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Criminal Miscellaneous Case No. 163 of 1968, decided on 4th February 1969.

rr. 32 & 41(6)-‑Preventive detention‑Detenu participating in proceedings of a political meeting‑ Decisions taken in meeting : (a) to start a sinister move ment to underline confidence of people in proceedings of a legally constituted judicial tribunal in order to make its decision still‑born and (b) to charge strategy for movement in future "as there was no scope for any constitutional movement by observing Day' on particular issues"‑Matters, held, contained potentiality of creating a situation prejudicial to public safety or interest and to maintenance of peaceful conditions in country Proceedings of meeting furnished a reasonable basis for detention of detenu.

M. A. Islam for Petitioner.

Anwarul Hoque Chowdhury for Respondents.

Dates of hearing : 7^th, 14^th, 15^th, 17^th January and 3^rd February 1969.

.‑This Rule is directed against the detention of Sheikh Shahidul Islam under Rule 32 (1) (b) of the Defence of Pakistan Rules and it was issued upon the application of the detenu's father, Sheikh Muhammad Musa.

It appears from the petition that the detenu, Sheikh Shahidul Islam, is a final examinee of M. Sc. Class of the Dacca University and that he was arrested on 7‑7‑68 under Rule 204 of the Defence of Pakistan Rules, 1965 while he was busy with his studies in his village home in the district of Faridpur. The petitioner has described himself as a poor School Master, and it has transpired in Course of the arguments that he is the Headmaster of Gimadanga Tungipara High School in the District of Faridpur. The detenu is a nephew of Sheikh Mujibur Rahman now standing trial in a conspiracy case before a Special Tribunal at Dacca. On behalf of the detenu it has been asserted that he never acted in any manner prejudicial to the public safety or interest, the maintenance of supplies and services essential to the life of the community and the maintenance of peaceful conditions in the country as alleged in the impugned orders of detention. The petitioner has characterised the detention of the detenu as mala fide and that it was made with an ulterior motive in order to deprive Sheikh Mujibur Rahman of any able assistance as tadbirkat from the members of his family.

On behalf of the respondents, namely the Government of East Pakistan, the Deputy Commissioner of Faridpur and the Superintendent of the Dacca Central Jail, an affidavit in -opposition sworn on 8‑1‑68 by Nir. M. Ismail, Section Officer, Home (Special) Department, Government of East Pakistan has been put in. In this affidavit the deponent has denied that the detention of the detenu is mala fide of that it has been made with any ulterior motive as alleged in the petition. On the contrary it has been slated that the detenu was arrested on 7‑7‑68 under Rule 204 of the Defence of Pakistan Rules, 1965 by the Faridpur police for his prejudicial activities, namely, for preaching hatred and contempt against the Government established by law and for creating disaffection among different classes of people and public order and maintenance of peaceful conditions, in and the interest of Pakistan. It has been categorically stated that the detention of the detenu has absolutely nothing to do with Sheikh Mujibur Rahman. It has been stated that the detenu is a student agitator, and that the official reports and papers against him contain sufficient prejudicial materials to warrant his detention and these materials have nothing to do with Sheikh Mujibur Rahman. In paragraph 13 of the affidavit detailed statements of the material have been given and it gas been stated that there were enough pre‑existing materials and reports before the authority to enable it to be satis fied about the prejudicial activities of the detenu. The following four specific allegations have been made against the detenu:‑(1) 7 hat on 25‑7‑67 the detenu attended a meeting of the workers of the different units of East Pakistan Students League held at "Iqbal Hall" Cafeteria in which speeches were delivered to make "Prisoners Release Day" on 2‑8‑67 a success, and that as a result of instigations by the detenu and his co‑workers the students violated an order issued under section 144 of the Criminal Procedure Code on 2‑8‑67 and staged a violent demonstration creating a serious law and order situation near the Dacca Medical College which necessitated release of Tear Gas by the police on duty; (2) That the detenu as "Cultural Editor" was instrumental in bringing out a booklet captioned "PRATIGYA" on the occasion of "Shahid Day" observance in February 1968, and the booklet contained serious attacks on the Government and was likely to create disaffection among different classes of citizens and between the people of East and West Pakistan; (3) That on 6‑6‑68 the detenu along with others addressed a joint meeting of East Pakistan Students League (EPSL) and East Pakistan Students Union (EPSU) at S. M. Hall, Dacca criticising in strong language the Government for promulgation of an order under section 144 of the Criminal Procedure Code in order to frustrate the observance of 7‑6‑68 in Dacca; and (4) That on 28‑6‑68 the detenu attended a meeting of the Central Committee of the said E. P. S. L. which criticised the Government established by law, and condemned the established law and attacked legal proceedings and matters which were sub judice and thus created disaffection and hatred in the mind of others against the Government, the law and the legal proceedings of the land.

The statements made in the affidavit‑in‑opposition put in on behalf of the respondents have gone unchallenged except as to the presence of the detenu at Dacca on 28‑6‑6S and as to his participation in the meeting of the Central Committee of the said E. P. S. L. stated to have been held at Dacca on that date. Certain facts, however, need be mentioned here. This Rule first came up for hearing before us on 7‑1‑69 and it remained part heard on that day. The matter then came up for hearing on 14 1‑49 when we permitted the learned Advocate appearing on behalf of the petitioner to put in an affidavit‑in- reply although the petitioner had never asked for any time or opportunity to put in such affidavit before that date. The matter again remained part heard and it was taken up for hearing on the next day, that is, 15‑1‑69. On this date having regard to certain circumstances which are noted in our order of the date we reconsidered the matter of acceptance of the affidavit -in‑reply and refused acceptance of the same and consequently the affidavit‑in‑reply was returned to the learned Advocate of the peti tioner. In view, however, of the statement made by the learned Advocate appearing on behalf of the petitioner that the detenu was never present in Dacca on 28‑6‑68 inasmuch as he was then staying in his village home in the district of Faridpur and acting is a temporary teacher in certain school there, we in the interest of justice permitted him to put in a short supplementary affidavit in support of such statement and accordingly a supple mentary affidavit dated 18‑1‑69 was submitted in Court on that date. In this supplementary affidavit the petitioner has stated that the detenu lived with him in this village home at Tungipara since 25‑5‑68 to the day of his arrest on 7‑7‑68 and that the detenu had never gone to Dacca in the meantime. It has been further stated that the detenu served temporarily as a Science Teacher at Gimadanga Tungipara High School in the district of Faridpur from 11‑6‑68 to 5‑7‑68. In support of this statement the petitioner has annexed certificate dated 16‑1‑69 from one Sheikh Mosharraff Hossain who has described himself as Secretary without stating of what organisation or institution. The Certificate, however, appears in the printed letter form headed Gimadanga Tungipara High School', and there is a seal of the said school at the left hand bottom of the certificate.

On behalf of the State no further affidavit has been put in, at the learned Advocate appearing on behalf of the State has placed before us certain papers which contained a letter purported to have been addressed by the aforesaid Sheikh Mosharraff Hossain to the Deputy Inspector‑General of Police, Dacca dated 13‑2‑67 in which Sheikh Mosharraff Hossain has described Sheikh Mujibur Rahman as his nephew. The signature of Sheikh Mosharraff Hossain appearing on this letter as well as on the aforesaid certificate (Annexure X' to the supplementary affidavit dated 18-1‑69) appear to be the same. The said letter was shown to the learned Advocate appearing on behalf of the petitioner.

On behalf of the State records of the detenu have been placed before us to support the statements made against him in the affidavit‑in‑opposition. We have perused the relevant records as well as permitted the learned Advocate appearing on behalf of the petitioner to peruse them.

So far as the first allegation is concerned, namely, the meeting of 25‑7‑67 the records do not contain the speech of the detenu or as to what he had actually said from which it could be construed or inferred that tie had instigated his co‑workers and the students to violate the order under section 144 of the Code of Criminal Procedure on 2‑8‑67. There is also nothing to show as to what part he played in the violent demonstration which was alleged to have created a serious law and order situation near the Medical College which necessitated the release of the Tear Gas by the police on duty.

As regards the second allegation, namely, the publication of the booklet "PRATIGYA" stated to have been done at the instance of the detenu whose name appear as the "Cultural Editor" in the booklet we are told that this matter is sub judice and the connection of the detenu with the contents of the booklet awaits investigation and trial, and we, therefore, do not consider it desirable to say anything which may in any way prejudice the case. It may be mentioned, however, that in the aforesaid booklet "PRATIGYA" which has been placed before us and was also shown to Mr. Ameerul Islam both the detenu and one Abdul Bari appeared responsible for the publication of the booklet although the booklet may be said to contain certain objectionable matters, we have not in the interest of justice and the detenu himself made any reference to those passages in the booklet.

Regarding the third allegation again there does not appear anything in the records to show what was the language used by the detenu in criticising the Government for the promulgation of an order under section 144 of the Criminal Procedure Code, and no inference against him is, therefore, possible.

There remains the fourth allegation, namely, the meeting of the Central Committee of East Pakistan Students League on 28‑6‑68. The relevant paper in connection with this incident has been placed before us and it was also perused by Mr. Ameerul Islam, learned Advocate appearing on behalf of the petitioner. The paper is an extract from the statement of a person described as a New Agent dated 28‑6‑68 and the relevant portions may be quoted thus :‑

"On 28‑8‑68 between 18.00 hours and 21.00 hours a meeting of the Central Committee of EPSL was held at Iqbal Hall, Dacca with Abdur Rouf President, EPSL in the Chair. The following, amongst others, attended amongst the nine persons mentioned below the name of Sheikh Shahidul Islam is one. Among other things the meeting discussed and directed that E. P. S. L. units throughout the province should enlighten the people in their respective jurisdiction on the six‑point programme of Awami Leage. The E. P. S. L. workers should also in course of their contact with the people impress upon them that the Agartala Conspiracy Case is nothing but a hoax and its trial is a parody of legal proceedings The very fact that so many witnesses were produced by the prosecution goes to show that the story of the conspiracy was a cooked‑up one, and this point should also be explained to the people by the EPSL workers in course of their contact with them.

The meeting felt necessary to change the strategy for movement in the future as there was no scope for any constitutional movement by observing Day' on particular issues. As in view of the alleged repressive policy of the Govt. there was no scope for any constitutional movement .."

The meeting further directed all the Units of EPSL to send their collection towards SK. MUJIB FUND' to the Central Committee of EPSL."

Two things appear prominent in the aforesaid proceeding of the Central Committee of E. P. S. L., namely, (1) that a sinister movement was started after due deliberation to undermine the confidence of the people in the proceeding of a legally constituted judicial tribunal in order to make the decision of the tribunal still born and (2) that the meeting definitely decided "to change the strategy for movement in the future as there was no scope for any constitutional movement by observing Day' on particular issues". This was a definite indication to resort to unconstitutional methods.

Both these matters had in them the potentiality of creating a situation that was prejudicial to the public safety or interest and to the maintenance of peaceful conditions in the country. At one stage Mr. Ameerul Islam, learned Advocate appearing on behalf of the petitioner stated that if the report of the proceeding was correct, the reference to the legal proceedings before the afore said tribunal was unfortunate and should not have been made. Later on, however, Mr. Ameerul Islam tried to argue that reading the proceeding as a whole the reference to the said legal proceeding after all was not objectionable. Having given our earnest consideration to the said proceedings of the meeting of the Central Committee of E. P. S. L. we are of opinion that they, furnish a reasonable basis for the detention of the detenu.

A question has, however, been raised by means of the supplementary affidavit to the petition dated 18‑1‑69 as to whether the detenu was in fact present in Dacca on 28‑6‑68 and had participated in the said meeting of the Central Committee of E. P. S. L. Having regard to the facts and circumstances to which we shall presently advert we think that the statement in the said supplementary affidavit that the detenu acted as a temporary Science Teacher of Gimadanga Tungipara High School, Faridpur from 11‑6‑68 to 5‑7‑68 is an after‑thought since no mention of this fact was ever made in the petition itself which was sworn on 12‑8‑68. The alleged certificate of the Secretary of the School which has been annexed has Annexure X' to the supplementary affidavit is itself dated 16‑1‑69, that is, long after we had started hearing the Rule. Furthermore it appears from the facts mentioned above that Sheikh Mosharaff Hossain who appears to have given the certificate as the Secretary of the School is a relation of the petitioner and the detenu and there is no mention in the certificate that the detenu was in fact present in the said School on 28‑6‑68. No school register or any other document from the school has been produced before us in support of the claim that the detenu was not present in Dacca on 28‑6‑68. The school appears to be a family affair as the father of the petitioner is the Headmaster of the school as stated by Mr. Ameerul Islam and the Secretary too is a relation of the petitioner and the detenu. In these circumstances we are unable to put any reliance on the averments in the supplementary affidavit and in the said certificate (Annexure X'). This belated statement was obviously made during the trial of the Rule when the Court in course of hearing of the Rule had expressed certain opinion about the matters relating to the proceeding of the meeting of the Central Committee of E. P. S. L. dated 28‑6‑68. In this connection it is also significant to note that even on receipt of the affidavit‑in opposition by the petitioner he did not pray for any time or opportunity to put in any reply to the said affidavit until the second day of hearing of the Rule on 14‑1‑69, although it had been categorically stated in paragraph 13 of the affidavit‑in opposition "that on 28‑6‑68 the detenu attended a meeting of the Central Committee of the E. P. S. L. which criticised the Govern ment established by law and condemned the established law and attacked legal proceeding and matters which are very delicate and which are sub judice, creating disaffection and hatred in the mind of others against Government, the law the legal proceedings of the land." In these facts and circumstances we do not feel any reason to disbelieve the statement that the detenu was in fact present in Dacca on 28‑6‑68 and had participated in the meeting of the Central Committee of E. P. S. L. held on that date. Since it is not unusual for the authorities to employ sources for obtaining information the fact that the report of the said proceeding had been supplied by a New Agent' does not seem to detract from the value of the report, particularly when there is no reasonable ground to think that it had been maliciously procured against the detenu. Mere relationship of the detenu with Sheikh Mujibur Rahman furnishes no such ground.

It has been contended by Mr. Ameerul Islam that the mere fact that the detenu was among several persons present at the meeting is not enough to connect him with several matters trans acted in the said meeting. We do not see much force in this conten tion. It was a meeting of the Central Committee of the E. P. S. L. of which evidently the detenu was a member, and it is difficult to conceive that a high command of the said E.P. S. L. met to consider and transact grave matters and yet the detenu did not participate in it. The proceeding appears to be unanimous in character. At any rate the aforesaid proceeding of the meeting of 28‑6‑68 afforded reasonable ground for thinking that the detenu participated in the deliberation of the Committee and took part in arriving at its decision.

Mr. Ameerul Islam has also contended that the aforesaid matters contained in the said proceeding of the meeting of the Central Committee dated 28‑6‑68 do not fall within the purview of Rule 32 of the Defence of Pakistan Rules. We are unable to accept this contention. Rule 32 inter alia deals with matters prejudicial to the security, the public safety or interest of Pakistan and to the maintenance of public order and the maintenance of peaceful conditions h any part of Pakistan. Having regard to our observations made on the aforesaid "proceeding of the meeting of 28‑6‑68 we are of opinion that the matters do fall within the purview of Rule 32. Rule 32 is to be read along with Rule 41 of the Defence of Pakistan Rules for it is in the latter Rule, namely, Rule 41(6) that the words prejudicial act" have been defined. Without going into the details for the definition we need only say that the aforesaid matters do come within the definition of the works "prejudicial act" under several clauses of the said sub‑rule. It has also been contended by Mr. Islam that the arrest of the detenu under Rule 204 of the Defence of Pakistan Rules was illegal and consequently the subsequent detention of the detenu under Rule 32(1) (b) of the Rules is also illegal being a continuation of the original illegal detention. In clarification of this contention it has been argued that the records showed that the police officer of Faridpur who arrested the detenu under Rule 204 had acted under instructions from the Head Office of the Special Branch at Dacca and not on his reasonable suspicion. In our opinion the question of legality of the arrest under Rule 204 of the Defence of Pakistan Rules at this stage is of academic interest only for we are required to see whether the order upon the basis of which the detenu is now being held is legal and valid. Besides the instructions might contain facts which furnished reasonable basis for the requisite suspicion under Rule 204.

For the reasons stated above we discharge the Rule.

I agree.

Rule discharged.

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