maintenance of Public Order Ordinance. This is punitive section. After an application under section 491, Cr. P. C. was filed by Muhammad Hanif on 24th March, 1982 it seems that some amendments were effected in the impugned orders so as to bring the case within the mischief of section 3 of the Azad Jammu & Kashmir Maintenance of Public Order Ordinance. But section 16 of the Azad Jammu & Kashmir Maintenance of Public Order Ordinance was still allowed to remain in tact constituting the orders of detention. This amendment was effected at the level of the Home Secretary and no sanction for the amendment was accorded by the Government. Vide Notes 1 to 19 on the file of the office of the Home Secretariat. The sanction for the original orders in question was obtained on. 13th February, 1982 but no sanction of the Government regarding amendment in the impugned orders in relation to section 3 of the Azad Jammu & Kashmir Maintenance of Public Order Ordinance was obtained under which orders of detention can be made by the detaining authority. Here the detaining authority is the Government it is shown in Note No, 15 that an application against the impugned orders was moved in the Court wherein objections to the detention under section 16 of the Azad Jammu & Kashmir Maintenance of Public Order Ordinance were taken to the effect that no such detention could be ordered under section 16 of the Azad Jammu & Kashmir Maintenance of Public Order Ordinance and that at the same time it was also noted therein that it was necessary to provide grounds of detention to the persons detained. Evidently, this note was made in pursuance of application dated 24th March, 1982 filed by one of the applicants but the note is antedated as 10th March, 1982. How it could be possible to give this note on 10th March, 1982 wherein indication for application dated 24th March, 1982 was given. This note was agreed to by the Home' Secretary on whose instance the amendment was issued and the matrer was not brought to the notice of the Government and still it was shown in the amended orders that the Government was pleased to accord sanction to the amendment proposed. On perusal of the notes on the noting side of the file concerned it has become quite evident that note No. 15 was fabricated as it was antedated somewhere on or after 24th March, 1982 and so was done in case of grounds asserted to have been furnished to the‑ detenus at the time of their arrest. This was all fabricated and it was done so to show that grounds were communicated to the deten us well in time as soon as, they were arrested by the police. The persons detained who are now the applicants themselves are correct to say that the grounds whatever they may be, were furnished to them on or about 24th March, 1982 at Muzaffarabad. Note No. 15 while having formed opinion is advanta geously reproduced below :‑ Besides, there is no provision in law empowering the Government to authorise any police officer to interrogate a person detained. It is the District Magistrate or any servant of the Government referred to in subsection (2) of section 3 of the Azad Jammu & Kashmir Maintenance of Public Order Ordinance who may summon and interrrogate or cause the summoning and interrogation of any person detained under this section, if in his opinion, such interrogation is likely to lead to the discovery of some information which may enable the more effective exercise of powers under the Ordinance. This being the position of law, the interrogation of the persons detained was illegally ordered by the Government and that being obviously without a lawful authority suggests that detentions in question were made A in an unlawful manner. When a certain act is done by an authority in a manner unlawful, it becomes illegal, that is to say, the impugned detentions become illegal and unlawful. Again we see that grounds of detention are essentially required to be communicated to the persons detained as soon as may be and there should be no delay in delivering grounds to the persons detained, This is a requirement of the Constitution. The statutory provision was also made in the Ordinance itself where 15 days period was placed at the disposal of the detaining authority within which the grounds of detentions require their delivery to a person or persons detained. Though constitutionally no fixation of such a period is desired, yet I find that no ground's were even furnished to the persons detained within a period of 15 days from the date of their arrest as indicated above. Vide section 4(5) of the Interim Constitution Act, 1974 and section 6(2) of the Ordinance, the mandatory B provisions of which were violated by the detaining authority in not communicating the grounds to the detenus within a reasonable time so as to enable them to make representation before the Government. Such failure on the part of the detaining authority to comply with the mandatory requirements of the Constitution and the law concerned renders the impugned orders of detention unlawful ab initio. The interrogation of the persons detained though illegally made by the police, yet we find that police was unable to fix the responsibility of `C the pamphlets seized on the persons detained. No propagation of the pamphlet was even proved having been made by the persons detained. All the acts performed by the executive authorities in this case indicate that the persons detained were punished under section 16 of the Azad Jammu & Kashmir Maintenance of Public Order Ordinance without a trial. That being so, their detention cannot be allowed any longer. In the result, these applications succeed and are accepted. The immediate release of Raja Muhammad Siddique and Muhammad Rafique Inqilabi, who are the persons detained illegally; is hereby ordered. The orders of immediate release of the aforesaid persons shall issue to the Superintendent Jail, Muzaffarabad to comply with this order per saltum. Petitions allowed.