1969 P Cr (PLP)

ABDUL MOUDUD, J.‑In this case a Rule nisi in the nature of Habeas Corpus under section 491 of the Code of Criminal Procedure was issued calling upon the opposite‑parties to show cause why the detenu who is alleged to be illegally and improperly detained at the Jessore Jail should not be brought before this Court and be dealt with in accordance with law. A copy of this rule was also served on the learned Advocate‑General.

2. It was averred on behalf of the detenu that he is a law abiding citizen of Pakistan. After obtaining his B. Com. Degree from the Jessore M. M. College he enrolled himself as an Income‑tax Practitioner in the year 1965 and he was in his profession till he was taken into custody on 30‑11‑66.

3. At the time of his arrest the detenu challenged and asked for showing him any order therefor. But no such order was shown to him. Subsequently the petitioner for and on behalf of the detenu applied for an order but no response was made. It was asserted that the detenu was connected in no way with the alleged occurrence of the Jessore College and that there was no cause for any preventive detention action against him. The detenu was never acting in any manner prejudicial to the public safety and the maintenance of public order, the maintenance of peaceful condition in the country and the maintenance of essential services and supplies.

4. On repeated demands of the order he was at last supplied with the order on 25‑5‑67 although he was actually detained by an order signed on 30‑11‑

66. There was nothing objective to show that the Deputy Commissioner was satisfied that the detenu was acting in any manner prejudicial to public safety and consequently he has been arrested and detained illegally and without jurisdiction and with a mala fide intention and without any lawful authority.

5. In the counter‑affidavit filed on behalf of the opposite- parties, the present Deputy Commissioner of Jessore averred that the detenu is not a law‑abiding citizen ; that prior to his arrest he was acting and was likely to act prejudicial to public safety and maintenance of public order, the maintenance of peaceful conditions in the country, the maintenance of essential supplies and services; that he was indulging in prejudicial and anti‑State activities to the great prejudice of the local administration. The order of Detention was shown to the detenu at the time of arrest. It was stoutly denied that this detenu took no part in the occurrence regarding the Jessore M. M. College, on the other hand it was averred that although he is an Income‑tax Practitioner he took active part in the hooliganism and rowdiness that broke out in the College Campus on 24‑11‑66 and 26‑11‑

66. He took very much active part in the incidents and acted and was likely to act in a prejudicial manner. Finally in paragraph 17 details have been given regarding the prejudicial activities of this detenu.

6. An affidavit‑in‑reply on behalf of the petitioner has also been submitted before us against the averment made in the counter‑affidavit filed on behalf of the opposite‑parties.

7. In this case the order of detention under rule 32 (1)(b) of the Defence of Pakistan Rules (1965) was made on 30‑11‑66 and it runs as follows :‑ "Government of East Pakistan, Office of the Deputy Commissioner, Jessore. No. 1684/C. S. Dated 30‑11‑1966. Whereas Mr. Qazi Abdus Shahid, son of Qazi Abdul Ghani of Puratan Kashba, P. S. Kotwali, District Jessore, is reported to have acted and likely to act in a manner prejudicial to the public safety and maintenance of public order, the maintenance of peaceful conditions in the country, the maintenance of essential supplies and services And whereas I, A. K. M. Kamaluddin Chowdhury, C. S. P. the Deputy Commissioner of Jessore District, am satisfied that with a view to preventing the said Mr. Qazi Abdus Shahid from acting in any manner prejudicial to the public safety and the maintenance of public order, the maintenance of peaceful conditions in the country and the maintenance of essential supplies and services, it is necessary to make the following order:‑ Now, therefore, in exercise of the powers conferred by clause (b) of sub‑rule (1) of rule 32 of the Defence of Pakistan Rules (1965) delegated to me by the Government of East Pakistan Notification No.

115. Poll (II), dated 13‑9‑65, I, A. K. M. Kamaluddin Chowdhury, C. S. P. Deputy Commissioner. Jessore District do hereby direct‑ (a) that the said Mr. Qazi Abdus Shahid shall be detained until further order. (b) that subject to the provisions of clause (a) of this paragraph the said‑person shall be detained in the Jessore Central Jail. (Sd.) A. K. M. Kamaluddin Chowdhury, Deputy Commissioner, Jessore, District 30‑11‑66" No fault was found with this order. But it was asserted in paragraph 14 of the application that the detenu's father, the present petitioner, Qazi Abdul Gani, submitted an application to the Deputy Commissioner, Jessore to supply him with a copy of the order of the detention of his son, but he received no response from the respondent No. 2 and at last on repeated demands after so many petitions the detenu has been supplied with an order of back dated one on 25‑5‑

67. Against such clear assertion by the petitioner, the Deputy Commissioner in his counter‑affidavit has simply stated that "the order of the detention was shown to the detenu at the time of arrest". This shows that he did not deny the clear assertion of the petitioner that no detention order was actually served on the detenu at the time of his arrest.

8. Under rule 189 of the Defence of Pakistan Rules (1965), it is expressly provided that every authority, officer or person who makes an order in writing in pursuance of any of these rules shall, in the case of an order affecting an individual person serve or cause the order to be served on that person personally by delivering or tendering to him the order. In the instant case the liberty of a citizen was curved, but the fact remains that he was not allowed to know the reasons why his liberty was curbed. It is unfortunate that orders are made without serving the order of his detention as distinctly provided in Rules and it is highly deplorable.

9. It has been asserted by the Deputy Commissioner in his counter‑affidavit that the detenu is not a law‑abiding citizen and that prior to his arrest he was acting and was likely to act in a manner prejudicial to public safety and maintenance of public order, the maintenance of peaceful conditions in the country, the maintenance of essential supplies and services, and that he was indulging in prejudicial and anti‑State activities to the great prejudice of the local administration. In paragraph 17 a list has been given as to the prejudicial activities of this detenu. It is stated that in 1956 he became a member of a working committee of the Sub‑Divisional Branch of East Pakistan Students, Union, Jessore. The same year he became Office Secretary of the District Committee of the Union. The detenu was a student of the M. M. College, Jessore and was a member of the East Pakistan Students' Union, a student organisation of the Communist party and took part in politics. As a leader he organised the Sub‑Divisional Units of East Pakistan Students' Unions, in the district of Jessore and made them active. He was responsible for organising strikes, processions in the educational institutions of Jessore, Narail, Magura and Jhenidah. He was arrested in connection with students' unrest at Rajshahi and he was convicted and sentenced to rigorous imprisonment for 14 years by the Special Military Court, under Regulations Nos. 12, 13, 24, 51 and 94 of the Martial Law Regulations. Finally, the Commander‑in‑Chief of the Pakistan Army was pleased to remit the un-expired portion of the sentence of the detenu with immediate effect on condition that be would execute a bond of good behaviour. He was found to take part in students' politics during the year 1963 64.

10. In the affidavit‑in‑reply regarding the conviction and sentence by the Special Military Court it is admitted that the respondent was at fir6t sentenced, no doubt, by a Military Court, but General Musa, the then G. O. C. acquitted the detenu on appeal and he observed that the detenu was wrongly arrested and he was in no way connected with the alleged occurrence and that he never executed a good behaviour bond.

11. As regards the activities of this detenu in Students' Unions we feel that there is no material produced before us, to show that he ever acted beyond the limits of students' activities. Students Unions are necessary adjuncts to educational institutions and they serve as drill grounds for training students in sports, social welfare and literary and cultural activities as the future citizens of Pakistan and mere devoted activities of a student in such unions would not itself be regarded as activities prejudicial to the interest of the State. No material could be produced before us showing that this detenu ever acted beyond his activities as a worker of the East Pakistan Students' Union and we have got nothing before us to show that the "E. P. S. U." has been banned by the authorities. Regarding the assertion that this detenu took active part at the hooliganism and rowdiness that broke in the College Campus on 24‑I1‑66 and 26‑11‑66 we find it stated in paragraph 17 that on 25‑11‑66 this detenu was found very much busy and anxious to get 5 students of M. M. College, Jessore, who were arrested in connection with criminal cases started for the said violences made in the College Campus, to be released on bail and that after the said accused students of the college were released on bail this detenu was found in the Hostel on 26‑11‑

66. Beyond such statements we have got no materials before us to show that this detenu took any part in the hooliganism and rowdiness that are said to have broken out at the College Campus on 24‑11‑66 and 26‑11‑

66. Seeking bail for the accused students was not certainly a matter which could be considered something prejudicial to the interests of the State. Besides, there are other statements regarding the activities of this detenu in the affairs of the East Pakistan Students' Union; but we have already seen that beyond such activities as an worker of the Students' Union the opposite parties failed to produce any material before us to lead an ordinary sensible man to think and be satisfied that the acts of this detenu amounted to prejudicial activities at any period.

12. Thus on a careful scrutiny of the statements made by both the parties before us we feel constrained to hold that the order of detention was not only unfounded and unwarranted but it was arbitrary and uncalled for. The result is that the rule is made absolute and it is directed that the detenu be set at liberty, at once, if not otherwise wanted. BAQUER, J.‑I agree. Rule made absolute.