P L D 1966 (W (PLP)

SAJJAD AHMAD JAN, J.‑

This judgment will dispose of Writ Petitions Nos. 267 and 290 of 1965 the former filed by one Abu Zar son of Muhammad Ishaque challenging the validity of the detention of the two detenus Sayed Saeed Hasan son of Sayed Mahboobul Hasan and Syed Iqbal Hussain Jafri son of Syed Ansar Hussain Jafri and the latter filed by one Syed Ali Jarrar Rizvi challenging the validity of the detention of his brother Syed Ali Mukhtar Rizvi son of Sayed Zawwar Hussain Rizvi.

2. The facts relating to the detention of the three detenus named, above are almost identical and hence we have heard these two petitions together and are disposing of them by this one judgment. These facts are that these three detenus are students as well as active political workers on behalf of the Combined Opposition Parties. On 17‑3‑65 the three of them together with some other students were arrested by the police and were charged with offences under sections 107 and 117 Cr. P. C. Bail applications on behalf of these three detenus were moved that same day and although bail was granted to each of them they were not released because the sureties offered by them were not found acceptable. On 18‑3‑65 a further charge under section 16 of the West Pakistan Maintenance of Public Order Ordinance 1960 (XXXI of 1960) was made against them and on the following day 19‑3‑1965 they were granted bail by the High Court. However, on that same day, but before they could be released on bail, they were each served with a detention order under section 3 (1) of Ordinance XXXI of 1960, passed by the District Magistrate, Karachi, detaining them for a period of thirty days as from that day. A writ petition bearing W. P. No. 188/65 on behalf of the three of them was filed in this Court challenging the validity of the detention order. It was admitted to a regular heading but by the time it came up for regular hearing on 7th May 1965 the period of their detention had elapsed through afflux of time and hence the writ petition became infructuous and was dismissed as such. Then three detenui were released from jail on 17‑4‑65 on the explanation of the period of thirty days but on the very next day, 18‑4‑1965 a fresh order of detention under subsections (1) and (7) of section 3 of the West Pakistan Maintenance of Public Order Ordinance was passed against them by the Governor of West Pakistan ordering that they be detained for a period of two months and be committed to the custody of the Superintendent, Central Prison, Karachi. As a result of this order the two detenus in Writ Petition No. 267/65, namely, Syed Saeed Hassan and Syed Iqbal Hussain Jafri were arrested on the evening of 18‑4‑65 and the detenus in Writ Petition No. 290/65, namely, Syed Ali Mukhtar Rizvi was arrested on 27‑4‑

65. At the time of their arrest they were served with the grounds for their detention and it appears that the sole ground alleged against each of them is that‑ "You, on or about 1st March 1965, with a view to creating public disorder in the Province of West Pakistan distributed posters captioned "Allah dekh raha hai" and "Arakeen‑e?Bunyadi Jamhuriyat‑se‑Khetab" which tended or were likely to incite the general public to commit acts of violence and breach of the peace." It is as against this order of detention passed by the Governor of West Pakistan that the present two writ petitions have been filed in which the validity of this order has been assailed on various grounds.

3. We have heard Mr. Hasan A. Sheikh, Advocate, on behalf of the petitioners and Mr. Halim, Assistant Advocate. General, Karachi on behalf of the respondents. Mr. Hasan A. Sheikh has contended that in the case of his client detenus Syed Saeed Hasan it was plainly impossible for him to distribute any posters on 1‑3‑1965 for the simple reason that he was in jail on that day, having been arrested as early as 26‑1‑1965 on a charge under section 16 of Ordinance XXXI of 1960. He has next submitted that the detention order passed by the Governor of West Pakistan is mala fide and a fraud upon the Statute. It is mala fide, he argued, because its sole purpose was to deny to these detenus the effect of the bail order passed in their favour by this High Court on 19‑3‑1965. It is a fraud upon the Statute for the reason that these detenus having been charged with an offence under section 16 of Ordinance XXXI of 1960 could not now be detained on the same grounds. Mr. Hassan Sheikh further contended that the grounds furnished to the detenus for their detention were not relevant to the order of detention and he further pointed out that the District Magistrate, Karachi, exercising his powers as the delegatee under section 6 of the Ordinance had already detained these detenus for thirty days and therefore, the present detention order passed by the Governor of West Pakistan and based on the same facts and grounds is an illegal order. Finally Mr. Hassan A. Sheikh argued that the posters in question were entirely innocuous and were really Election manifestos on behalf of the candidates put up by the Combined Opposition Parties for the National Assembly Elections on 21‑3‑1965. These elections having taken place on that day these posters are no longer of any significance or importance. Mr. Halim appearing on behalf of the respondents submitted that although there was nothing wrong with the pink poster and no fault could be found with its contents, the white poster which bears the name of Iqbal Jafri at the bottom as General Secretary, Young Democrats, Karachi contains material dangerous to human life and safety and calculated to disturb the public peace, order and tranquility. He further argued that the suffi?ciency or insufficiency of the grounds furnished to the detenus by Government along with the detention order is not justiciable and that therefore the High Court cannot be permitted to weigh or assess the force of these grounds. He said that the satisfac?tion was the subjective satisfaction of Government and that there are no objective standards whereby this Court could assess the weight of the grounds furnished. Both the learned Advocates referred to Case Law in support of their contentions.

4. We have applied our minds to the facts of the case of each of these three detenus. We have also carefully studied and examined the posters themselves and we have considered the abundant Case Law placed before us in the course of the arguments at the Bar. It appears that detenus Syed Ali Mukhtar Rizvi was first arrested on or about 26‑10‑64 but was released on 17‑12‑64 on account of the sudden death of his father. Similarly, detenus Syed Saeed Hasan was first arrested on 26‑1‑65 and remained in custody till 9‑3‑65 when he was released on bail by this High Court. Thus, it must be admitted that on 1‑3 65 the date mentioned in the grounds for detention furnished to him as being the date on which he distributed the pamphlets or the posters in question, it was plainly impossible for him to have done so. It was contended by Mr. Hassan A. Sheikh that the co‑detenus Syed Iqbal Hussain Jafri has acted in these matters throughout in unison with Syed Saeed Hasan so that if on 1‑3‑1965 Syed Saeed Hasan being in jail could not have distributed the posters in question the same applies to Syed Iqbal Hussain Jafri, who in the absence of his colleague would not have done so alone.

5. The point that has struck us so far as the detention of these three detenus is concerned is the sequence of the dates on which the various orders against them have been made. To begin with all of them were arrested on 17‑3‑1965 under sections 107 and 117 Cr. P. C. That same day, bail applications were made on behalf of each of them which were accepted and but for the non‑acceptance of the sureties offered by them they would certainly have been released on bail on that day or at the most on the following day after they had furnished adequate sureties. To forestall any such eventuality that is to say furnishing adequate security and coming out on bail, the very next day viz. on 1g‑3‑1965 a fresh case under section 16 of Ordinance XXXI of 1960 was registered against the three of them, and in respect of this charge they were re‑arrested on that day. It would appear as though this further charge was added on 18‑3‑1965 so as to obscure the chances of their being released on bail. An offence under section 16 of Ordinance XXXI of 1960 is punishable with three years imprisonment or with fine or with both and hence a Magistrate would be reluctant to grant bail in such a case. How?ever, on 19‑3‑65 the three detenus were able to secure bail from this High Court but before this bail order could be made effective a detention order under section 3(1) of the Ordinance signed by the District Magistrate of Karachi was served on each of them detaining them for a period of thirty days. On the expiration of these thirty days i.e. on 18‑4‑65 a fresh order of detention by the Governor of West Pakistan though on the same grounds was issued against the three detenus directing their detention for a further period of two months. It is the sequence of these orders that has aroused some doubt and misgivings in our minds as to the bona fides of this order of detention dated 18‑4‑

65. The contention of Mr. Hasan A. Sheikh the learned Advocate appear?ing on behalf of the detenus that this detention order is directed against any possibility of the detenus being released on bail is not devoid of force. Besides, when the Government have already added a charge under section 16 of Ordinance XXXI of 1960 against these three detenus on 18‑3‑65, it is trifle odd that a month later on 18‑4‑65 they should be detained on the same grounds and for the same offence alleged to have been committed by them. On this point Mr. Sheikh invited our attention to a case reported in A I R 1949 Mad. 761 in which it was held by a Division Bench of that Court that‑

"detention in order to prevent a person from coming out of jail on bail granted by a Court is mala fide and illegal detention."

6. We have carefully examined the posters themselves and have studied their contents. While we agree with Mr. Halim the learned Assistant Advocate‑General that the contents of the pink poster are innocuous we cannot accept his submission with regard to the white poster. To us it is plain that this white poster contains a sort of manifesto or appeal to the Basic Demo?crats and Members of the Electoral College not to vote on 21‑3‑65 for Commodore Khalid Jamil the candidate of the Pakistan Muslim League for the National Assembly but to cast their votes instead for his rival who was supported by the Com?bined Opposition Parties. This poster further contains a list of the alleged misdeeds of Commodore Khalid Jamil which it is claimed rendered him unfit for election to the National Assembly. These disqualifications urged against Commodore Khalid Jamil may be true or not, but wt cannot agree that they are such as are likely to incite the general public to commit acts of violence and breach of the peace. It is important to observe here that we should not be misunderstood in this part of our judgment as attempting to assess the sufficiency or insufficiency of the grounds as furnished for the detention of these detenus. What we have been considering is whether the grounds as furnished are relatable to the purpose of preventive detention. It is towards this end that we have closely examined the contents of the white poster and have reached the conclusion that it is really a sort of election manifesto on behalf of the Combined Opposition Parties against the candidate put up by the Muslim League Party. We are fortified in the view that we are permitted to do so by the judgment of the Full Bench of the five Judges of this High Court in the case of Maulvi Fareed Ahmad v. The Government of West Pakistan (P L D 1965 Lah. 135,). In this judgment it has been remarked that:‑ "The state of mind of a person, who makes an order, is pre‑eminently a fact within his own knowledge. But all the same it is open to the Court to see when an application is made challenging the existence of that Satisfaction whether there was, in fact, any subjective satisfaction of the authority which made the order. If the grounds relatable to the purpose of preventive detention do not exist, there can be no satisfaction at all, and the question of having come to a subjective or objective determination of the matter by the Government will not arise. The word "satisfaction" is un?doubtedly a condition precedent to the exercise of powers under section

3. It is, therefore open to the Court to look into the ground supplied to the detenue in order to determine whether the detention is proper or improper. It can examine the grounds to ascertain whether they are definite and precise. Although the Court cannot question the sufficiency or otherwise of the cause which is the basis of the satisfaction of the com?petent authority, yet the Court is well within the exercise of is judicial authority to satisfy itself that on the grounds which are the basis of the detention, the detaining authority could be satisfied as to the correctness of the order passed by it. If the grounds are not relevant to the object which the legislation has in view, namely, maintenance of the public order etc., there could be no bass for the satisfaction of the competent authority and the Court in that case can hold that the condition precedent for the passing of the order is non?existent."

7. We also observe from the above judgment that in this reported case, also, their Lordships took the view that the speeches of the petitioner Maulvi Fareed Ahmad were in the nature of propaganda in fovour of the opposition candidate against the Party in Power. Their Lordships went on to say that‑ "The aim and object of the speeches was, therefore, not to cause any disorder which might endanger public safety, but it was only in the process of an electioneering campaign." Similarly, in the instant case, we have reached the conclusion that the two posters are really the Election Manifestos in support of the candidates of the Combined Opposition Parties against Commodore Khalid Jamil a Candidate of the Ruling Party. We find nothing in these posters to indicate that they were pre?judicial to the maintenance of public order.

8. For these reasons, then, that the order of detention made is mala fide and, secondly, that the grounds furnished are no relatable to the purpose of the preventive detention and are, there?fore, non‑existent, we came to the conclusion at the close of the arguments that these two petitions must be allowed and the order of detention against these three detenus set aside and they be set at liberty. We, had, passed a short order in Court to that effect. This judgment contains the reasons for that order. S.Q.???????????????????????????????????????????????????????????????????????????????????????????????????????????????? Petitions allowed.