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Criminal Miscellaneous Nos. 100, 102 and 103 of 1967, decided on 19th March 1968.
S. 3 and Defence of Pakistan Rules (1965), r. 32 Preventive detention- Mere subjective satisfaction of detaining authority‑Not sufficient for detention order‑Reasonableness of grounds of detention Subject to judicial review‑Criminal Procedure Code (V of 1898), S. 491‑Constitution of Pakistan (1962), Art. 98.
Malik Ghulam Jilani v. Government of West Pakistan P L D 1967 S C 373 and Motahar Hossain Siddiqui v. Government of East Pakistan Civil Appeal No. 66‑D of 1966 fol.
r. 32‑Preventive detention‑Prejudicial activities‑Public right to criticise Govern ment actions and policies‑Statement to press and in public meetings containing reasonable criticism of Government food procurement policy, demand for release of political prisoners, inviting peasants for holding a rally, which was not otherwise prohibited, to demand adequate food supply‑Protest against police excesses and demanding judicial inquiry into such police excesses including firing on processionists‑Accusing Government as autocratic and making concerted demands for cheaper rates of foodstuff‑Held, not objectionable and cannot be termed as prejudicial activities.
The detenus were making grievances and protests against certain policies and actions of the Government including the alleged police excesses on peasants and workers. In a democratic State, the citizens have a right to criticise the Government measures and its activities, but they cannot use this as a licence to bring the Government into hatred or contempt or to create a law and order situation or to do any other prejudicial act. But having regard to the nature of the grievances and protests made by the detenus, the manner in which these were made and conditions prevailing at the relevant time, it cannot be said that these were likely to endanger public safety, the maintenance of public order or peaceful conditions in the country, far less the maintenance of essential supplies and services.
r. 32‑"Prejudicial activities"‑Participation in meetings of political parties‑Address ing public meetings, stressing programmes of political parties, nor offending against law and Constitution‑Per se not objectionable and cannot be termed as "prejudicial activities".
r. 32‑‑"Prejudicial activities"‑Detenu alleged to have contacted students to seek their co‑operation in observance of protest against Government actions and policies‑Dragging of students into politics, although most undesirable, cannot, by itself be construed as "prejudicial activity" in terms of r. 32.
S. 16(1) read with Criminal Procedure Code (V of 1898), S. 491‑Maintainability of application under S. 491, Cr. P. C.‑‑‑Bar imposed by S. 16 (1) of Ordinance applicable only to orders made in accordance with Ordinance and Rules made thereunder‑Orders ultra vires of Ordinance or Rules‑‑‑Not protected.
Section 16(1) speaks of only those orders which are made in accordance with the Ordinance or the rules made thereunder, but does not protect any order made not in accordance with the Ordinance and the rules.
Emperor v. Vimalabai Desh Pande A I R 1946 P C 12 3 rel.
Mahmood Ali Kasuri, Arbab Sikandar Hayat Khan, Dewan Mahboob Ali, Shaukat Ali Khan, Anwarul Haq, Md. Nawab Ali and Ansar Ali for Petitioners.
Asrarul Hussain, Advocate‑General with S. M. Abbas for Respondents.
Dates of hearing : 5th, 6th and 7th March 1968.
‑These three applications under section 491 of the Code of Criminal Procedure were made to secure the release of three detenus, namely, Hatem Ali Khan, Syed Altaf Hossain and Haji Muhammad Danesh. The first of these applica tions was made by Md. Nurur Rahman on behalf of the detenu Hatem Ali Khan, the second by Mohiuddin Ahmad on behalf of the detenu Syed Altaf Hossain and the third by Eusuf Ali Mia on behalf of the detenu Haji Md. Danesh. On these applications, three separate Rules nisi were issued on 12‑5‑67, calling upon the respondents including the Government of East Pakistan to show cause why the said three detenus should not be brought before this Court and dealt with in accordance with law. Miscellaneous Cases Nos. 100/67, 102/67 and 103/67 were started on the applications in respect of the detenus Hatem Ali Khan, Sayed Altaf Hossain and Haji Muhammad Danesh, respectively.
2. These three cases were heard one after another. As, however, certain facts leading to the arrest and detention of the soil three detenus are common and as some common questions of law are also involved in them, we shall dispose of all these cases by this judgment.
3. The detenu Hatem Ali Khan was elected to the Pro vincial Assembly in the year 1954 and was once the General Secretary of the Krishak Samiti, East Pakistan the detenu Syed Altaf Hossain is the General Secretary of the East Pakistan Branch of the National Awami Party and the detenu Haji Md. Danesh is the Vice‑President of the National Awami Party.
4. 'The affidavits and counter‑affidavits cited in these cases reveal that in the small hours of the 28th March 1957, all these three detenus were arrested in the Case No. 60(3)/67 of the Kotwari P. S. under rule 47(5) and rule 50(5) of the Defence of Pakistan Rules, 1965. The said case was started on the basis of the First Information Report lodged by the Officer‑in‑Charge of P. S. Kotwali, Dacca. On the same date, bail petitions were moved on their behalf in the Court of the Sub‑Divisional Magistrate, Sadar (South), Dacca but the prayer for bail was rejected in each case. The Sessions Judge of Dacca, however, granted them bail on 3‑4‑67. In spite of the orders of the Sessions Judge granting them bail, they were not released and kept ire custody. Thereafter it was learnt that in respect of each of the said detenus an order of detention was made by the Deputy Commissioner of Dacca on 9‑4‑67 under rule 32(1)(b) of the Defence of Pakistan Rules. The detention in each Case was for a period of 3 months. Under the orders of detention, they were detained in the Dacca Central Jail. The order of detention, dated 9‑4‑67 made in respect of the detenu Hatem Ali Khan runs as follows :‑
"Government of East Pakistan,
Office of the Deputy Commissioner, Dacca.
Order No. 295/C, dated Dacca, the 9th April 1967.
Whereas Mr. Hatem Ali Khan son of Nayeb Ali of Belna, P.S. Gopalpur, District Mymensingh and of 154/A, R. M. Das Road, Dacca, is reported to have acted and likely to act in a manner prejudicial to the public safety and maintenance of public order and the maintenance of peaceful conditions in the country.
And whereas I, M. K. Anwar, the Deputy Commissioner of Dacca District, am satisfied that with a view to preventing the said Mr. Hatem Khan from acting in any manner prejudicial to the public safety and the maintenance of public order and the maintenance of peaceful conditions in the country, it is necessary to make the following order;
Now, therefore, in exercise of the powers conferred by clause (b) of sub‑rule (1) of rule 32 of the Defence of Pakistan Rules, 1965, delegated tome by the Government of East Pakistan Notification No. 115‑Poll (II), dated 13‑9‑65, I, M. K. Anwar. Deputy Commissioner, Dacca District do hereby direct :‑
(a) that the said Mr. Hatem Ali Khan shall be detained for a period of 3 (three) months from the date of service of this Order.
(b) that subject to the provisions of clause (a) of this paragraph the said person shall be detained in the nary Central Jail.
(Sd.) M. K. Anwar,
9‑4‑67 Deputy Commissioner, Dacca."
5. An exactly similar detention order was made in respect of the other two detenus Syed Altaf Hossain and Haji Md. Danesh The Deputy Commissioner of Dacca made two other successive orders of detention in respect of each detenu after every 3 months. These were made on 6‑7‑67 and 7‑10‑67. The grounds of detention mentioned in these two successive orders of detention in respect of each detenu are exactly the same as mentioned in the detention order, dated 9th April 1967, quoted earlier. By the successive orders of detention, Hatem Ali Khan and Syed Altaf Hossain were continued to be detained in the Dacca Central Jail, but the order of detention dated the 6th July 1967 in respect of Haji Md. Danesh was made by the Deputy Commis sioner of Dacca at a time when that detenu was being detained in the Dinajpur Central Jail. Except this variation, all the three successive detention orders made by the Deputy Commissioner of Dacca, in respect of the three detenus were the same in other respects. When the Deputy Commissioner's last order of detention dated the 7th October 1967, in respect of each detenu was about to expire, the Government of East Pakistan made a detention order on the 6th January 1968, in respect of each of these detenus under rule 32(1)(b) of the Defence of Pakistan Rules. These orders of detention were for a period of 6 months each. As the last of the orders of detention made by the Deputy Commissioner of Dacca expired during the pendency of the Rules nisi issued in these cases what really falls to be considered here is the validity of the orders of detention made by the Government of East Pakistan in respect of these detenus on the 6th January 1968.
6. The detention Order, dated 6‑1‑68 made by the Govern ment of East Pakistan in respect of the detenu Hatem Ali Khan is reproduced below:‑
"Government of East Pakistan Home (Special) Department.
Order No. 8 H S. . . . . . . . . dated Dacca, the 6th January 1968.
Whereas the person known as Mr. Hatem Ali Khan s/o Nayeb Ali of Balua, P. S. Gopalpur, District Mymensingh and of 154/A. R. M. Das Road, Dacca detained in the Mymensingh Jail under Order No. 771/C, dated the 7th October 1967.
And whereas having considered the materials against the said person the Government is satisfied that with a view to preventing the sail person from 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 necessary to make the following order;
Now, therefore, in exercise of the powers conferred by clause (8) of sub‑rule (1) of rule 32 of the Defence of Pakistan Rules, 1965, as delegated by the Government of Pakistan under their Notification No. S. R. O. 111/65, dated 6‑9‑65, the Governor is pleased to direct (a) that the said person shall be detained for a period of 6 (six) months from the date of service of this Order ;
(b) that subject to the provisions of clause (a) of this paragraph the person shall be detained in the Mymensingh Jail.
By Order of the Governor
(Sd.) Illegible,
Section Officer,
Government of East Pakistan."
Seal.
7. An exactly similar order of detention was made by the Government of East Pakistan in respect of the other two detenus Syed Altaf Hossain and Haji Danesh the only difference being that the deteuu Hatem Ali Khan was ordered to be detained in the Mymensingh Jail and the other two detenus were ordered to be detained in the Dacca Central Jail.
8. In each of these cases, a counter‑affidavit on behalf' of the respondents was sworn by Mr. M. K. Anwar, Deputy Commissioner of Dacca. Io these counter‑affidavits, he mentioned certain activities of the detenus in the most general terms, without giving the details of such activities. This was perhaps due to the Deputy Commissioner's impression that his own subjective satisfaction as to the necessity of detention of the detenus was sufficient. However, after the making of the deten tion orders by the Government of East Pakistan on the 6th January 1968, a supplementary counter‑affidavit on behalf of the respondents was sworn in each case by Mr. M. Ismail, Section Officer, Home (Special) Department, Government of East Pakistan. In these supplementary counter‑affidavits, the alleged activities of the three detenus were stated in detail, but in none of these affidavits it was stated that the conditions prevailing in the country at the material time were disturbed or tense. However, the alleged activities of the detenus were detailed apparently for the reason that the subjective satisfaction of the detaining authority, in view of the decision of the Supreme Court in the case of Malik Ghulam Jilani v. Government of West Pakistan (P L D 1967 S C 373) would no more suffice for lending validity to the detention orders and the reasonableness of the grounds of detention is subject to judicial review. Referring to clause (x) of subsection (2) of section 3 of the Defence of Pakistan Ordinance 1965, their Lordships of the Supreme Court, in their majority judgment, stated :‑
"Reading clause (x) according to the tenor of its language, and bearing in mind that it makes legal provision for restraint upon personal liberty which is a fundamental right of citizens in Pakistan, the conclusion that appears unavoidable is that to gain protection for any action thereunder, the existence of reasonable grounds is essential and a mere declaration of satisfaction is not sufficient . . . . .
Clause (x) of subsection (2) of section 3 must be construed as providing the specific guidelines which control any rules as to apprehension and detention that are to be made under the power given by subsection (1) of section 3.
On that view, it is clear that "satisfaction" of the detaining authority acting under rule 32 must be a state of mind, which has been induced by the existence of reasonable grounds for such satisfaction, The power of an authority acting under rule 32 is therefore no more immune to judicial review than is the power of a police officer acting under rule 204. With reference to rule 129 of the Defence of India Rules (corres ponding to our rule 204), the Judicial Committee felt no hesitation in finding that there was an onus upon a police officer to satisfy the Court that he had reasonable grounds for his suspicion. Suspicion would include belief of knowledge, whether inferential or actual. On the same reasoning, it must follow that actions by other and perhaps by higher authorities under rule 32, like all other actions relatable to the power delineated in clause (x) aforesaid, are equally susceptible to judicial review, subject, of course to the right of the state to claim privilege in respect of secret information and the Court's power to hold proceedings in camera.
Indeed, once the authorities have placed before the Court oral evidence and other material, whose purpose is to justify in action of arrest and detention, judicial review by the Court has already been attracted and the Court cannot, but be influenced in its decision by that evidence."
After stating the legal position as aforesaid, their Lordships considered the activities of the detenus in that case and observed:‑
"It, is in respect of these matters, that the Court is called upon to exercise the function of judicial review to ascertain whether in the circumstances appearing, the necessity of detention, orders to prevent disturbances of the public peace was or was not established."
9. In a subsequent case, namely, the case of Motahar Hossain Siddique v. Government of East Pakistan Civil Appeal No. 66‑D of 1961 their Lordships of the Supreme Court considered Malik Ghulam Jilan's case and observed :‑
"Learned counsel contends with force on the authority of the majority judgment of this Court in Malik Ghulam Jilani v. Government of Went Pakistan that the grounds or materials on which detaining authority satisfied itself of the necessity of detention, are opera to judicial review, and mere subjective satisfaction of the detaining authority would not suffice for lending validity to the detention order. The Court itself has to be satisfied on the point of sufficiency and reasonableness of the grounds that formed the basis of the order."
1.0 Bearing in mind the above legal position, let us examine the various activities of the three detenus as detailed in the three supplementary counter‑affidavits to see if they afford reasonable grounds for making the detention orders on the 5th January 1968, by the Government of East Pakistan. In course of hearing of these cases, the learned Advocate‑Generic placed before us all the materials which were said to have formed the basis of tile satisfaction of the detaining authority for making the orders of detention. Most of these materials are extracts from intelligence reports and some of these are longhand notes of speeches said to have been delivered by one or the other detenu. Again, some of these materials are in English and some others are in Bengali The learned Advocate‑General was willing to supply to the petitioners English translation of the material, but Mr. Mahmud Ali, the learned counsel for the petitioners did not insist of translation in Bengali as some of the learned Advocates of the petitioners are fully conversant with the Bengali language. The petitioner in each case filed an affidavit‑in‑reply, denying the activities attributed to the detenus in the respective supplementary counter‑affidavit. We ourselves have looked into the materials produced in these and find that these more or less, support the activities of the detenus as alleged in the three supplementary counter‑affidavits.
11. As the allegations against the three different detenus and the materials supporting them are not exactly the same it would be convenient to examine separately the allegations against each. There is, however, one common allegation against these detenus. The common allegation against them is that they were responsible for distribution of copies of an alleged prejudicial leaflet in connection wish the observance of the Protest Day on 2‑4‑67. A specific case, being Kotwali P. S. Case No. 60(3)67 was started against these detenus on basis of the said leaflet. The learned Advocate‑General has informed us that the said case is still proceeding against the detenus Syed Altaf Hossain and Haji Muhammad Danesh, but the name of the detertu Hatem Ali Khan has been dropped from it. That being so, the alleged distribution of copies of the said leaflet could not be a reasonable basis for the detention of these detenus.
12. Let us now examine the other allegations made against these detenus in the three separate supplementary counter affidavits.
13. The allegations against the detenu Hatem Ali Khan are on as many as nine counts. It is firstly alleged that in January 1967, the detenus issued a press statement adversely criticising the food and rice procurement policy of the Govern ment. A press cutting from the Bengali weekly "Jonata" shows that the food and rice procurement policy of the Govern ment was criticised by the detenu, but he gave his own reasons for such criticism. A mere criticism of such policy of the Government cannot be said to be objectionable. The detenu as it appears from the press‑cutting, rather expressed satisfaction on account of the Government decision abandoning the system's of levy (Compulsory procurement of paddy) and appealed to the Government to purchase food from abroad to meet the shortage and to suppress black‑marketeers.
14. This detenu was alleged to have made another press statement on 1‑2‑67, expressing apprehension of acute food crisis in rural areas in the near future and demanded declaration of East Pakistan as a famine area, exemption from payment of arrear rent, fixation of price of rice at Rs. 20 per maund, distribution of Government Khas lands among landless peasants and release of political prisoners. A press‑cutting from the daily to Bengali Sangbad', no doubt shows that such a statement was C made by the detenu. But the statement being a mere catalogue of demands made to the Government cannot be sail to be offensive.
15. The next allegation against the detenu is that while addressing a public meeting at Bajrajogini under Munshiganj Police he criticised the Basic Democracy system, recruitment policy of the Government and disqualification of East Pakistanis for recruitment to Government service on physical grounds. Moreover, he was alleged to have announced in the meeting that on 5‑3‑67 a peasants' rally would be there in front of the Government douse at Dacca, demanding adequate supply of food and asked the peasants to join the rally. No doubt, an intelligence report is there in support of the criticisms alleged to have been mace by the detenus. But do exception can be taken to such criticisms on the ground that these are prejudicial. There vas no prohibitory order against the holding of a rally on 5‑3‑67, and, as such, the invitation of the peasants to join the rally could not be objectionable. In fact, there is no evidence to show if any rally in front of the Government House was at all there on 5‑3‑67. 7his indicates that the speech of this detenu failed to create any impression in the minds of his audience.
16. The further allegation is that on 24‑7‑67, this detenu and others delivered speeches at a public meeting at Bekhairiati Bazar under Kenua Police Station, criticising the Government for its failure to check rise in prices of foodstuffs and other essential commodities and for imposing high taxes on the people. Such criticisms are not anything unusual, and no objection can be taken on this score either.
17. The next allegation is that while addressing a public meeting oil 5‑3‑67 in front of Baitul Mukarram, Dacca, this detenu condemned police action against peasants and workers at Mudhabdi, Dacca, Khulna and other places, criticised the food policy of the Government, accused the present Government as autocratic and urged the audience to re‑assemble on 7th March 1967, to protest against oppressions on peasants and to demand rice at low price. In doing so, the detenu no doubt was reported to have used some harsh words, but the real purpose of address was to express his strong grievance against the food policy of the Government and the alleged police excesses on peasants and workers at different places. To protest against police excesses on peasants, if any, and further to accuse tile Government as autocratic and to make a concerted demand to the Government for rice at cheaper rate, though may be unpalatable, cannot be said to be prejudicial activities.
18. This detenu was then accused of attending an "All Party" meeting on 8‑3‑67 which decided to observe "Anti -repression Day" on 2‑4‑67 throughout the Province by holding peasants' rally, meetings and processions. According to talc extract from an intelligence report, the day proposed to be observed was "Protest Day". However, it does not appear to its that the mere participation in such a meeting was per se objectionable.
19. This detenu was further accused of attending another meeting on 20‑3‑67 in which it was decided to give publicity about the observance of the proposed "Protest Day" by holding street corner meetings and through posters and leaflets. To attend this meeting equally is unobjectionable particularly when there was no prohibition against tile holding of any such meeting.
20. An exception was then taken on account of this detenu's attending the working committee meeting of the East Pakistan Krishak Samiti held at the National Awami Party Office at Dacca on 26‑3‑67. We fail to see how it was wrong on the part of the detenu to attend that meeting.
21. The last allegation is that this detenu visited Iqbal Hall on 27‑3‑67 contacted some student leaders and succeeded in seeking their co‑operation in the observance of the proposed "Protest Day". While it is most undesirable to drag students into politics, any approach to them by outsiders for making protests against administrative or executive actions of the Government or Government Officials cannot itself be construed as a prejudicial act.
22. The allegations made against the detenu Syed Altaf Hossain are five‑fold. It is alleged that on 1‑1‑67 he addressed a public meeting at Malibagh organised by the Rajarbagh Union Committee of National Awami Party, criticising the Government for miserable economic and political ills and stressed for regional autonomy and release of political prisoners. The material produced which is an extract from an intelligence report shows that, besides a demand for regional autonomy and release of political prisoners, this detenu, who was one of the several speakers in that meeting, laid stress on reduction of high prices of rice and other essential commodities. It is difficult to seed' how the mere demand for these matters could be construed as a prejudicial act.
23. The next allegation is that this detenu, while addressing a public meeting at Faridabad on 22‑1‑67, strongly criticised the Government and held it responsible for the present political and economic situation in the country and further criticised the Government for taking recourse to repressive measures to suppress the people. The material produced which is an extract of an intelligence report shows that a number of persons including this detenu addressed that meeting, but in that report no definite statements are attributed to any particular speaker. What, however, the material shows is that all the speakers delivered speeches on food problem, release of political prisoners, regional autonomy and imperialism and that resolutions were adopted demanding, among others, regional autonomy on linguistic basis, reduction of prices of foodstuffs supply of rationed rice at reduced rates, release of political prisoners and proper implementation of the Tashkent Declara tion. A mere demand for these matters cannot be said to be objectionable.
24. This detenu was then accused of criticising the Govern ment in a public meeting held at Kushtia on 10‑3‑67 for repression and exploitation of the masses and curtailing their liberty and asked the audience to unite for realisation of theirs demands. Such criticism in the abstract cannot be said to be an abuse of the citizen's right to criticise Government activities.
25. The next allegation against this detenu is that he addressed a public meeting in Sylhet Town on 18‑3‑67, stressing upon the demand for six points. The alleged six‑point programme may not be liked by many, but this being a political programme of a political party not offending against the law and the Constitution, the programme itself cannot be found fault with.
26. The last allegation against this detenu is that on 20‑3‑67 he issued a press statement criticising the firing at Pabna and asked for ascertaining the cause of such firing. The relevant press‑cutting from the Bengali Daily "Sangbad" shows that a number of persons including this detenu protested against the supply of alleged poisonous Bhutta (Maize) and police firing at Pabna in that connection. They demanded, among others, a judicial inquiry into the matter and chemical‑examination of the Bhutta supplied to that place. It cannot be said that the protest against police firing and demand for a judicial inquiry are prejudicial acts.
27. The allegations made against the detenu Haji Muhammad Danesh are seven in number. It is alleged that on 19‑2‑67, this detenu addressed a public meeting at Badarganj in the district of Rangpur, called by the National Awami Party, criticised the Government on acute food problem and imposition of heavy taxes and demanded full rationing and fixation of price of rice at Rs. 20 and that of atta at Rs. 10 per maund. Such criticism and demand, as stated earlier, are not offensive.
28. The next allegation is that at a meeting held on 5‑3‑67 in front of Baitul Mukarram at Dacca, this detenu criticised the Basic Democracy system, condemned lathi‑charge by the police oil processionists who were to come to Dacca to attend the meeting and urged upon the audience to launch a movement to uproot the autocratic Government. The criticism against the Basic Democracy system and condemnation of lathi‑charge can not be said to be in excess of the citizen's usual right of criticism. As regards the launching of an alleged movement to uproot the Government, the material produced does not at all show if the alleged movement was intended to be launched in defiance of law or in an unconstitutional manner.
29. The detenu was then accused of presiding over a meeting of the East Pakistan Krishak Samiti on 8‑3‑67 in which it was decided to observe Anti‑repression Day and Food Demand Day, i.e. the Protest Day' throughout the Province on 2‑4‑67, by holding peasants' rally, meetings and taking out processions. He was further accused of presiding over another meeting on 14‑3‑67 at 46, Captain Bazar, Dacca, in which discussion centred round the observance of "Gang Shanghati Dibas" i.e. Protest Day on 2‑4‑67 and a decision was taken to hold a public meeting at Paltan Maidan on the said day. When these meetings them selves were not unlawful, no exception could be taken to the detenu's presiding over the same. Moreover, a mere decision to observe "Protest Day" was equally unexceptionable.
30. The next allegation is that on 18‑3‑67 this detenu addressed the Sylhet District Conference of the National Awami Party, supporting the six‑point programme of the East Pakistan Awami League. As already said, this programme itself does not offend against the law and the Constitution. Hence, any support to that programme, though may not be liked by many, cannot be said to be objectionable.
31. The last allegation against this detenu is that on 20‑3‑67, he presided over a meeting of the leading workers of Krishak Samiti held at Dacca. The meeting, it is alleged, discussed about the preparation for observance of Anti‑repression Day, i.e. the Protest Day on 2‑6‑67 by holding meetings and taking out processions at Dacca and elsewhere and by circulating leaflets. An exactly similar allegation was made against the detenu Hatem Ali Khan, but we have already found that his participation in such meeting was unobjectionable. This holds good also in the case of this detenu Haji Muhammad Danesh.
32. These are all the activities of the three detenus which formed the basis of satisfaction of the detaining authority to make the orders of detention in respect of them. These activities considered as a whole go to show that the detenus were making grievances and protests against certain policies and actions of the Government including the alleged police excesses on peasants and workers. In a democratic State, the citizens have a right to criticise the Government measures and its activities, but they cannot use this as a licence to bring the Government into hatred or contempt or to create a law and order situation or to do any other prejudicial act. But having regard to the nature of the grievances and protests made by the detenus, the manner in which n these were made and conditions prevailing at the relevant time, it cannot be said that these were likely to endanger public safety, the maintenance of public order or peaceful conditions in the country, far less the maintenance of essential supplies and services. All the three detenus were arrested on 28‑3‑67, that is to say, on the event of the proposed Protest Day' on 2‑4‑67 in connection a specific case under rule 47 (5) and rule 50 (5) of the Defence of Pakistan Rules, but till then their detention under rule 32 (1) (b) was not considered necessary, although the materials as against them had been in the possession of the authorities from before. The materials produced in these cases do not show if the peasants and workers whom they had address ed from time to time responded to their call for observing the Protest Day' on 2‑4‑67. In fact, there is nothing to show if any peasants' rally advocated by these detenus was at all there in front of the Government House. On the contrary, it appears from the Sessions Judge's order granting them bail that the Protest Day' passed off peacefully. It cannot, therefore, be said that the activities of the detenus as detailed in three supplement ary counter‑affidavits provided reasonable grounds for their detention for the purposes mentioned in the orders of detention. The detention orders are not, therefore, sustainable in law.
33. Mr. Mahmud Ali contended that the orders of deten tion were made in these cases by the detaining authorities without properly applying their mind. In support of this contention, he pointed out that the Deputy Commissioner of Dacca, in his counter‑affidavit in the case of the detenu Hatem Ali Khan, stated that his detention was necessary as he was likely to act in a manner prejudicial also to the maintenance of essential supplies and securities, but in the orders of detention made by the Deputy Commissioner no such ground was stated. The learned counsel further pointed out that while the Deputy Commissioner did not mention the maintenance of essential supplies and services in any of the detention orders made by him, the Provincial Govern ment mentioned in its detention orders the maintenance of essential supplies and services as one of the pleas for the detention of these detenus. Furthermore, the learned counsel contended that the Provincial Government made the detention orders in cyclostyled forms and that this is indicative of non- application of the mind of the detaining authority. The learned counsel's contention as regards essential supplies and services is true, and this indicates that the same materials were construed differently by the different detaining authorities. In other words, while the Deputy Commissioner did not state in his detention orders that the activities of the detenus were prejudicial to the maintenance of essential supplies and services, the Government proceeded on the basis that their activities were prejudicial also to the maintenance of essential supplies and services. However, this different attitude of the different detaining authorities is of no real consequence here inasmuch as it has been found that the alleged activities of the detenus did not furnish reasonable grounds for their detention. For the same reason, it is not necessary to give any importance to the other contention of the learned counsel as regards making of the detention orders by the Provincial Govern ment in cyclostyled forms.
34. We shall now deal with the points of law raised in these cases. In the applications under section 491 of the Code of Criminal Procedure, a number of legal grounds were taken, but none of these grounds was pressed. Mr. Mahmud Ali, however, raised a new point of law to the effect that rule 32 (1) (b) of the Defence of Pakistan Rules providing for detention is invalid and inoperative inasmuch as the said Rules do not provide for creation of Advisory Boards in conformity with the fundamental right in paragraph 2 in Chapter I of Part II of the Constitution. We do not find any substance in this contention inasmuch as enforcement of fundamental right as in the said paragraph 2 with regard to constitution of Advisory Boards, along with some other fundamental rights, were suspended for the period during which the Proclamation of Emergency remains in force.
35. The learned Advocate‑General also raised a point of law as to the maintainability of the present applications. He drew our attention to section 16 (1) of the Defence of Pakistan ordinance, 1965 and submitted that the applications in the instant cases being applications under section 491 of the Code of Criminal Procedure (and not under Article 98 of the Constitu tion), the orders of detention cannot be called in question because of the bar under that section. Section 16 (1) of the Ordinance reads thus :‑
"No order made in exercise of any power conferred by or under this Ordinance shall be called in question in any Court."
It is true that applications in the nature of habeas corpus made in the present cases are applications under section 491 of the Criminal Procedure Code and not under Article 98 of the Constitution, but the argument of the learned Advocate‑General that section 16 (1) of the Ordinance operates as a bar to the maintainability of these applications does not appear to be sound. We have already found that there existed no reasonable grounds for making the orders of detention in respect of the three detenus. That being so, the orders of the detention in respect of them were not in accordance with law and in excess of jurisdiction. Section 16 (1) speaks of only those orders which are made in accordance with the Ordinance or the rules made thereunder, but does not protect any order made not in accordance with the Ordinance and the rules. This view gets clear support from the decision of the Privy Council in the case of Emperor v. Vimalabai Desh Pande (A I R 1946 P C 123). In that case, reliance was placed on section 16 (1) of the Defence of Pakistan Ordinance in order to protect a detention order which was otherwise invalid. Their Lordships of the Privy Council observed :‑
"Mr. Mackenna, for the appellant, further relied on section 16, subsection (1), Defence of India Act, 1939, which provides no order made in exercise of any power conferred by or under this Act shall be called in question in any Court. But this argument only raises the same question in a different form. If the orders made by the Police or the Provincial Government were invalid they were not made in exercise of a power conferred by the Act."
No other point of law was pressed in this case by either side.
36. In the result, we make the Rules absolute, declare that the orders of detention in respect of the detenus Hatem Ali Khan, Syed Altaf Hossain and Haji Md. Danesh are unlawful and direct that they shall be set at liberty forthwith, if not wanted in any other connection.
.‑I agree.
Rules made absolute.
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