1983 PLP 730 (PCRLJ)

Petitioner in person. Rafique Mahmood Khan, Add]. A.-G. for Respondents. Date of institution : 1st December 1982. This habeas corpus petition has been filed under section 491, C.r. P. C., whereby the release of Sardar Khalid Ibrahim Khan, Sardar Muhammad Arif Khan and Ch. Muhammad Bashir. Ex-M. L. A., from detention in Pallandri jail by reasons of orders of the Additional District Magistrate, Poonch, has been sought. The brief facts giving rise to this petition are that the Additional District Magistrate, Poonch, in exercise of the powers vested in him under rule 23 of the Azad Jammu & Kashmir Civil Defence Rules, 1962 made an order on 27-11-1982 for the arrest and detention in Pallandri Jail for a period of 15 days, of Sardar Muhammad Arif Khan and Ch. Muhammad Bashir as he was satisfied that there were reasonable grounds for believing that the said persons were acting or were about to act in a manner prejudicial to the defence and security of Azad Kashmir. A similar order was also made on 28-11-1982 in respect of Sardar Khalid Ibrahim Khan by the said authority. 1n execution the aforesaid orders, the said persons were detained in Pallandri Jail for a period of 15 days in the first instance which period, according to the statement of the learned Additional Advocate-General, has been extended for a further period of 15 days. I have heard the petitioner and the learned Additional Advocate-General appearing on behalf of the respondents. It has been contended by the petitioner that it was mandatory upon the detaining authority under the relevant provisions of Azad Jammu & Kashmir Interim Constitution Act, 1974 to communicate the grounds of detention to a person detained under the preventive law but in this case the detenus have not been furnished with the facts constituting the grounds upon which their detention has been ordered by the detaining authority. It is thus, argued that the detention under consideration is unlawful on this very score of not communicating the grounds of detention to the detenus as envisaged by the mandatory provisions contained in the Constitution. The orders of detention of the detenus have also been challenged on the ground that even the material placed before the Court and alleged to be forming the basis of their detention is not such which could justify their detention under rule 23 of the Azad Jammu & Kashmir Civil Defence Rules, 1962. After taking into consideration the grounds of detention communicated to the detenus by the detaining authority and the relevant material placed before me by the learned Additional Advocate-General which forms the foundation for the detention of the detenus, I have come to the conclusion that both the arguments urged by the petitioner in support of this petition are forceful and must prevail. As regards petitioner's first contention that the detaining authority was under constitutional obligation to supply to the detenus the grounds of their detention, it stands fully supported by the provisions of the Constitution con tained in its section 4(2)(5) which, for the sake of reference, may be reproduced as under :- 4.-(2)(5). When any person is detained in pursuance of any order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order Provided that the authority making any such order may refuse to disclose facts which such authority considers it to be against the public interest to disclose. From the bare reading of the above provisions of the Constitution, it becomes quite clear that the detaining authority is bound to communicate to the person detained under the law providing for preventive detention not only the grounds of his detention as soon as may be but is also to provide him with the earliest opportunity of making representation against his detention. The duty cast upon the detaining authority to afford the detenu the earliest opportunity of making representation against his order of detention under the above-quoted provisions of the Constitution indicates that the grounds of detention communicated to a detenu should he clear, unambiguous and com prehensive enough to enable him to make a representation against his detention to the prescribed authority. If the grounds are vague, lacking in necessary particulars or indefinite, then how would he be in a position to make any effective representation against the order of his detention so as to convince the detaining authority about his innocence. In such a situation where the grounds of detention communicated to a detenu are lacking in clarity and are failing to communicate to him the particulars of instances upon which same have been framed, the very purpose of the constitutional provisions requiring the detaining authority to furnish the grounds of detention to a person detained under preventive law, shall stand defeated because in such a case he would be unable to make any effective representation against his detention. Where the grounds communicated to a detenu suffer from infirmities enumerat ed above, the superior Courts of Pakistan and Azad Kashmir have held such detention under preventive law to be invalid and unlawful. In this connection, P L D 1973 Kar. 421 and P L D 1976 Kar. 1209 may be referred to wherein the detention under preventive law was held to be illegal and invalid on account of the grounds of detention being vague, indefinite and lacking in particulars. We have also taken a similar view in the cases entitled Sardar Muhammad Yusuf Khan v. The State (1983 P Cr. L J 392) and Sardar Muhammad Latif Khan and others v. The State (1983 P Cr. L J 456), decided on 7-11-1982 and 14-11-1982 respectively. When the grounds of detention communicated to the detenus in the present case are seen in the light of the state of law referred to above, one comes to an inescapable conclusion that the detention of the detenus stands vitiated by reasons of the grounds of detention communicated to them being ambiguous, indefinite and lacking in particulars of instances upon which the same are framed. Now, let me take up the grounds of detention communicated to the detenus. The grounds of detention communicated to Sardar Muhammad Arif Khan and Ch. Muhammad Bashir are exactly the same which read in each case as follows : "(1) As reported by the S. P. Rawalakot Poonch vide his No. 7056/SP/82 dated 27-11-1982, it reveals that your activities in the recent past in Azad Jammu & Kashmir Territory were calculating to be inviting the public for violence against the present Government ; (2) were aimed at creating hatred, contempt and alarm ; (3) have been in a manner prejudicial to public safety, defence and damage to the State." The grounds of detention communicated to Sardar Khalid Ibrahim Khan read as under :- . (1) That you were bound down not to enter- in Azad Kashmir vide Government Order No. H & P/4127-36 dated 14-I1-1932 under section 25 of Civil Defence Rules, 1962 for a period of one month from the date of its service but you have violated the said order and entered in the A. K. territory and arranged a public meeting at Rawalakot on 28-11-1982 and delivered most objectionable speech against the Government which is subversive to the defence of the State. (2) Your activities were aimed, at creating hatred, contempt and alarm. (3) Have been in a manner prejudicial to the public safety and Defence of the State." As would appear from the grounds -of detention reproduced above, in none of them except in ground No. 1 in case of Sardar Khalid Ibrahim Khan, any detail, whatsoever, has been given about the activities of the detenus which, in the opinion of the detaining, authority, were calculated to produce the effects mentioned in it, namely, "calculating to be inviting the public for violence against the present Government; were aimed at creating hatred, contempt and alram; and were in a manner prejudicial to public safety, defence and damage to the State". These grounds do not disclose any facts constituting the activities of the detenus which were taken exception of by the detaining authority and induced it to the necessity of making the impugned orders of their detention with a view to preventing them from acting in a manner prejudicial to the defence and security of the State, when the detenus were not made aware of the allegations against them which led to their preventive detention, how would it be possible for them to refute those allegations or give any satisfactory explanation to the concerned G authority so as to convince it of their innocence and persuade it to modify o set aside their detention. The grounds of detention communicated to the detenus in this case can hardly be called the grounds of detention required to be communicated to a person detained under the law provided for preventive detention, under the constitutional provisions inasmuch as these do not provide them with an opportunity of making any effective representation against their detention. In this view of the matter, all the grounds, barring ground No. 1, in case of Sardar Khalid Ibrahim Khan, detenu, were bad in law by reasons of their being vague, indefinite and wanting in particulars and the detention based on such grounds cannot be justified and sustained under the Azad Jammu and Kashmir Civil Defence Rules in purported exercise of which they were made. As regards ground of detention No. I communicated to Sardar Khalid Ibrahim Khan, I am of the view that this ground cannot be made the basis of his detention under rule 23 of the Azad Jammu & Kashmir Civil Defence Rules, 1962. In this ground it is alleged that the said detenu entered into Azad Kashmir territory on 28-11-1982 in contravention of Government Order dated 14-11-1982 made under section 25 of the Azad Jammu & Kashmir Civil Defence Rules, 1962 prohibiting his entry in Azad Kashmit territory for a period of one month, arranged a public meeting at Rawalakot on the same day and delivered an objectionable speech against the Government. The entry of the said detenu in Azad Kashmir in defiance of a; lawful order of the competent authority, per se, is not an art which is any way endangers the defence arid security of the State unless after entry into Azad Kashmir his activities amounted to produce the aforesaid effects. If he had contravened any order by entering into Azad Kash territory, he could be proceeded against under the normal law providing for punishment for such a disobedience to a lawful order. In this ground it is only alleged that after entering into Azad Kashmir territory he organized a public meeting at Rawalakot and delivered a most objectionable speech against the Government. No particulars of the said speech have been at all mentioned in this ground, in the absence of which one is left guessing only about the objectionable nature of the said speech. Here too, if the detenu in not informed about the contents of the speech delivered by him, hose is he expected to make any representation against this ground of his detention. Anyhow, an objectionable speech against the Government is not by itself such a prejudicial act which comes within the ambit of rule 23 of the Azad Jammu & Kashmir Civil Defence Rules as it does not amount to an act prejudicial to the security and defence of the State, as the Government and the State are two different entities. This view has already been taken by this Court in a Full Bench case reported as P L D 1979 Azad J & K 491 wherein it was held that "the anti-Government political activities are to be distinguished from the anti-State activities because the State and the Government are two different political entities; while the Governments come and go, the State is always there as the country of all." The same view was followed by this Court in a Division Bench case reported as P L D 1982 Azad J & K

36. Any how, for my own satisfaction. I have examined the police diary containing the speech of the said detenu made in public meeting at Rawalakot on 28-11-1982 and considering it as a whole, I find nothing in it which may be said to calculate to endanger the defence and security of the State. Even otherwise, this speech has not formed the basis of detention of the said detenu as the same does not appear to be before the detaining authority at time of passing the impugned order. The Additional District Magistrate has ordered the detention of the said detenu on 28-11-1982 on the report of Superintendent of Police, submitted to him on the same day in which he had requested the District Magistrate for issuance of warrant of arrest and detention of the said detenu under rule 23 of the Civil Defence Rules, for a period of 15 days, solely on the ground that he had contravened the order of his Government from Azad Kashmir territory made by the Government. There is no mention, whatsoever, in the report of the S. H. O, to the Superintendent of Police on which he requested the District Magistrate for the issuance of order of arrest and detention of the detenu that the detenu had arranged any public meeting at Rawalakot and delivered an objectionable speech against the Government. The order of his detention appears to have been made before he delivered any speech in a public meeting at Rawalakot. So, this allegation of his arranging a public meeting at Rawalakot and delivering a speech therein cannot be made the basis of his detention as this material was not before the detaining authority when it ordered the detention of the said detenu in Pallandri Jail for a period of 15 days. This is now a settled law that the material which was not before the detaining authority of passing the order of detention of a person under the preventive at the time law, cannot be used against him for his detention. Apart from the fact that the detention of the detenus has been found to be unlawful on account of grounds of their detention communicated to them being bad in law, I have also examined the material placed before me, with a view to ascertaining as to how far the conclusions arrived at by the detaining authority in its grounds of detention are justified by this material and how far the satisfaction of the detaining authority, acting under the Defence Rules, was induced by the existence of reasonable grounds. The material against Sardar Khalid Ibrahim Khan, detenu has already been considered and discussed above and thus, there is no need to repeat the exercise. As regards the material against the other to detenus, it consists of a report of the lead Constable dated 28-11-1982 to S. H. O. Rawalakot which was ultimately sent by the Superintendent of Police to the District Magistrate for his perusal and orders, upon which the orders of arrest and detention of the said detenus were made. In this report it is stated that it is "reliably learnt" today that Ch. Muhammad Bashir and Sardar Muhammad Arif Khan are creating hatred in the public against the present Government and are inciting the public to start a movement against the Government. It is further stated in this report that the said persons are inciting the students of the Government Degree College, Rawalakot to take processions and hold meetings and to create disturbance. A cursory perusal of the above report would show that the same is ambiguous, vague and lacks in particulars. From this report it does not appear as to which was the source the information given in this report regarding the activities of the said detenus. No member of the public nor any student has been identified in this report to whom the detenus incited to hold meeting or create any disturbance. Similarly, in it, no date, time and place is given of the objectionable activities. AS a matter of fact, one is left guessing as to where and when the activities taken exception of were carried out by the said detenus. I am unable to see how on these vague allegations contained in the aforesaid report, one can be persuaded to draw the conclusions which have been drawn lay the detaining authority that the detenus' activities were prejudicial to the defence and security of the State. It is by now a settled law that the material on the basis of which a person is detained under the law relating to preventive detention, should be such as would persuade the rational and prudent human being to come to a similar conclusion to which the detaining authority lead come regarding the necessity of making the orders of preventive detention. In this case, the material before the detaining authority at the time of passing the order of detention of the detenus was not enough to lead one to draw a conclusion that there existed reasonable grounds for believing that the detenus were acting or were likely to act in a manner prejudicial to the defence and security of the State on which ground their detention has been ordered by the detaining authority as would appear from Mite orders impugned in this petition. For the foregoing reasons, the petition is allowed and the detenus are ordered to be set at liberty forthwith if not wanted in any other case. The Superintendent Jail, Pallandri shall be informed accordingly. Petition accepted.