P (PLP)

It was further alleged in the petition that the Government had decided to take strong measures against the goondas of Lahore on account of the agitation against their criminal activities. This gave an opportunity to Muhammad Zahid to proceed against the petitioner's family under section 3 of the Public Safety Act. Abdul Wahid and the petitioner's brother Sikandar Alain were arrested on the night between 16th and 17th June and warrants of arrest have been issued against the petitioner himself, his brother Muhammad Shafi and Abdul Wahid's brother Siraj Din. The petitioner and his relatives were stated in the petition to be respectable business men of considerable means and respectability. Abdul Wahid detenu was stated to be well established in business and was shown as dealing in lacs of rupees: His donations to various institutions since the partition were stated to amount to about six thousand rupees. Sheikh Abdul Aziz, father of the detenu was stated to be a Darbari and K. S. Zulqarnain, Superintendent of Police, C. I. D., Sheikh Hassan Muhammad, Secretary, Constituent Assembly, Major Riaz Hamdani, Malik Muhammad Yunis, Sub-Inspector of Police, and Malik Muhammad Afzal, Range Officer, were stated to be brothers‑in‑law of the detenu. Aftab Ahmad Khan, P. A. S., was stated to be a nephew of the detenu. The arrest of Abdul Wahid: was alleged to be illegal, improper and actuated by malicious motives. It was, therefore, prayed that he be set at liberty. The learned Chief Justice issued a writ of habeas corpus on 20th June 1950. On 26th June the Advocate‑General appeared on behalf‑of the Crown and filed affidavits of Agha Muhammad Ali, Senior Superintendent of Police and Muhammad Zahid, Deputy Superintendent of Police. He later on wished to give further particulars in respect of para. 3 of Agha Muhammad Ali Khan's affidavit. That para. was to the effect that Agha Muhammad Ali Khan was satisfied on the basis of information received by him from respectable citizens and his subordinates that with a view to preventing the detenu from acting in a manner prejudicial to public safety and order it was necessary to arrest him. Permission to give further particulars was granted and on 3rd July another affidavit of Agha Muhammad Ali was filed showing that he had received credible information from respectable persons of the town that the detenu indulged in molesting innocent girls and respect able ladies openly in public places. This information was found on verification by the deponent to be true and he was, therefore, satisfied that it was necessary to arrest Abdul Wahid under section 3, Punjab Public Safety Act, in order to prevent him from acting in a prejudicial manner. In the first affidavit filed by Agha Muhammad Ali he stated inter alia that he was not aware of the status of the detenu's relatives and according to his information the detenu had no regular business or profession in life. He paid no income‑tax and a perusal of his record showed that he was a bad character whose history sheet was opened in July 1940. He was bound down under section 110 Criminal Procedure Code for one year in 1943 and there were the following recorded suspicions against him :‑ (i) Anarkali Police Station : in a case under section 392, Indian Penal Code, in 1946. (ii) Gowalmandi Police Station : in a case under section 380, Pakistan Penal Code, in 1948. (iii) New Anarkali Police Station: in a case under section 448, Pakistan Penal Code, in 1948. The detenu was a previous convict. There were four con victions against him :‑ (1) F. I. R. No. 142, dated 5th July 1941, under sections 353/342, Indian Penal Code. (2) F. I R. No. 206, dated 31st August 1941 under section 332, Indian Penal Code. (3) F. I. R. No. 307, dated 5th December 1942, under section 332, Indian Penal Code. (4) F. I. R. No. 271, dated 15th November 1945, under the Gambling Act. The affidavit proceeded to show that Muhammad Zahid, Deputy Superintendent Police, was posted in Lahore for the first time as Deputy Superintendent Police in the beginning of 1948 and after a month or so he was transferred as Superintendent of Police in charge of the recovery of abducted women in East Punjab. He returned to Lahore as Deputy Superintendent of Police Kotwali in September 1948. So far as Agha Muhammad Ali Khan could recollect, the detenu had never complained to him of any strained relations between his family and the family of Muhammad Zahid, nor had he ever expressed any apprehensions on this ground. Sheikh Muhammad Zahid in his affidavit affirmed that he had no hand in the arrest of the detenu, except that he had forwarded a list of the bad characters of his ilaqa to the Senior Superinten dent of Police. This list was submitted to him by the City Inspector and he had forwarded it to the Deputy Superintendent of Police without any comments of his own. He did not bear any grudge or illwill to the detenu as alleged in the petition for his release. Sheikh Ghulam Qadir was admitted to be a brother of Muhammad Zahid's step‑mother, but the relations between Muhammad Zahid and his step‑mother were stated to have come to an end with the death of Mohammad Zahid's father in 1945. Ghulam Qadir was admitted to have been married to the maternal aunt of the detenu who died about nineteen years ago. Muhammad Zahid had no knowledge about the relations between Ghulam Qadir and the, detenu's family. Sheikh Arif Ali was admitted to be a maternal uncle of Muhammad Zahid who had no knowledge of any proceedings between him and the family of the detenu until he read the petition. He then made enquiries from Arif Ali and learnt that there were some reports made to the police by Sheikh Arif Ali and Kalu, maternal uncle of the detenu, about fifteen years ago. The parties had, however, arrived at a compromise and the dispute between them was never taken to any Court. There was no altercation between Muhammad Zahid and the detenu as alleged in the petition. A wrestling match was arranged by Abdul Wahid on 22nd January 1950. His application for holding the match was forwarded to Muhammad Zahid for report and as there had been a fight between two rival parties of wrestlers shortly before, Muhammad Zahid apprehended another disturbance and pointed out the fact to the authorities concerned. In doing so he was not actuated by any bad motive or illwill towards the detenu. The District Magistrate allowed the wrestling match. Muhammad Zahid was not in the least upset about it. He only took some extra precautions for the maintenance of peace at the match. He never held out any threats to the detenu and he had nothing to do with the cases registered by the police against him. Muhammad Zahid had no information about any complaints made against him by the detenu or his relatives to the ‑District Magistrate or the Deputy Inspector‑General, Lahore. He was never asked for any explanation in respect of any such complaints. Muhammad Zahid denied that he moved for the arrest of the detenu on the basis of any enmity or ulterior motive. The learned counsel for the petitioner wished to produce evidence and was allowed to do so. He produced eleven witnesses. Karim Bakhsh, Head Constable, Mochi Division, Lahore (P. W. 1) produced daily diaries of Mochi Gate Police Station for April, May and June 1950. They contained no report against Abdul Wahid. No communication was received by him during these months from any superior police officer, that Abdul Wahid was concerned in. any offence or that he was molesting women or that his movements should be watched. Muhammad Din, Muharrir Head Constable, Thana Tibbi (P. W. 2) brought the daily diaries from Tibbi Police Station for the months of April, May and June. There was no report in any of these diaries that the detenu was molesting women. He, however, produced a report dated 25th May 1950 by a prostitute named Hussan Bhari and another report dated 9th May 1950 by another prostitute named Fatima apprehending breach of peace. The last report was against Khalifa Matto, Minto, Khawaja Latif and two others who were not named. During the investigation Abdul Wahid was called as one of the suspects who had not been named. No action was, however, taken against him. The report of Mst. Hussan Bhari, prostitute, was to the effect that Abdul Wahid wanted to have sexual relations with her daughter to which she was not agreeable He had, therefore, threatened to have her daughter abducted and Hussan Bhari prayed that Abdul Wahid may be put on security. These reports were duly proved by the witness as Exhibits P. W. 2/1‑

2. It stands to reason that if there had been any complaints against Abdul Wahid about the molestation of innocent girls and respectable ladies in public places, as alleged in the second affidavit of Agha Muhammad Ali Khan, they would have also been brought on the record. It is said that the relatives of the innocent girls and respectable ladies were reluctant to make any reports ; but if Abdul Wahid had been concerned in any such incidents, at least the dates and the places of the incidents should have been entered in his history sheet. . Abdur Rahman (P. W. 3) brought the daily diaries of Delhi Darwaza Police Station for April, May and June. There were no reports in the diaries against Abdul Wahid. He had received no orders from any superior officer to watch the movements of Abdul Wahid. Sardar Ali, City Inspector (P. W. 4) stated that he had received several complaints that respectable girls and women were molested by men of bad character. They were not recorded by him nor did he make any notes about the names of the persons who made the complaints. The complaints started about three or four months before the arrest of Abdul Wahid and the witness had arrested some students of Islamia College and some others for such acts. Abdul Wahid was not one of the persons against whom he took any action. He was required ten or twelve a days before the arrest of Abdul Wahid to submit a list of persons who were known to be bad characters and from whom danger to public peace and safety was apprehended. The list was accordingly prepared by Muhammad Ibrahim, S. H. O., Kotwali. He gave it to the witness who read it and then handed it over to the Deputy Superintendent of Police, Sheikh Muhammad Zahid. He made no comments on the list prepared by the S. H. O., nor did the Deputy Superintendent of Police or the Senior Superintendent of Police have any discussion with him regarding the contents of the list. The witness was unable to say whether the name of Abdul Wahid was entered in that list. He had, however, discussed with the Senior Superintendent of Police the question of putting Abdul Wahid under arrest before he was actually arrested on 17th June 1950 at 4 a. m., in his house. Seven or eight other persons were arrested on that day and there were others for whose arrest orders had been issued, but who could not be found on that day. They were arrested subsequently. It was suggested to the witness by the learned counsel for the petitioner that he had entered the name of Abdul Wahid in the list above‑mentioned at the instance of Muhammad Zahid, Deputy Superintendent of Police. The suggestion was denied. It was also denied by the witness that on coming to know that some goondas had to be rounded up he and Muhammad Zahid sent some persons to the Senior Superintendent of Police in order to make him believe that Abdul Wahid was also a goonda. Muhammad Zahid, Deputy Superintendent of Police was examined as P. W. 5 and he gave evidence in accordance with the affidavit filed by him. Agha Muhammad Ali Khan, Senior Superintendent of Police, Lahore (P. W. 6) stated that he knew Abdul Wahid by his record and reputation before he ordered his arrest. The antecedents mentioned in clauses (a), (b), (c) and (d) of para. 4 of the witness's affidavit were taken from the detenu's history sheet. The first affidavit was filed by the witness in answer to the affidavit filed by the petitioner alleging that the arrest of Abdul Wahid was illegal, improper and mala fide, but he gave no reasons for ordering the arrest in the affidavit. The facts mentioned in para. 4 of that affidavit did not constitute the reasons for the arrest. The witness was asked whether it was a fact that when the petition of Muhammad Hayat for the release of Abdul Wahid came up for hearing before the learned Chief justice, he said that he will not allow section 3 of the Punjab Public Safety Act to be misused and coming to know about it, the witness filed another affidavit dated 3rd July 1950, alleging molestation of women on the part of ‑Abdul Wahid. The witness replied that he knew of no such observation and he gave the second affidavit of his own accord. He was asked whether he could give any reasons for not mentioning the molestation of women by Abdul Wahid in his first affidavit ; the witness said that he did not wish to answer this question and claimed privilege. The witness was then told by the Court that he had claimed privilege against disclosing the reasons for not including the facts mentioned in his second affidavit in the first affidavit, filed by him and he was asked whether the reasons which made him do so were communicated to him in official confidence or whether they were his own reasons. The witness said that they were his own reasons. He was then asked under what section of the Evidence Act, he claimed privilege and section 124 of the Evidence Act was relied on. He was asked whether there was anything in the contents of his second affidavit which in his opinion should not have been disclosed when he filed his first affidavit. He said there was nothing of that kind in the second affidavit; but he did not consider it necessary to give that information in the first affidavit and subsequently thought it fit to do so. The witness at first refused to state whether the information regarding the molestation of women was given to him in writing or orally but soon afterwards said that it was oral and was received by him about 10 or 15 days before the arrest of Abdul Wahid. When asked to state if there was any entry regarding the molestation of women in the history sheet of Abdul Wahid, the witness replied that the information would be derived from unpublished official records relating to affairs of State and he was not prepared to give it. I have stated my views on the question of privilege in Mehraj Din's case (Criminal Miscellaneous No. 348 of 1950 P. L. D. 1950 Lah. 451) and I have no doubt that the witness was not entitled to claim privilege under section 123, Evidence Act. He should have been advised to refer the matter, if he thought it necessary, to the Head of his Department and it was for the Head of the Department to claim or not to claim privilege. The witness proceeded to say that the complaints made to him about the molestation of women did not name the women molested or their relatives. The complaints were, therefore, not recorded: He did not go to the localities where the moles tations were alleged to have taken place nor did he send for the residents of those localities, in order to question them. He did not even go to the locality in which Abdul Wahid resided in order to make enquiries about him. It was put to the witness that he had no information that Abdul Wahid was molesting women when be filed his first affidavit, and that he had made up this story and filed another affidavit because he feared that the case against Abdul Wahid would otherwise fail. He denied this suggestion. He said that thirty to thirty‑four persons were arrested on the night between the 16th an 17th June 1950, and that he had received a list of bad characters three or four days before the arrest of Abdul Wahid. The witness was asked whether the name of Abdul Wahid was in that list, but he said that the list was a confidential document and lie was not prepared to disclose its contents. The witness proceeded to say that he had ordered the arrest‑of Abdul Wahid not only for the molestation of women, but on account of other information also which he did not consider fit to disclose. He was asked whether he could give any reason for not includ ing the other information referred‑to by him in any one of his two affidavits. He replied that he did not think it necessary to state any reasons at all, but on being advised to do so he gave one of the reasons which led him to order the arrest of Abdul Wahid in his second affidavit. The other information was partly recorded by him and partly not. He made rough notes of what people told him, but he did not preserve the notes. The other information, not contained in the affidavits, was of a serious nature, but he did not enter it in the history sheet of Abdul Wahid. He said that he might have issued orders to his subordinate officers to watch the movements of Abdul Wahid in order to prevent him from molesting women, but he would claim privilege against producing such communication if they existed in writing. Communications made to the witness in official confidence may be, privileged, if their disclosure, would be against public interests, but I do not see how any orders issued by him toy hi subordinates to watch the movements of a suspected person would be covered by section 124 of Evidence Act. I have dealt; with the adverse inferences which can be drawn against the evidence of a witness who takes up such attitude in Mehraj Din's case (Criminal Miscellaneous No. 348 of 1950) and. I repeat that if a witness takes up an unreasonable attitude and claims privilege without valid grounds, the presumption which the Court may make under section 114 (e), Evidence Act, about his official acts having been regularly performed may not bell made at all and the other presumption contained in clause (h) of section. 114, may be raised that information which the witness could not be compelled by law to disclose would have gone against him if he had‑disclosed it. Sayyed Abad Ahmad retired D. I:‑G. (P. W. 7) stated that . Abdul Wahid had told him that the relations between him and Muhammad Zahi.d, D. S. P:, were strained and Muhammad Zahid was giving him trouble. Abdul Wahid also complained to him about a member of the Municipal Corporation named Muhammad Akhtar who wanted to stand for election as a member of the Legislative Assembly against him, and said that Muhammad Zahid was helping him because he was a Kakezai. He further said that he had been‑ falsely implicated in several cases and asked for the witness's protection. The witness ad vised him ‑to see 'Muhammad Zahid and the S. S. P., but Abdul Wahid said that Muhammad Zahid will not receive him well. The witness, therefore, telephoned to Muhammad Zahid and told him to hear what Abdul Wahid had to say. The witness made enquiries from Muhammad Zahid whether he was on bad terms with Abdul Wahid and Muhammad Zahid denied this. The witness was satisfied with the statement made by Mu hammad Zahid and accepted it as correct. Malik Ali Muhammad (P. W. 8) said that he was the President of Lahore Wholesale Cloth Merchants' Market Society and knew Abdul Wahid who was a cloth dealer and did business worth lacs of rupees. His standard of living was very high and no one had ever complained to him that Abdul Wahid had insulted or molested any women. Abdul Wahid helped widows and orphans and was not a man who could be considered dangerous to public safety or order. In cross‑examination, he stated that he would be very much sur prised if‑he was told that Abdul Wahid was a badmash No. 10 and had been convicted for several offences. Malik Muhammad Hussain (P. W. 9) and Haji Siraj Din (P. W. 10) also gave good character to Abdul Wahid and did not know anything against him. Malik Abdul Ahad (P. W. 11), aged 15 years,. was the younger brother of the detenu. He produced a certificate from the Lahore Central Cooperative Bank, Exhibit P. W. 11/1 to show the extent of Abdul Wahid's business, a letter Exhibit P. W. 11/2 from the Punjab Registered Iron and Steel Stock Holders Association, Ltd., and a receipt Exhibit P. W. 11/3 from the Punjab Steel-Scrap Merchants Association. These documents have not been proved and are of no value. From the evidence set out above, it is not proved that there was any enmity between Muhammad Zahid, D. S. P., and the detenu Abdul Wahid; or that the arrest of Abdul Wahid was brought about by Muhammad Zahid or that Agha Muhammad Ali, Senior Superintendent of Police, had acted mala fide or had arrested the detenu out of malice or for any ulterior purpose. The arrest and detention were Prima facie effected under the Punjab Public Safety Act and are neither ultra vires nor illegal. The only thing that can distinguish this case from that of Mehraj Din (Cr. M. No. 348 of 1950) is that at least one reason for the arrest of Abdul Wahid was given by the officer order ing the arrest, whilst no reason was given in Mehraj Din's case. But the reason given in this case, i.e., molestation of women, does not appear to be genuine. The molestation of women by Abdul Wahid, if duly proved, would, in my opinion,, be a prejudicial act within the meaning of section 3 (1) of the Punjab Public Safety Act, but I am not satisfied that Abdul Wahid) had in fact molested any women or that such molestation was one of the real reasons for his arrest. If there were any complaints that he was molesting innocent girls and respectable women in public places, as alleged in the second affidavit of Agha Muhammad Ali, they should have been entered in his history sheet and the history sheet should have been produced. I have already held in Mehraj Din's case, that history sheets ordinarily, relate to the affairs of the persons concerned and, in the absence of a statement by the Head of the Department that they relate to affairs of State and information derived from them should be withheld in public interests, they cannot be treated as privileged docu ments. In any case, the allegations continued in the first affidavit were, according to the evidence of Agha Muhammad Ali, taken from his history sheet and if there had been any allegations of molestation in the history sheet, they would have also found place in the first affidavit. Furthermore, I fail to under stand why Abdul Wahid would go and molest innocent girls and respectable women in public places. There is no suggestion that he ever robbed or attempted to rob them and nothing is so profitless as mere molestation of women or children. The Senior Superintendent of Police has, however, said that this was not the only reason for which he arrested Abdul Wahid. There were other reasons which he refused to disclose. I have strong views against any public servant being allowed to arrest and imprison people, even under the Public Sefety Act, without disclosing the reasons for doing so; unless the dis closure would really endanger public safety and injure public interests. I am not at all impressed that if Agha Muhammad Ali had frankly stated his reasons for arresting Abdul Wahid, public safety would have been endangered or public interests would have suffered. But the Federal Court of Pakistan has held in Maulana Maudoodi's case (A. P. L. D. 1950 F. C. 1), that an officer ordering arrest under section 3 (1) Punjab Public Safety Act, cannot be made to disclose the reasons for which he ordered the arrest. I, therefore, refrained from compelling Agha Muhammad Ali to disclose his reasons. The Federal Court has further held, that it is for the detenu to prove that he was arrested and detained for reasons for which he could not be arrested or detained. The evidence led by the petitioner does not show that he was arrested or detained for any such reasons., The burden of proof placed upon the detenu has been discharged in this case. The petition is, therefore, dismissed. A.H. Petition dismissed.