1968 (PLP)

A. K. M. BAQUER, J.-Rule was issued in this case to show cause why .the detenu, Aminul Islam alias Badsha now being detained at the Pabna Jail should not be brought before this Court and be dealt with in accordance with law. The rule was made returnable within three weeks, with a notice to the learned Advocate General to appear. As usual with other cases of this kind, the learned Advocates for the State took adjournments on 13-11-67 and 27-I1-67 on the ground that there was some chance of withdrawal or the detention order. The withdrawal having failed it was only as late as 30-11-67 that the State chose to file its counter-affidavit on behalf of the respondent, Deputy Commissioner, opposite-party No.

2. There is no counter-affidavit on behalf of the respondent No. 5 Captain S. A. Zaidy, Parliamentary Secretary, Food and Agriculture. The facts as averred in the petition show that the detenu comes of a respectable family of Pabna and that one Muhammad Nuru Khondkar was the nominee of Mr. Zaidy, who is the member of the National, Assembly and Parliamentary Secretary, Ministry of Food and Agriculture, Government of Pakistan. The detenu was the President of the Pabna District Awami Party and he supported Mr. Amjad Hossain (another detenu since released) us against respondent No. 5 in the last National Assembly Election, and the respondent No. 5 considered the detenu as his political opponent as the detenu belonged to the opposition. On the 15-3-67 some persons died at the Pabna Sadar Hospital alleged to-be due to food poisoning and the people of the locality became panicky as more patients starting pouring in Government pronounced at night prohibiting sale, crushing or purchase of Bhutta in Pabna. On the morning of 16-3-67 some people went to the house of respondent No. 5 and acquainted him of the situation as he was the Parliamentary Secretary for Food and also a local M. N. A. Respondent No. 5 thereupon went to the 4hospital along with these people and as he came out on the street the people welled in number and formed into a procession. When the respondent No. 5 went to visit the patients the people wanted explanation from him and also public apology. According to respondent No. 5, as gathered from the F. I.. R. lodged by him, some people who were named in the F. I. R. at about 9-30 a.m. went to the house of the respondent No. 5 and attached and set fire to his office room, drawing and dining room and ransacked the house, damaged his properties whereupon respon dent No. 5 opened two blank fires and police also fired. The mob also looted two gun shops. Soon after respondents Nos. 2 and 3 opened a control room in the police line and the respondent No. 5 installed himself into the control room holding it as his office and interviewing people there and advising the police and dictating the names of persons to be arrested. It is further alleged that the respondents Nos. 2 and 3 were away at the juncture and on their reaching the town they started listening to whatever respondent No. 6 stated and that the respondent No. 5 finding it a good opportunity started suppressing his political rivals and he also made best use of this opportunity to take revenge against the present detenu by advising respondent No. 3 to arrest the detenu. On the morning of 17-3-67 a police party visited the detenu house and after searching his whole house they arrested him and he was thereafter implicated in several criminal cases. Bail petitions moved on behalf of the detenu were rejected by the learned Magistrate. It has been alleged further that when the detenu was on the point of receiving bail by reason of the com pletion of investigation the present detention order dated 9-4-196' was clamped upon him. It has been further stated that the charge sheet in P. S. Case No. 13 has been submitted against 67 accused persons including the detenu and he has not been charge-sheeted in respect of the other cases. The detention order, Annexure `A' in this case, as impugned, runs as follows :- "GOVERNMENT OF EAST PAKISTAN, Office of the Deputy Commissioner, Pabna. No. 469/C Order dated Pabna, the 8th April 1967. Whereas Mr. Aminul Islam alias Badsha s/o Mr. Nuruzzaman of Kistapur Pabna Town; P. S. Pabna, District Pabna is reported to have acted and likely to act in a manner prejudicial to the public safety and -maintenance of public order, the maintenance of peaceful conditions in the country, the maintenance of Essential supplies and services ; And whereas I, Khurshed Alam, C. S. P., Deputy Commis sioner, Pabna, am satisfied that with a view to preventing the said Mr. Aminul Islam alias Badsha, froth acting in any manner prejudicial to the public safety and the maintenance of public order, the maintenance of peaceful conditions in the country and the maintenance of essential supplies and services, it is necessar3 to make the following order. Now, therefore, in exercise of the power conferred by clause (b; of sub-rule (1) of rule 32 of the Defence of Pakistan Rules, 1965 delegated to me by the Government of East Pakistan Notification No. 115-Poll (II) dated 13-9-1965, I, Khurshed Alam, C. S. P., Deputy Commissioner, Pabna, do hereby direct:- (a) that the said Mr. Aminul Islam alias Badsha shall be de tained for a period of 3 (three) months from the date of service of this order, (b) that subject to the provision of clause' (a) of this paragraph the said person shall be detained in the Pabna Jail. (Sd.) K. Alam, Deputy Commissioner, Patina, . 8-4-1967." Thereafter on 6-7-1967 and again on 2-10-1967, fresh orders of three months duration each on identical terms were clamped upon the detenu. Mr. Islam, learned Advocate appearing for the detenu has argued that the detention under the impugned order is beyond the scope and purview of rule 32 of the Defence of Pakistan Rules. He has also argued that the detention is mala fide and is for ulterior purposes. The affidavit-in-opposition as sworn to by the Deputy Com missioner discloses in paragraph 19 thereof the different activities attributed to the petitioner for which he is now detained. It has been stated that the detenu is an anti-state element and habitually participates in activities prejudicial to public safety, maintenance of public order and peaceful condition in the country and mainten ance of essential supplies and services. Byway of illustration it has been stated that the detenu is President of Patina Town Committee of the National Awami Party. Now being a President of Pabna Town Committee of National Awami Party cannot by itself be! any offence or prejudicial act: It has been stated that he is actively associated with other opposition political parties and labour' movements. Being associated with political parties-in-opposition, labour movement also cannot attract the application of rule

32. It has been further stated that he with others incited the students of Edward College, Pabna as to organise a "Bhuka Misil" of the labourers on 14-7-1967, the day on which the Governor of East Pakistan was to hold a public meeting at Pabna so as to frustrate the meeting. It has been stated in paragraph 12 of the affidavit-in-reply; that all the allegations as made in this paragraph 19 of this affi davit-in-opposition are false and without foundation. It has been particularly stated that it was absolutely false that the detenu himself incited the students of the Edward College, Pabna to organise a Bhuka Misil of the labourers op 4-8-1967. It has also been stated that there was no meeting of the Governor of East Pakistan at Pabna either on that day or on any other day in 1966 or 1967 as alleged. It has further been stated with regard to the assertion made in the affidavit-in-opposition about the exis tence of section 144 of the Criminal Procedure Code that there was no question of violating the restriction imposed under any section 144 as there was no restriction on the date alleged. Another illustration as given in affidavit-in-opposition, namely, that the detenu incited the Bidi workers of Pabna to organise Bhuka Misil in protest of the Tendu Bidi (leaves) and that he incited the students of Edward College, Pabna to support the cause of the labourers has also been denied, by the petitioner in the affidavit-in-reply. Further statement in the affidavit-in- opposition that the detenu organised and convened a conference on 26-2-1966 at Seraj-ganj has been denied. The detenu only claims to have attended the same as a mere observer. Seditious speeches were alleged to have been made by this detenu in this conference. But we have no trace of what seditious speeches there were. The learned Advocate-General has not been able to show us any of that nature from the records. It has been stated in the affidavit-in-opposition that one of the speakers said that "economic sucking cannot be stopped until Capitalism is abolished from the country and all properties must be declared for the society." .Now if one of the speakers says this, apart from there being doubt as to its being seditious, it is too much to saddle the detenu with the responsibility thereof. Those are all the materials as contained in paragraph 19 of the affidavit-in-opposition and it has been claimed in the affidavit-in -opposition that all these materials were placed before the then Deputy Commissioner, Pabna who on perusal of the same and after due application of his mind was satisfied that the detenu was acting in a manner prejudicial to public safety, maintenance of public order and peaceful condition in the country and main tenance of essential services and supplies. We do not feel satisfied that those materials could furnish reason able satisfaction to the detaining authority. The learned Advocate-1 General has tried to import other materials over and above what has been stated in paragraph 19 but we did not allow him to do that having regard to the fact that the materials which were before the Deputy Commissioner were only those as aforesaid and as discussed above. The circumstances behind his arrest also are rather out of the ordinary course and it seems that he is one of the casualties springing from the Bhutta episode at Pabna. Having regard to the paucity, of materials it seems that there is some force in what the petitioner has stated in his petition, paragraphs 3 and 4 thereof which- are as under :- "

3. That Mr. Nuru Khondkar was the nominee of Mr. Zaidy who was the member of the National Assembly and the Parlia mentary Secretary, Ministry of Food and Agriculture Govern ment of Pakistan.

4. That the detenu is the President of the Pabna District National Awami Party and he supported Mr. Amjad Hossain as against the Respondent No. 5 in the last National Assembly Election; and the Respondent No. 5 considers the detenu as his political opponent, as the detenu belongs to the opposite party." At any rate respondent No. 5 has not come forward with any counter-affidavit although definite allegations have been made against him. There is no denial at all from his side. In circumstances, such as those above, we make the rule absolute and direct that the detenu be set at liberty forthwith if not otherwise wanted. ABDUL MOUDUD, J.-I agree. Rule made absolute.