Find a Lawyer

Criminal Miscellaneous No. 269/H of 1975, decided on 21st May 1975.

West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)‑

5. 3(1)‑Preventive detention‑No material indicative of detenus' having made any speech, organised any meeting, or distributed any pamphlet for staging demonstration or starting mass movement‑No material also to indicate detenus' having indulged in some activity directed towards materialisation of their alleged intention‑Organising a protest over general rise in prices‑A democratic right‑Demonstration if peaceful and otherwise permissible. intention to stage such demons tration, held, cannot justify detention‑Constitution of Pakistan (1973), Art. 199 (I)(b)(i).

Ghufam Jilani v. Government of West Pakistan P L D 1967 S C 373; Mir Abdul Baqi Baluch v. The Government of Pakistan P L D 1968 S C 313 ; Government of West Pakistan v. Begum Shorish Kashmiti P h. D 1969 S C 14; Shorish Kashmiri v. S. S. P., Lahore 1973 P Cr. L J 482 ; Maulvi Farid Ahmad v. Government of West Pakistan P L D 1965 Lah. 135 and Khadija Bhabha v. The Government of Sind P L D 1973 Kar. 421 ref.

Muzaf far Qadir and Khalid Ranjah for Petitioner.

Abdus Sattar Najam, A. A.‑G. assisted by Alamgir for the State.

Dates of hearing : 14th and 16th May 1975.

These three petitions, i.e. Cr. M. 269‑H of 1975, Cr. M. 270‑H of 1975 and Cr. M. 355‑H of 1975, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan read with section 491, Cr. P. C. relate to the detention by the Provincial Government of Shahid Iqbal, Muhammad Farooq and Hamayun Mujahid respectively.

2. The said detenus were arrested on 19‑4‑1975 and were detained under section 3(1) of W. P. Maintenance of Public Order Ordinance 1960, for a period of one month which period was to expire on 17‑5‑1975 but the detention has been extended for a further period of one month.

3. The grounds of detention, which are nearly the same for all the detenus, are that they had always been in the fore‑front of agitational activities, that they had been involved in several cases and that they intended on instructions received from the Jama'at‑e‑Islami to launch students demonstration and start a mass movement exploiting the recent increase in the price of various commodities.

4. The detention orders have been challenged by Ehsan Ullah Waqas, petitioner, who is the newly elected Secretary of the Punjab University Students' Union. The facts alleged in the petitions are that the victory of the Islami Jamiat Tulaba in the election of the Punjab University Students' Union, held on 13‑3‑1975, was badly resented by the People's Party wing of the students, that prominent members/associates of the Islamic Jamiat Tulaba were framed up in the case of the murder of a young student of the Government College, Lahore, but a cumber of them were granted bail before arrest by the learned Additional Sessions Judge, Lahore, that the People's Party functionaries made a grievance of the bail order in the WAPDA Auditorium on 7‑4‑1975 before the Prime Minister who assured the students wing of the People's Party present at the meeting that all those released on bail shall be arrested, and that Shahid Iqbal and Muhammad Farooq, who had gone to the Sessions Court to watch the bail case of Harnayun Mujahid on 19‑4‑1975, were arrested from the Court premises without any order of arrest or detention having been shown to them. Hamayun Mujahid, whose application for bail before arrest had been rejected on 19‑4‑1975, had been arrested and lodged in jail where the detention order had been served on him. The grounds taken in the petition are that the detention of the detenu was without any material to show that the detenus were acting in a manner prejudicial to public safety or maintenance of public order, that they were being vicitimized for their olitical views, and that the detention was mala fide. It was further alleged chat the detenus had been tortured and kept in a very bad state and that as such their detention was in an unlawful manner. It was, therefore, prayed that the orders of detention of the detenus be declared illegal, mala fide and of no consequence and the detenus be set at liberty.

5. In the reply furnished by the Deputy Secretary (General), Home Department of the Provincial Government, it was stated that the detenus

had

taken active part in the agitational activities and in the intensification of students disturbances which resulted in the murder of Hanif Barkat, a student of Government College, Lahore, and in injuries to two other students and a lady lecturer. It was further stated in the reply that :‑‑

"The detenu is an active worker of Islami Jamiat‑e‑Tulaba, a satellite of Jama'at‑e‑Islami and it was learnt that he is intended to exploit the situation arisen out of the murder of a student in his party's favour and receiving instructions from his parent Jama'at. He intended to launch student demonstration and start a mass movement exploiting the recent increase in the price of ghee, sugar and wheat and thereby disturbing the peaceful atmosphere of educational institutions and thus created law and order situation."

6. Shahid Iqbal and Muhammad Farooq detenus who had been produced by order of this Court, filed their statements on 13‑5‑1975. Shahid IqbaL stated that after leaving the University he had joined NDVP as a volunteer and had been having no concern with the student politics and that in the aforesaid murder case he had been granted bail before arrest. flee rest of his statement is on the same lines as taken in the relevant writ petition. Muhammad Farooq in his statement stated that in the last Sutdents Union election he had supported the Islami Jamiat Talba candidate against the candidate of the People's Party and that he had, otherwise, no political affiliations. He further stated that he had been involved in the murder case but had been granted bail before arrest. The rest of his statement is in accord with the relevant writ petition Hamayun Mujahid, relating to whose detention the petition was filed in the last stages of the hearing of the other petitions, was also produced on 16‑5‑1975. However, he did not file a separate statement.

7. Subsection (1) of section 3 of the W. P. Maintenance of Public Order Ordinance, 1950, authorizes the Government to direct the arrest and detention of a person if the Government is satisfied that it is necessary to do so for preventing that person from acting in any manner prejudicial to the public safety or the maintenance of public order. Similarly, rule 32(1)(b) read with rule 213 of the Defence of Pakistan Rules, 1971 empowers the Provincial Government to direct that a person be detained if it is of the opinion that it is necessary to do so for the purpose of preventing that person from acting in a manner prejudicial to the public safety or interest, etc. I have referred to these two provisions because while the Detention Order had been passed under the W. P. Maintenance of Public Order Ordinance, 1960, the grounds o ' detention served on the detenus disclosed that the detention was under rule 32 read with rule 213 of the Defence of Pakistan Rules. The principles governing the detention, so far as the present petitions are concerned, are nearly identical in the two provisions.

8. The power of the High Court to review an order of detention passed by the Government is controlled by Article 199(1)(b)(i) of the Constitution under which the present petitions have been filed. The relevant provision reads as below

199.‑(1) Subject to the Constitution, a High Court, if it is satisfied that no other adequate remedy is provided by law.

.

(b) on the application of any person, make an order‑

(t) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner.

9. The principle of detention under the provision of the Defence of Pakistan Rules and the analogous provision in the W. P. Maintenance of Public Order Ordinance had come up for discussion in a number of cases. In Ghulam Jilani v. Government of West Pakistan (PLD 1967 SC 373) it had been held :‑

"There must be in the mind of the Detaining Authority a belief that the person in question is either about to act or is likely to act in the aforesaid manner; only so can the word 'satisfied' be construed . . . . .

The condition 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."

Following from this it had been observed that

"The Authority should be prepared to satisfy the Courts, to which the subject is entitled to have resort for determination of the question whether he bas been treated in accordance with law, that it has acted on reasonable grounds."

In the separate judgment written by M. Yaqub Ali, J., in the same case, his Lordship had added :‑

"The Detaining Authority is expected to exercise the public power of apprehension and detention in accordance with law as enjoined by Article 2 of the Constitution and not arbitrarily or perversely. The more significant import of these words, however, is that the exercise of power by the Detaining Authority is subject to the ascertaining of reasonable grounds which is a quasi judicial function."

Their Lordships had reiterated the above principles in Mir Abdul Baqi Baluch v. The Government of Pakistan (PLD 1968 SC 313) and in Government of West Pakistan v. Begum Shorish Kashmiri (PLD 1969 SC 14).

10. In defining, however, the Constitutional power of the High Court for review, their Lordships had observed in Abdul Baqi Baluch's case that the power was not co‑equal to the power of a Court of appeal or a Court of error or a review committee, or a Court cannot claim in the exercise of this power to usurp the functions of the authority on which the power has been vested in order to substitute their own decisions for the decision of that authority. In this context it had been further observed that the Court cannot insist being satisfied that there were materials upon which it itself would have taken the same action and that in that sense the Court cannot be said to be concerned with either the adequacy or the sufficiency of the grounds upon which action is taken. In order to discharge its constitutional duty the Court, within the aforesaid limits, can examine whether the authority had reasonable grounds to reach the satisfaction or form the opinion for ordering the detention.

11. It is in the light of these principles that I have examined the materials forming the basis for the detention of the detenus. The grounds of detention of Shahid Iqbal detenu are the following :‑

(1) You are an active worker of Islami Jamiatul Tulba, a satellite of Jama'at‑e‑Islami. You have been always in the fore‑front of agitational activities and was thus involved in several cases The situation has become tense following the student disturbances in the wake of PUSU elections in which Hanif Barkat, student of Government College was murdered and two other students and a woman lecturer were seriously injured. It is learnt that you intend to exploit the situation in your party's favour.

(2) It has been further learnt that on receiving instructions from the Jamat‑i‑Islami, you intend to launch student demonstration and start a mass movement exploiting the recent increase in the price of ghee, sugar and wheat and thereby disturb the peaceful atmosphere of educational institutions and thus create law and order situation.

The grounds of detention in the case of the other two detenus are similar.

12. The material serving as basis for these grounds which has been shown to this Court consists of‑

(i) F. 1. R. No. 205 of 14‑3‑1975, F. I. R. No. 219 of 14‑3‑1975, F. I. R. No. 39 of 21‑2‑1975, F. 1. R. No. 148 of 25‑2‑1975 ; and

(if) a few Police reports.

The three detenus figure as accused in F. 1. R. No. 205 which relates to the murder of Hanif Barkat and F. 1. R. No. 219 which is in respect of offences under sections 307/149 and 148, P. P. C. In F. I. R. No. 39, which was lodged by Mr. Misbahuddin Shami pro‑Chancellor, New Campus Punjab under sections 452, 506, 427, 336/147 and 148, P. P. C., the complainant has named the three detenus as having participated in the disturbances. According to F. 1. R. No. 148, which was filed by Muhammad Munir A. S. I. under sections 382, 353, 307/149 and 148, P. P. C., Hamayun Mujahid took part, along with others, in attacking a Police party. The allegations in the F. I. Rs. being subject to judicial process under the law of bails, the learned Assistant Advocate‑General urged that the F. 1. Rs. were relevant for the ascertainment of the conduct and future behaviour of the detenus. For this he relied on Begum Shorish Kashmiri v. S. S. P., Lahore (1973 P Cr, L J 489) and Maulvi Farid Ahmad v. Government of West Pakistan (P L D 1965 Lah. 135). In Begum Shorish Kashimri's case, it had been held by the Lahore High Court that

"The Courts in granting bails under the ordinary law and the executive authorities in ordering preventive detention act in different spheres guided by different considerations and actuated by different objectives in view. The Courts are charged with the judicial determination of an offence already committed under the law in considering whether or not the accused should be enlarged on bail. But before the detaining authority the object is to adopt preventive action against the detenu in the interest of the maintenance of public order, our relations with foreign powers and the security of the State. The preventive detention is meant as a check against the detenu to prevent him from acting in future in a prejudicial manner."

In Maulvi Farid Ahmad's case, a Full Bench had held that

"The past acts of the detenu are relevant and can furnish safe criteria of his likely activities in future in such cases."

The allegations in the F. I. R., therefore may have bearing on the conduct

and behaviour of the detenus, but since such allegations are yet to be proved, the same should not appropriately form the sole basis for reaching the required satisfaction. With this, I must say, the learned Assistant Advocate‑General agreed.

13. I, therefore, examined the other material which consists of certain reports. Apart from stating that the detenus were involved in certain cases in which F. 1. Rs. had been lodged, the reparts contained material of little substance in so far as the future conduct of the detenus was concerned for the prevention of which they are being detained The reason why the detention was ordered is that the authorities learned that the detenus, on receiving instruction from the Jama'at‑e‑Islami, intended to launch students demonstra tions and start a mass movement exploiting the recent increase in the price of various commodities and thereby disturb the peaceful atmosphere of educational institutions and upset the schedule of the current examinations of the higher secondary students and build up their party prestige. These allegations, in fact, constitute ground No. 2 of the grounds of detentions. But there is no material to show that they had made any speech, organised any meeting or distributed any pamphlet for staging a demonstration or starting a mass movement. There is also no material to suggest that they had otherwise indulged in some activity which was directed towards materialisa tion of their alleged intention. The ground No. 2 itself is couched in vague language in as much as it says: "It has been further learnt". In fact there is A nothing in the material furnished to me to serve as a reasonable bass for the knowledge that the detenus were about or likely to start an agitation. Even otherwise, organising a protest over general rise in prices is a democratic right and if the demonstration be peaceful and otherwise permissible, an intention to stage such demonstration should not justify detention. In these circumstance, it cannot be said that reasonable grounds exist for depriving the detenus of their personal liberty. The case for detention of the present detenus is on no better footing than in Khadija Bhabha v. The Government of Sind (P L D 1973 Kar. 421).

14. I, therefore, accept the three petitions and declare the detention of the detenus to be without lawful authority. The three detenus Shahid Iqbal, Muhammad Farooq and Hamayun Mujahid are present. Hamayun Mujahid, whose bail application had been refused in the murder case, will remain in custody in that case. But the other two detenus shall be released forthwith unless wanted in some cases.

s. A. H. Petition accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.