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Writ Petition No. 402 of 1968, decided on 5th April 1968.
S. 5(1)‑Order restricting movement of a person within specified area‑Amounts to detention for all practical purposes.
Muhammad Anwar v. Government of West Pakistan P L D 1963 Lab. 109 ref.
S. 5(5)‑Communication of grounds for detention Expression "as soon as may be" appearing in S. 5(5) Grounds must be served upon detenu without any avoidable delay, keeping in view circumstances of case‑Question clearly open to judicial review‑Phrase "as soon as may be" in majority of cases means simultaneously with or soon after order is made‑Delay not justified to satisfaction of Court‑Detention order must be declared to be without lawful authority for failure of essential requirement of law‑Delay of 35 days in serving grounds of detention allegedly on account of pre‑occupation of officers concerned with some other matters‑Held: hardly satisfactory explanation for authorities dealing with liberty of subject‑Commu nication of grounds subsequently cannot validate order bad in law initially for want of prompt supply of grounds.
Tarapada De and others v. The State of West Pakistan A I R 1951 S C 174; Ahmad Zafar v. The District Magistrate, Rawal pindi P L D 1960 Lah. 952; Atta Muhammad and others v. The State P L D 1963 Kar. 853; Hakim Ali v. The District Magistrate Lahore P L D 1965 Lab. 418; Maulvi Ghulamullah Khan v. District Magistrate Campbellpur P L D 1967 Pesh. 195; The Government of East Pakistan v. Mrs. Rowshan Bijaya Shaukat Ali P L D 1966 S C 286 and Arbab Muhammad Hashem Khan and another v. The Crown P L D 1954 F C 1 rel.
Sh. Muhammad Rashid for Petitioner.
Mian Aslam Riaz Hussain, Asstt. A.‑G. assisted by Mian Muzaffar Ahmad for Respondent.
Raja Said Akbar, A.‑G. for Respondent (on 29th March 1968).
Dates of hearing: 26th and 29th March 1968.
By means of this petition under section 491 of the Criminal Procedure Code and Article 98 of the Constitution of the Islamic Republic of Pakistan the petitioner Muhammad Aslam Malik, also known as Aslam Gurdaspuri, seeks to challenge the legality of an order passed by the Governor of West Pakistan on the 2nd of February 1968 under sub section (1) of section 5 of the West Pakistan Maintenance of Public Order Ordinance, 1960 (hereinafter referred to as the Ordinance), directing as follows :‑--
(1) That the petitioner shall remove himself to and remain within the revenue limits of village Mari Thakran, Police Station Kamoki, District Gujranwala, and
(2) that he shall abstain from delivering or causing to be delivered any speeches, making utterances or reciting or causing to be recited any poems in public prejudicial to the public interest or the maintenance of public order.
It was further stated in this order that it would take effect immediately and remain in force for a period of six months.
2. Prior to this order, another order had been made on the 1st of February 1968 in which the first direction was that the petitioner shall remove himself to and remain within the limits of Police Station Kamoki of District Gujranwala, and the second direction was the same as has been repeated in the order of the 2nd of February 1968. However, the order of the 1st of February 19 8, having been superseded by the second order, nothing more need be said about the former.
3. The main contentions raised on behalf of the petitioner are:
(a) That the order is vitiated on account of non‑compliance with the provisions of subsection (5) of section 5 of the Ordi nance inasmuch as the grounds for the order were not supplied to the petitioner "as soon as may be" after the order had been made, and were served on him only on the 7th/9th of March 1968,
(b) that the order is mala fide as it was not made to prevent the petitioner from acting in a manner prejudicial to public safety and public order, but merely to prevent him from participating in the public meetings of the Pakistan Peoples Party established by Mr. Bhutto, the Ex‑Foreign Minister,
(c) that no reasonable grounds exited for making the impugned order, and
(d) that, in any case, subsection (1) of section 5 of the Ordinance is hit by Article 6 of the Constitution as it is inconsistent with Fundamental Rights 5 and 9 as guaranteed by the Constitution.
4. On behalf of the detaining authority the position taken up is that the petitioner is not a law‑abiding citizen as asserted by him; that on the contrary his activities have been prejudicial to public safety and public order. In support of this submission copies of two poems entitled and recited by the petitioner at public meetings held respectively on the 30th of September and 30th of November 1967, have been placed on the file. As regards the non‑supply of grounds, it is contended that even if there was any illegality attaching to the order on this account, it stood cured on the 7th of March 1968 when the grounds were served on the petitioner. It is contended that even the non‑service of grounds could have been made the basis of a representation which the petitioner could have submitted to the relevant authority under section 5 (5) of the Ordinance. The allegation of mala fide is denied.
5. The first question which needs to be considered in this case is regarding the nature of the order under challenge. It is not an order of detention per se and yet it places certain restrictions on the freedom of movement and speech enjoyed by the petitioner. Precisely the same question fell for consideration by a Full Bench of this Court in Muhammad Anwar v. Government of West Pakistan (P L D 1963 Lah. 109). In that case the learned Judges were dealing with two separate petitions involving common questions of law relating to orders passed under section 5 (1) (b) of the Ordinance. One of the detenus, viz. Lal Khan, had been directed first not to enter the Districts of Lahore and Lyallpur for a period of six months, and then he was directed to reside and remain within the revenue limits of village Bhatial, Police Station Sadar Jhelum. He was further directed to abstain from taking part in any political activity and making speeches and issuing statements. In the second petition before their Lordships the movements of the detenu Mirza Muhammad Ibrahim were restricted to the revenue limits of a village in District Jhelum, and he was also directed to abstain from taking part in any public meetings, processions, or political or labour activities, etc. Shabir Ahmad, J., who delivered the leading judgment, observed, on pages 117‑118 of the Report:
"It appears to me that on principle there is but very little difference between the place which is walled on all sides and one which though it has no walls around it the person directed to remain in it cannot go away from it without permission of someone or without the risk of some injury, to himself."
The learned Judge then took note of the fact that section 12 of the Ordinance conferred on the Provincial Government authority to enforce the order which is passed with regard to a person to remain in the place to which he is confined under clause (b) of subsection (1) of section 5 of the Ordinance.
6. In the same case Manzur Qadir, C. J. also examined this point and observed as under:‑-
"I have come to the conclusion that the restrictions placed on the movements of the petitioners in these cases do amount to their being in custody. It seems to me that the essence of custody is that there should be a lack of freedom to move about where and when one pleases, coupled with a physical power immediately available to prevent an attempt at breaking the restrictions imposed, as distinguished from the power subsequently to punish for a breach of these restrictions. If a person has been ordered that he must not go beyond certain boundaries, bur there is no physical impediment or threat of physical force to ensure that he does not go outside those boundaries, there would in my opinion be no confinement and no custody, even though that person may be liable to be punished in due course of law if he did go out. On the other hand, if he is told that he must not go beyond those boundaries and he sees, or is told that if he did, physical force would be available to prevent him from doing so, there would, in my opinion, then be no difference of kind between his confinement or custody and that of a person confined in a jail, though there would, of course, be a difference of degree."
Having made these observations, the learned Chief Justice also took note of the provisions made in the twelfth section of the Ordinance for the use of physical force in order to ensure compliance with the restrictive order.
7. It was submitted by the learned Assistant Advocate General that the observations made in the case of Muhammad Anwar had reference only to the question whether the petitions before their Lordships were maintainable under section 491 of the Criminal Procedure Code, and should not, therefore, be read as laying down any general rule that orders restricting the movement of a person to a specified locality are to be regarded as being in the nature of detention orders. We see no force in this submission, for the opinion expressed by the learned Chief Justice and Shabir Ahmad, J., with whom Abdul Aziz Khan, J. (as he then was) agreed, proceeds on general principles and considerations touching the question as to what constitutes detention or custody of a person, and these considerations are not confined merely to the special provisions contained in section 491, Cr. P. C. We find ourselves in respectful agreement with the view taken in the precedent case to the effect that if restrictions are placed on the movement of a person, these restrictions would amount to detention for all practical purposes, and accordingly the legality of such an A order would have to be examined as if it were an order of detention. We have some doubts as to whether it is necessary in such a case that there must be present an element of physical compulsion to ensure compliance with the restrictive order. In our humble view, it would be enough if a competent authority has imposed the restrictions and it has available at its disposal the means to either physically enforce the restrictions or to take punitive action subsequently if the restrictions are disobeyed. However, this aspect of the matter need not be pursued any further, as even if the availability of physical force to ensure compliance with the order is regarded as an essential pre requisite for constituting detention, then that condition stands fulfilled in the present case as well in view of the provisions contained in section 12 of the Ordinance, to which the learned Judges of the Full Bench have also referred.
8. We now proceed to examine the first contention raised by Mr. Muhammad Rashid on behalf of the petitioner, namely, that the order stands vitiated on account of the non‑supply of grounds for more than a month. The relevant provision in this behalf is contained in subsection (5) of section 5 of the Ordinance which enjoins that "where an order has been made under subsection (1), the authority making the order shall, as soon as may be, 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."
9. The submission on behalf of the petitioner is that the phrase "as soon as may be" occurring in subsection (5) has to be interpreted as meaning simultaneously with or immediately after the making of the order; and that non‑compliance with this statutory requirement would have the effect of rendering the order void ab initio. It was submitted by Mr. Rashid that as this provision of law originally stood, the requirement was that the grounds should be communicated "as soon as may be, but not later than fifteen days from the date of service of the order", but the period of fifteen days was deleted by section 4 of amending Ordinance 18 of 1964 promulgated on the 17th of October 1964, so as to bring the subsection into conformity with the constitutional requirement as embodied in clause (5) of Fundamental Right No. 2.
10. On the other hand, it was contended by the learned Assistant Advocate‑General that the amendment had the effect of waiving or enlarging the time limit, and accordingly the grounds could be communicated to the detenu or the affected person at any time after only having regard to the circumstances of the case. It was submitted that in the present case the officers who were charged with the duty of communicating the grounds to the petitioner had prepared the draft on the 22nd of February 1968, but due to their pre‑occupation with other duties they could not arrange to serve the grounds on the petitioner until the 7th of March 1968.
11. The twin questions regarding the effect of delay in communicating the grounds to the person affected, and of the non‑supply of grounds have been considered in several cases and it would be well to refer to them at this stage. In Tarapada De and others v. The State of West Bengal (A I R 1951 S C 174) the learned Judges were interpreting the phrase "as soon as may be", appearing in Article 22 (5) of the Constitution of India and they observed that "having regard to the fact that the State Government had suddenly to deal with a large number of cases on one day, it could not be said that the grounds of detention served on the 14th of Match 1950 were not communicated as soon as may be, even though the detention orders had been made on the 26th of February 1950." In other words, the learned Judges considered that a period of sixteen days was reasonable in the circumstances of the case and fulfilled the requirement indicated by the phrase "as soon as may be".
12. Again, in Ahmad Zafar v. The District Magistrate, Rawalpindi (P L D 1960 Lah. 952) a Division Bench of this Court, of which one of us was a member, took the view that:
"Under section 6 of the Security of Pakistan Act, 1952, grounds for the passing of an order under section 12 are to be conveyed to the person concerned as soon as may be, but where the grounds were proper, though communicated after four months, the delay could not be made a reason for the success of a writ petition. The main object of section 6 is that the person concerned should be able to meet the grounds on which action is to be taken against him. If information given is vague, no effective representation is possible. It is essential for a compliance with section 6 that the person concerned should have a fair notice of the facts on the basis of which he is being proceeded against, and in such a way that he is able to explain or to rebut the facts which appear against him."
13. However, this view was departed from in Atta Muhammad and others v. The State (P L D 1963 Kar. 853) and in Hakim Ali v. The District Magistrate, Lahore (P L D 1965 Lah. 418). In both these cases it was insisted that the grounds of detention must be supplied within the prescribed period, as preventive detention without trial constituted an encroachment on individual liberty, and delay in supplying the grounds of detention rendered nugatory or illusory the right of making a representation to Government. In the case of Maulvi Ghulamullah Khan (P L D 1967 Pesh. 195) a Division Bench of this Court went further, and observed, with reference to the amended subsection (5) of section 5 of the Ordinance and the facts of the case before it, that grounds must be supplied within twenty‑four hours of making the order, as the same must be known to the detaining authority when it makes the order, and can ordinarily be served along with the order, or in exceptional cases within a period of twenty‑four hours.
14. Finally, we may refer to the dictum of their Lordships of the Supreme Court in The Government of East Pakistan v. Mrs. Rowshan Bijaya Shaukat All (P L D 1966 S C 286). The detenu in that case, namely, Mr. Shaukat Ali Khan, Barrister‑at‑Law, was arrested without a warrant on the 20th of September 1964 by an Inspector of Police purporting to act under section 41 of the East Pakistan Public Safety Ordinance, 1958. Until the 26th of September 1964, the grounds of detention were not served on the detenu and on that date an order was passed by the Government of East Pakistan under section 17 of the Ordinance purporting to continue the detention to which the detenu had been earlier subjected under section 41 of the Ordinance. S. A. Rahman, J. (as he then was), who delivered the leading judgment and with whom Fazle‑Akbar, J. concurred, observed that the arrest and detention under section 41 of the East Pakistan Public Safety Ordinance could be looked at from two angles: firstly, as preventive detention; and, secondly, as arrest and detention in custody. While dealing with the first aspect of the matter the learned Judge observed as under:--
"It is the appellant's case that section 41 of the Ordinance constitutes a law relating to preventive detention. If that be so, sub‑pare. (5) of Fundamental Right 2, undoubtedly made it incumbent on the authority concerned to communicate to the person affected the grounds on which the order bad been made for his detention as soon as may be. The affidavits filed on behalf of the Provincial Government show that the authorities were in possession of the relevant facts even before the arrest. No grounds of the arrest, however, were served on the detenu from the 20th till the 25th of September 1964. It was only on the 26th of September when the order of his detention was passed by the Provincial Government, that he was served with a notice specifying the grounds of his detention. In the circumstances of this case, it cannot be said, therefore, that any grounds for initial detention had been given. The subsequent grounds sent by the Government related to the detention order passed by itself. The determination of grounds had to precede the order of detention and ex hypothesi no such determination had taken place before the Government had applied its mind to the report of the Inspector. This would also be sufficient to invalidate the first arrest and detention in custody, in the circumstances of this case."
15. With regard to the alternative suggestion that action under section 41 merely amounted to arrest and detention in custody, his Lordship stated that:
"If that contention is upheld, action taken under it must, in the alternative, be judged in the light of sub‑pares. (1) and (2) of the Fundamental Rights. These sub‑paragraphs lay an obligation on the authority making the arrest or detaining a person in custody to produce him before the nearest Magistrate within a period of 24 hours of the arrest, excluding the time necessary for the journey from the place of arrest to the Court and to inform him about the grounds of arrest, "as soon as may be". These grounds have to be communicated to the person concerned within the period mentioned in sub‑pare. (2), as otherwise the arrested person would not be able to make a representation in his defence, when he appears before the Magistrate. In the present case, neither the detenu was produced by the arresting Inspector before a Magistrate nor was he informed by him of the grounds of his arrest. The action taken, therefore, on this alternative view, transgressed the clear provisions of sub. paras. (1) and (2) of para. 2 of Fundamental Rights and could not be upheld as legal."
16. His Lordship also dealt with the further question regarding the effect of the extension of a previous illegal order of detention, and it is instructive to reproduce here the obser vations of his Lordship appearing on page 316 of the Report:
"Preventive detention, however, makes an inroad on the personal liberty of a citizen without the safeguards inherent in a formal trial before a judicial tribunal and as has been observed above, it must be jealously kept within the bounds fixed for it by the Constitution and the relevant law. That there is a substantial distinction between a fresh order of detention and one extending a previous illegal order of detention was brought out clearly in a judgment of the Federal Court, in the case of Arbab Muhammad Hashem Khan on behalf of Arbab Abdul Ghafoor Khan and another v. The Crown P L D 1954 F C 1. On the face of it, the order of detention purports merely to extend the previous detention which has been found to be illegal and consequently the subsequent order of detention must also be held to be vitiated. The detaining authority must be held bound by its own expressly avowed purpose in passing the order."
17. It will be seen that judicial authorities are practically unanimous in insisting that the provisions of the Constitu tion and of the law authorising preventive detention must be strictly construed so as to ensure that such action is kept within the bounds prescribed for it by law and the Constitution. This insistence stems from the constitutional obligation resting on the Courts to preserve individual liberty, as enshrined in all civilised systems of law. In the matter of preventive detention clause (5) of Fundamental Right No. 2 of the 1962 Constitution as well as subsection (5) of section 5 of the Ordinance, which we are considering in this case, contain two guarantees in favour of the individual : (a) that the detaining authority shall, as soon as may be, communicate to the person affected the grounds on which detention has been ordered, and' (b) that such person shall be afforded the earliest opportunity of making a representation against the order. It is clear that if the grounds are not furnished as soon as may be, the second guarantee becomes meaningless. The concensus of judicial opinion appears to be, and rightly, if we may say so with respect, that the grounds must be served with the least possible delay, keeping in view the surrounding circumstances of the case. It has been rightly pointed out that ordinarily the detaining authority must be in possession of the grounds before it makes the order, and accordingly there could in such cases be no justification for delaying the communication of the grounds to the person affected. It was in this context that their Lordships of the Peshawar Bench thought that a period of 24 hours could be considered as reasonable in such a case. In the view of their Lordships of the Supreme Court, in the case referred to above, delay of 5/6 days was regarded as fatal to the validity of the action taken under section 41 of the East Pakistan Public Safety Ordinance.
18. We consider, therefore, that the use of the phrase "as soon as may be" appearing in subsection (5) of section 5 of the Ordinance must be taken as indicating the intention of the law‑maker that the grounds must be served without any avoidable delay, keeping in view the circumstances of the case. We are further of the view that the question whether this has been done is clearly a matter open to judicial review. It is true that Fundamental Right No. 2 stands suspended under the Proclamation of Emergency made by the President of Pakistan on the 6th of September 1965, but precisely the same provision is present in subsection (5) of section 5 of the Ordinance under which the impugned order has been made. It is erroneous to think that the deletion of the time‑limit of 15 days from section 5 (5) of the Ordinance has the effect of relieving the detaining authority of its duty to act promptly in the matter of furnishing the grounds of detention to the person affected. Far from enlarging the period in this behalf, the amendment has, on the contrary, abridged the period to "as soon as may be", Which must in the vast majority of C4ses mean simultaneously with, or soon after the order is made. If there is any delay it must be justified to the satisfaction of the Court. And if sufficient cause is not shown for not communicating the grounds as soon as possible, then the detention order in question must be declared to be without lawful authority on account of its failure to comply with an essential requirement of the law under which it is issued.
19. We now proceed to consider whether in the instant case it can be said that the grounds of the order were com municated to the petitioner as soon as may be after the order bad been made. We have already stated that one order was made on the 1st of February 1968 and it was followed by a second order issued on the very next day by which the movements of the petitioner were further restricted to a certain village instead of the entire area of Police Station Kamoki in the District of Gujranwala. The two poems on the basis of which action was ordered had been recited by the petitioner on the 30th of September and the 30th of November 1967 respectively, and it is, therefore, clear that the material was already before the relevant authority when the impugned orders were passed. In these circumstances, no justification appears to exist for not communicating the grounds to the petitioner simultaneously with the impugned order. It was stated by the learned Assistant Advocate‑General that the grounds were drafted on the 22nd of February 1968 but could not be conveyed to the petitioner earlier than the 7th of March 1968, on account of the pre occupation of the officers concerned with some other matters. We regret to say that this is hardly a satisfactory explanation when the authorities are dealing with the liberty of the subject. It is interesting to note that these very officers, who are said to be pre‑occupied with other and more important matters, were prompt in producing two orders in quick succession and their pre‑occupation came into play only with regard to the communication of grounds to the petitioner, resulting in a delay of one month and five days. During this period the petitioner obviously could not make any representation to the competent authority as the grounds of the action taken against him had not been furnished to him. In the light of these circumstances, we have no hesitation in holding that the grounds were not furnished to the petitioner as soon as may be after the order had been made, thus resulting in a violation of the statutory requirement contained in subsection (5) of section 5 of the Ordinance. It would perhaps not be out of place to emphasise that in a matter like the present the relevant officials and authorities are under a legal and constitutional obligation not only to act in good faith in the collective interest of national security, but also to act diligently and conscientiously so as to preserve and promote the guarantees which the law of the land has provided for the maintenance and protection of the rights and freedoms of the individual.
20. We see no merit in the submission made by the learned Advocate‑General that even though the order might be initially bad for want of prompt supply of grounds, yet it stood validated from the date the grounds were furnished to the petitioner. Such a contention runs counter to the view taken by the Federal Court and the Supreme Court in the cases which have been mentioned earlier. If an order is initially bad, then the detention or the restrictions authorised by it cannot be validated subsequently, unless a fresh order is made independently of the previous order, which is not the case here.
21. For the foregoing reasons, we are bound to hold that the order dated the 2nd of February 1968 is without lawful authority and of no legal effect. We declare accordingly. If for any reason the order issued on the first of February 1968, is also regarded as still being operative, then the same considera tions will apply in that behalf as well.
22. On this view of the matter, it is hardly necessary to examine the other contentions raised on behalf of the petitioner.
The petition is accordingly accepted with costs.
A.E. Petition accepted.
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