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Writ Petition No. 3091 of 1975, decided on 9th Ferbuary 1976.
(a) Defence of Pakistan Rules, 1971‑
Rr. 32 & 213‑Preventive detention‑Home Secretary, ordering detention, admitting to have based his satisfaction and not made any further inquiries, taking record of speeches of detenu recorded by Stenographer to be verbatim, as indicated by Steno grapher himself at tape of each transcript‑Cross‑examination of Stenographer revealing five out of seven speeches of detenu to have been tape‑recorded‑Five cassettes of four out of seven speeches of detenu summoned and played in Court, transcripts prepared, and admitted by every one, including Stenographer, to be correct‑Com paring number of words spoken and number of words recorded, two on an average omitted for every single word recorded‑Such two versions of speeches being kept in juxtaposition, even on too lax standard, reco‑d prepared by Stenographer not qualifying as verbatim record Reporter found to have debased speeches in form as well as content and deprived them of their framework, idealism, and rationale Reproduction of speech thus prepared. held, nothing but a totally transforme t material rot relatable to original speech‑Detaining authority. held, not in a pasition to construe speech as a whole and having ul osed tpptilated material acted without lawful authority‑Detenu ordered to be released forthwith‑Stenographer even after tape
records being played and admitting them to be correct persisting in his record being verbatim, notice under section 476/195, Criminal Procedure Code, 1898 issued and witness called upon to stand summary trial for offence under S. 193, Penal Code, 1860‑Criminal Procedure Coda of 1898), S. 476/195 and Penal Code (XLV of 1860), S. 193.‑ [Preventive detention].
The tape‑records relate to the four speeches out of seven forming the material before the Home Secretary and exhibited in Court. From the reproduction of the tape‑recorded speeches transcripts were prepared and they have been admitted by everyone concerned, even by the Stenographer who attended the meeting took down shorthand notes and prepared the transcripts for use by the detaining authority. Therefore, the identity of those tapes was established and the transcripts were linked with their corresponding versions prepared by the Stenographer. Making an allowance for human failing and the fact that the Stenographer could take down in shorthand what ever was uttered in Urdu to the exclusion of any other language one would have expected him to have recorded not less than 95 Y. of the Urdu words uttered before holding the transcript to be verbatim. Howsoever lax a stand ard one many adopt, the red,)rd prepared by the Stenographer cannot qualify as a verbatim record without doing violence to the meaning of the word verba tim. Can it be said that the detaining authority would be in a position to construe "the speech as a whole" without dwelling too much upon isolated passages or upon a strong word here and there if for every single word recorded two on an average have been omitted, for that is the average at which one arrives by comparing the number of words spoken and number of words red rded. This legal requirement would certainly remain unfulfilled where the number of words omitted are more than twice the words recorded.
Three features are peculiar to this case. Firstly, unlike any other precedent case the detenu has come out with a positive and forth‑right version of what he said which has found acceptance, recognition and preference from those very quarters which could, if this were not true, defend their own version. The ordinary presumption attaching to the Stenographer's record is completely gone thereafter. Secondly, in spite of the fact that only one‑third of the speech has been taken down, it is not borne out that any particular portion of it or excerpt of some length is verbatim. Even portions of a speech if recorded verbatim or substantially correctly can lead to an inference with regard to the general drift of the speech. Thirdly, in this case there is a method in omissions. All translations in Urdu of Arabic verses or Hadith publicly made by the detenu in these speeches have been omitted. All references to those whtr"held the highest public offices, in Islam and the examples set by them have been omitted. All references to the nature of sacrifices enjoined in Islam and practised in Islamic regimes have been omitted. It is for this reason that one can justifiably accuse the reporter of having debased the speeches in form as well as content. He has deprived it of its framework. He has deprived it of its idealism. He has deprived it of its rationale. Any reproduction of a speech prepared after tearing it out of its framework, denuding it of its idealism and depriving it of its rationale cannot but be a totally transformed material, material not relatable to the original speech though the words of the vocabulary may remain the same. The purpose of these proceedings is to find out the lawful authority for detaining a person. If it is lacking the detenu has to be set at liberty. If the detaining authority utilized material which could not be the material, it acted without lawful authority and no order except one of setting the detenu at liberty can be passed. Material which was not before the detaining authority will not be looked into for testing the lawfulness of the satisfaction ,derived from some other material.
U. Dama Daya v. King‑Emperor A I R 1923 Rang. 212; Harkishan Singh . Emperor A I R 1946 Lah. 22 and Malik Nasrullah Khan Aziz v. Crown CP L D 1950 Lah. 420 ref.
Sant Ram v. Emperor 123 I C 572 and Vishambhar Dayal Tripathf 42 Cr. L J 40 distinguished.
b) Defence of Pakistan Rules, 1971‑
‑‑ Rr. 32 & 213‑Preventive detention‑Stenographer (reporter) cover ing 6 out of 7 actionable speeches and only 4 of these verified by reference to tapes, other two remaining untested‑‑Four of such reports found tainted, such taint also extends to other two, ability of Stenographer to prepare record being found open to serious doubt.‑[Preventive detention].
c) Defence of Pakistan Rules, 1971‑
‑‑ Rr. 32 & 213‑Preventive detention‑Recording of speech‑Speech recorded in long hand comprising 370 words‑Recorder of speech admitting speech to have lasted for 40/50 minutes‑Average words uttered by speaker (detenu) as disclosed by tapes, coming to 100 per minute‑Five words for every word, noted, held, thus omitted by reporter‑Even otherwise nothing in speech thus recorded could
:be cognizable for action under Defence of Pakistan Rules, 1971.
‑[Preventive detention].
Rafique Ahmad Bajwa for Petitioner.
D. M. Awan, Advocate‑General with M. Faranl for Respondents.
Dates of hearing: 16th, 17th, 19th, 22nd December 1975; 15th, 16th, 21st, 22nd, 26th, 28th, 29th, 30th January; 2nd, 3rd and 5th February 1976.
Mr. Shah Ahmad Noorani, a Senator and President, Jamiat‑ul‑Ulama‑e Pakistan has moved this petition under Article 199 clause 1 sub‑clause (b) of the Constitution. He has called in question the arrest and detention of Maulana Abdus Sattar Khan Niazi, the General Secretary of Jamiat‑ul Ulama‑e‑Pakistan and also convenor of Tahreek Khilafat‑e‑Pakistan.
2. The case of the petitioner and the detenu is that on 27th November 1975 he was arrested at Lahore by a police party led by a Magistrate and was also produced before a Magistrate next day and removed to Mianwali. It was found then that for the speeches delivered at various places in Mianwali from 21st of November 1975 to 24th of November 1975 a number of cases had been registered at various police stations under section 16 of the West ;Pakistan Maintenance of Public Order Ordinance and under sections 188/109, P. P. C. The detenu and one other Akbar Khan Saqi first moved a petition ,Writ Petition No. 3020/75) for his production in Court and bail in the cases registered against him. The particulars of these cases are repeated in para. 5 of the petition now under consideration. On the 12th of December 1975 Akbar Khan Saqi was admitted to bail in the Writ Petition No. 3020/75. On the 30th of November 1975 while he was detained in the cases just referred to, an order came to be passed by the Home Secretary, Government of the Punjab which is in the following words:‑
"Whereas with respect to M. Abdul Sattar Khan Niazi son of Khan Zulfiqar Khan Niazi of village Kundal, Tehsil Isa Khol, District Mian wali, the Government of the Punjab is satisfied that with a view to preventing him from acting in a manner prejudicial to the public safety and maintenance of peaceful conditions in the Province, it is necessary to detain him.
Therefore, in exercise of the powers conferred by clause (b) of sub‑rule (1) of rule 32 of the Defence of Pakistan Rules 1971, read with rule 213 of the said Rules, the Government of the Punjab is pleased to direct That the said M. Abdul Sattar Khan Niazi should be arrested and detained for a period of three months in Central Jail Main wali."
By another order dated 12th December 1975 the ‑ grounds of detention were supplied to the detenu and the grounds comprise the seven speeches delivered by him from 21st of November 1975 to 24th of November 1975, the record of which was supplied to the detenu. The petition came to be filed on 6th of December 1975 after the order had been served but before the grounds were supplied.
The learned counsel for the petitioner has challenged the detention under rule 32 of the Defence of Pakistan Rules on the following grounds
(i) The detention order under rule 32 of the Defence of Pakistan Rules could be passed only by the Provincial Government as delegate of the Central Government and the Home Secretary who pa sed the order is not the Provincial Government. Therefore, the order passed in the.: case suffers from a defect of jurisdiction.
(d) The detaining authority could form an opinion about the words uttered by the detenu from the reproduction of it which bad to be eitber verbatim or substantially true. In this case the record produced before the Home Secretary was neither verbatim nor substantially true and it could not therefore be treated as material for deriving. satisfaction.
(W) The Stenographer by recording at the top of each transcript that it was a verbatim record misrepresented to the Home Secretary about the correctness of the record and the result of misrepresentation always it. to vitiate the result.
(iv) In respect of every one of the speeches referred to in the grounds criminal cases have been registered and on the same speeches preventive action could not be taken against the detenu.
(v) Rule 32 of the Defence of Pakistan Rules is ultra vices Article 10 of Constitution.
(vi) Rule 32 of D. P. R. is not for the purpose for which it has beers. utilized, viz., for dealing with political opponents and leaders of .parties. not in power.
(vii) The material placed before the Home Secretary itself could not; provide any satisfaction with regard to the action taken because there was nothing objectionable in it.
(viii) The history of this case, particularly of the immediate past shows that the exercise of power of detention was mala fide.
4. After recording the evidence which the two sides wanted to produce, I confined the hearing of the arguments to the second ground taken by the learned counsel for the petitioner. It is on this ground alone that this judgment is given.
5. The Home Secretary appeared as a witness to prove the order passed by him, his slitisfaction and the material from which he derived the satisfaction. He made it quite clear that going by the prevailing practice in the department, he took the record of speeches taken down by the Stenographer to be verbatim as reported by the Stenographer himself at the top of each transcript and he did not, on that assumption, make any further equities.
When the Home Secretary was being examined on the material that he had utilized, I had also, going by the prevailing departmental practice and the presumptions of regularity attaching to official acts treated the record prepared by the Stenographer to be verbatim or in any case substantially true. It was subsequently, when the Stenographer himself was being cross‑examined, it transpired that certain tape‑recorded versions of the same speeches were also available. Adjournment was granted for their production and there are now 5 cassettes available, one produced by the Government and four on behalf of the detenu. They relate to the four speeches out of seven forming the material before the Home Secretary and exhibited in Court. From the reproduction of the tape‑recorded speeches transcripts were prepared and they have been admitted by every one concerned, even by the Stenographer who attended the meeting, took down shorthand notes and prepared the transcripts for use by the detaining authority. Therefore, the identity of those tapes
has been established and the transcripts made have been linked with their corresponding versions prepared by the Stenographer. The particulars of the Speeches are as follows :‑
(1) Speech delivered by Mr. Abdus Sattar Khan Niazi on 2i‑11‑75 at Eidgah Mianwali, was covered in shorthand by Mr. Mohammad Munir Bhatti, S. 1. Police Special Branch. Exh. P A is the transcript prepared by him from the shorthand notes. It has 761 words. Exh. P A/1 is the transcript prepared from the replay of the tape containing the same speech. It has 2990 words. The time taken in
replaying this part of the tape is 25 minutes (approximately).
(2) Speech delivered by Mr. Abdus Sattar Khan Niazi on 22‑11‑75 in the mosque in Daud Kbel, District Mianwali, was covered in shorthand by Mr. Muhammad Munir Bhatti, S. I. Police Special Branch. Exh. P C is the transcript prepared by him from the shorthand notes. It has 748 words. Exh. P C/1 is the transcript prepared from the replay of the tape containing the same speech. It has 3467 words. The time taken in replaying this part of the tape is 35 minutes (approxi mately).
(3) Speech delivered by Mr. Abdus Sattar Khan Niazi on 23‑11‑75 in Masjid Hafiz Khalilwali, Kundian, District Mianwali, was covered in shorthand by Mr. Muhammad Munir Bhatti, S. I. Police, Special Branch. Exh. P D is the transcript prepared by him from the short hand notes. It has 494 words. Exh. P D/I is the transcript prepared from the replay of the tape containing the same speech. It has 3009 words. The time taken in replaying this part of the tape is 30 minute (approximately).
(4) Speech delivered by Mr. Abdus Sattar Khan Niazi on 23‑11‑75 is Jamia Masjid Meena Moch, District Mianwali was covered in short. hand by Mr Mohammad Munir Bhatti, S. I. Police, Special Branch. Exh. P E is the transcript prepared by him from shorthand notes. It has 1116 words. Exh. P E/1 is the transcript prepared from the replay of the tape containing the same speech. It has 3143 words. The time taken in replaying this part of the tape is 25 minutes (approxi mately).
(5) Speech delivered by Mr. Abdus Sattar Khan Niazi on 23‑11‑75 in Masjid Jamia Nooria Rizvia Adda Larian, Isa Khel, District Mianwali was covered in shorthand by Mr. Muhammad Munir Bhatti, S. I. Police, Special Branch. Exh. P F is the transcript prepared by him from the shorthand notes. It has 460 words. No other record of this speech was made available at the hearing.
(6) Speech delivered by Mr. Abdus Sattar Khan Niazi in Masjid Kot Wali, Wan Bacbran, District Mianwali on 24‑11‑75 was covered in shorthand by Mr. Muhammad Munir Bhatti, S. I. Police, Special Branch. Exh. P C is the transcript prepared by him from the short hand notes. It contains 729 words. No other record of this speech was made available at the hearing.
(7) Speech delivered by Mr. Abdus Sattar Khan Niazi in Madani Eidgah Kalurkot on 22‑11‑75 was covered in long‑hand by Abdur Rehman, a middle pass Constable (No. 419) of Special Branch. Exh. P B is the typed record of the speech prepared from the long‑hand notes. It has 370 words.
This meeting started at 11‑10 a.m. and ended at 12‑25 p.m. Four to five hundred persons attended. According to this Constable the detenu spoke for forty to fifty minutes.
6. It is not seriously in dispute in this petition that where satisfaction of the detaining authority is what the law requires, for the exercise of a preven tive power, the material for satisfaction need not be of the quality and standard as is required for proof or proof beyond reasonable doubt. Therefore, what bas to be seen in this case is whether what was accepted by the detaining authority to be the material for deriving satisfaction was at all the material from which satisfaction could be derived. In this context yen another point on which there is no dispute is that where words spoken or written, and words alone are the material available for deriving satisfaction or for taking preventive action, the reproduction of it before the detaining authority should be verbatim, true, or substantially true.
7. Mr. Muhammad Munir Bhatti who took shorthand notes of the speech certified it, and as a witness confirmed it that the transcript of speeches prepared by him were true and complete record of the speeches delivered by the detenu. The detainin%q authority going by the prevailing official practice and the presumptions accepted it as verbatim record and acted on it accord ingly. The word verbatim has a very fixed dictionary meaning. It is defined as "word for word, in exact words". Making an allowance for human failin and the fact that the Stenographer could take down in shorthand whateve was uttered in Urdu to the exclusion of any other language I would have expected him to have recorded not less than 95 % of the Urdu words uttered before holding the transcript to be verbatim. Howsoever lax a standard on may adopt, the record prepared by Mr. Muhammad Munir Bhatti canno qualify as a verbatim record without doing violence to the meaning of th word verbatim. In fact, strenous efforts have been made by the learne Advocate‑General to demonstrate that the record which was utilized by the detaining authority for deriving satisfaction was substantially true both se regards the contents as also in reflecting the intention and the mood of the speaker. This inference has been attempted by keeping in juxtaposition the two versions of the same speech. Before undertaking an examination of the correctness of this submission based on an inference it is necessary to advert to accepted principles of construction of a writing or a speech.
8. In the case of U. Lama Daya v. King‑Emperor (A I R 1923 Rang. 212 ), it was held that :
"The Court must not look to a singly sentence or an isolated expression, but take the speech as a whole and give it a full, free and generous consideration."
9. In the case of Harikishan Singh v. Emperor (A I R 1946 Lah. 22) a Special Bench of three learned Judges held‑
"It is a well‑recognized principle that the Court should in every case consider the writing as a whole and in a fair, free and liberal spirit not dwelling too much upon isolated passages or upon a strong word here and there which may be qualified by the context but endeavouring to gather the general effect which the whole composition would have on the minds of the public."
10. This proposition of law was also reiterated in Malik Nasrullah Khan Aziz v. Crown (P L D 1950 Lah. 420), in the following words‑
"The article, of course, has to be read as a whole in a free, fair and liberal spirit without unduly stressing a strong word here or there."
11. Can it be said that the detaining authority would be in a position toy construe "the speech as a whole" without dwelling too much upon isolated passages or upon a strong word here and there if for every single word recorded two on an average have been omitted, for that is the average at a which one arrives by comparing the number of words spoken and number of
words recorded. This legal requirement would certainly remain unfulfilled where the number of words omitted are more than twice the words recorded.
12. In order to establish that the requirement of law in this field is not so exacting the learned Advocate‑General has drawn attention to certain cases where conviction had taken place on equally, if not more, imperfect record of speeches. For example in the case of Sant Ram v. Emperor (123 1 C 572), conviction under 124‑A, P. P. C. with a sentence of nine months rigorous imprisonment was maintained even after holding that the reporter "had interpolated words afterwards and that the whole of the speeches bad not been taken down at the time when they were delivered." This was so because the Court had at the same time drawn a conclusion on facts that there was "nothing to show that such portions as were taken down were incorrectly taken down or that the excerpts of the speeches are not a fair representation of the general drift of his speeches". In the case of Vfshambhar Dayal v. Tripathi (42 Cr. L J 40), convictions under sections 153‑A and 124‑A had been affirmed and sentence of eighteen months awarded on long‑hand record of speeches. In that case genuineness of the record came under scrutiny and after full examination it was held "The accused has not specifically denied that he made the speeches found in Exhs. 1 and 2 and his learned counsel in arguments has simply stated that they are not correct. He has not pointed out what the additions are but has made general observation. Therefore, after considerting the evidence for the prosecution and in spite of mutilated sentences and mistakes which occur here and there I am of opinion that the speeches were not invented by the Police officeri but actually delivered. I am prepared to concede that the speeches are not the full speeches, which were delivered by the accused but they are brief notes."
13. For distinguishing these cases and dealing with this submission of the learned Advocate‑General I can point out three features peculiar to this case. Firstly, unlike any other precedent case the detenu has came out with positive and forth‑right version of what he said which has found acceptance, recognition and preference from those very quarters which could, if this we not true, defend their own version. Here I am referring to the Stenographe Mr. Muhammad Munir Bhatti. The ordinary presumption attaching to hi record is completely gone thereafter. Secondly, in spite of the facts that only one‑third of the speech has been taken down, it is not borne out that any particular portion of it or excerpt of some length is verbatim. Even portio of a speech if recorded verbatim or substantially correctly can lead to an inference with regard to the general drift of the speech which the learned Advocate‑General so much wants to press into service. If it is not so no even this argument is available. Thirdly, in this case there is a method in omissions. All translations in Urdu of Arabic verses or Hadith publicly mad by the detenu in these speeches have been omitted. All references to those who held the highest public offices, in Islam and the examples set by the have been omitted. All references to the nature of sacrifice enjoined in Isla and practised in Islamic regimes have been omitted. It is for this reason that one can justifiably accuse the reporter of having debased the speeches in for as well as content. He has deprived it of its framework. He has deprived i of its ideali m. He has deprived it of its rationale. Any reproduction of speech prepared after tearing it out of its framework, denuding it of it idealism and depriving it of its rationale cannot but be a totally transformed material, material not relatable to the original speech though the words of the' vocabulary may remain the same.
14. The Stenographer Mr. Muhammad Munir Bhatti covered six out of seven actionable speeches, and only four of these have been verified by reference to tapes. The other two remain untested. The taint attaching to the four speeches will extend to them also because the ability of this Stenographer to prepare the record has been found open to serious doubt. Additionally, what he systematically omitted to record was equally, ,if not more, important for deriving satisfaction.
15. Coming now to the solitary speech recorded in long hand by the middle‑pass Abdur Rahman constable, his record comprises 370 words. He had noted that the meeting started at 11‑10 and ended at 12‑25. H admitted that longer time was taken by the detenu in delivering the speech and he has fixed its duration at 40 to 50 minutes. By way of abundan caution I will take it to be half of it. From the tapes the average words per minute comes to over 100. In the long hand for every word noted five have been omitted. Apart from what has been omitted there is nothing in this speech which could be cognizable for action tinder Defence of Pakistan Rules.
16. The learned Advocate‑General has also argued that even on the tape‑recorded version of these very speeches such an action as was taken could be taken and cart still be taken. It has been, according to him, the practice of the Court in proceedings under Article 199 of the Constitution to ;refuse the relief where the order under challenge is capable of being repeated by the competent authority. This argument omits to take note of the true ,scope of the proceeding under clause 1(b)(i) of Article 199 of the Constitution. The purpose of these proceedings is to find out the lawful authority for ,detaining a person. If it is lacking the detenu has to be set at liberty. If the .detaining authority utilized material which could not be the material, it acted without lawful authority and no order except one of setting the detenu at (liberty can be passed. Material which was not before the detaining authorit will not be looked into by me for testing the lawfulness of the satisfactio derived from some other material. Besides, the material which has satisfied the learned Advocate‑General may yet not satisfy the detaining authority. The detention of Maulana Abdus Sattar Khan Niazi under rule 32 of the 'Defence of Pakistan Rules is for these reasons found to be without lawful authority. He shall be forthwith set at liberty, unless lawfully required to be .detained under any other order.
17. During the course of these proceedings I have found that Mr. Muhammad Munir Bhatti, S. I. Special Branch deposed on solemn affirmation, and tendered an affidavit also that the record of speeches prepared try him i verbatim. Even after the tape‑recorded speeches were replayed and transcript prepared therefrom and admitted by him to be correct he repeated that hi record is verbatim. A notice shall issue to him under section 476, Cr. P. C. read with section 195, Cr. P. C. to appear personally on 11‑3‑1976 and stand summary trial as provided for in Chapter XXII of Criminal Procedure Code for an offence under section 193, P. P. C. in respect of the statement so made during these proceedings.
A. A. H. Petition accepted.
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