P L D 1976 Lahore 622 (PLP)

By a short order announced on 19‑9‑1975 while disposing of the following three writ petitions: (1) Writ Petition No. 2021/75, Syed Zafar Abbas v. District Magistrate, Jhang. (2) Writ Petition No. 2022/75, Syed Alehdi Hussain v. District Magistrate, Jhang and others. (3) Writ Petition No. 2166/75, Syed Riaz Hussain v. District Magistrate, Jhang and others. I had directed the release of Jewan Shah, Zulfiqar and Muhammad Nawaz, all of whom were arrested by the police and detained under orders of the District Magistrate, Jhang, passed under rule 208 of the Defence of Pakistan Rules. The reasons for the order of release which were to be recorded later are as follows:‑

2. The Police Officers incbarge of various Police Stations in District Jhang, on being instructed and briefed by the Prosecuting Branch with regard to their powers under rule 208 of the Defence of Pakistan Rules, proceeded after recording a report on 22‑8‑75 in the rozenamcha kept at the respective Police Stations to arrest the detenus. The following day the detenus were produced before the District Magistrate with the record who passed orders of their detention followed by the. formal grounds of their detention under rule 208 of the Defence of Pakistan Rules.

3. In Writ Petition No. 2021/75 the detenu is Jewan Shah and the petitioner is Syed Zafar Abbas, his son. Muhammad Masud Sub‑Inspector, P. S. Chiniot, recorded a report in the police diary that there were continuous complaints against him, that he was abetting theft and was a habitual "Rassagir" and giving protection to absconders and selling illegally firearms and that he was not relenting and it was necessary in public interest to arrest him under rule 208 of the Defence of Pakistan Rules. As regards the record of these complaints reliance was placed on the secret note book kept at the Police Station. After effecting the arrest another report was recorded the same night in the rozenamcha and he was produced before the District Magistrate, who passed an order of his detention the next day, followed by the formal grounds of detention dated 5‑9‑1975. The District Magistrate on the same material which was before the Police Officer came to the conclusion that exercise of powers conferred on him under rule 208 was justified. The extract of cases made the grounds of his detention are listed as follows :‑ (1) Case No. 93 of 1931 under section 454, P. P. C., P. S. Chiniot. The clothes of one Sanat Ram were stolen. The case was filed untraced. The suspicion was against Jewan Shah detenu. (2) Case No. 34 of 1935 under section 435, P. P. C., P. S. Chiniot. The threshing‑floor containing wheat was set on fire for which Jewan Shah was challaned but was acquitted. (3) Case No. 93 of 1943 under section 379, P. P. C., P. S. Chiniot. A mare was stolen. The case was filed as untraced. Jewan Shah was suspected. (4) Case No. 85 of 1948 under sections 430/379, P. P. C., P. S. Chiniot. Irrigation water was diverted. The case went untraced. Jewan Shah is not mentioned as the suspect. (5) Case No. 317/53 under section 430, P. P. C., P. S. Chiniot. Irrigation water diverted. Jewan Shah challaned in Court but acquitted., (6) Case No. 324 of 1953 under sections 379/430, P. P. C., P. S. Chiniot. An outlet was tampered with. Jewan Shah was suspected. (7) Case No. 50/75 dated 11‑2‑1975 under sections 457/380, P. P. C., P. S. Chiniot. He was made to join in the investigation, was only suspected. The District Magistrate repeats the ground that he cleverly saved himself. (8) Case No. 8/75 dated 9‑1‑1975 under section 457/380, P. P. C. He was made to join investigation and was suspected. (9) Case No. 25 dated 28‑1‑1975 under sections 457/380, P. P. C. He was made to join investigation. The ground mentioned is that he cleverly extricated himself. (10) Case No. 12/75 under section 379, P. P. C. He was made to join the investigation, but was not challaned. There was a report that he was a Rassagir recorded on 2‑4‑1975.

4. Writ Petition No. 2166/75 has been filed by Riaz Hussain and relates ‑to detenu Zulfiqar. Nusrat Ali, A. S. I., posted at P. S. Lalian in District Jhang, recorded a report on 22‑8‑1975 at 4 p.m. that Zulfiqar was a notorious thief of cattle, a "Rassagir" one who carried on illicit trade of firearms and afforded protection to bad characters and his conduct was dangerous to the security of Pakistan and it was necessary to proceed against him under section 208 of the Defence of Pakistan Rules by arresting him. He accord ingly after arresting produced him before the District Magistrate the next day who continued his detention and in the grounds drafted on 5th Septem ber listed 12 cases or matters against him. 7 of these 12 matters are under trial, two relate to entries made in the secret note book kept at the Police Station and the oldest reported event relates to a matter of 1959 and the last refers to a case registered in 1973, both still under trial.

5. Writ Petition No. 2022/75 has been filed by Syed Mehdi Hussain and relates to the detention of Syed Muhammad Nawaz, his father. A similar report was recorded by Muhammad malik S. H. O. Burhana, District Jhang and arrest was made on 22‑8‑1975 and the arrest continued under the orders of the District Magistrate dated 23‑8‑1975. The grounds were made out on 5‑9‑1975, and include three registered cases, all of a date earlier to June 1975, in which the detenu was acquitted. Four entries of the secret note book with regard to his activities were utilised by the District Magistrate and these .are only general remarks without reference to any particular case.

6. Mr. Frooq Hassan, Assistant Advocate‑General, has advanced three grounds for resisting these petitions. Firstly. it is contended by him that Article 10 of the Constitution provides safeguards as to arrest and detention and one such safeguard is that every person who is arrested and detained in .custody shall be produced before a Magistrate within a period of 24 hours of such arrest which requirement was satisfied in these cases as the detenus were produced before the District Magistrate without the least delay. The other requirement of Article 10 that "no person shall be arrested or detained without being informed as soon as may be of the grounds for such arrest" and clause (5) of the same article fixes period of 15 days for the communica tion of such grounds, was also fully complied with. Such being the case, it is contended, that no petition under Article 199 of the Constitution could be filed before grounds of detention were supplied or the period prescribed therefor had elapsed. As in these cases the petitions were filed before the formal grounds of detention were pr‑,pared and communicated to the detenus, the petitions, it is argued, were premature and must on that account fail. After the grounds were made available to the detenus, they are free to agitate against the grounds by filing a fresh petition in each case.

7. The second objection of the learned Assistant Advocate‑General is said to be based on a decision of the Supreme Court in Abdul Baqi Baluch v. Government of Pakistan (PLD1968SC313). While examining the necessity of serving a. show‑cause notice before resorting to preventive detention of a person, the Supreme Court observed that orders of preventive detention are made purely on considerations of policy or expediency. There can be no question of the detaining authority being under any obligation to act judicially or even quasi judicially. It is only where there is duty to decide judicially or quasi‑judicially that the principles of natural justice referred to in Faridson's case are attracted." It is contended that the action of the Police Officers in arresting and of the District Magistrate in continuing the detention being neither judicial nor quasi judicial it is not open to judicial review at all in proceedings under Article 199.

8. The third and the last objection of the learned Assistant Advocate‑ General against these petitions is also based on a decision of the Supreme. Court ire the case of Ghulam Jilani v. Government of West Pakistan (PLD1967SC373). In that case by reference to the requirement of rule 32 and rule 204 of the Defence of Pakistan Rules 1965, the degree of satisfaction in the case of Government for the purposes of rule 32 and of the Police Officer for the purposes of rule 204, was examined and it was held iii the dissenting judgment (page 401) that "I am, however, doubtful whether the 'satisfaction' of the detaining authority in the relevant law and rules should be placed on a par, with suspicion on reasonable grounds of an arresting authority. If the Legislature has used two different expressions visa‑vis the two authorities and` the connotations of these expressions have been fixed by an antecedent judicial Precedent, it should be presumed that the Legislature intended to use them in their established connotations. On this view, I venture to think that in the case of detaining authorities, Courts need not insist on the revelation of grounds such as would be regarded as reasonable after adjudication. The 'satisfaction' in such cases should be of the authorities themselves and unless there is a colourable exercise of power for ulterior motives not con templated by the law, so that the case is one tainted with mala fides, the scope for interference by Courts would be confined to examination of the question whether compliance with formalities of the statute on the face of the record, is complete or not." On the strength of these observations it is contended that suspicion must be placed in a category lower down than that of satisfaction and the ipse dixit of the Police Officer should be sufficient in the matter of his having suspected an individual and no inquiry should be held into that, sphere except for purposes of finding out mala fides.

9. The first objection of the learned Assistant Advocate‑General is in the nature of a preliminary objection to the competence and the maintain ability of these petitions and hence it must be dealt with first. There is no prohibition or restriction on a person invoking the Constitutional remedy of Article 199 in cases where another is detained and the grounds of detention have not been supplied or the period prescribed therefor namely 15 days has not elapsed. In the absence of any prohibition explicit or implicit it is no on the ground of incompetence that such petitions can be resisted. Next would be the test of availability of adequate alternative remedy. On this reasoning of the learned Assistant Advocate‑General, a person detained for less than 15 days would have to suffer detention awaiting the grounds, without invoking the remedy. The Review Board set up under Article 10 will ‑come in the picture only after the detention is sought to be prolonged beyond the prescribed period, which is now three months. It cannot, there fore, be urged with any success that a petition under Article 199 clause (b) cannot be moved and if moved, must fail unless the grounds of detention have been formalised and supplied or the period prescribed therefor has elapsed. B The very purpose and the object of the remedy prescribed under Article 199 clause (i)(b) in cases of wrongful detention shall be lost if such a clog on its exercise is placed.

10. There petitions were admittedly moved within 15 days of the detention and before the formal grounds of detention were communicated to the detenus. The objection in the alternative is that with the availability of the grounds of detention the petitions filed without the grounds should fail and fresh petitions be filed. The grounds are to be communicated to the detenus and the detenu is in none of these petitions, the petitioner. The petitioners have no means of knowing the grounds or of ascertaining them except through proceedings under Article 199 and if during the course of such proceedings the grounds of detention are placed on record by the respondent that would not defeat the petitions, or require a fresh petition. Instead it will entitle the petitioners to an opportunity to file their further objection to the grounds of detention made available during the proceedings. It is initially the responsibility of the detaining authority to disclose the law and the material on which detention has been ordered. Such disclosure of the law and material does not defeat a petition but only channelises the enquiry in to the legality of the detention as such. Therefore, the objection of the learned Assistant Advocate‑General with regard to the competence and the maintainability of the petition is entirely misconceived and untenable.

11. Before taking up the other objections of the learned Assistant Advocate‑General with regard to the merits of the detention order and the scope of review in these proceedings, I must consider the grounds of detention in each individual case with a view to determine their nature and effect. So far as the detenu Jewan Shah is concerned. (P. W. 2021/751 the arresting officer has stated that he had been receiving in the past reports of the detenu having committed cognizable offences. He also admitted that he never discharged his statutory duty of recording a report on such information as required by law under section 154 or 156, Cr. P. C. He did not on such reports then take any action under rule 208 of the Defence of Pakistan Rules. He deferred all this to the month of August though he had been receiving such reports from February 1975. Two months before his arrest the detenu had been arrested by the Police Officer on suspicion of his involvement in a case registered at the Police Station but he had got himself bailed out. The Police Officer admitted that "except for his past record there was nothing on 22‑8‑1975 to prompt me to arrest the detenu". The past record of the detenu falls into three distinct categories. The first category is of cases in which he was challaned but was acquitted or discharged by the trial Court. The last case in point of time of this category is as old as of 1953 and the earliest is of the year 1935. The second category is of those cases in which the detenu was not challaned but was suspected and was joined in the investigation. The first recorded case of this category is of the year 1931 and the last of 1975, the one in which the arresting officer had joined him in the investigation and he was bailed out. The third category is of the opinion of the Police Officer based on oral information, one of which was of recent date.

12. For invoking powers possessed under rule 208 of the Defence of Pakistan rules, it is necessary that the suspicion should be reasonable and the suspicion should relate to the detenu"s having acted, or acting or of being about to act "inter alia" in a manner prejudicial to the security, the public safety or interest or the defence of Pakistan". A person cannot be said to have so acted if the only factors were that in the year 1931, 1935 or for that matter, in 1953, he was accused of having committed cognizable offence for which a regular trial had taken place. There must be the proximity of time, the causal nexus between the activity complained of and the threat to the public safety before resort could be had to' rule

208. In other words, the past bad conduct of an individual cannot be the ground for action under rule 208 unless there be the connecting material to show that such past conduct combined with such) material presented an imminent threat to public safety or was already threatening it. By admitting in unambiguous terms that there was nothing on the date or immediately before the detenu was arrested to prompt such arrest the police officer in fact, admitted the absence of the very jurisdictional fact which was necessary for invoking the power under rule 208.

13. In the case of Muhammad Nawaz W. P. No. 2022/75 the arresting officer had explained the factor prompting him to resort to this rule. He sated "it was the first occasion in my life that I had to make arrest under rule

208. The Prosecuting Branch of the District informed us that there was a rule 208 of the D. P. R. which could be utilised for putting down the crime and for dealing with criminals. Except for the material made the ground there was no other material against the detenu which prompted his arrest." The material which forms the grounds of detention of Muhammad Nawaz comprises three cases in which he was challaned and acquitted, the first case being of the year 1943, the second of 1964 and the third of 1965. There were thereafter four entries of the secret note book kept at the police station, one, made on 9‑12‑1967, the next on 27‑12‑1967, the third on 28‑1‑1974 and the last on 28‑6‑1975. There was again in his case nothing which was fresh and recent to justify action under rule

208. If the reasonable suspicion at all existed of the detenu having acted, acting or about to act and it was to be extracted from this record then it had to be in June 1975 and not in August 1975, nothing else intervening.

14. As regards detenu Zu1fiqar Ali (W. No.2166/75) all the cases in which he was challaned, and there appear to be 7 of them excluding one under the Goondas Ordinance, he was facing the trial. There were two other reports in the secret note book of the police station, one relating to the year 1951 and the other of the year 1959. Where a case had been registered, proper investigation had taken place and the challan had been submitted or the trial was continuing resort to rule 208 of the Defence of Pakistan Rules cannot be justified by reference to such cases. They very purpose of the rule is to get hold of an individual against whom some other action is to be taken or is likely to be taken under any other law or provision of this law. If the whole ordeal of trial and the investigation had been undergone in cases properly reported then such a power is not available for dealing with those very matters. There is no other ground or material which has weighed with the arresting or the detaining authority in his case.

15. It is surprising that the arresting officer and the detaining authority should make those very factors the grounds which in fact could not be made the ground. For example, if a crime is reported a case is registered and fully investigated and the investigating officer does not find sufficient material to challan a person should that investigation at all form the basis of reasonable suspicion of that individual having acted or having committed that offence. The investigation being a more elaborate procedure controlled by well set out and time‑tested provisions of law should be fairly indicative. If, in spite of acquittal, in spite of discharge and in spite of being found not implicable during the investigation, the police officer or the detaining authority proclaims that there were reasonable grounds to suspect then they have a heavier duty to discharge viz. to undertake the survey of the entire proceedings of trial or investigation, as the case may be, picking out factors which could justify such suspicion. Any other view of the requirement of the law would completely throw the entire administration into disarray and the acquittals, discharges will ail be rendered meaningless if without any distinction, without any scrutiny they are all taken to be grounds reasonable for suspicion.

16. It appears that too often use has been made of the notes made even in the remote past in secret note book kept at the police station. Presumably these are the village crime registers maintained under rules 22.59 and 23.15 of the Punjab Police rules. It is a privileged document and the rule 22.59 (6) requires. "No part of the register may be shown, nor may any copy or extract therefrom or any information derived therefrom be given to, any person not entitled by his official position to obtain such information." One of the registers (Form No. 22.59 (1) (B) contains the names of persons who are suspected of having helped the criminals by furnishing bail or otherwise. Herein criminal means a person against whom investigation is directed or who is challaned in Court or who is suspected by police of having committed the crime and he may not necessarily be the convict. Information extracted from such a register without any scrutiny cannot be utilised for purposes of rule 201 of the Defence of Pakistan Rules.

17. Coming back to the objections taken up by the learned Assistant Advocate‑General it cannot be the argument that it is only the judicial and the quasi‑judicial functions which are reviewable in proceedings under Article 199 of the Constitution. It is too late in the day to confine the jurisdiction so narrowly. The words of Article 199 are not susceptible of any such construction. The executive acts of the named authority are equally open to judicial review and lawfulness of their authority has to be seen. The lawful authority of the executive would include their jurisdiction to deal with the matter and the observance of the manner prescribed for the exercise of that power. The distinction set out in Abdul Baqi Baluch's case with regard to the judicial quasi‑judicial and executive functions is of no avail so far as these proceedings are concerned. Rule 208 of the Defence of Pakistan Rules which is under examination had as its predecessor, rule 204 of the Defence of Pakistan Rules, 1965 and rule 129 of the Defence of India Rules. In the case King‑Emperor v. Vimlabai Deshpande and another (L R 1946 1 A 144), rule 129, sub‑rule (li came up for interpretation. Two identical questions which have arisen in these proceedings had arisen in that case as well, and the questions formulated then for determination were "(1) where a police officer makes an arrest under rule 129, sub‑rule (1) of the Defence of India Rules, is he bound to prove to the satisfaction of a Court before whom the arrest is challenged that he had reasonable grounds of suspicion and (ii) if he is so bound and failed to discharge that burden, laid on him is an order made by the Provincial Government under rule 129 sub‑rule (4) for the custody of a person arrested valid notwithstanding that the arrest was invalid." Their Lordships held as regards the first question that "in their Lordships' opinion therefore the High Court was right in holding that the burden lay on the police officer to satisfy the Court that his suspicions were reasonable and it is plain that on the evidence he had not discharged that burden". As regard the second, it was held, "If no arrest was made under the rules the power to make an order for temporary custody of the detenu never arose. Their Lordships therefore, agree with the High Court in thinking that the Provincial Government had no power to make an order for the temporary custody of the detenu whose arrest under sub‑rule (1) was invalid." It is dear therefore that the arresting officer was duty bound to satisfy the Court examining the legality of the detention of the reasonableness of the suspicion which prompted the action and if such satisfaction is l not afforded to the Court, the subsequent orders continuing detention cannot be sustained.

18. There appears to be a misapprehension on the part of the learned Assistant Advocate‑General in relying on the distinction brought out with regard to the degree of reasonableness where the detaining authority was required to be satisfied and where the suspicion of the police officer was required to be reasonable. It was in the context of decision in Deshpande's case and Sibnath Banerjee's case (ILRIA241) that the observations reproduced ins para. 8 of this judgment were made. They concerned rule 32 and not rule 204 of the Defence of Pakistan Rules, 1965. There being consistent , view of the Courts that reasonableness of suspicion is always open to judicial review, it cannot b.; urged that such a suspicion should be placed for the purposes of scrutiny on a higher pedestal than the satisfaction of the detaining authority.

19. I find that there was no material at all before the arresting officers for reasonably suspecting the detenus of having acted, acting or about to act in a manner prejudicial to the public safety to require action under rule 208 and the action taken was without lawful authority. s. A. H. Petitions allowed.