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Constitutional Petition No. 150 of 1975, decided on 20th March, 1975.

‑‑R. 32 (1)(b) & (4)‑Preventive detention‑Adequacy or sufficiency of grounds of detention‑Cannot be gone into by reviewing authority Nor can reviewing authority substitute its own opinion for discre tion of detaining authority‑Except for a general and vague allegation of instigating student community and indulging in nefarious activities no specific instance of such acts cited‑Nothing on record to show involvement of detenus in alleged demonstration either by way of participation, by raising slogans or by giving speeches‑Detaining Authority, held, had no justification for passing impugned order of detention‑Detenus set at liberty in circumstances.‑[Preventive detention].

Ghulam Jilani v. The Government of West Pakistan P L D 1967 S C 373 ref.

Allah Dino G. Memon for Petitioner.

Z. H. Mirza, A.G. (Sind) for Respondents.

Dates of hearing : 18th and 19th March, 1975.

One common judgment will, suffice to dis pose of Petitions Nos. 150, 151, 152, 153, 154, 176, 177, 178, 179, .180, 181 and 182 of 1975 as in all of them the grounds are common and the point for determination identical.

2. In these petitions, the detention of Syed Asghar Ali Shah, Haji Qasim, Abdul Aziz, Allahdin alias Chuchi son of Allahrakhio, Sheikh, Amanullah, Abdul Hameed, Allabdino son of Khuda Bux Magsi, Jawed Ahmad Papa, Rashid Ahmad, Syed Gul Muhammad Shah, Bahauddin alias Mashi and Ghulam Mustafa is assailed. The Deputy Commissioner in exercise of the delegated powers passed separate orders on 26th February, 1975 under sub‑rule (1)(b) of rule 32 read with sub‑rule (4) of the Defence of Pakistan Rules, 1971, for detaining the detenus for a period of 30 days, Alongwith the orders, the grounds wore supplied to the detenus, which are identical in all respects. It would, therefore, be unnecessary to reproduce all the orders and the grounds separately furnished but only one such order and the grounds will suffice :‑

"Whereas I, Nur Ahmad Shah, Deputy Commissioner, Tharparkar, am satisfied that with a view to prevent Ali Asghar Shah son of Yaqoob Shah Syed, resident of Pak Colony, Mirpurkhas from acting in a manner prejudicial to the public safety, interest and maintenance of peaceful conditions in Mirpurkhas and such activities are likely to result in the disturbance of public peace and tranquillity, it is expedient and necessary to arrest and detain the said Ali Asghar Shah son of Yaqoob Shah Syed resident of Pak Colony, Mirpurkhas.

Now therefore in exercise of the powers under sub‑rule 1(b) of rule 32 read with sub‑rule (4) of the Defence of Pakistan Rules, 1971 as delegated to me under Order No. 5/12/C (HDC)/71 dated 1‑12‑71 of the Government read with rule 213 of the said Rules, I, Noor Ahmad Shah, Deputy Commissioner Tharparkar hereby order that Ali Asghar Shah son of Yaqoob Shah Syed resident of Pak Colony, Mirpurkhas may be arrested and detained in District Jail Mirpurkhas for a period of thirty days from the date of issue of this order.

He will be treated as III Class detenu. Given under my hand and seal of the Court this 26th day of February, 1975."

" Memorandum of Grounds

With a view to preventing you from acting in a manner prejudicial to public safety, interest and maintenance of peaceful conditions you were ordered to be detained vide this office order No. J/2398 of 1975 dated 26‑2‑1975 for a period of thirty days with effect from 26‑2‑1975 under sub‑rule 1(b) of rule 32 of Defence of Pakistan Rules 1971 as delegated to me vide Order No. 5/ 12 (HDC)/71 dated 1‑12‑1971 of the Secretary to the Government of Sind Home Department, Karachi committing you to the custody of the Superintendent of District Jail Mirpurkhas on the following grounds :‑‑

(1) That you are miscreant and have started exploiting the situation by instigating student community for agitation and strike in the Educational Institutions which may result in para lying the smooth running of the teaching institutions in the town of Mirpurkhas.

(2) That these nefarious activities of yours are likely to result in the disturbance of public peace and tranquillity.

(3) That you being at large would be detrimental for public peace and tranquillity.

(4) That on the grounds stated above, it is evident that you have been acting and are likely to act in future in a manner prejudi cial to the public safety, interest and maintenance of peaceful Conditions in Mirpurkhas Town.

(5) That on the grounds stated above it is necessary to detain you with a view to preventing you from acting in a manner prejudicial to public safety, interest and maintenance of peaceful conditions.

(6) That the above grounds are being communicated to you in pur suance of the requirements of sub‑article 5(1) of Article 10 of the Constitution of Islamic Republic of Pakistan of 1973 with a view to enabling you to make if you so desire, a representation to Government against the aforesaid order and you are hereby informed that you are at liberty to make such representation to the Government against the said order."

3. The learned Advocate‑General examined the Deputy Commis sioner in Court to establish the justification of detention, pursuant to the settled authority that the onus for establishing the justification of detention is initially on the detaining authority. His evidence is on record. The Deputy Commissioner has produced the report of the S. P. Exh. A/1, and a copy of the letter, Exh. A/2, written by the Principal Government Degree College, Tando Jan Muhammad to the Director of College Education, Hyderabad Region, Hyderabad, and according to him, he had passed the orders mainly on the basis of the report, Exh. A/1. Therefore, it will be necessary to reproduce the relevant extract from the report :‑

"The following miscreants of the locality including students were started exploiting the situation and instigating students com munity for agitation and strike in the Educational Institutions in order to paralyse the smooth running of the teaching institu tions in the town. Their nefarious activities are likely to result in the disturbance of public peace and tranquillity. With a view to prevent them from acting in a manner prejudicial to the public safety and maintenance of peaceful conditions in the district, it is expedient to detain them."

The material, therefore, before us is the evidence of the Deputy Com missioner, the report and ‑the letter, Exhs. A/1 and A/2. It is on the basis of this material, as was held in Ghulam Jilani v. The Government of West Pakistan (PLD 1967 S C 373) that a conclusion has to be reached as to whether there was justification for the satisfaction expressed by. the Deputy Commissioner in his order on detention and while probing the justifica tion the limit, to which the reviewing authority can go, is to test the reasonableness of the satisfaction, i. e. whether the material before the detaining authority was such that a reasonable person would be satisfied as to the necessity for making the order of preventive detention. In other words, the adequacy or sufficiency of the grounds cannot be gone into, nor can the reviewing authority substitute its own opinion for the discretion of the detaining authority. In the light of the above formu lation we have examined the reasonableness of the satisfaction of the detaining authority. The extract from the police report, as reproduced above constitutes ground No.1 while ground No. 2 relates to the nefarious activities of the detent which are likely to result in the distur bance of public peace and tranquillity. Ground No. 3 merely states that if the detenu is allowed to remain at large, it would be detrimental to public peace and tranquillity. In ground No. 4 an apprehension is expres sed that the detenu was likely to act in future in a manner prejudicial to public safety, interest and maintenance of peaceful conditions in Mirpurkhas Town. Lastly, ground No. 5 recites that for the reasons stated above, it is necessary to detain the detenu. Apparently, neither in ground No. 1 nor ground No. 2, except for a general and vague allegation of instigating student community and indulging in nefarious activities, instances of any act, by which such a conclusion was drawn was stated, nor any such instance was cited in the police report. In spite of it, the Deputy Commissioner upon this report was satisfied in regard to the prejudicial activities of the detenu. According to his evidence it was the demonstration of the students as a mark of protest against the raids carried out by the police for unearthing the unlicensed arms on the morning of 21st February, 1975 that the S. P. had sent the report, which formed the basis of his satisfaction. As for the involvement of the detenus in the demonstration either by way of participation, raising slogans or giving speeches, there is no evidence. In this connection, it would be pertinent to reproduce the reply given to the questions put by the Court :‑

Q.‑During the demonstration was any act of lawlessness committed

A.‑Yes, while I was going to receive the ministers my car was surrounded by the students who were demonstrating against the arrests of those students, from whom unlicensed arms were recovered, but I managed to escape.

Q.‑Did they attack you or damage any property

A.‑No.

Q.‑From amongst the demonstrators were you [able to identify any of the detenus

A.‑No.

Q.‑In the police report is there anything specific mentioned against any of the detenues who were responsible for inciting students

‑ A.‑There is no specific instance of any particular activity against any detenu but the report is of general character.

Q.‑Was section 144 promulgated when these demonstrations took place

A.‑Section 144 was enforced when the, demonstrations was taking place.

Q.‑‑Was any arrest made for committing breach of the order

A.‑No."

4. It is cleat from the evidence of the Deputy Commissioner that none of the detenus were involved for possessing unlicensed arms, nor were anyone of them singled out amongst those who had demonstrated: Exh. A/2, which is relied on as for contributing towards satisfaction itself is innocuous. It was given out in the letter that the students had not gone to their classes on 24th February, 1975 and had protested, yet they had dispersed quietly' after half an hour. Such a communication cannot, by any stretch of imagination, be taken into consideration when the reasonableness has to be assessed in regard to the prejudicial activities of the detenus: Even otherwise the detenus were not connected with that protest of the students. The only material was of sporadic demonstra tions without any act of lawlessness on the part of the students which had led the S. P. to send the report without in any manner, disclosing as to how the detenus were concerned in those demonstrations, which cannot but be termed as vague and within the realm of mere suspicion. Grounds 1 and 2 cannot, therefore, be relatable to the purpose for which the detention was ordered, in the absence of material to justify the prejudicial activities. Such being the material, it is impossible to say that a reasonable person can be satisfied with regard to the prejudicial activities of the detenus to justify their detention. 1n this view of the matter, we are of the view that upon the material before the detaining authority there was no justification for passing the order of detention.

5. Accordingly we would declare the impugned order as without lawful authority and of no consequence. The detenus are ordered to be set at liberty forthwith. The petitions are allowed but with no order a to costs.

Petitions allowed.

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