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Criminal Miscellaneous No. 119 of 1982, decided on 8th December, 1982.

‑‑‑R. 23‑Detention‑Purpose‑Impugned order of detention speaking of security of State involved in matter and detenu arrested as person who had committed some acts or was likely to commit certain acts and not otherwise as suspected person‑Grounds supplied to detenu destitute of security of State and instead public safety written therein‑‑Spirit of impugned order i.e. purpose of detention for security of State done away with by detaining authority himself when grounds furnished telling him that public safety was jeopardised by his acts and if he wanted to make a representation it was to be made in respect of public safety endangered‑Impugned order, held, cannot stand in law in circumstances.

‑‑S. 23 and Azad Jammu & Kashmir Interim Constitution Act (VIII of 1974, Ss. 4(4), 7‑Detention‑Detenu setting up a Complaint Cell under auspices of 'Awami Majlis‑e‑Amal' to attract complaints of cor ruption against public servants‑Prosecution unable to find out and disclose authority without whose approval a Majlis of such a character could not be composed by public‑Case not established under law to take penal action against defaulter‑Material in view of which pre ventive law was used, held, could not have at all attracted provision of rule 23 as security of State or public safety not at all involved.

P L D 1967 S C 373 and P L D 1967 Lah. 103 ref.

‑‑S. 53 and Azad Jammu & Kashmir Interim Constitution. Act (VIII of 1974), Ss. 4 (4) & 7‑Detenton‑Criticism on administration and disclosure of malfeasances and malpractices of Government, held, in no way brings case within mischief of r. 23.

‑‑R.23‑Detention‑Satisfaction‑Impugned order of detention hacking faculty of satisfaction of detaining authority‑Grounds also not communicated to detenu within a reasonable timer‑‑Order of detention illegal.

--‑R. 23‑Detention‑Impugned order of detention being illegal ab initio‑Set aside.

Muhammad Yunus Khan for Applicant.

Muhammad Akram Khan, A.‑G. for Non‑Applicants.

Date of institution : 25th November, 1982.

The order of preventive detention of one Muhammad Ishaque.Khan Is in question before me which was purported to have been made under rule 23 of the Civil Defence Rules, 1962 by the District Magistrate, Rawalakote He was detained in jail as some of his activities, according to the order of detention, were deemed to be prejudicial to the security of the State.

He was arrested on 25th November, 1982 to be detained for one month in the first instance and grounds in respect of his detention were supplied to him on 2nd December, 1982, that is to say, after the lapse of a period of one week.

Muhammad Ishaque Khan detenu is detained on the grounds for opening a complaint cell under the auspices of Awami Majlis‑e‑Amal wherein complaints of corruption and other evil deeds, allegedly, commit ted by the public servants and even some of the members of the public, are reported and exhibited on a notice board set up in front of detenu's shop situated in the main bazar of Rawalakote with a view to bringing them to the notice of the authorities concerned for action. Presumption is as such.

A letter addressed to the Editor of 'Pak Kashmir' a weekly dated December 1 and 6, 1982 is reproduced below just to elaborate the circum stances under which the arrest of Muhammad Ishaque Khan was made by the District Magistrate.

It appears that the District Administration and some of the public men took ill of such complaints and manoeuvred the arrest and detention of the said detenu under rule 23.

The entire material on the basis of which the impugned detention was ordered, was also brought on record.

The impugned order speaks of the security of the State involved in the matter and the detenu was arrested as a person who had committed some acts or was likely to commit certain acts as indicated, and not otherwise as a suspected person. (The grounds‑sheet supplied to the detenu is destitute of security of the State and instead, public safety is mentioned therein).

The spirit of the impugned order i.e. the purpose of detention for security of the State was done away with by the detaining authority himself when grounds were furnished to the detenu telling him that public safety was jeopardised by his acts and if he wanted to make a representation, it was to be made in respect of public safety endangered. The impugned order, thus cannot stand in law.

The allegation against the detenu is that he received money from the persons making complaints against the public servants so as to be exhibited on the notice board and his acts as such were deemed liable to destroy the fame and grace of the officials of the Government and the Government itself. Such a complaint cell was taken by the District Magistrate as a parallel administration being run by the detenu without a lawful authority. What authority was required for forming such any organization viz. 'Awami Majlis‑e‑Amal'. Freedom of Association is there, vide sections 4 (4), 7 of the Interim Constitution Act, 1974. The learned Advocate‑General was not able to find out and disclose such an authority without whose approval a 'Majlis' of such a character could not be composed by the public. If it was established against some law, a penal action was to be taken under relevant law against the defaulter and no action under rule 23 was required to be taken as the material in view of which, the preventive law was used could not have at all attracted the provisions of rule 23. Security of the State or the public safety was not at all involved in the matter in hand. The authorities namely P L D 1967 S C 373 and P L D 1967 Lab. 103, cited by the learned Advocate‑General have no bearing on the circum stances of the present case.

No inquiry into the allegation of corruption etc. against the public servants was held by the District Magistrate or any other authority competent and without doing so it was held that frivolous and baseless charge was levelled against the public servants. How could it be held so Not in the least.

The impugned action of the District Magistrate on its very face appears to have been taken maltalentedly just to stifle and smother the voice of the people oppressed against the corrupt officials of the Government and self‑ c styled leaders of the same character. The criticism on the administration and the disclosure of the alleged malfeasances and malpractices of the officials of the Government in no way bring the case within mischief of rule 23 of the Civil Defence Rules.

Moreover, an order of preventive detention under rule is always to b made by the detaining authority after due satisfaction which must b indicative of the same. And the impugned order here lacks faculty of satisfaction as required by the Rule itself under which it was made by the D District Magistrate. This being the position, it renders the impugned order having been made in an illegal manner. Grounds were also not communicated to the detenu within a reasonable time, as warranted by the Constitution, to enable him to make a representation himself against the order.

That being so, the habeas corpus application is accepted and the impugned order for its being illegal ab initio is set aside and resultantly the manumission of the detenu is ordered hereby. The Superintendent Jail, Polandri and the Sub‑Judge Magistrate, Polandri to be informed, through wireless and telephone, of this order for immediate compliance.

Application accepted.

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