P L D 1967 Dacca 268 (PLP)

BAQUER, J.‑‑This is a petition under section 491 of the Code of Criminal Procedure against the detention of the detenu Mr. Mizanur Rahman Chowdhury under the East Pakistan Public Order. Safety Ordinance, 1958 (East Pakistan Ordinance No. LXXVIII of 1958; hereinafter referred to as the "Ordinance") in the following circumstances as alleged by the petitioner. The detenu is a Member of the National Assembly of Pakistan and belongs to the opposition group and is a prominent member of the Pakistan Awami League, a political party legally functioning in Pakistan. On the 28th of December 1964, the detenu was on the way to address a public meeting at Kachua in the district of Comilla and when he reached Chandpur town to board a train he was arrested and served with an order purporting to be order under section 17 (1) of the Ordinance under the signature of the Deputy Commissioner of Comilla, dated 27‑12‑1964. The said order ran as follows:‑‑ "Whereas the person known as Mr. Mizanur Rahman, M. N. A. s/o late Hafez Ahmed of Puran Bazar, P. S. Chand pur, District Comilla is reported to be acting in a manner prejudicial to the public safety and the maintenance of public order: And whereas having considered the material against the Z. M. Obaidullah Khan, Esqr., C.S.P., Deputy Commissioner‑incharge of Comilla district, am 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 his detention: Now, therefore, in exercise of powers conferred by clause (a) of subsection (1) of section 17 of the East Pakistan Public Safety Ordinance, 1958 (E. P. Ordinance No. LXXVIII of 1958) as delegated by Government of East Pakistan Home (Special) Department Notification No. 1860‑H. S. dated the 17th December 1964, 1 direct: (a) that the said person shall be detained for a period of 30 days. (b) that, subject to the provisions of clause (a) of this para graph the said person shall be detained in the Comilla Central Jail, and (c). that during such detention the said person shall be subject to the conditions laid down in the . East Pakistan State Prisoners Rules, 1956." The grounds of the said order of 27th December 1964 were:‑ "I, A. Z. M. Obaidullah Khan, Esqr., C. S. P., Deputy Commissioner, Comilla District, have reliable information that during the years 1963 and 1964 at different places in Comilla District you have been acting in a manner intended to endanger public safety and maintenance of public order to excite disaffec tion towards the Government established by law to promote feelings of enmity or 'hatred between different classes of people and thereby created law and order problem in the district and caused fear and alarm to a section of the public. That all your activities mentioned above are likely 'to endanger public safety and maintenance of public order in the district and that furnishing any more facts other than those stated above would be against public interest. The reason of your Detention (Intension) (sic) is hereby communicated to you in pursuance of section 19 of the East Pakistan Public Safety Ordinance, 1958, to enable you, if you so wish, to make representation in writing to me through the Superintendent of Jail where you are at present detained, against order of detention. You are also hereby informed that, you have a constitutional right to make such a representation." The aforesaid order of detention was purported to be in force for thirty days without mentioning the commencement of the date of detention. It has been stated that the detenu challenged the propriety of the said order by filing an application under section 491 of the Code of Criminal Procedure and it is pending disposal. . It has also been stated that the detenu had been addressing different public meetings in the district of Comilla and was criticising the Government for its failure to do justice to the people of Pakistan and was requesting the people, particularly the members of the Electoral College to vote against Field Marshal Ayub Khan on the 2nd of January 1965 in the Presi dential Election and on account of his untiring activities, a strong public opinion was created against the said Presidential candidate. The detenu in a constitutional manner was asking the members of the Electoral College to vote in favour of Miss Jinnah in the Presidential poll. On finding that the members of the Electoral College of the district would not vote for Field Marshal Ayub Khan, the ruling party, namely, the Pakistan Muslim League (Convention) prevailed upon the Deputy Commissioner of Comilla to pass the order with a view to depriving the detenu from trying to change the Government in a constitutional manner. It has further been submitted that the detenu is a public leader and member of the National Assembly belonging to the opposition group and has great influence over the public of the district and that he was arrested and detained under section 17 (1) of the Ordinance only with the object of preventing him from taking part in support of Miss Jinnah in the Presidential Election which was held on January 2, 1965. It has further been stated that the aforesaid order of detention was to remain in force for 30 days and was due to expire on 27‑1‑1965 but on the 26th of January 1965 just one day previous to the expiry of the old order, the detenu received Memo. No. 70‑H. S. dated the 25th of January 1965, purporting to be under the signature of a Section Officer of the Government of East Pakistan, Home Depart ment, wherein he was informed that the Governor directed his detention until further orders subject to the provisions of the Ordinance. The said order was in these terms:‑ "Whereas the person known as Mr. Mizanur Rahman Choudhuri, M. N. A. s/o Late Hafez Ahmad of Puran Bazar, P. S. Chandpur, District Comilla is detained in the Comilla Central Jail under order No. 1488/C dated the 27th December 1964, of the Deputy Commissioner, Comilla. 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) of subsection (1) of section 17 of the East Pakistan Public Safety Ordinance, 1958 (Ordinance No. LXXVIII), 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 continue to be detained in the Comilla Central Jail, and (c) that during such detention the said person shall be subject to the conditions laid down in the East Pakistan State Prisoner Rules, 1956." Thereafter on or about the 30th of January 1965, the detenu received Memo No. 74‑H. S. dated the 26th January 1965 under the signature of the same Section Officer‑Opposite Party No. 2 purporting to be the grounds of detention of the detenu. The grounds as given in Annexure "B" needs be quoted here in extenso and are as under:‑ "The Government of East Pakistan have reliable information that during the month of December 1964, at Chandpur, Matlab, Laksam Kachua and other places in Comilla District, you have been acting in a manner intended to endanger public safety and maintenance of public order, to promote feelings of enmity or hatred between different classes of people to encourage interference with maintenance of law and order and also to excite disaffection towards the Government established by law, viz.‑ (1) You threatened the Headmaster, Matlab High School for removing the manuscript objectionable C.O.P. Posters from school premises; (2) You incited the students to resort to lawlessness to compel the M. E. Cs. to vote for Miss Fatima Jinnah in the Presidential Candidate; (Election) (3) You also held out threats to the M. E. Cs. that in case they would not vote for Miss Fatima Jinnah they would be killed. Furnishing' of any more facts and particulars than those stated above would be against public interest: That all your activities mentioned above threaten and are likely to endanger the maintenance of public order and public safety in this province. The reason of your detention is being communicated to you in purpose of section 19 of the East Pakistan Public Safety Ordinance, 1958, to enable you, if you so wish, to make a representation in writing against the order of detention as you have a constitutional right to make such representation." In the aforesaid grounds of detention, it will appear that three particular incidents inter alia were disclosed to be responsible for his detention, namely :‑‑ (a) that the detenu threatened the Headmaster Matlab High School for removing objectionable manuscript posters of the Combined Opposition Parties from the school premises; (b) that he incited the students to resort to lawlessness to compel the Members of the Electoral College to vote for Miss Fatima Jinnah in the Presidential Election; and, (c) that he held out threats to the Members of the Electoral College that in case they would not vote for Miss Fatima Jinnah they would be killed. It has beers stated that the aforesaid allegations were baseless and though each of them warranted a specific charge under the Penal Code, no specific case has been instituted against the detenu and further that those activities do not come within any of the clauses of subsection (4) of section 2 of the Ordinance. It has also been stated that the detenu intends to contest in the ensuing, election of the National Assembly but the ruling party, namely, the Pakistan Muslim League (Convention) being very much afraid of the popularity of the detenu has prevailed upon the Governor who is a member of the said Pakistan Muslim League (Conven tion) to pass the impugned order of detention of the detenu. Further, that under the National and Provincial Assembly (Electoral) Act, 1964, the detenu has a right to address the projection meeting to be held before the election but on account of his detention he would be deprived of his right and the Governor who is a member of a political party passed the order in order to secure the success of the candidate of the aforesaid political party by illegally detaining the detenu. Further, that the grounds of detention disclosed, indicated that the detenu has been detained in connection with the Presidential Election and since the said election Bras over there was no further justification left for his detention. It appears that the first and initial order was one under section 17 of the Ordinance and the arrest and detention was also one under section 17 of the Ordinance. Section 41 of the Ordinance which gave the power of arrest and investigation preliminary to the final order of detention under section 17 of the Ordinance having been declared ultra vires, it seems that this section 17 of the Ordinance has been used for both the purposes of section 41 and section 17 of the Ordinance itself. In other words, section 17 of the Ordinance has been regarded as self- sufficient and used accordingly in the present case. Having regard to the fact that the Division Bench decision of this Court in Criminal Miscellaneous Cases Nos. 96 and 98 of 1964 declaring section 41 of the Ordinance ultra vires, is pending in appeal by the Provincial Government before the Supreme Court and having regard to the fact that the same decision and the question as to how far section 17 of the Ordinance can operate independently of section 41 of the Ordinance has also been referred for Full Bench and having regard to the fact that the question of vagueness of grounds is also a subject‑matter for examination by the proposed Full Bench, Mr. Rab, the learned Advocate for the petitioner has avoided any serious argument on those points. He has, however, argued that none of the allegations as set, out in the latest grounds, namely, the incidents (1), (2) and (3) as referred to attract the application of the safety Act; that the grounds as served above show want of bona fide inasmuch as the object was to stifle the election effort of the Combined Opposition Parties in the Presidential Election; that the said election being now over there is no raison detre left for further detention; that the Governor having affiliated himself to a particular grouping, namely, the Muslim League (Convention), the reasons and grounds given in support of the detention need careful scrutiny by tire Courts. He has further urged that the allegations against the detenu Constituted offences under the Penal Code whereas the opposite parties without instituting any special case have resorted to the Ordinance only to deny the detenu the right of trial. Mr. Rab has further argued that in the light of the Full Bench decision of this Court in the case of Mahbub Anam v. The Government of East Pakistan and another (P L D 1959 Dacca 774) if any one of the grounds is found to be outside the scope of the Ordinance, then the whole detention order will fall through unless that particular ground was of insigni ficant and unessential nature. In that light he has argued that the first allegation, namely, that of threatening the Headmaster discloses at best a case of criminal intimation of an isolated nature and that in any event it was not likely that there could be any further threat of injury to the Headmaster so as to even fill his mind, or for that matter anybody's mind with alarm when the Presidential Election was long over on the 2nd of January 1965. The incitement and threat, if any, as mentioned in allegations Nos. (2) and (3) are also, according to him, past events which lost their force with the election. In that view Mr. Rab has gone .to the length of arguing that the present was a case in which all the grounds were unfounded and infected and that it is not a case of only one or two grounds being defective. The learned Advocate‑General could not seriously defend the first allegation. He has, however, argued with reference to the allegations Nos. (2) and (3) that the object of the detention was preventive and in this connection he has referred to the expression "likely" in the definition of "prejudicial act" as given in sub section (4) of section 2 of the Ordinance, viz. "Prejudicial act", means any act which is intended or is likely etc". The question that arises is preventive of what? There could be no further threat or incitement in connection with an election that is long over. The learned Advocate‑General has argued that the threat might be effective later and in that sense prevention is necessary. It does not appear that for 24 days after the election when the second order, that is, the present order was passed, anything has happened; not to speak of killing, and in that view this contention of the learned Advocate‑General seems far‑fetched. The students could no further resort to lawlessness to compel the members of the Electoral College to vote for Miss Fatima Jinnah in the second allegation nor was there any chance of the members of the Electoral College being killed in case they did not cast their votes is favour of Miss Fatima Jinnah as given in the third allegation. Even assuming that there were chances of the detenu's threats inflaming the people before or after the election and in that view those were within the ambit of the safety Ordinance, the first allegation in the order of precedence seems substantially to weaken the case of the detaining authorities. The first allegation which refers to an isolated incident of a criminal nature, namely, that of threat upon a particular Headmaster of a particular school seems to throw a cloud of doubt upon the propriety of the whole order. It is difficult to dissociate and isolate this allegation from the other two inasmuch as there is a nexus linking all the three together which is the election of the presidential candidate which was over long before on the 2nd of January 1965. The defect of the first allegation, therefore, seems to affect the other two also. The learned Advocate‑General has argued‑ that even assuming that the allegation No. 1 is prima facie bad, that does not mean allegations Nos. 2 and 3 must necessarily fall. He has argued that in the Full Bench decision relied upon by the learned Advocate for the petitioner, the whole case of the Provincial Government fell because out of the grounds or allegations served, one, namely, with regard to the foreign contacts of the detenu, was a subject‑matter of the centre and outside the ambit of the province. . This Full Bench decision as reported in‑ P L D 1959 Dacca 774, shows that the finding of the Full Bench was as under:‑ "When a detaining authority gives several grounds for detaining a man and out of the said grounds one or more, but not; all grounds are beyond the scope and ambit of the Act or Ordinance conferring the power to detain, the detention will be illegal unless the said ground or grounds are of insignificant or unessential nature." Examining that decision, we see no justification for putting any limitation upon the scope of the decision in the way suggested by the learned Advocate‑General. In our view, it is immaterial whether one of the grounds is relating to the central field or not, and as soon as any of the important grounds is found to be bad and falls through for whatever reason, to the principle of the above Full Bench decision is attracted in full force. The learned Advocate‑General has next argued that allegations Nos. 1, 2 and 3 are only particulars of facts; that the real ground .is as given in the first part of the present ground and the third part thereof and that the whole document embodying the grounds has to be construed together. So far as construing the whole grounds together goes, there is no quarrel at all. Examining the grounds as a whole, we find that the penultimate lines of the grounds, namely, "That all your activities mentioned above threaten and are likely to endanger the maintenance of public order and public safety in this Province;" very much limit the scope of the grounds the first part. The first part relates to, three things, namely, (a), (c) and (d) of sub section (4) of section 2 of the Ordinance relating to "prejudicial act"; they all embody conclusions of fact. The penultimate lines, however, boil down to one conclusion only, namely, that of (a) of the said subsection (4). It will be noted that causing of alarm to the public or any section thereof, which is (f ) of the said subsection (4) of section 2 of the Ordinance as appearing in the first order of December 27 1964, has been given the go‑by in the present order so that the alarming nature of the activities referred to in the allegations is not one of the present grounds. The vision thus presented by the grounds is not only foggy but also seems to be inconsistent. Further the specific allegations Nos. 1, 2 and 3 for the reasons stated, do not seem to be in‑keeping with the first part and as such cannot be regarded as evidence of what has been recited in the first part of the grounds. Moreover, the activities mentioned therein are of criminal nature and much too limited to be of the nature of creating public disorder. The learned Advocate‑General has ultimately frantically argued that we should ignore altogether the existence of the allegations Nos. 1, 2 and 3 which are mere particulars which the detaining authority is not bound, to give and that we can ignore them. In this connection, the learned Advocate‑General has referred to the decision in the case of The State of Bombay v. Atma Ram Shridhar Vaidya (A I R 1951 S C 157). In the light of that decision, it is true that it is sufficient if the detaining authority gives conclusions of facts only and particulars of facts need not be given except to the extent that it is necessary to enable representation. But the real question before us is as to what will be the position when the particulars as given belie the first part as to conclusions of fact, or in other words, are ex facie of such nature e as not to attract the first part at all. It is one thing not to give sufficient particulars; it is another to give particulars which throw' a cloud of doubt upon the conclusions of facts themselves. We cannot ignore that these particulars are illustrative and that being the position, the recitals of the language of the "prejudicial act" in terms of subsection (4) of section 2 of the Ordinance, remain mere recitals without serving any useful purpose. With regard to the want of bona fide on the ground that the Governor is a member of a particular political grouping as opposed to the political grouping of the present detenu, we do not feel that it is necessary to make any comments thereon having regard to the view we have already taken in the matter, namely, that the detenu should be liberated. Further, it appears that the party complexion of the Governor has been denied in the affidavit‑in‑opposition though reiterated by the petitioner in full force in the reply. The learned Advocate for the petitioner also moved an application for bail pending the hearing on the grounds that the detenu was seeking election and would be required to file his nomination by the 16th of February 1965 and that scrutiny was to be held on the 17th of February 195, and that is isolation in the prison stands in the way of his collection of the deposit money of Rupees one thousand necessary as security for election and that he will soon have to address the projection meeting. The learned Advocate‑General resisted this application urging that for nomination and scrutiny it was not necessary for the detenu to be present himself personally and that addressing of the projection meeting before the election was only optional. Although it is true that it was not essential for the candidate to be present in person at the time of filing the nomination paper and scrutiny of the same, it is difficult to deny to the detenu the right of addressing the projection meeting. This right is a valuable right and denying of the same would mean prejudicing and putting hindrances in the way of his success. In that view it does not matter if addressing of the projection meeting is optional and not compulsory. Having regard to the view we have taken to release the detenu and having regard to the fact that there is yet sufficient time for addressing the projection meeting, the question of granting bail does not arise. The Rule is thus made absolute and we direct that the detenu be released and set at liberty at once. A. SUBHAN CHOUDHURI, J.‑I agree. K. B. A. Rule made absolute.