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Criminal Miscellaneous No. 55 of 1982, decided. on 23rd October, 1982.

‑‑ R. 23 read with Criminal Procedure Code (V of 1898), S. 491 Criticism of Government and Military Personnel in political way and putting forth public demands to them‑Detention for‑--Detenus detained allegedly for engaging in activities prejudicial to integrity, defence and security of State and further likely to do so on basis of some alleged speeches made and slogans raised against Government and Army‑Instigation of students and teachers (on strike) to disturb public peace and order also alleged against detenu‑No speech but only slogans ascribed to one detenu‑Notes kept by Police official not containing even name of detenu alleged to have raised slogans and no secret reports of Police shown to Court‑Subsequent orders of detention not indicating satisfaction of District Magistrate for further detention‑Orders of detention illegal‑Criticism of Government and Military Personnel ruling country in political way for restoration of democracy and putting forth public demands to them, do. not constitute case of detention under r. 23. ‑ [Preventive detention].

Muhammad Saeed for Applicant.

Rafcque Mahmood Khan, Addl. A.‑G. for the State.

Date of institution : 23rd May, 1982.

This is a habeas corpus application under section 491, Cr. P. C. filed by Muhammad Sabir Ansari, an Advocate of Mirpur against the detention orders of three persons namely Messrs Chacha Ali Muhammad, Mr. Azim Datt and Abdul Khaliq Ansari who are all advocates and ofiice bearers of political parties and who are very close to the petitioner.

They have been detained under Rule 23 of the Azad Jammu & Kashmir Civil Defence Rules, 1962 by the District Magistrate, Mirpur for a period of two months.

The allegations against the detenus are to the following effect:‑That they have been acting in a manner prejudicial to the defence and security of the State of Azad Jammu & Kashmir and are likely to act as such and so their detention under Rule 23 of the Civil Defence Rules was felt necessary by the District Magistrate who has detained them for a period of two months as per warrants issued by him from time to time.

The grounds which were supplied to the detenus are to the effect that from the secret reports of the police it was transpired that the said detenu were engaged in the activities against the Government and State of Azad Jammu & Kashmir which have prejudiced the integrity, defence and security of the State and are further likely to imperil the defence and security of the State and in this connection some speeches allegedly made by the detenus were referred to during which some slogans were also raised A against the Government and Army thereby bringing them into contempt and disgrace. Furthermore, it was also alleged that the students as well as the teachers on strike were instigated by the detenus to disturb Public peace and order thereby creating chaos and disorder. The raising of slogans against the Government and Army was only attributed to Mr. Azim Datt.

The petitioner as well as two of the detenus namely Chacha Ali Muhammad Advocate and Muhammad Azim Datt, Advocate have filed written affidavits in support of the application for release of the detenus. It was vehemently and fervently stated by the deponents therein that none of the detenus could have even imagined to prejudice the integrity of the State and that they are all loyal to the State of Azad Jammu and Kashmir and that their patriotism is beyond any doubt. It was totally denied by Mr. Azim Datt for having even made a speech which according to him, was wrongly attributed to him.

In support of the allegations, the Additional Advocate‑General has examined Mr. Abdul Qayum Head Constable who recorded the speeches made by a large number of speakers on 11th April, 1982 thereby maintaining a diary submitted to the District Magistrate which is Exh. DA.

The diary Exh. D.A was prepared and written by the Head Constable inside the Police Station, after the dispersion of the meeting. While preparing this diary, the notes taken during the course of meeting, were brought in aid to it. The alleged notes from which diary Exh. DA was prepared were found with the witness and so they were also brought on record. No speech was made by Mr. Azim Datt though raising of slogans was ascribed to him but the notes kept by the Head Constable d B not even contain or give the name of ‑Azim .Datt as a person raising slogans. Again, I find that nothing else as that of secret reports of the police was shown to the Court despite the fact that entire record pertaining to the detentions was summoned for perusal of the Court so as to satisfy myself that there were some secret reports forming basis for detentions but nothing of secret reports was found tangible. It was all fake.

The subsequent orders of detentions which were made in pursuance of the first orders of detentions do not indicate the satisfaction of the District Magirtrate for further detentions and whereas the satisfaction the detaining authority is a must. And this being so, the impugned orders of detentions become illegal.

Some reports were made to the District Magistrate that the detenus were even in league from Jail with the people outside so as to be instigated against the Government and so their further detention, they say, was necessitated. How could the detenus send messages from the jail to the people out‑side If there had at all been any communication on the part of the deteuus with the people outside that ought to have come to light for perusal of the court but nothing of the sort could be made available for the satisfaction of the court in this behalf in order to justify the impugned orders. The speeches which were made bases for detentions do not involve anything of defence or security of Azad Jammu and Kashmir and so was stated even by the witness of the Government. Criticism on the Government so also on the Military personnel ruling the country, in a political way, for restoration of the democracy coupled with demands of the public put‑forth to them do not constitute a case of detention under D Rule 23 of the Civil Defence Act. The latter are also to face the music political activities not banned in Azad Kashmir and as such there is no curb on the fundamental rights of the people. A person cannot be deprived of liberty except by law and law is to be mainly used in a manner being rightful. And there is not an iota of alleged involvement found from the material placed on record or shown to the Court even kept secret, if any, attracting Rule 23, and as a matter of fact, there was nothing secret.

The defence and security of Azad Kashmir are the only features which attract Rule 23 and if any activities on the part of a detenu are against the Government and there is a likelihood of the public peace being disturbed, some other legal measures are required to be adopted to prevent danger to public peace, tranquillity and order and not to resort to Rule 23 of the Civil Defence Rules. There ought to be something of devasted protection against enemy attack or tactics ; in other words, the conduct of such a person would be to keep the enemy in touch in any manner against the defence and security of the State and must be evident on the part of that person proceeded against under Rule 23. Section 3 of the Civil Defence Act categorizes some of the things or matters including the defence and security of the State. Nothing out of the material made available to the court, incriminates the detenus in relation to the defence and security of the State. None of the detenus is culpable of anti‑State activities thereby assisting the enemy or conducting himself in a manner prejudicial to the defence or security of the State.

That being so, this application is accepted and the immediate release of the aforenamed detenus is ordered hereby.

Petition accepted

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