P L D 1949 Lahore 55 (PLP)

Muhammad Sharif J.-This is a petition under section 491, Criminal Procedure Code that Muhammad Hussain Ata, Vice-President, Pakistan, Trade Union Federation was illegally arrested 2nd unlawfully detained under section 3 of the Punjab Public Safety Ac and be set at liberty. It was alleged that the detenu was the Vice-President of Pakistan Trade Union Federation, a registered body under the Trade Union Act, 1926 and its aims and objects are to make Pakistan strong, free, honest and a Democratic State. It was further alleged that Muhammad Hussain Ata had not committed and was not likely to commit any act prejudicial to public peace or the maintenance of the public order. The action by the police was stated to be mala fide and not in accordance with the provisions of section

3. Notice was issued to the Crown to produce all the relevant papers relating to the arrest, detention etc. This was done. On a perusal of the papers it transpired that the order of arrest was passed by the Superintendent of Police C. I. D. on 2nd of November 1948 and the arrest was effected at Rawalpindi the same day. The detention was in the first instance ordered for one month but on 30th of November 1948 the period was extended by the Provincial Government till 1st of May 1949. Some evidence was examined in this case, Mr. Zulqarnain Khan Deputy Superintendent of Police, C. I. D., was the first witness. He deposed that he had ordered the arrest of Muhammad Hussain Ata on 2nd of November 1948 and at that time he was acting as the Superinten dent of Police C. I. D. The order of arrest was passed by him as he was satisfied from his own personal knowledge as well as from the reports received from his subordinate, that the arrest was necessary for the maintenance of public peace within the meaning of section 3 of the Punjab Public Safety Act. He also revealed that Muhammad Hussain Ata was, after his arrest, kept in the police custody and was not sent to jail. This was done as the detenu was to be interrogated by the police to obtain an inside knowledge about his activities or those of his associ ates. The work of interrogation was however left to be done by the Inspector, C. I. D. It was admitted that the interrogation of the detenu was not in connection with any offence said to have been committed by himself or in which he was otherwise involved. Muhammad Hussain Ata detenu appeared as his own witness. He stated that he was not engaged in any subversive activities against the State, that he was kept in the police custody for one month and during this interval he was subjected to severe interrogation by the police. This was directed not against his personal activities but to the international links with the Communist Party. He was also questioned as to the despatch of arms and ammunition to Indonesia, Malaya and China where the Communists were engaged in active fighting. He further stated that he was from 1937 to 1941 the editor of the "Ittahad" a weekly journal issued from Abbottabad in N. W. F. P. From 1941 onwards he was acting as the correspondent of several papers and at the time of his arrest he was on the editorial staff of "Naya Zamana" published from Lahore. It was contended by the learned counsel for the petitioner that the detenu was arrested and detained by the police for the purposes of interrogation and not for any prejudicial act against the State and that his confinement in the police custody was a proof positive that action under section 3 of the Punjab Public Safety Act was not for any of the reasons given in the section but for ulterior objects. The relevant provisions of section 3 of Punjab Public Safety Act may by reproduced :- "3. (1) The Provincial Government, the District Magistrate or any servant of the Crown authorised -in this behalf by General or special order of the Provincial Government, if satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the public safety or the maintenance- of public order, it is necessary so to do, may arrest such person without warrant or` may direct the arrest without warrant of such person and in making such arrest any means that may be necessary may be used. (2) An arrest made by or on the direction of any authority under this section other than the Provincial Government, shall be reported forthwith to the Provincial Government by the authority so making or so directing the arrest, as the case may be, and the authority making the report may by order in writing commit any Prison so arrested to such custody as the Provincial Government may by general or special order specify in this behalf." On 2nd September 1948, a Notification No. 7213-BDSB was issued under subsection (2) of section 3 of the Punjab Public Safety Act II of 1947. It is as under :- "In exercise of the powers conferred by subsection (2) of section 3 of the Punjab Public Safety Act II of 1947, the Governor of West Punjab is pleased to specify that any person arrested under subsection (1) of the said section, by or on the direction of an authority other than the Provincial Government, shall be committed to the custody of the police or any prison or subsi diary jail in West Punjab. In the event of the person being detained in any prison. or subsidiary jail the Inspector-General of Prisons will have the power to transfer him for custody in any other prison or subsidiary jail in the Province. The custody of the police will include detention in any Police lock-up or any other place used for the detention of persons in Police custody and the custody of any police officer in the Province. The affect of this Notification is that a person arrested in accordance with section 3 of the Punjab Public Safety Act may be ordered to be detained in the custody of the police. The learned Advocate-General maintained that by virtue of this Notification the detention of Muhammad Hussain Ata in the police custody was perfectly in order and the interrogation by the police, during detention, could not be said to contravene the object of the Act. It would be desirable at this stage to analyse section 3 of the Punjab Public Safety Act 1947. The Provincial Government, the District Magistrate or any servant of the Crown generally or specially authorised in this behalf by the Provincial Government may arrest or direct the arrest of a person if it or he is satisfied that the arrest of any person is necessary to prevent him (i) from acting in any manner prejudicial to the public safety or (ii) the maintenance of public order. This is the first stage. The second stage is reached when the arrest has been effected by an authority other than the Provincial Government and such authority shall immediately report to the Provincial Government the factum of such arrest and commit the person arrested to the custody specified by the Provincial Government in this behalf. Where the requirements of section 3 have been scrupulously complied with and the official record of the act of arrest stating the fact that the arresting authority was satisfied that it was necessary to make the arrest with a view to preventing the arrested person from acting in a manner prejudicial to the public safety or the maintenance of the public order is produced, a presumption shall arise that the action was properly taken. This presumption shall be further fortified by the affidavit of the person arresting or directing the arrest that he was personally satisfied that action under section 3 was necessary in the public interest, This presumption can be rebutted by bringing on the record facts tending to show that the officer making the Arrest or directing the arrest was not really satisfied that action under section 3 was necessary to prevent a person from acting in a manner preju3icial to public safety or the maintenance of public order. The Court can go only into the question of the factum and not of the quantum of "satisfaction". If the factum is proved, the Court shall not interfere simply because the grounds upon which the arresting authority was satisfied were not reasonable or sufficient in its view. The "satisfaction" required is of the officer making or directing the arrest and not of the Court. This is what I understand to be the meaning of Suraj Parkash Ram Lal v. Emperor reported as A I R 1948 Lah.

84. The real question for determination in this case is whether on the facts disclosed, the arrest was ordered to protect the public from the prejudicial activities of Muhammad Hussain Ata or to serve some purpose not contemplated by the Legislature. The Act allows the taking away of the liberty of a citizen where his being at large was considered inconsistent with the maintenance of public peace or order. He was to be kept in confinement to cut him off from the members of the public whom he could contaminate by his presence or influence by his views. There the purpose of section 3 of the Public Safety Act ends. To go beyond would be to proclaim that the intention avowed in the order of arrest was not the one really exposed by conduct. The detention in police custody was not for its own sake. It had a different meaning and purpose. It was to give the police unfettered opportunities to indulge in roving and fishing enquiries into matters which might excite their suspicion or arouse their interest. This is not one of the purposes mentioned in section 3 and as it infrings one's freedom without trial, it must be rigidly construed. The Notification under subsection (2) of section 3 of the Punjab Public Safety Act, could not indirectly enlarge the powers of the police to investigate free from all checks and controls. The indefinite custody by the police which might otherwise have been illegal might not be so but it would naturally lead to the conclusion that section 3 was being abused and the so-called "satisfaction" was no more than a mere make-believe. In this view of the case, I would hold the arrest and detention unlawful, calling for interference by this Court. It was, however, represented by the learned Advocate-General that this decision would have far-reaching consequences and a pronouncement from a larger Bench would be more desirable. I have no objection to this course. I have already allowed interim bail and the detenu would not in any way suffer by this reference. I would, therefore, refer this case to my Lord the Chief Justice for decision by a larger Bench. MUNIR AND MUHAMMAD JAN, JJ.-This is in continuation of Muhammad Sharif J's order, dated the 18th January 1949, by which he held the arrest and detention of the detenu Muhammad Hussain Ata to be unlawful but referred the matter to a Division Bench at the request of the Advocate-General. We have heard the learned Advocate-General at length but nothing urged by him appears to us to affect Muhammad Sharif J's conclusion that the arrest was illegal. It is true that there is in the present case as official record which recites that the authority which directed the arrest was satisfied that it was necessary to arrest Muhammad Hussain Ata with a view to preventing him from acting in a manner prejudicial to the public safety, and that record may give rise to the presumption that Ata was in fact arrested for the reason stated therein. But the presumption is not one of law and the Court need not raise it in all cases. Further, the presump tion if raised is rebuttable by proof of the contrary. There is nothing in my judgment in Suraj Parkash Ram Lal's case (A I R 1948 Lah. 84) lend colour to the contention that the presumption attaching to officiacts 3s invariable or conclusive. As the presumption is one of fact, it-J, strength would depend upon the formality of the proceedings taken, the status of the authority or officer taking them and there may be cases where the Court may not raise any presumption at all. In the present case the presumption is rebutted by the evidence of Mr. Zulqarnain Khan, who when directing the arrest was acting as the Superintendent of Police, C. I. D. There is not one word in the evidence of this officer indicating the precise act that the detenu intended to do to disturb the public order. On the contrary he says "the order of arrest was made as the arrest and detention of Muhammad Hussain Ata was considered necessary in the public interest. His interrogation was needed to get an inside knowledge about his activities and those of his other associates. I do not myself carry on the interrogation. I ordered the Inspector C. I. D. to do so. I did not issue instructions as to the particular point upon which the detenu was to be interrogated. The detenu was to be interrogated not in connection with any offence which he himself was said to have committed." It is quite clear from this evidence that the detenu was arrested to enable the Inspector C. I. D. to question him on certain matters which were not then under investigation under the Code of Criminal Procedure. It is admitted by the learned Advocate-General that the police has no jurisdiction to interrogate or question a person except in connection with an investigation under the Code of Criminal Procedure, and that if the detenu had been detained in a jail, the C. I. D. would have had no power directly to question him in regard to the matters indicated in the evidence of Mr. Zulqarnain Khan. It seems to me to be quite obvious, therefore, that the real object in effecting the arrest of the detenu was to have him available for interrogation in connection with certain matters and not because the authority directing the arrest felt that the detenu was about to do something prejudicial to public safety or the maintenance of public order. If the object in arresting the detenu had merely been to disable him from doing something prejudicial to the public safety, the object would have been achieved by detaining him in jail which admittedly exists at Rawalpindi. The fact, therefore, that the detenu was not sent to the jail but was kept with the police for about a month during which period he was subjected to severe interroga tion in connection with matters which in the ordinary course are not within the competency of a police officer to investigate, is a sufficient indication that the recital in the record of arrest that the arresting authority was satisfied that it was necessary to arrest the detenu with a view to preventing him from doing something prejudicial to public safety or the maintenance of public order, was wrong or dishonest. That being the position, the arrest and subsequent detention of the detenu were both unauthorized. We, therefore, hold the detention of Muhammad Hussain Ata to be illegal and discharge him from his bail bond. K. M. A. Petition allowed.