1969 P Cr (PLP)

On behalf of the State records of the detenu have been placed before us to support the statements made against him in the affidavit‑in‑opposition. We have perused the relevant records as well as permitted the learned Advocate appearing on behalf of the petitioner to peruse them. So far as the first allegation is concerned, namely, the meeting of 25‑7‑67 the records do not contain the speech of the detenu or as to what he had actually said from which it could be construed or inferred that tie had instigated his co‑workers and the students to violate the order under section 144 of the Code of Criminal Procedure on 2‑8‑

67. There is also nothing to show as to what part he played in the violent demonstration which was alleged to have created a serious law and order situation near the Medical College which necessitated the release of the Tear Gas by the police on duty. As regards the second allegation, namely, the publication of the booklet "PRATIGYA" stated to have been done at the instance of the detenu whose name appear as the "Cultural Editor" in the booklet we are told that this matter is sub judice and the connection of the detenu with the contents of the booklet awaits investigation and trial, and we, therefore, do not consider it desirable to say anything which may in any way prejudice the case. It may be mentioned, however, that in the aforesaid booklet "PRATIGYA" which has been placed before us and was also shown to Mr. Ameerul Islam both the detenu and one Abdul Bari appeared responsible for the publication of the booklet although the booklet may be said to contain certain objectionable matters, we have not in the interest of justice and the detenu himself made any reference to those passages in the booklet. Regarding the third allegation again there does not appear anything in the records to show what was the language used by the detenu in criticising the Government for the promulgation of an order under section 144 of the Criminal Procedure Code, and no inference against him is, therefore, possible. There remains the fourth allegation, namely, the meeting of the Central Committee of East Pakistan Students League on 28‑6‑

68. The relevant paper in connection with this incident has been placed before us and it was also perused by Mr. Ameerul Islam, learned Advocate appearing on behalf of the petitioner. The paper is an extract from the statement of a person described as a New Agent dated 28‑6‑68 and the relevant portions may be quoted thus :‑ "On 28‑8‑68 between 18.00 hours and 21.00 hours a meeting of the Central Committee of EPSL was held at Iqbal Hall, Dacca with Abdur Rouf President, EPSL in the Chair. The following, amongst others, attended amongst the nine persons mentioned below the name of Sheikh Shahidul Islam is one. Among other things the meeting discussed and directed that E. P. S. L. units throughout the province should enlighten the people in their respective jurisdiction on the six‑point programme of Awami Leage. The E. P. S. L. workers should also in course of their contact with the people impress upon them that the Agartala Conspiracy Case is nothing but a hoax and its trial is a parody of legal proceedings The very fact that so many witnesses were produced by the prosecution goes to show that the story of the conspiracy was a cooked‑up one, and this point should also be explained to the people by the EPSL workers in course of their contact with them. The meeting felt necessary to change the strategy for movement in the future as there was no scope for any constitutional movement by observing `Day' on particular issues. As in view of the alleged repressive policy of the Govt. there was no scope for any constitutional movement .." The meeting further directed all the Units of EPSL to send their collection towards `SK. MUJIB FUND' to the Central Committee of EPSL." Two things appear prominent in the aforesaid proceeding of the Central Committee of E. P. S. L., namely, (1) that a sinister movement was started after due deliberation to undermine the confidence of the people in the proceeding of a legally constituted judicial tribunal in order to make the decision of the tribunal still born and (2) that the meeting definitely decided "to change the strategy for movement in the future as there was no scope for any constitutional movement by observing `Day' on particular issues". This was a definite indication to resort to unconstitutional methods. Both these matters had in them the potentiality of creating a situation that was prejudicial to the public safety or interest and to the maintenance of peaceful conditions in the country. At one stage Mr. Ameerul Islam, learned Advocate appearing on behalf of the petitioner stated that if the report of the proceeding was correct, the reference to the legal proceedings before the afore said tribunal was unfortunate and should not have been made. Later on, however, Mr. Ameerul Islam tried to argue that reading the proceeding as a whole the reference to the said legal proceeding after all was not objectionable. Having given our earnest consideration to the said proceedings of the meeting of the Central Committee of E. P. S. L. we are of opinion that they, furnish a reasonable basis for the detention of the detenu. A question has, however, been raised by means of the supplementary affidavit to the petition dated 18‑1‑69 as to whether the detenu was in fact present in Dacca on 28‑6‑68 and had participated in the said meeting of the Central Committee of E. P. S. L. Having regard to the facts and circumstances to which we shall presently advert we think that the statement in the said supplementary affidavit that the detenu acted as a temporary Science Teacher of Gimadanga Tungipara High School, Faridpur from 11‑6‑68 to 5‑7‑68 is an after‑thought since no mention of this fact was ever made in the petition itself which was sworn on 12‑8‑

68. The alleged certificate of the Secretary of the School which has been annexed has Annexure `X' to the supplementary affidavit is itself dated 16‑1‑69, that is, long after we had started hearing the Rule. Furthermore it appears from the facts mentioned above that Sheikh Mosharaff Hossain who appears to have given the certificate as the Secretary of the School is a relation of the petitioner and the detenu and there is no mention in the certificate that the detenu was in fact present in the said School on 28‑6‑

68. No school register or any other document from the school has been produced before us in support of the claim that the detenu was not present in Dacca on 28‑6‑

68. The school appears to be a family affair as the father of the petitioner is the Headmaster of the school as stated by Mr. Ameerul Islam and the Secretary too is a relation of the petitioner and the detenu. In these circumstances we are unable to put any reliance on the averments in the supplementary affidavit and in the said certificate (Annexure `X'). This belated statement was obviously made during the trial of the Rule when the Court in course of hearing of the Rule had expressed certain opinion about the matters relating to the proceeding of the meeting of the Central Committee of E. P. S. L. dated 28‑6‑

68. In this connection it is also significant to note that even on receipt of the affidavit‑in opposition by the petitioner he did not pray for any time or opportunity to put in any reply to the said affidavit until the second day of hearing of the Rule on 14‑1‑69, although it had been categorically stated in paragraph 13 of the affidavit‑in opposition "that on 28‑6‑68 the detenu attended a meeting of the Central Committee of the E. P. S. L. which criticised the Govern ment established by law and condemned the established law and attacked legal proceeding and matters which are very delicate and which are sub judice, creating disaffection and hatred in the mind of others against Government, the law the legal proceedings of the land." In these facts and circumstances we do not feel any reason to disbelieve the statement that the detenu was in fact present in Dacca on 28‑6‑68 and had participated in the meeting of the Central Committee of E. P. S. L. held on that date. Since it is not unusual for the authorities to employ sources for obtaining information the fact that the report of the said proceeding had been supplied by a `New Agent' does not seem to detract from the value of the report, particularly when there is no reasonable ground to think that it had been maliciously procured against the detenu. Mere relationship of the detenu with Sheikh Mujibur Rahman furnishes no such ground. It has been contended by Mr. Ameerul Islam that the mere fact that the detenu was among several persons present at the meeting is not enough to connect him with several matters trans acted in the said meeting. We do not see much force in this conten tion. It was a meeting of the Central Committee of the E. P. S. L. of which evidently the detenu was a member, and it is difficult to conceive that a high command of the said E.P. S. L. met to consider and transact grave matters and yet the detenu did not participate in it. The proceeding appears to be unanimous in character. At any rate the aforesaid proceeding of the meeting of 28‑6‑68 afforded reasonable ground for thinking that the detenu participated in the deliberation of the Committee and took part in arriving at its decision. Mr. Ameerul Islam has also contended that the aforesaid matters contained in the said proceeding of the meeting of the Central Committee dated 28‑6‑68 do not fall within the purview of Rule 32 of the Defence of Pakistan Rules. We are unable to accept this contention. Rule 32 inter alia deals with matters prejudicial to the security, the public safety or interest of Pakistan and to the maintenance of public order and the maintenance of peaceful conditions h any part of Pakistan. Having regard to our observations made on the aforesaid "proceeding of the meeting of 28‑6‑68 we are of opinion that the matters do fall within the purview of Rule

32. Rule 32 is to be read along with Rule 41 of the Defence of Pakistan Rules for it is in the latter Rule, namely, Rule 41(6) that the words prejudicial act" have been defined. Without going into the details for the definition we need only say that the aforesaid matters do come within the definition of the works "prejudicial act" under several clauses of the said sub‑rule. It has also been contended by Mr. Islam that the arrest of the detenu under Rule 204 of the Defence of Pakistan Rules was illegal and consequently the subsequent detention of the detenu under Rule 32(1) (b) of the Rules is also illegal being a continuation of the original illegal detention. In clarification of this contention it has been argued that the records showed that the police officer of Faridpur who arrested the detenu under Rule 204 had acted under instructions from the Head Office of the Special Branch at Dacca and not on his reasonable suspicion. In our opinion the question of legality of the arrest under Rule 204 of the Defence of Pakistan Rules at this stage is of academic interest only for we are required to see whether the order upon the basis of which the detenu is now being held is legal and valid. Besides the instructions might contain facts which furnished reasonable basis for the requisite suspicion under Rule

204. For the reasons stated above we discharge the Rule. AHSANUDDIN CHOUDHURY, J.‑I agree. Rule discharged.