P L D 1965 Dacca 514 (PLP)

Hence, in these two cases the question of joining up of good order with a bad order does not seem to arise. Furthermore, the decision in Sardar Fazlul Karim v. Government of East Pakistan (8 D L R 700) as cited by the learned Advocate for the State, seems to be a halter to speculation upon a detention that is already dead and over. It was held in this decision, inter alia, as under "On an application under section 491, Cr. P. Code, challenging an order of detention as being illegal what the Courts have got to see is whether the last orders of detention under which a detenue has been in confinement are legal and valid; the Court cannot direct the release of a detenue on the ground that the original detention was illegal." The grounds served on the detenue ran as follows:‑ "(1) That you have been and are associated with the illegal activities of a secret association in the district of Mymensingh the object of which is to indulge in prejudicial acts and to overthrow the Government, (i.e.) Government of East Pakistan by violent means and that during the years 1947 (after partition), 1948 and 1955 (till your arrest and when you were not in all you were concerned in prejudicial acts in the district of Mymensingh, particularly in the months of September 1947, March 1948, and October 195 5, you with the help of some anti‑State elements indulged in prejudicial acts and propaganda amongst the students, peasants and labourers and incited them against the Government of East Pakistan with the ulterior object of disrupting the stability or integrity of East Pakistan and to overthrow the Government. Furnishing of any more facts and particulars than those given above would be against public interest. (2) That all your activities mentioned above threaten and are likely to endanger the existence of public order and safety in this Province." Held: The grounds served were in compliance with the requirements of law and were sufficient to enable the detenue to make an effective representation to the Government against the detention order and that they cannot be held to be in way vague and indefinite to debar the detenue from making representation. All that is required under section 19 of the East Bengal Public Safety Act and sub‑Article (5) of Article 7 of the Constitution of Pakistan is that the grounds on which a detention order has been made should be served on the person affected to enable him to make a representation against the order. Section 19 of the Act, however, mentions in addition such other particulars as are in the opinion of the authority sufficient to enable the detenue to make a representation against the order. Neither section 19 of the Act nor sub-Article (5) of Article 7 of the Constitution provides that all the material facts should be embodied in the grounds to enable the person affected by the detention order to make a representation." The following lines of that decision are worth quoting in extenso:‑ "In the cited case, (meaning Arbab Mohammad's case) the prisoner in question was detained illegally for two days between 8‑12‑52 and 10‑12‑52 to which day the previous order was sought to be extended by another order which was held to be illegal. In the present case, the facts are different and at no point of time was any detenue being held illegally in the absence of any order by the Government. The cited authority has held further that a fresh order was not affected by the previous detention having been illegal whereas an order of extension of detention becomes illegal. That authority has also held that where a detenue is held under wrongful confinement the only mode in which his confinement could be given the quality of legal detention would be by directing his arrest afresh and following it up with a fresh order. Even‑conceding that the original detention of the detenue was illegal, as argued, that has been cured by fresh orders of detention having been passed in respect of each of the detenue. In the last order of detention passed, it is stated that it was necessary to make the order for the purpose of continuing the detention of the detenus, but that cannot be held to mean that the illegal detention, if any, was being continued by a fresh order of detention. What we have to see is whether the orders of detention are legal and, in our opinion, they are so, notwithstanding the arguments advanced to prove the contrary. In Naranjansingh Nothawan and others v. The State Punjab it was held that if at any time before the Court directs the release, of a detenue, a valid order; his detention is produced, the Court cannot direct his release merely on the ground that at some prior stage there was no valid cause for detention; the question is not whether the latter order validates the earlier detention but whether in the face of the later valid order, the Court can direct the release of the detenue." The decision in Arbab Muhammad Hashem Khan's case has been referred to and the principle of that decision, as found in the observation, was sought to be explained. The observations speak for themselves. This decision also indicates that we are to find as to whether there is presently a valid order and if a valid order is in existence, the detenue cannot be set at liberty simply because at some prior stage there was no valid cause for detention. We feel ourselves found by this decision. So far as the objection on the ground of vagueness of the grounds, goes, it appears that in Petition No. 307 of 1964 the detenue made representation on the basis of the grounds which shows that he understood them. In the other case, namely, Petition No. 304 of 1964 the detenue has made the grievance that he could not make any representation to the Government by reason of the vagueness of the grounds and, we, therefore, propose to compare the grounds in this case with the grounds in Sardar Fazlul Karim's case, as quoted in extenso and which was regarded as sufficient comparison shows that the grounds supplied in the present case are full enough. The months have been given; the districts have been given and further particulars have been withheld on the ground of public interest. So, there does not seem to be much force in this contention. The decision in Sardar Fazlul Karim's case also gives a good answer to‑the next contention that the present orders being orders for continuance of illegal detention, are invalid orders. The orders impugned in these two cases are, as under:‑ In case No. 304.

"Whereas the person known .as Mr. Qazi Zafar Ahmed son of Mr. Qazi Ahmed Ali of Gheora, P. S. Chouddagram, Dist. Comilla and of Qazi Villa Islampur Road, Khulna, at present of Dacca is detained in the Dacca Central Jail under the provisions of section 41 of the East Pakistan Public Safety Ordinance, 1958 (East Pakistan Ordinance No. LXXVIII of 1958); And whereas having considered the materials against the said person the Governor is satisfied that, with a view to preventing the said person from acting in any manner prejudicial to the public safety and the maintenance of public order, it is necessary to make the following order for the purpose of continuing his detention. Now, therefore, in exercise of the powers conferred by clause (a) subsection (1) of section 17 of the said Ordinance, the Governor is pleased to direct‑ (a) that the said person shall, subject to the provisions of section 19‑A of the said Ordinance be detained until further orders; (b) that subject to the provisions of clause (a) of this paragraph the said person shall until further orders continue to be detained in the Dacca Central Jail; (c) that during such detention the said persons shall be subject to the conditions laid down in the East Pakistan State Prisoners Rules, 1956." In the case of Petition No. 307: "Whereas the person known as Mr. Anisuzzaman son of Moulana Ahmed Ali of Mechagona. P. S. Dumuria District Khulna end of 136, Lalbagh Road, Dacca, detained in the Dacca Central Jail under the provisions of section 41 of the East Pakistan Public Safety Ordinance, 1958 (East Pakistan Ordinance No. LXXVIII of 1958); And whereas having considered the materials against the said person the Governor is satisfied that, with a view ‑to preventing the said person from acting in any manner prejudicial to the public safety and the maintenance of public order, it is necessary to make the following order for the purpose of continuing his detention. Now, therefore, in exercise of the powers conferred by clause (a) subsection (1) of section 17 of the said Ordinance, the Governor is pleased to direct‑ (a) that the said person shall, subject to the provisions of section 19‑A of the said Ordinance be detained until further orders; (b) that subject to the provisions of clause (a) of this paragraph the said person shall until further orders continue to be detained in the Dacca Central Jail; and (c) that during such detention the said person shall e subject to the conditions laid down in the East Pakistan States., Prisoners Rules, 1956." It has been observed, it may be noted, in the 8 D. L. R. decision that when the order is for continuing the detention of the detenue, it does not necessarily mean that the illegal detention was being continued by a fresh order of detention, and what is to be seen is whether the last orders of detention were legal and that in the light of the decision as reported in (1952) S C A 230 that if at any time before the Court directs the release of a detenue, a valid order directing his detention is produced, the Court cannot direct his release merely on the ground that at some prior stage there was no valid cause for detention and that the question was not whether the latter order validates the earlier detention but whether in the face of the later valid order, the Court can direct the release of the detenue. Examining the orders, it appears that the first part is only a recital of a fait accompli, namely, of the detention is custody and not a continuance of his illegal detention. In the orders themselves, there is no clear indication that the aim is to give validity to the original illegal detention. Before we close, we feel it necessary to make some observa tions with regard to Petition No. 304 of 1964. The detenue in this case was arrested on 28‑5‑64 at 5 p. m. It appears that he was kept under arrest and detention without sending to prison until 1 p. m. of the next day, i.e., 29‑5‑64, The petitioner has made serious allegations that the detenue was continuously and uninterruptedly interrogated and was not allowed to sleep or take any rest and that he was mentally tortured and made to answer questions to the liking of the interrogating police, In the affidavit in opposition filed by the State, they have only denied protracted interrogation which means that they have not denied the interrogation. Further, it appears that they have not denied the detention and cruel treatment. We like to observe that there is no authority for such treatment under the Act and the proper authorities should do well to note that such treatment is not meted out to any detenue in future.) In these circumstances, the Rules are discharged. Mr: Golam Hafez prays for a Certificate for leave to appeal to the Supreme Court under Article 58, sub‑Art. (2) (a) of the Constitution of the Islamic Republic of Pakistan. As the cases involve substantial question of law as to the interpretation of the Constitution, the Certificate is granted. A. SUBHAN CHOUDHRY, J.‑

I agree. K. B. A. Rules discharged.