1983 P Cr (PLP)

Abdul Ghafoor Qureshi v. State 1982 P Cr. L J 1022 and Muhammad Azam v. Azad Jammu & Kashmir Government and others Writ Petition No. 43 of 1981 ref. Petitioner in person. Raja Muhammad Akram Khan for A.‑G. Respondent. Date of Institution : 23rd September, 1982. SARDAR SAID MUHAMMAD KHAN, J.‑This writ petition under section 44 of the Azad Jammu and Kashmir Interim Constitution Act of 1974 has been filed by Sardar Muhammad _Ibrahim Khan, a former. President of the Azad Jammu and Kashmir State, whereby he challenges his detention. The case of the .petitioner is that he was elected President of the Azad Jammu and Kashmir State in general elections held in May, 1975 and is entitled to hold the said office till a new President is elected and is ushered into the office 'of the President, according to the Azad Jammu and Kashmir Interim Constitution Act of 1974. The petitioner also challenges the appointment of Brigadier Muhammad Hayat Khan as the President .of Azad Jammu and Kashmir State, made by the Chairman of the Azad Jammu and Kashmir Council as being without lawful authority. The petitioner has further averred in the petition that he did not contravene any law and as such his detention is unlawful not only because it was ordered by an un‑Constitutional Government but also because that he did not indulge in any activities attracting the application of law relating to preventive detention In the written statement it has been contended that the petitioner .has already filed a writ petition, callenging his removal‑from the office of the President ship and the appointment bf. Brigadier Muhammad Hayat Khan as a‑ new President, through a writ petition which is subjudice before Full Bench of this Court and as such a successive writ petition is not competent. It has been further contended that petitioner delivered highly objectionable speeches in public meetings held on 18th August, 1982 and 3rd September, 1982 and attended a secret meeting held at AI‑Habib Hotel Rawalakot on 5th September, 1982 in which a programme was chalked out for launching a movement against the present Government. It is further contended on behalf of the respondents that as the activities of the petitioner were prejudicial to the safety and the security of the State, an order was passed by the District Magistrate Poonch, on 5th September, 1982 whereby the petitioner was detained in his house situated in village Kharick, Poonch District but according to the respondents, the petitioner contravened the said order and thus another order was passed by the Azad Jammu and Kashmir Government on 7th September, 1982 whereby the petitioner was to be externed from the territory of the Azad Jammu and Kashmir State but according to the respondents the petitioner again refused to comply with the order and consequently, on 7th September, 1'982 the District Magistrate Poonch was compelled to order the detention of the petitioner for a period of 15 days under rule 23 of the Civil Defence Rules of 1962. On expiry of the aforesaid period of 15 days the period of detention was extended by another 15 days on 16th September, 198?.. Then the Azad Jammu and Kashmir Government extended the period of detention for one month by its order dated the 5th of October, 1982. While this writ petition was pending in this Court another order was passed by the Government on 2nd November, 1982. whereby the period of detention of the petitioner was again extended by the Government for a period of one month. We have heard the arguments and gone through the record. The first question which needs determination is as to whether the Constitutional question regarding the removal of the petitioner from the office of the President ship and the appointment of Brigadier Muhammad Hayat Khan as the President of Azad Jammu & Kashmir Government can be raised in the instant writ petition. It is not controverted that these points have already been made subject of a writ petition filed by the present petitioner and the said petition is still subjudice before a Full Bench of this Court. It is settled law that successive writ petitions on the identical grounds are not competent. Even otherwise, we have held in quite a number of cases that the appointment of the President is not open to challenge by a side wind or in collateral proceedings. The matter was recently considered by a Division Bench of this Court in writ petition entitled "Raja Abrar Hussain v. Azad Jammu and Kashmir Government" Writ Petition No. 34 of 1982 and it has been held that appointment of the President cannot be question in collateral proceedings. We are also fortified in our view by cases reported as P L D 1977 Lab.

564. In the aforesaid view of the matter. We leave this question for decision by a Full Bench in original writ petition filed by the petitioner and propose to dispose of the instant writ petition on other grounds. The perusal of the record shows that the initial order.of the house arrest by the District Magistrate was passed under section 5 (b) of the Ordinance known as The Azad Jammu and Kashmir Maintenance of A Public Order Ordinance. The order of externment passed by the Government on 7th September, 1982 was under rule 25 of the Rules known as The Azad Jammu and Kashmir Civil Defence Rules of 1962. The order of detention dated 7th September, 1982 was also passed under rule 23 of the Civil Defence Rules while the order passed by the District Magistrate on 16th September, 1982 although purports to have been passed under rule 23 of the Civil Defence Rules yet it is stated in the order that the detention is being extended because the previous detention was not sufficient for the `maintenance of peace and public good' and the extension of the period of detention was necessary for the `maintenance of public peace'. Evidently, it appears that the detention was ordered under Civil Defence Rules but the object of detention mentioned .in the detention order falls within the ambit of The Maintenance of Public Order Ordinance and is not relatable to the object of Civil Defence Rules. Because, under rule 23 detention can only be ordered if it is necessitated to avert the activities `prejudicial to the defence and security of the State' and not for the maintenance of public order' as is required under the relevant provisions contained in The Maintenance of Public Order Ordinance. The orders of extension dated 5th October, 1982 and 2nd Novermber, 1982 passed by the Government do not indicate as to whether these were passed under Civil Defence Rules or The Maintenance of Public Order Ordinance. There is no mention of satisfaction with regard to apprehended objectionable activities. For appreciating the matter in hand, it is expedient to reproduce here the relevant extract from the latest order passed by they Government :‑ "The Azad Government of the State of Jammu and Kashmir is pleased to extend the detention of Sardar Muhammad Ibrahim Khan son of Sardar Muhammad Alam Khan resident of Kharick, District Poonch (Rawalakot) for a further period of one month with effect from the date of expiry of his previous detention." The same phraseology was used in the previous order passed by the Government on the 5th of October, 1982. It may be observed there that detention under rule 23 of the Civil Defence Rules of 1962 can be ordered only if the detaining authority is satisfied that a person has acted, is acting or is about to act in a manner prejudicial to the defence or security of the Azad Jammu and Kashmir State or is otherwise a suspected person and not as a matter of pleasure, as has been mentioned in the detention order. Coming to the next question, it tray be observed that in case of pre ventive detention under rule 23 of the Civil Defence Rules of 1962, the detaining authority must be satisfied with regard to the matter stipula ted therein as has been already pointed out. The satisfaction of the detaining authority is condition precedent for making an order of deten tion whether it is an initial or it is a subsequent order whereby the period of detention of a detenu is extended. The order must show that while making it, the detaining authority considered the relevant material, keeping in view the object of the Rules. In the instant case, the order whereby the period of detention was extended is a telegraphic one and falls short of the requirements of law. In case of extension of period of detention, it is all the more necessary that the detaining authority reconsiders the question as to whether further detention is necessary for attaining the object of the relevant Rules. The order must be self speaking and must show that the detaining authority applied its mind t D the facts of the case in light of the available material and attending circumstances. If an order of detention whether initial or subsequent, whereby the period of detention is extended, does not conform to t aforesaid requirements of law, such order must fail and detention must be held illegal. We are fortified in our view by a ring of authorities, some of them being Muhammad Aslam Awan v: Government of West Pakistan through Home Secretary Lahore etc. (P L D 1968 Lab. 667), Masood Gul v. Government of West Pakistan (P L D 1969 Pesh. 50) and Fida Muhammad v. Province of N.‑W F.P. (3). It has already been pointed out that order of detention dated 5th October, 1982 and the latest order dated 2nd November, 1982 have been passed by the Government. Although the said orders are of tele graphic nature and do not indicate the law wherefrom the detaining authority derived its powers yet the Advocate‑General has maintained that these orders should be deemed to have been passed under rule 23 of the Civil Defence Rules of 1962. The perusal of the aforesaid Rule shows that in the first instance a detention can be made for a period of one month by the Government, District Magistrate or any other servant of the Government authorized by the Government and the period of deten tion can be extended by another one month by the District Magistrate. At the second stage, the period of detention exceeding two months can be extended only by the Home Secretary subject to the limitation that such period shall not exceed one year including the initial period of two months. The Government is empowered under sub‑rule (5) of the rule 23 to extend the period falling subsequent to the said period of one year and E not before. In the instant case, extention in the period of detention exceeding two months has been made by the Government and not by the Home Secretary as required under law. Therefore, we have no hesitation in holding that the aforesaid detention order is without lawful authority and as such is illegal. The identical question came up for consideration before this Court in cases, one reported on 1982 P Cr. L J 1022 and another unreported DB case entitled Muhammad Azam v. Azad Jammu & Kashmir Government and others" Writ Petition No. 43 of 1981, decided on 18th December, 1981. The detentions in those cases were held illegal on the similar interpretation of rule 23 of the Civil Defence Rules of 1962. As the writ petition succeeds on the abovementioned grounds, we do not propose to deal with other grounds raised by the petitioner. The upshot of the above discussion is that we accept the writ petition and declare the detention of the petitioner as unlawful. It is directed that petitioner shall be released from the custody, forthwith.