1973 P Cr (PLP)

KHAWAJA MUHAMMAD YUSUF SARAF, J.--These are four certi ficated appeals against an order passed by Mr. Justice Ch. Rahim I; ad Khan in four applications under section 491, Cr. P. C. The detenus Mr. Ghulam Mohammad Mir, Mr. Soofi Mohammad Zaman, Mr. Mohammed Sabir Ansari and Mr. Mumtaz Ahmad Hashmi are members of the Plebiscite Front which has to be distinguished from the Plebiscite Front across the Cease-fire-Line headed by Mirza Mohammad Afzal Beg. While the petitions were pending bef6re the learned Single Judge, the President through art Ordinance added q new subsection to section 491 which is reproduced below :- Nothing in this section applies to persons detained under the Azad Jammu & Kashmir Civil Defence Rules, 1962 or under any other law relating to preventive detention as may, from time to time, be specified by the Azad Government of the State of Jammu & Kashmir." The learned Judge did not record any evidence; he dismissed the petitions as he was of the opinion that the jurisdiction of the Court to entertain such applications stood barred. The petitioners' contention before us is that they or their political activities have never posed any threat to the security of the State; that theirs is a bona fide Political group whirl is behind no one in their national sentiments against India : that they are political critics of the present Government and had vehemently opposed it at the polls and that they have been detained under the garb of Civil Defence Rules partly to be silenced and partly to settle the partisan score. On the contrary the Govern ment claims that the group was responsible for the Indian plane "Ganga" incident and that it was being financed, managed and controlled by a foreign power. What the truth is, we are not concerned with at this stage. The appeals before us are directed against the summary dismissal of their petitions without recording any evidence. So what we are called upon to decide in these appeals is as to whether the peti tioners are entitled to lead evidence in support of their contention that the Government had acted male fide; that they could not be detained under the Civil Defence Rules or that no emergency was in existence ; in other words as to whether under the Presi dential Ordinance, the petitioners were barred from doing so ? It is not for the first titre that section 491 was expressly made inapplicable to a certain detention. In subsection (3) one finds that it was also made inapplicable to Bengal State Prisoners Regulation, 1818, Madras Regulation No. 2 of 1819, Bombay Regulation 25 of 1827, the State Prisoners Act of 1850 and the States Prisoners Act of 1858. In Mr. Chitlay's Commentary on the Code of Criminal Procedure appears the following passage which is of interest for purposes of the decision of these applications :-. "Where a person is detained under the Bengal State Prisoners Regulation, 1818, the Court cannot exercise any jurisdiction under this section in the matter once it is satisfied that the deten tion is under that Regulation. Something more than allegations that a person is being "illegally, or improperly detained," under the Regulation is necessary before the Court can get over the bar to jurisdiction imposed by subsection (3). The Court might, however, exercise the jurisdiction under this section if it be shown that the applicant was a person to whom the Regulation could not apply. In such a case there would be no detention, legal or illegal, under Regulation No. 3 of 1819." Thus according to this passage which is based on a ruling of certain Court though the citation is missing in the book, it is open, even to a prisoner detained under any such Act to which section 491 has been made inapplicable, to come to the High Court and show that he is not detained under the said law or that he was a person to whom the said Law did not apply. Obviously, the executive has been armed with the powers of preventive detention under the Civil Defence Rules for purposes, strictly falling within the four corners of the said Rules. It does not at all stand to reason that the State has negatived a citizen's liberty for no reasons at all or that the executive has the power to arrest citizens for reasons other than those which could justify doing so under the Civil Defence Rules and by simply showing the arrest as having taken place adder the Civil Defence Rules, could protect not only its own illegal action also frustrate the duty cast upon this Court under section 491 to ensure that no citizen's liberty is taken away except in accordance with law. If we accept the interpretation put forward on behalf of the Government, we would be failing in our duty to uphold the Law of the land and the fundamentals that brought this State into being. If the most solemnly entered agreements can fail on account of fraud or mala fides we do not see any reason why a mala fide exercise of power by the executive in depriving a citizen of his liberty cannot be gone into simply because the authority has the con venience or the resourcefulness of showing the arrest as having been made under the Civil Defence Rules. Irrespective of the merits of the cases before us, we may point out that in Afro-Asian countries, free as they are only recently from foreign domination, it must take sometime to bring the desir ed level-headness both in the opposition as well as the parties in power. The degree of their respective sense of responsibility' vis -a-vis each other leaves much to be desired. Although the pattern of Governments is democratic, the concept still is essentially one of absolute rule. Vast arbitrary powers affecting citizens' funda mental rights, are invested in the Executive which in effect means the party in power. Before 1947 these laws used to be condemned as black laws from every political pulpit but the same politicians began resorting to them as soon as they got the reigns of Government. A black law is essentially a black law and it is no consolation that instead of the foreigners, it is now being handled by our own people. The political values seem to have dete riorated since independence. The party heading the Executive being in majority in the Legislature, is able to acquire arbitrary powers of preventive detention in the name of national security or public tranquillity but more often than not, uses it against its own critics. A sad spectacle is the unending tendency to condemn each other as a traitor as if patriotism too were a commodity of which anyone could have a monopoly. In this distressing situ ation the Judiciary alone could, at least maintain some dependable balance and by affording protection against factional persecution could help in the cultivation and consolidation of broader national unity and strengthen all sections basic loyalty to the country and its nationhood. The tenancy to prevent, by legislation, recourse, to the administration of justice, apart from frustrating the aggriev ed person's impulsive urge to complain to a tribunal of his choice and thus give him a sense of valued citizenship, destroys the most important foundation of the modern society-respect for law, because a law which can be used to deprive a citizen of his liberty, while at the same time preventing him from regaining it by recourse to tribunals commanding his confidences the negation of all that the civilized law stands for. After all why is the Executive branch of the Government keen to prevent by hook or crook, the justifiability of its preven tive detention orders? The explanation normally given is that the Judge asks for proof. And precisely that is the reason why it should be justifiable. The petitioners have as well challenged the Ordinances, making section 491, Criminal Procedure Cods, inapplicable to detention under the Civil Defence Rules, on the ground that no emergency was in existence in Azad Kashmir. The preamble of the Ordi nance says :- "Whereas a proclamation of emergency has been issued by the President ; And whereas the Legislative Assembly is not in session and the President is satisfied that circumstances exist and an emer gency has arisen which renders immediate legislation necessary; Now, therefore, in exercise of the powers conferred by sec tion 24 of the Azad Jammu & Kashmir Government Act, 1970 and all other powers enabling him in that behalf, the President is pleased to make and promulgate the following Ordinance." Section 24 is reproduced below :- "The President may, in the case of emergency, make and, promulgate Ordinances for the peace and good Government of Azad Jammu & kashmir and an Ordinance so made shall, for the space of not more than six months from its promulga tion, have the like force of law as an Act passed by the Legis lative Assembly; but the power of making an Ordinance under this section is subject to the like restriction as the power of the legislative Assembly to make laws; and any Ordinance made under this section may be controlled or superseded by an Act of the Legislative Assembly." It will have been seen that the President's power to promulgate Ordinances is, unlike Pakistan, not dependent upon the Assembly not being in session. In Pakistan, under the Consti tution of 1962, the President could issue Ordinances only when either the National Assembly stood dissolved or was not in session but even then the word "emergency" was not used anywhere. Does it mean that in Azad Kashmir the Constitution has given the President a wider or a restricted power? It seems that although it is wider in the sense that he enjoys the power of Ordinance making even when the Assembly is in session, it is really restric tive because it is available only in case of an emergency. The word emergency is not defined in the Act. There is a section (36) which deals with the President's power to declare a state of Emer gency. It is correct that the term emergency as used in section 24 cannot be taken to mean Emergency within the meaning of section 36 for the simple reason that the latter section was added through an amendment in 1971. What does the term then mean ? A reference to the section will show that the objects to be achieved by the President's Ordinance-making power is to secure "peace and good Government," When we recall that this power is also dependent upon the existence of an emergency, the term "Peace" at once brings to our mind a state of war, or internal dis turbance or a civil commotion or something extraordinary of the like nature. Again the Constitution instead of using the word "or" has used the word "and" between peace and Government. This shows that even the term "good Government" has to be seen and interpreted in the context in which the Constitution has used the Word "Peace"' Even if, for the sake of argument, it were supposed that the term "good Government" should receive an independent meaning, it is doubtful, to say the least at this stage, that an Ordinance of this type can be termed as aiming at securing "good Government," The word "emergency" has been derived from the Latin word `emergency' ; e" means is out" and "mergere" means "to dip or to plunge". Webster has therefore defined the term "emergency" "an unforeseen combination of circumstances which call for immediate action; also, less properly, exigency." "Emergency measures have been defined as "laws that are passed by Legislature under the war Power of Constitution or on occasion involving the preservation of the public peace, health or safety". The Shorter Oxford English Dictionary has defined the term emergency" as the "sudden and unexpected occurrence of a state of things ; a juncture that arises or crops up; a sudden occasion (hence erroneously used for pressing need)." Therefore, even if the term "emergency" as used in the section, is for pur poses of these petitions, given an ordinary dictionary meaning such as the unavoidable necessity for such a legislation, the question still arises as to whether there was a necessity or not and if there was, whether it was really unavoidable and obviously, these again, are questions of fact which can be properly gone into only after evidence is led by both sides. The power of law-making vests in the Legislature. To delegate it to the Executive is by itself an extraordinary measure. If the Executive is to have unlimited powers of legislation, what us then is to have a Legislature? It runs counter to both the Presi dential as well as parliamentary forms of Government. Since the power enjoyed by the President under section 24 is restrictively enabling, it can be exercised only if it can be justified on the grounds of emergency. It may not necessarily mean the pre -existence of a State of Emergency within the meaning of section 3 but all the same, it must be something more than the conve nience, inconvenience, or the dictates of factional politics. A perusal of the Ordinance shows that it refers to the existence of the promulgation of emergency issued by the Presides and since this has been mentioned in the preamble of the Ordinance, it also is of vital importance in the matter. The fact that a citizen, like the petitioners, whose liberty has been taken away is entitled to challenge the existence of an emergency which has deprived him of his right of recourse to fundamental or ordinary law of the land, is established by authority and in this connection, we may refer to A I R 1930 Lah. 781 and A I R 1931 Bom.

57. It was observed by Bhide, J. in the Lahore case "The existence of as emergency and the purpose of an Ordi nance can be looked into by a Court of law. If, however, there are circumstances which are reasonably capable of being looked upon as giving rise to an emergency, the Court will not be justified in interfering even if it a inclined to take a different view on the facts because Legislature has invested the Governor- General with a discretion in very wide terms to exercise his powers under section 72 and hence his decision is entitled to great weight." The Bombay case was heard by a Special Bench of three Judges, one of them being Chief Justice Beaumont. The question involved again was of the powers of the Governor-General under section 72 of the Government of India Act. It was held :- "Section 72 applies in cases of emergency (and the question whether an emergency exists or not is one of fact which the Courts can enquire into. But inasmuch as the Governor-General is the person who must, in the first instance, decide whether or not there is any emergency he may frequently have information which, in the public interest, he may be unwilling to disclose, all that the Courts can do is to enquire whether there is evidence upon which the Governor-General may reasonably conclude that an emergency exists. If that question be answered in the affirmative, there is an end of the matter." In our view, therefore, the petitioners are entitled to show that no emergency existed in Azad Kashmir which could justify the President either in issuing such a proclamation under section 36 or promulgating such an Ordinance under section

24. Whether they are able to show that or not, is a matter with which we are not concerned at this stage, because it is for the learned Single judge before whom the petitions of habeas corpus were filed, to give a finding on this point also. Depriving citizens of even the limited rights enjoyed by them under section 491, Criminal Procedure Code is admittedly an extra-ordinary step. The wisdom of making inapplicable to detention under Civil Defence Rules a section which was enacted by our erst while English masters at a time when it was seditious even to talk of freedom and liberty has certainly not dawned upon us. One may ask: Does it in the ultimate analysis make any difference? Many an Acts dealing with preventive detention were enforced by the Central and Provincial Governments both before as well as after 1947. Recourse to section 491, Cr. P. C. was not directly denied. The Governments adopted another device of circumventing the application of section 491 by providing in these Acts that orders passed under them were not liable to be challenged in any Court which clearly meant that they could not be challenged in the High Court either under section 491, Criminal Procedure Code or any other section or law that could be made use of. For instance under the Defence of India Rules, detention under Rules 26 and 129 were similarly protected but in A I R 1943 Bom. 194 it was held by a Division Bench that it, was open to a person detained under Rule 26 of the defence Rules to challenge the bona fides of the authority and to show that the Government was really not of that opinion but was induced by some different reasons to detain him. Similarly in A I R 1943 All. 377 it was observed that :- "Where even though the forms of law have been observed, the detention constitutes a clear fraud on an enactment, or amounts to an abuse of the powers given to the executive by the Legislature, it is the duty of the Court to step in and to order that the persons detained be set at liberty." It was held in A I R 1946 Lah. 36 that :- "Even when the arrest is made under Defence Rules which cannot be challenged in any Court, if it is found that the arrest had been made with bad faith for a collateral purpose and was hence an abuse of power and fraud upon the Statute, the relief prayed for could be granted." It was a case under Rule 129 of the Defence of India Rules. The learned Single Judge has relied upon A I R 1946 F C 2, In this case the detenu' was detained under the Bengal Regulation. It was held that :- "If a man is found to be properly detained, the Court cannot help him." It was however, said that :

"The Court can grant relief, if there is something more." Their Lordships did not say what they meant by these words but id may be the allegation of male fides. It was further held in this ease that if a person was able to show that he was a person' to whom the provisions of the Regulation cannot or do not apply, it could possibly have enabled the Court to exercise jurisdiction under section

491. Thus this ruling does not stand in the way of the petitioners to lead evidence in support of their contentions that in fact there exists no emergency or that their detention was male fide and a fraud on the Statute or that they were persons to whom Civil Defence Rule 23 did not in fact apply. Whether, the petitioners' contention, that no emergency exists in this territory or that the Government has acted male fide in detaining them or that their detention is a fraud on the Civil Defence Rules, is correct or not, are questions that can be decided only after they have had an opportunity oar leading evidence in support of their allegations and the Government also has had an opportunity of rebutting such evidence. We, therefore, uphold the petitioners' contention in appeal that the learned Single Judge should have proceeded with the examination of evidence rather than dismiss the petitions. Therefore, accepting the appeals we set aside the order passed by the learned Single Judge. The petitions will now come up before the learned Single Judge for being dealt with in the light of this decision. Appeal accepted.