1981 P Cr (PLP)

ABDUL MAJEED MALLICK, J.-These are applications under section 491, Cr. P. C. As the points involved in all the three applications are common, the same shall be disposed of by this single judgment. However, brief facts of each case are stated as under:- Cr. Miscellaneous 39 of 1981 This is an application under section 491, Cr. P. C., in order to set aside the detention of Sardar Muhammad Yusuf Khan, Raja Abdul Jabbar Khan, Khalil Abbasi, Abdul Rashid Chughtai and Rafique Baig, arrested on the 5th of March, 1981, under section 3 (2) of the Azad Jammu & Kashmir Maintenance of Public Order Ordinance, 1980. The District Magistrate, Poonch detained the aforesaid persons for a period of one month each. Cr. Miscellaneous No. 40 of 1981 This is an application under section 491, Cr. P. C. It is alleged that M/s. Raja Abdul Qayum Khan, Sahibzada Ishaque Zafar, Syed Bashir Ahmed Shah, Syed Ghulam Hussain Shah, Maqsud Hussain Kiani and Muhammad Hanif Awan were arrested on the night of 22nd and 23rd of February, 1981 and were detained in Pallandari Jail. They were originally arrested under section 16 of the Azad Jammu & Kashmir Maintenance of Public Order Ordinance, 1980 but were released on bail by Sessions Judge, Muzaffarabad, on 1stMarch, 1981. The detenus were not allowed to come up of the jail and their detention continued in compliance with the order of District Magistrate, Muzaffarabad, under section 3 of the Azad Jammu & Kashmir Maintenance of Public Order Ordinance, dated 1stMarch, 1981. The aforesaid detenus were detained for a period of three months. Cr. Miscellaneous No. 44 of 1980 In this petition under section 491, Cr. P. C., it is alleged that Sardar Muhammad Altaf, Raja Muhammad Afzal and Sardar Moazam Khan, were arrested on 10th of March, 1981 and were being detained in Muzaf farabad Jail. The detention was for a period of one month, under the Azad Jammu & Kashmir Maintenance of Public Order Ordinance, 1980. The learned counsel representing the detenus argued that the detention was illegal for the following reasons:- (1) That the-grounds of detention as required under section 3 (6) of the Maintenance of Public Order Ordinance, were not communi cated to the detenus within stipulated period. (2) That the grounds of detention communicated to the detenus beyond the statutory period, were vague and indefinite. The detention in the present cases is ordered under section 3 (2) of the Azad Jammu & Kashmir Maintenance of Public Order Ordinance, 1980. Section 3 (2) is reproduced as under:- "If a District Magistrate or any other servant of Government autho rised in this behalf by a general or special order of Government, has reason to believe that any person within his territorial jurisdiction has acted, is acting or is about to act in a manner prejudicial to public safety or the maintenance of public order, be shall forthwith refer the matter to Government for orders." Subsection (6) of section 3 of the Ordinance provides as follows:- "Where a detention order has been made under this section, the authority making the order shall, as soon as may be, but not later than fifteen days from the date of detention, communicate to such person the grounds on which the order has been made, inform him that he is at liberty to make a representation to Government against the order and afford him the earliest opportunity of doing so: Provided that the authority making any such order may refuse to disclose facts which such authority considers it to be against public interest to disclose." It is evident from the provision of section 3 that the Government or District Magistrate, as the case may be, whenever satisfied or had reason to believe that any person within Azad Kashmir or territorial jurisdiction of District Magistrate had acted or was acting or was about to act in a manner prejudicial to public safety or the maintenance of public order, the Government or the District Magistrate was empowered to direct the arrest and detention of such person. Subsection (6) laid down that where detention order was passed under section 3, it was incumbent upon the authority making order to communicate the grounds on the basis of which order was passed, to the detenu, immediately but not later than 15 days from the date of detention and was to inform the detenu that he was at liberty to make a representation to the Government against the order of detention and to afford him an earliest opportunity to do so. Nevertheless, by proviso, the authority making such order was empowered to refuse to disclose facts, which the authority considered to be against public interest to disclose. In all the present cases, grounds of detention were shown to have been framed and issued on 25th of March, 1981. In case these were communicated on the same day, which in all probability was doubtful, it shall be deemed that grounds were communicated on expiry of statutory period. The intention of Legislature seems to be that in a case of preventive detention, grounds of detention were to be conveyed "as soon as may be." This provision was incorporated in consonance with Constitutional provision where under Article 4 (2) (5), it was provided:-- "When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as possible, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order: Provided that the authority making any such order may refuse to disclose facts, which such authority considers it to be against the public interest to disclose." Under Article 4(2) (5), no definite time, as in Maintenance of Public Order Ordinance, was provided When proposition came under discussion in Sikandar Hayat v, Azad Government (P L D 1978 S C (AJ&K) 12) it was held that words "as soon as possible" signify reasonable earliest time. Reasonable time was considered a period of seven days. Under the Maintenance of Public Order Ordinance, Legislature fixed the extreme period as 15 days. So, the detaining authority was duty-bound to communicate the grounds to the detenus forthwith but in no case later than fifteen days. The time of fifteen days was last limit. The detaining authority acting in ex-parte and depriving a citizen of valuable right of liberty, was supposed to act on material sufficient to satisfy it that a person was acting or likely to act in a manner prejudicial to public safety or the maintenance of public order. Thus, when the detaining authority was in possession of material, it was convenient for the authority to convey the grounds of detention to detenus and to inform them to make a representation to the Government against their detention, if they so liked, and afforded them an opportunity for doing so. This safeguard was provided to allow an earliest opportunity to detenus to make representation to explain their suspected conduct and to assure that accusation was false or misconceived. On representation, the Government, if satisfied that acts of such detenus were not prejudicial to public, they could be immediately set free. So, on representation, chances of gaining liberty, if not comparatively more, were expected to be equal. Therefore, failure to comply with mandatory provision of law rendered the detention illegal. In our view, the detention becomes unlawful immediately on expiry of statutory period of fifteen days. This is one view of the proposition. Supreme Court of Azad Jammu & Kashmir went further and observed in Sikandar Hayat's case at page 23 that if no grounds of detention were communicated to the detenu within reasonable time of his first confinement, such failure to comply with mandatory requirement of Constitution rendered detention unlawful ab initio:- P L D 1978 S C (A J & K) 12 (Sikandar Hayat v. Azad Government): Grounds of detention-Communication of-No grounds of detention communicated to detenu within reasonable time of his first confine ment-Such failure to comply with mandatory requirement of Constitution, held, rendered detention unlawful ab initio." In the present case, it is shown that the grounds of detention were not communicated to the detenus within maximum period of fifteen days, as contemplated in section 3 (6) of the Ordinance. The detaining autho rity, obviously, failed to comply with the mandatory provision of law. This would show that detention order was not covered by the provisions of Maintenance of Public Order Ordinance. The point raised by Mr. Sayab Khalid, finds support from the record relied upon by the Govern ment. Mr. Muhammad Akram Khan, learned Advocate-General, could not refute the objection. We, therefore, hold that failure of detaining authority to communicate the grounds of detention to the detenus immediately after detention and finally within fifteen days, as directed in the Maintenance of Public Order 'Ordinance, rendered the detention illegal. The second point urged before us is that grounds of detention conveyed to the detenus were vague and indefinite. Grounds communicated to detenus, being common, are reproduced as under:- That your activities in the recent past in Azad Jammu & Kashmir territory- (a) were calculated to inciting the public to violence against the present Government of Azad Jammu & Kashmir ; (b) were aimed at creating hatred, contempt and alarm ; (c) have been in a manner prejudicial to public safety and mainte nance of public order. Present era is an era of safety of life and liberty. Charter of the human rights has found place in Constitution of all free Nations. A deep struggle is in progress to provide basic human rights to those who are still under colonial rule. Protection and security of life and liberty is one of the salutary basic rights and civilized Nations give due respect to them. It is with this background that despite empowering the Government to take steps in direction of preventive detention, it is made imperative by the Constitution and Maintenance of Public Order Ordinance that Government or detaining authority ` as soon as may be", communicate grounds of g detention to detenu and inform him that he could make a representation to the Government against his detention. In order to make a representation, it was necessary for detenu to know accusations against him. Unless material particulars of his past, present acts or omissions or likely to be done in future, were known to him, he could not be expected to admit or deny or explain his conduct. This leads us to hold that material facts ought to be told to detenu to enable him to make an effective representation. The object was to give a detenu right to make an effective and expeditious representation. Now looking at the grounds supplied to the detenus in the present cases, it is clear that the grounds are not consistent with the purposes of the Constitution and Maintenance of Public Order Ordinance. Among the grounds, only one ground purport ed to be in the light of the Ordinance but that too was just reproduction of the language of the section. Material and necessary facts constituting the grounds were withheld. On these grounds, the detenus could not make a full and effective representation. In our considered view, grounds being vague, indefinite and lacking in necessary particulars, were not adequate grounds in the eye of law. Our view on this point finds support from Full Bench decisions of Lahore High Court in Muhammad Anwar v. Government of West Pakistan (P L D 1963 Lah. 109), Malik Sohrab Khan v. District Magistrate, Rawalpindi (P L D 1974 Lah. 214) and Farid Ahmed v. Government of West Pakistan (P L D 1965 Lah. 135). It was imperative for the detaining authority to apprise the detenus as to when, where and what acts or omissions were attributed to them that they were suspected of doing something prejudicial to public safety or maintenance of public order. In case some public speech was made or public or underground meeting was held or detenus were involved in trade or activity lending support to hold that such trade or activity was prejudicial to public safety, it was essential to let the detenus know such material facts. Further, the proviso made in section 3 (6) of the Ordinance whereby authority could claim exemption from disclosing the facts if it thought that disclosing of facts was not in the interest of State, indicated that relevant facts were to be told to the detenus. In the present cases, no privilege was claimed in the light of proviso. That makes it more essential that relevant and material particulars ought to have been mentioned in the grounds. Mr. Muhammad Akram Khan, learned Advocate-General, mainly emphasised on the points of mala fide and satisfaction of the Court pertaining to the action of detaining authority. The learned counsel representing the detenus, frankly conced ed that he was not pleading mala fide and did not want this Court to exercise on mala fide. As the matter is being disposed of on preliminary point, we need not go into the propriety of satisfaction of detaining authority. Learned Advocate-General referred to section 24 of the Ordinance and argued that there was ouster of jurisdiction of this Court. The impugned order of detention could not be looked into. Section 24 provides that an order passed under the Ordinance could not be called in question except as provided in the Ordinance. We may point out that powers of High Court, under Article 44 of the Azad Jammu & Kashmir Interim Constitution and under section 491, Cr. P. C., were not controlled by this section. High Court is competent to determine whether impugned order was passed under the Ordinance or not. Bar of jurisdiction in the section is also confined to proceedings or order taken or made under the Ordinance. If the learned Advocate-General is in a position to satisfy us that impugned detention was made fir, accordance with the provisions of the Ordinance, we may give thought to the point, but on failure to show that proceedings were taken within the ambit of the Ordinance, ouster of jurisdiction could not be pleaded. We have already held that the detain ing authority failed to comply with mandatory provisions of the Ordinance by its failure to communicate grounds of detention to the detenus within statutory period and secondly that grounds communicated were not the grounds contemplated by law. Hence, in our view, grounds which were vague, indefinite and lacking in material particulars, were no grounds in the eye of law. Consequently, proceeding or order taken or made, was not taken or made under the Ordinance. We may quote Mr. Manzur Qadir, C. J., who, at page 123, in Muhammad Anwar's case observed:- The object of this provision clearly was to give to the person con cerned as full, as effective and as expeditious a right to make a representation as may be consistent with the purposes of the Ordinance. `Grounds on which the order was made, must, therefore, in the context, mean such disclosure of facts as would inform him of the circumstances appearing against him and enable him to put his version before the Government. That the dis closure has to be of the facts themselves, and not of the conclusions drawn from those facts by the authority making the order, is made further clear by the existence and the language of the proviso." Mr. Muhammad Akram Khan, learned Advocate-General, pointed out that applications not being made by a relative or friend of the detenu, were not entertainable. In support of his contention, he relied on P L D 1968 Dacca

728. In Aziz-ul-Haque's case (PLD 1968 Dacca 728) the detenus were non-Muslim Indians, who without lawful authority entered East Pakistan and were living with their families within the Municipal area, Jhalahati. They possessed buildings and carried on business in Steel Trunks and Suit-cases. On the holdings, the detenus had constructed number of houses. They were arrested under section 54 of the Cr. P. C., on grant of bail, they were not released as it was disclosed that their detention was under the Defence of Pakistan Rules. On filing of applications under section 491, Cr. P. C., an objection was raised that applicant not being a relative or close friend, was incompetent to make the application. The objection was upheld, in view of circumstances of that particular case. That case is quite distinguishable from the present cases. In that case, the detenus were Indians, who entered Pakistan without lawful authority. The applicant was a broker on behalf of his brother-in-law to whom lands and superstructures belonging to detenus were sold surreptitiously and in violation of law. In presence of wife and grown-up son of detenu, it was considered unnatural for applicant to come forward with applications. In present case, the applicant claims to be a political associate of the detenus and as such moved applications. We are not persuaded to hold that mere political affinity was sufficient to allow applications. It is on record that detenus signed power of attorney in favour of counsel representing the applicants. Learned counsel met the detenus and received instructions to persue the applications. Moreover, an affidavit of detenus was placed on the file. This is to show that applications are fully supported by detenus. There fore, it would not be wrong to hold that applications are made with approval of the detenus. Detention is of two kinds (i) private and (ii) public. In cases of Private detention bona fides of applicant attract attention of the Court, particularly in case of women and minors. It is in that case that, while entertaining application, it is insisted that applicant should be a close relative or friend. This is in consideration of welfare and benefit of woman and minor, as the case may be. Courts are cautions that no woman or minor is brought in Court or is removed from legal custody, with ulterior motive. Thus, Courts are careful that process of law is not abused. It was on this consideration that in Imdad Hussain v. Noor Hassan (P L D 1974 Kar. 485), it was held:- "Principle that strangers have no right to file application under section 491, Cr. P. C., applies with greater force in case of allega tions made against private persons for illegal detention of minors and females." In case of public detention, only requirement was that applicant should be in a position to know facts and particulars of detention so that he could assist the Court. In the present cases, we have already held that detenus by signing power of attorney and filing affidavits, have approved filing of applications. Applicants gave particulars of detenus and detention in the applications. This led us to hold that applicants were in possession of the relevant facts. We may state here that in addition to aforesaid position, we are persuaded to accept the applications on the consideration that the detention in question is found to be illegal. Once it has come to our notice that liberty of a citizen has been taken away by the detaining authority without lawful authority, we cannot decline to act at once to restore his liberty on the ground of technicality and wait till a close relative or friend comes forward and makes an application under section 491, Cr. P. C. or invokes our jurisdiction under the Constitution. A resort to such a mode shall perpetuate an illegality and defeat the salutary provisions of the section and Interim Constitution. It is absolutely wrong to suggest that High Court on coming to conclusion that detention was illegal. should subscribe to illegal detention of a citizen, merely that application was not made by a relative or friend of the detenus. High Court while performing onerous duty, has to be more vigilent at times when Executive has assumed the functions of Legislature and combined both powers in it. In view of the aforesaid discussion, we hold that detention of all the aforesaid detenus is illegal and without lawful authority. We accept the applications and direct that the detenus be set at liberty. Petition allowed.