P L D 1966 (W (PLP)

SAJJAD AHMAD, J.‑

This is a petition by Meraj Mohammad Khan under Article 98 of the Constitution and section 491 of the Code of Criminal Procedure for the issue of a writ of habeas corpus and for his release from detention as ordered by the Governor of West Pakistan on the 8th of March, 1965, for a period of three months in exercise of powers under subsections (1) and (7) of section 3 of the West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960) (hereinafter referred to as the Ordinance). The detention order is Annexure `J' attached to the petition. Simultaneously with the issue of the order above mentioned the petitioner was supplied with the grounds for his detention (Annexure `J/1'), as required by subsection (6) of section 3 of the Ordinance to enable him to make a representation to the Government against his detention. The grounds of detention were as follows:

"That you, with a view to creating public disorder in the Province of West Pakistan‑ (i) On 19‑10‑1964, at Karachi, in a meeting of the National Students Federation, incited and encouraged the students to commit acts of violence and lawlessness for pressing their demands; and exhorted them to strike and become violent, as a result whereof Bus No. KAT‑141 (KRTC) was set on fire; (ii) On 11‑12‑1964, at Karachi, took out a procession of the students on M. A. Jinnah Road and damaged electric poles, brick batted and set one KMC truck on fire near Government Girls Secondary School, Jacob Lines, Karachi. (2) That from the above, it is evident that you have been acting and are likely to act in future in a manner prejudicial to public safety and the maintenance of public order in the Province."

2. It appears that some disturbances involving violent and overt acts were committed by quite a large number of students in Karachi in the month of December 1964 when they had staged a strike for enforcement of their demands. A number of cases, were registered against the students and, as set out in the petition the petitioner, who was then a student of the Second year LL. B. class of the Islamia College, Karachi, and the Secretary of the National Students Federation, Karachi, figured in four of such cases as an accused person. The petitioner was arrested on the 12th of January, 1965, for the first time in connection with F. I. R. No. 271 of 1964, Police Station Jamshed Quarters, lodged on the 3rd of December, 1964 (Annexure `C'). This case was registered under sections 147/336/332/427/307, P. P. C. The second case against him was registered by the Artillery Maidan Police Station on the 6th of December 1964 (F. I. R. No. 250 of 1964, Annexure `A'), but as the alleged offences committed in this case were bailable, the petitioner was allowed bail which was duly furnished by him. The third case ( . I. R. No. 209 of 1964) was registered in the Soldier Bazar Police Station on the 10th of December 1964 (Annexure 'B'). This also covered bailable offences. The fourth case (F. I. R. No. 208 of 1964, Annexure `E') was also registered in the Soldier Bazar Police Station, involving non‑bailable offences. This was on the 8th December 1964.

3. It is necessary to set out the efforts made by the petitioner to secure bail in the two cases, F. I. R. Nos. 271 and 208 of 1964 which, as already mentioned above, related to non bailable offences. In the first one an application was moved to the Sub‑Divisional Magistrate, Jamshed Quarters, for the petitioner's bail, which was dismissed on the 10th of February, 1965. Thereafter, the Sessions Judge was moved who granted him bail on the 15th of February 1965. Bail was furnished on the 3rd of March 1965. A release order was issued on the 4th of March 1965 but in spite of it he was not released as the release order was conditional, subject to the accused not being required in any other case, and the petitioner was in custody at the time in the other case i.e., F. I. R. No. 208 of 1964. In the latter case the bail application had been moved to the Sub‑Divisional Magistrate which was rejected on the 28th of January 1965. The learned Sessions Judge also rejected it on the 15th of February 1965. The petitioner then moved the High Court for his bail and his application came up before the learned Chief Justice who was pleased to dismiss it on the 26th of February, 1965. Another application (Bail Application No. 82 of 1965) was‑ moved which was laid for orders before our learned brother Mr. Justice A. S. Farooqi. His Lordship, in the course of his order, observed that "there has been a certain amount of confusion with regard to the arrest of this person because it appears from the record of various proceedings that at one time he was stated to have been arrested in connection with this crime and at another with regard to the other crime". Referring to a contention of the Additional Advocate‑General that the offences alleged against the petitioner were of a serious character, his Lordship observed "that every other person who has been named in the first information report and who has been arrested has been released on bail. No feature distinguishing the case of the petitioner with the other persons who are named in the F. I. R. and who have been released on bail has been pointed out. More than two months had passed since the registration of the case but the challan had not been filed". His Lordship granted bail to the petitioner in the sum of Rs. 10,000.00 with two sureties with the observation that it would be open for the prosecution after some good evidence had been led to move the Court, if so advised, for the cancellation of the bail of any of the accused persons. It would appear that in view of these bail orders in the non‑bailable cases, the one made by the Sessions Judge in case F. I. R. No. 271 of 1964 on the 15th of February, 1965, in respect of which bail had been furnished by the petitioner on the 3rd of March 1965 and by the order of Mr. Justice A. S. Farooqi bailing him out in the second case (F. I. R. No. 208 of 1964), the petitioner would have come out of jail but for the order of detention made against him which is under challenge in this petition and which, as stated above, was made on 8th of March, 1965, coinciding with the date of the order of his release on bail made by Mr. Justice A. S. Farooqi mentioned above.

4. The proceedings in the bail applications, which have been set out above, furnish the main ground for attack on the impugned order of detention as suffering from lack of bona fides the argument of the learned counsel for the petitioner being that the detention order was clamped on the petitioner to defeat the order of bail made by the High Court with the ulterior object of keeping him in jail on one pretext or another in a concerted effort to thwart his freedom and liberty to come out of jail. A further argument made was that punitive law against the petitioner has been set into motion and cases had been registered against him in respect of the alleged commission of offences by him and that an order of preventive detention, directly or indirectly, passed on the same incidents was an abuse of executive authority.

5. We had summoned the Station House Officer of the Soldier Bazar Police Station, S. M. Asghar Hussain, and of the Jamshed Quarters Police Station, Syed Akhtar Hussain, and have recorded their statements to find out if the incidents mentioned in the grounds of detention were the subject‑matter of any reports or proceedings against the petitioner. It was stated by Syed Akhtar Hussain that the burning of KRTC Bus No. KAT 141, mentioned in the grounds of detention supplied to the petitioner as ground No. (1) in Annexure `J/1' was the subject‑matter of a first information report (No. 271 of 1964) in Police Station Jamshed Quarters at the hands of some unknown students. That case was filed as untraced. There was no report recorded in respect of the meeting of the National Students Federation on the 19th of October 1964 mentioned in the same ground or of the procession of the 11th of December, 1964, mentioned in Ground No. (ii) of Annexure `J/1'. It was stated by S. M. Asghar Hussain that the petitioner was an accused in case F. I. R. No. 208 of 1964 in which one of the allegations was that a truck bearing No. KAT 6259 had been set on fire.

6. We have given our anxious consideration to the facts, and circumstances of this case to find out whether within the legitimate bounds of our jurisdiction we can interfere and quash the detention order. It is now well‑settled that preventive detention can properly be contrasted to punitive detention, one having reference to the apprehension of wrong‑doing and the other coming after the illegal act is actually committed. Preventive detention is justified by a reasonable probability of the com mission of a prejudicial act by the suspected person whereas his conviction can only be justified by legal evidence. It is for the detaining authority to judge and put its own interpretation on the suspected prejudicial acts of an intended detenu for its own subjective satisfaction and it does not fall within the province of the Courts to probe into that satisfaction or to analyse the substance and quantum of the evidence on which that satisfaction is based. Courts will interfere only where (1) the grounds alleged for the detention are not relatable to the objects of the detention and the detention law and (2) where such detention on the part of the detaining authority is proved to be of a mala fide character In Maqdoom Mohiuddin v. State of Hyderbad (A I R 1952 Hyd. 112) it was held as follows:‑-- "Whether there is sufficient material for arriving at the conclusion that the detenu is likely to indulge in prejudicial activities is a question solely to be decided by the detaining authority. It is not necessary that such a conclusion should be arrived at on legal proof. It is well settled that the question whether the detaining authority was right in view of the material before it in issuing the order of detention is not justiciable. The scope of judicial enquiry in the proceedings challenging the order under the Preventive Deten tion Act is a limited one. The correctness of the statements relating to the past activities of the detenu is not justiciable. Thus the Court cannot examine the past activities of the detenu as alleged by the detaining authority. The reason for the exclusion from judicial Secrutiny is that the satisfaction under section 3 of the Preventive Detention Act is subjective and no Court can substitute its opinion . . . . . . . . . . for that of the authority and thereby hold the satisfaction to be wrongly reached. Per Srinivasa Chari J.‑

The state of mind of a person who makes an order is pre‑eminently a fact within his knowledge and if on the material before him he comes to the conclusion that he is satisfied that if the detenu were allowed to be at large there was every likelihood of his inciting innocent people to resort to violence, he would be justified in restraining the activities of the man by an order of detention. It is a matter for subjective decision and can never be subjected to an objective test. The satisfaction that is expected is of the executive as it is executive which is entrusted with the duty of maintaining peace and order." The same view was reiterated by the Supreme Court of India in State of Bombay v. Atma Ram Shridhar Vaidya (A I R 1951 S C 157) wherein it was held that the satisfaction in such cases is to be that of the Government which alone is necessary to be established. It was, however pointed out in this case that the satisfaction of the Government must be based on some grounds. There can be no satisfaction if there are no grounds for the same. If the grounds on which it is stated that the Central Government or the State Government was satisfied are such as a rational human being can consider connected in some manner with the objects which were to be prevented from being attained, the question of satisfaction except on the ground of mala fide cannot be chal lenged in a Court.

7. In full appreciation of this legal position the learned counsel for the petitioner wanted us to presume that the detention is mala fide and the sole basis for that, as urged by him, was that since the detention order has followed the release of the petitioner on bail ordered by the High Court, it can have no other meaning. We regret it is not possible for us on this single circumstance to hold that the order is a mala fide one. It may be that the detention order was made to deprive the detenu of his liberty earned by him in view of the bail order made by the High Court, but it may equally be for the reason of an honest conviction on the part of the detaining authority that the petitioner was not a person to be allowed free movements and actions in the context b of the situation than prevailing without detriment to the maintenance of "law and order". In the absence of any proof that the action of the detaining authority is motivated by malicious intent and purpose, which the petitioner must prove as a fact, we are unable to attribute any malice to the detaining authority. The prosecution has in the first instance resorted to the ordinary law, making a full effort to keep the petitioner in custody, to thwart what they considered to be his prejudicial activities and having failed there, and after the petitioner earned his bail from the High Court they have taken recourse to the law of preventive detention, but this only shows the serious apprehensions in their mind of the prejudicial or the suspected prejudicial activities of the petitioner. It is true that an executive authority cannot be permitted to exercise its authority except honestly and without malice and it is the duty of the courts to see that the fraudulent exercise of such power or the colourable exercise of it to gain an ulterior object is stifled; but the question as to the mala fide exercise of power is one of fact in each case C and the onus is on the detenu to show that the order of deten tion is in fact a fraudulent exercise of power vested in the Govern ment and he can sustain that burden only if he can .successfully rebut the presumption of bona fides on the part of the Govern ment. In this case we have not discovered any proof of mala fides. As for the argument that the action of the Government under the preventive law of detention is bad as the petitioner is being prosecuted for his alleged unlawful activities under the punitive law, we find that it does not hold good legally. The two actions, preventive and punitive, are not mutually exclusive and resort can be had to either or both, depending on the choice of the executive authority, with this limitation that the Courts will certainly interfere in aid of the accused person if it is found that the action is taken to deprive him of his legal rights and privileges arising from his trial under the punitive law by action under the preventive law, or when such action is manifestly malicious and mala fide. In view of the legal position as depicted above, we find ourselves unable to interfere in the impugned order of detention and have to dismiss this petition.

8. The petitioner's detention was made for a period of three months beginning from the 8th of March 1965 which is due to expire on the 8th of June 1965 and the Government will have to submit the petitioner's case for the decision of the Detenu Board, set up under section 3 (5) of the Ordinance before the expiration of the said period if it is intended to keep him longer in detention. The Reviewing Board, which consists of a Judge of the High Court and a Senior Officer in the service of Pakistan, will have to consider his case on merits to see if there is sufficient cause for his further detention. S.Q. Petition dismissed.