1969 P (PLP)

SALAHUDDIN AHMED, J.‑

This Rule nisi was issued upon an application of Syeda Zohra Khatun under Article 98 of the Constitution challenging the legality of the detention of her husband Tajuddin Ahmed under rule 32(1)(b) of the Defence of Pakistan Rules. It is stated that the detenu was at the relevant time the Secretary of the East Pakistan Awami League functioning in opposition to the party in power. The Awami League adopted a six‑point programme in March 1956 and has since been projecting the programme as a part of the party manifesto. In pursuance of a programme chalked out by the detenu and other leaders of the Awami League the former addressed several public meetings in different districts of East Pakistan in order to create public opinion in support, of the said six‑points programme. It is claimed that in doing so the detenu who is stated to be a peace‑loving and law‑abiding citizen never did any act which was or could be regarded as prejudicial to the public safety or to the maintenance of peaceful condition in the country and of essential supplies and services, and consequently no specific case was ever started against him. The petitioner has characterised the impugned orders of detention as mala fide and has said that they were the result of the ever increasing popularity of the six‑points programme and the consequent jealousy of the party in power. It is stated that the detenu was arrested on 8‑5‑66 from his residence in Dacca in pursuance of an order of the Deputy Commissioner, Dacca and since then the detenu has been under detention under successive orders of detention, each order of detention having been valid for a period of three months only. The latest order of detention under which the detenu is now being detained is dated 22nd October 1968 and it has been passed by the Deputy Commissioner, Dacca. This order, too, is valid for three months only. On behalf of the detenu the first order of detention dated 8‑5‑66 had been challenged before this Court in Criminal Miscellaneous Case No. 63 of 1966 and a Special Bench of five Judges of this Court which considered the matter by a majority decision decided it against the detenu on 9‑8‑

66. According to the majority view the subjective satisfaction of the executive was considered enough for a lawful detention. Nevertheless on a perusal of the materials placed before the Bench on behalf of the State it was observed that it could not be held that there was nothing before the detaining authority upon which it could be satisfied before passing the impugned order. It may be mentioned here that the majority view was not found favour with the Supreme Court cases of Mir. Abdul Baqui Baluch v. The Government of Pakistan (P L D 1968 S C 313) and Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (P L D 1969 S C 14). Thereafter several orders of detention were passed by the Deputy Commissioner, Dacca against the detenu during the period when the detenu was removed to and had been detained in Mymensingh Jail, last among such orders was dated 28‑7‑

67. The present Rule nisi was issued upon an application made to this Court on 28‑8‑67, challenging the legality of the detention with reference to the said order of detention, dated 28‑7‑

67. The matter came up for hearing before another Division Bench of this Court presided over by Baquer, J. (as he then was), 7 he said Bench formulated a question as to whether the Deputy Commissioner of one District had jurisdiction to make an order of detention under rule 32(1)(b) of the Defence of Pakistan Rules in respect of a person who at the time of making the order was outside the limits of his district and referred the matter to the learned Chief Justice for constitution of a larger Special Bench for deciding the question. Accordingly a Special Bench of three Judges was constituted of which one of us (Salahuddin Ahmed, J.) was a member. The Special Bench by its judgment, dated 29‑2‑68 decided the said question in the negative. The Bench, however, observed that the order of detention, dated 24‑10‑67 had ceased to be operative by efflux of time during the pendency of the matter before the Bench and that petitioner Syeda 7_ohra Khatoon brought to the notice of the Bench that the detenu had then been transferred to the Dacca Central Jail and a fresh order of detention in respect of the detenu valid for three months was passed by the Deputy Commissioner, Dacca on 21‑1‑

68. The Special Bench, however, felt that it was not called upon to consider the fresh order of detention, dated 24‑1‑68 on merits. The matter has now finally come before this Court for hearing. At one stage, namely, on 8‑8‑68 on the joint prayer of the parties the case had been adjourned until tire decision of the Supreme Court in the said Original Appeal No. 48 of 1968 (known as Begum Agha Abdul Karim Shorish Kashmiri's case). Since the said deciaion of the Supreme Court the matter was thrice adjourn ed on the prayer of the learned Advocate appearing on behalf of the petitioner. On 5‑12‑67 an affidavit sworn by the Deputy Commissioner of Dacca was put in on behalf of the respondents. Paragraph 7 of the affidavit has stated matters upon a consideration of which the detenu has been detained. The substance of these statements is that the detenu addressed several public meetings at different places in East Pakistan in course of which while dealing on the disparity between the two wings of Pakistan in various spheres he is alleged to have made statements of a highly parochial nature with the sole intention of creating hatred between the people of the two wings of Pakistan and also of creating hatred and disaffection against the Government. It is claimed that the speeches of the detenu created such an atmosphere of discontent in the country that it resulted in the destruction of law and order and peaceful condition in the country. The following specific instances of such speeches which cover a period November 1964 to 24‑4‑66 have been given:

In November 1964 the detenu is said to have delivered two speeches at two election meetings held in two different places in Dacca criticizing the Government for their alleged repressive policies and he thus excited the people against the Government. On 7‑4‑66 the detenu addressed a public meeting at Pabna and criticised the economic disparity between the two wings of Pakistan vide paragraph 7(III) of the Affidavit. Among other things it was stated by the detenu that the promise given to the East Pakistan during the last eighteen years that in case of any aggression held would come to the region from West Pakistan had been proved to be false inasmuch as during the September 1965 War not even a postcard could come to East Pakistan from West Pakistan. The detenu further said there was no bar on the importation of Bidi Leaves and book from India to West Pakistan but it was so in East Pakistan. Such importation, it was said, was monopolised in West Pakistan. On 8‑4‑66 the detenu addressed a public meeting at Bogra and bitterly criticised the Government for alleged disparity between the two wings of the country and alleged repressive and oppressive measures perpetrated on the people of East Pakistan under the leadership of President Muhammad Ayub. On 10‑4‑65 the detenu addressed a public meeting at Dinajpur town wherein again he had vehemently criticised the Government among other things for the alleged economic disparity, high prices of daily necessities and unemployment. He further incited the audience by saying that the Government had banned the import of good books from India into East Pakistan but not in West Pakistan. In conclusion the detenu sounded a note of warning that if the President of Pakistan did not move in the right direction, he might face the same consequences as President Soekarno of Indonesia had met. On 24‑4‑66 the detenu is alleged to have addressed a meeting at the outer Stadium, Dacca wherein he said that thousands of people were behind Sk. Mujibur Rahman and that they were ready to go to jail for him. The petitioner in her affidavit‑in‑reply, dated 12‑12‑67 has denied that the aforesaid speeches of the detenu either created any confusion or spirit of parochialism. It has been further denied that the detenu ever indulged in any prejudicial activities detrimental to the interest, of the country or that they brought into or was likely to bring hatred and contempt as alleged or excited disaffection towards the Government or created feelings of enmity and hatred between different classes of the citizens of Pakistan. The petitioner has denied that the said speeches of the detenu resulted in destruction of law and order and peaceful condition in the country. It has been asserted that the allegations against the detenu did not relate to the purpose of detention inasmuch as some of them related to a period before the promulgation of the Defence of Pakistan Ordinance and the Rules thereunder while others related to districts beyond the jurisdiction of the Deputy Commissioner, Dacca. Upon the aforesaid averments Mr. Ataur Rahman Khan, learned Advocate appearing on behalf of the petitioner has advanced before us two broad contentions. Firstly, he has contended that the present detention of the detenu is illegal inasmuch as it is based upon a continuation of his detention upon the basis of illegal orders of detention. Secondly, that the allegations against the detenu are not true and they do not furnish reasonable basis for the impugned detention. As regards the first contention we may state that the first order of detention, namely, order dated 8‑5‑66 was passed by the Deputy Commissioner, Dacca at a time when the detenu was within the jurisdiction of the former. This order came up for consideration before a Special Bench of this Court which by its order dated 9‑8‑66 held that the order was legal. It appears that there was no appeal from the said order of the Special Bench. Mr. Serajul Hoque, learned Advocate appearing on behalf of the petitioner on our enquiry has stated that he is not aware of any such appeal. Thereafter until the passing of the order of detention dated 24‑1‑68 the detenu had been kept under detention in Mymensingh Jail on successive orders passed by the Deputy Commissioner, Dacca. The present Rule nisi was issued at a time when the detenu was being held in detention in Mymensingh Jail in pursuance of an order of the Deputy Commissioner, Dacca, dated 28‑7‑

67. As we have already noticed a question of the jurisdiction of the Deputy Commissioner, Dacca to pass an order of detention in respect of the detenu who was then detained in Mymensingh Jail was raised and a Special Bench of this Court by its order, dated 29‑2‑68 decided that such an order was illegal. Before, however, the Special Bench had decided the question the detenu had been brought back to Dacca and the Deputy Commissioner, Dacca passed another order of detention, dated 24‑7‑

68. The mere fact, however, that at some stage between the first order of detention, dated 8‑5‑66 and the order dated 24‑1‑68 the detenu was detained under orders which were illegal does not affect the legality of the orders passed by the Deputy Com missioner, Dacca on and since 2‑1‑1‑68 so far as the competence of the Deputy Commissioner, Dacca to pass the order is concerned. We, therefore, do not think there is any substance in this contention. We now proceed to consider the second contention. It may be stated that on behalf of the State the learned Advocate. General has read out before us the speeches delivered by the detenu on 7‑4‑66 at Pabna on 8‑4‑66 at Bogra, on 10‑4‑66 at Dinajpur town and on 24‑4‑66 at outer Stadium, Dacca. The learned Advocate‑General has also furnished us with copies of English translation of the said speeches or extracts from them and they have been put on record. Copies of the translations have been handed over to the learned Advocate appearing on behalf of the petitioner. So far as the two speeches of the detenu delivered in November 1964 at Dacca are concerned, no detailed particulars of the speeches have been placed before the Bench. We, therefore, do not think that the said two speeches furnished any reasonable ground for putting the detenu under detention. Besides the speeches were delivered in November 1964 and if they really called for action, the detenu should have been arrested long before and put under detention. As regards the speech of 7‑4‑66 at Pabna is concerned, we think it is more or less harmless except that the reference to importation of Bidi Leaves and Indian books in West Pakistan and restriction on such importation in East Pakistan on the date on which the speech was made, namely, 7‑4‑66 was unfortunate. It is common knowledge that there was no exportation or importation of any goods between Pakistan and India, since the invasion of Pakistan by India in September 1965. As regards the speech of 8‑4‑66 at Bogra it is apparent that the detenu has made atrocious exhorted statements and deliberate misrepresentation of facts with the obvious intention of exciting the people against the Government and sowing the seed of hatred between the people of the two wings of Pakistan. The detenu said, "The subscription for war is being levied on the land of burial grounds also. Today the Muslims are paying the levy by selling their land. Today ten lacs of people are dying on streets due to hunger. Today there is economic problem, unemployment problem‑there is no work for the labourers. Today there is work for donkey also in West Pakistan. Today a donkey is getting work in West Pakistan whereas there is no work for man in East Pakistan." The speech further contained the insinuation that after having industrialised West Pakistan the Government felt that there was no scope for industrialising East Pakistan. This speech may be regarded as of a highly inflamatory nature and apt to create a serious law and order situation leading to the destruction of peace and tranquillity of East Pakistan. This speech alone may be considered to furnish a reasonable basis for the apprehensions of the authority as mentioned in the various impugned orders of detention. The translation shows that the detenu in his speech on 10‑4‑66 at Dinajpur town stated inter alia "18 years have passed whether we will be able to live like a man . . . . .Teachers are not getting their pay. Students are not getting employment after passing examination. Peasants are not getting proper prices of their product ..Levy has been imposed . . . . . Levy has also been imposed on graveyard . . . . . . . There is deficit of food in East Pakistan . . . . . We are to know about this disparity 18 years and to end it. Good books which are imported from India to East Pakistan are stopped you may have the fate of Soekarno if you do not carry on properly." In our opinion this speech too is designed to rouse the feelings of the people against the Government and gives a clear indication that the President of Pakistan may be found to go into wilderness in the same manner as President Soekarno of Indonasia had been made to quit. This speech also contains the germs of bad blood between the people of the two wings of Pakistan. Lastly we come to the speech of 24‑4‑66 delivered at Dacca. It appears from the translation that among other things the detenu addressed "Monem and Ayub" and said, "You make new jails ready . . . . . . . Exploitation cannot continue for long. Many a man like you have done this sort of madness in the past. When the movement for automony was launched in this country this sort of madness was shown". The speech also appears to contain an insinuation that Sk. Mujibar Rahman is being harassed by being put under detention for the sole reason that he wanted `economic emancipation of five and half crores of Bengalees nay ten crores of people". Reading the speech as a whole it seems that the detenu threatened to create a law and order situation for which he warned that new jails should be made ready. Considering the various speeches of the detenu, individually as well as collectively, one gets an impression that the detenu was out to create a serious law and order situation affecting the pace and tranquillity of East Pakistan and in doing so he seemed to think that all was fair as long as it was directed towards ousting the Government in power. This is borne out by the obviously exaggerated and monstrous statements and misrepresentation of facts deliberately made. A substantial part of the detenu's criticism against the Government and the people of West Pakistan can hardly be regarded as fair criticism. The intention of the detenu as disclosed in his speeches was clearly to malign the Government for all omissions and commissions, real or supposed, so as to create a serious law and order situation for the Government. It is not unreasonable to think that such a situation would inevitably disturb the peace and tranquillity of East Pakistan B and was further likely to culminate in a situation which was fraught with grave risks to Pakistan's security and to the maintenance of supplies and services essential to the life of the community. Once hatred is created and feelings are roused it is difficult to say where it will end. In such an atmosphere it is not inconceivable that one may even cut one's nose to spite his face. A reference to the fate of President Soekarno of Indonesia constitutes a definite threat of unconstitutional action. If we are permitted to do a little post‑mortem examination we may say that the subsequent events that took place on the hartal day on 7‑6‑66 and that have happened recently tend to support the assessment of the detenu's speeches as made by the detaining authority. We may, however add a note of caution that in arriving at our conclusions we have not been in the least swayed by such events. In these circumstances, we are unable to hold that the impugned order of detention has no reasonable basis or that it is not related to the purpose of detention. The arguments advanced on behalf of the petitioner seem to betray a misconception that the authority passing the order of detention cannot travel outside the jurisdiction so far as the reports of activities of the detenu are concerned. It has, therefore, been contended that the Deputy Commissioner of C Dacca who has passed the impugned order of detention could not take into consideration the speeches of the detenu delivered in districts other than Dacca. In our opinion this contention is untenable. For the reasons stated above we discharge the Rule. AHSANUDDIN CHOUDHURY, J.‑I agree. Rule discharged.