1983 P Cr (PLP)

(c) Azad Jammu & Kashmir Civil Defence Rules, 1962‑ ‑‑ R. 23‑Extension of detention beyond two months‑Com petency of Government to order‑Government, instead of Home Secretary extending detention beyond two months‑Government, held, not competent to make such extension‑Detention under preventive law not within pleasure of Government but ordering such detention at appropriate stage is a matter of satisfaction by the Government.‑(Preventive detentibn]. Mumtaz Hussain Rathore and Latif Akbar for Petitioner. Rafigue Mahmood Khan, Addl A. A.‑G. for the State. Date of institution : 8th December, 1981. SARDAR MUHAMMAD SHARIF KHAN, ACTG. C. J. ‑By this writ petition the orders of detentions of the persons namely Muhammad Riaz Inquilabi, Advocate, Muhammad Sabber Ansari, Advocate, Muhammad Azim Dutt, Advocate Khawaja Javeed Iqbal and Bashir Tabassam have allegedly become a subject of challenge herein for being illegal and having been made for no fault of the aforesaid detenus which could have been brought within the mischief of Rule 23 of the Civil Defence Rules, 1962. The grounds on which the detentions were initially ordered by the District Magistrate, were also furnished to the detenus who have filed their written affidavits in order to belie them (grounds). No counter‑affidavits were filed by the respondents, nor it was felt by them so as to establish the truthfulness of the grounds constituting the subversive activities of thel detenus by production of any evidence. At the time, the written statement was submitted by the Advocate‑General on behalf of the respondent, an affidavit was also filed alongwith it but is was not from the persons concerned. The Deputy Secretary Home who has filed this written affidavit does not figure anywhere before us in relation to the proceedings taken by the respondents against the persons detained by them under Rule

23. A Therefore, we are constrained to hold that the detenus are not wrong while submitting their written affidavits stating therein that whatever allegations were made against them, they were absolutely wrong and that they have not acted in a manner prejudicial to the security and defence of the State. It may be noted here that the detenus could only be taken to task under the provisions of the Civil Defence Act read with Rule 23, if the security and the defence of the State were involved. The criticism on the Government in any manner involving politics short of damaging security and defence of the State does not mean that the persons detained were involved in anti‑state activities so as to attract their detentions under Rule

23. Moreover, after the lapse of a period of three months no extension in detentions of the said detenus could be made by the authority concerned unless before the expiration of a period of three months, the cases of detentions of the above‑noted persons were referred to a Review Board set‑up by the Government as required by subsection 4 (5) of section 4 of the Interim Constitution Act, 1974 in order to obtain its opinion for authorisation of further detentions. But in such Review Board, if any, was approached by the authorities detaining the said persons to have a report from it to the effect that in its opinion there were sufficient grounds for such detentions which could be ordered to take C effect after the expiration of three months of detention. This was not done by the respondents in the instant cases and without doing so further detentions of one month in each case after the expiration of a period of three months becomes illegal. The District Magistrate‑respondent could have ordered the denten tions for a period of two months including the extension if the security or the defence of Azad Kashmir was involved and further extension in the detentions thereof could have, only been made by the Home Secretary by a special order which could have been extended further to a period of one year and beyond that the Government may extend the same from time to time. Butt in the instant cases the Government instead of Home Secretary, was pleased to make extension beyond a period of two months and as such the Government was not. competent to make the impugned detentions of the said persons. It is not within the pleasure of the Government to detain a person under a preventive law but it is a matter of the satisfaction of the Govern ment while ordering detention of a person at an appropriate stage. The stage of the Government was not reached yet in these cases so as to make any order in respect of the detentions of the said persons in form of extension. Thus it was wrongly asserted by the Govern ment at this stage in question that the Government was em powered to make extension in detention under Rule 23 at a stage which was to be covered by the Home Secretary. The Government as an authority making or directing the arrest of a person could have, of course, initially made an order for detention only for a period of one month and thereafter at the last stage after the expiration of a period of one year inclusive of the extension made by the Home Secretary in order to extend period of detention beyond one year from time to time. The instant cases have not yet reached the final stage. They were yet at the middle stage to be acted upon by the Home Sectrerary and not by the Government if Rule 23 could be invoked for the subversive activities involving defence and security of the State i.e. Azad Jammu and Kashmir. In the above circumstances, the detentions of the said persons are declared against law which obviously amount to illegal confinement. That being so, this writ petition is accepted and the immediate release of the said persons is hereby ordered. The orders for their release forthwith shall issue to the Superintendents of Jails concerned. Petition accepted.