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Constitutional Petition No.59 of 1987, decided on 23rd April, 1987.
--S. 3 (2) (g)--Constitution of Pakistan (1973), Art 199--Constitutional petition--Disputed question of fact--Question whether detenu at time of his arrest was an Indian national or Pakistani national, held, could not be agitated in a constitutional petition.
---S.3--Detention-Review Board--Where a detenu was not produced before Review Board within two months, his detention was not warranted by law--Competent authority, however has passed detention order in respect of period when no such order was obtained even if there was no requirement of law to produce detenu before Review Board.
---S. 3 (2)--Detention--State Security--Tie between State security/ integrity and liberty of a person--Balance, held, had to be struck down and Court would pass an order which wou7 safeguard security/ integrity of country.
---S. 3(2)--Detenu an Indian national, convicted for having been found at control line between Indo-Pakistan border, when there existed hostility between two countries, in suspicious condition and was sentenced to ten years' rigorous imprisonment which he had undergone--Unconditional release of detenu, held, was not proper and just-Detenu ordered to be produced before Review Board and to be repatriated to India.
Government of East Pakistan, Dacca v Benoy Bhusan Majumdad and 3 others, P L D 1971 S C 179; Essa v Government of Sind, through the Home Secretary, Government of Sind, Karachi and another P L D 1984 Kar, 392 ref.
Saadullah v Secretary, Home Department and another P L D 1986 Quetta 270 and Bahar Khan v Inspector-General, Frontier Corps at Quetta and 3 others P L D 1987 Quetta 13 rel.
Sabihuddin Ahmad for Petitioner.
Abdul Rahim Kazi, Addl. A.-G. for Respondent.
The petitioner in this petition has prayed for the following reliefs: -
"(i) Direct that the detenu be produced in Court on such dates of hearing as is convenient to this Hon'ble Court.
(ii) Declare that the detenu is held in custody without lawful authority and in an unlawful manner.
(iii) Direct that the detenu be released forthwith.
(v) Award costs."
2. The brief facts leading to the filing of the above petition are that the petitioner, who is an advocate, an Ex-General Secretary of the Karachi Bar Association and an Ex-General Secretary of the Civil Liberties Association, Karachi, upon being approached by the General Secretary, Sind Prisoners Release and Relief Committee filed (Constitutional Petition No. 560/86 for release of one Pabu s/o Molji, hereinafter referred to as the detenu. When the aforesaid petition No.560/86 came up for hearing before a Division Bench of this Court, the learned Advocate-General,, Sind placed a copy of an order dated 15-7-1986 on record showing his detention for the period of 60 days commencing from 16-7-1986 to 13-9-1986, whereby the petitioner was detained under Section 3 (2) (g) of Foreigners Act, 1946 (hereinafter referred to as the Act). The petition was, therefore, withdrawn with the right to file a fresh petition. After that the petitioner tried to ascertain from the detenu, whether any order of detention was served upon him, when informed .that no such order was received by the detenu, the present petition was filed.
3. To the above petition, a counter-affidavit has been filed on behalf of respondent No.l averring therein, that the detenu was arrested by the Army Intelligence near the control line of Indo-Pakistan border in suspicious circumstances. Thereafter, .he was tried and convicted under Section 59 of the Pakistan Army Act, 1959 and was awarded sentence of 10 years' R.I. by Lt.-Col: Commandant on 26-2-1973. The respondent also filed the copies of the following detention orders passed by the Secretary or the Additional Chief Secretary to Government of Sind, Home Department under the above section 3(2) (g) of the Act:-
(i) Order dated 28-1-1982 for the period of 60 days w.e.f. 5-21982 to 5-4-1982.
(ii) Order dated 21-1-1985 for the period of 60 days w.e.f. 22-1-1985 to 22-3-1985.
(iii) Order dated 21-7-1985 for the period of 60 days w.e.f. 21-7-1985 to 18-9-1985.
(iv) Order dated 18-3-1986 for the period of 60 days w.e.f. 18-3-1986 to 16-5-1986.
(v) Order dated 17-5-1986 for the period of 60 days w.e.f. 17-5-1986 to 15-7-1986.
(vi) Order dated 17-6-1986 for the period of 60 days w.e.f. 17-5-1986 to 15-7-1986.
(vii) Order dated 15-7-1986 for the period of 60 days w.e.f. 16-7-1986 to 13-9-1986.
(viii) Order dated 14-9-1986 for the period of 60 days w.e.f. 14-9-1986 to11-11-1986 .
(ix) Order dated 11-1-1987 for the period of 60 days w.e.f. 11-1-1987 to 11-3-1987.
Mr. Abdul Rahim Kazi, learned Additional Advocate-General submitted that further order for the period of 60 days has been passed but he has not placed a copy of the same on record. In the counter-affidavit, it has also been averred that the detenu is an enemy alien and was detained under the provisions of the Act. In para. 2 of the counter-affidavit the following averment has been made:-
"That I have also seen the record pertaining to the detenu and say that the record shows that the detenu alongwith his whole family consisting of parents, brothers and sisters and other relatives migrated to India during Indo-Pakistan War, 1971."
4. (a) In support of the above petition, Mr. Sabihuddin Ahmad learned counsel for the petitioner has vehemently urged as follows:-
(I) That as per above-quoted para. 2 of the counter-affidavit of respondent No.l, the detenu -was a Pakistani National and, therefore, the burden to prove that he lost Pakistan Citizenship is on respondent No.l, which they failed to discharge.
(ii) That there is no material on record to indicate that India is an enemy country for the time being and even if it is considered that the detenu is an Indian National, he should have been produced before the Review Board in terms of Section 3(2) of the Act, which has not been done.
(iii) That the detenu has been detained unlawfully for over about 6 years.
4(b) On the other hand Mr. Abdul Rahim Kazi, learned A.A.-G. has submitted as under:-
(i) That the question, whether the detenu is an Indian National or a Pakistan National cannot be agitated in this petition being a disputed question of fact.
(ii) That the Provincial Government has detained the detenu under the direction of the Federal Government, which has treated the detenu as an enemy alien.
(iii) In view of clause 9 of Article 10 of the Constitution, there was 'no need to produce the detenu before the Review Board as the detenu is an enemy alien.
5. Mr. Sabihuddin Ahmad, learned counsel for the petitioner in support of his first contention that as per averment contained in para. 2 of the counter-affidavit, the detenu was a Pakistani National and that the burden was on respondent No.l to prove that he lost his Pakistani Nationality which they failed to discharge, it may be observed that, he has referred to the case of Advocate-General, Government of East Pakistan, Dacca v. Benoy Bhusan Majumdad and 3 others, reported in P L D 1971 S.C. 179, in which the facts were that the respondent, who was a Pakistan Citizenship, during communal disturbances after obtaining a migration certificate from the Deputy High Commission for India, left Pakistan, entered into India and resided there for a month or two. On the return of normal conditions, he re-entered into Pakistan and resumed his normal occupation. However, he was arrested from his village and was convicted under Section 14 of the Foreigners Act, 1946 on the ground that having gone to India on the strength of a migration certificate, he had lost Pakistan Citizenship and, therefore, could not have entered into Pakistan without valid travel documents nor could he stay in the country without acquiring Pakistan Citizenship over and again. Upon appeal, the said conviction and sentence were set aside,. The erstwhile Government of East Pakistan filed an appeal against the judgment of the High Court before the Honourable Supreme Court, which while dismissing the appeal made the following observations:-
"It is true that Section 9 of the said Act throws the burden of proof on the respondents but section 9 is inapplicable in the facts of this case. Admittedly, the respondents were the citizens of Pakistan at the commencement of the Pakistan Citizenship Act on the 13th April, 1951. They were thus the citizens of Pakistan till the time of their entry into the Indian territory on the 9th November, 1964 on the strength of the Migration Certificate. Their Pakistan citizenship being admitted, it is for the prosecution to prove that they lost the Pakistan citizenship after their entry into the Indian territory on the said date."
In our view, the above case is distinguishable as it was a case of a conviction-in a criminal case, which cannot be equated with the present constitutional petition inter alia for the reason that the ' case was decided after recording of evidence and the Courts dealing with the case were competent to decide the complicated disputed question of facts. We are inclined to hold that in this constitutional petition we cannot decide the disputed question under reference, namely, whether the detenu was an Indian National or a Pakistani National at the time of his arrest from the control line in the suspicious circumstances, which followed the aforesaid conviction. We would, therefore, examine the above petition on the assumption that the detenu was an Indian National.
6. As regards Mr. Sabihuddin Ahmad, learned counsel for the petitioner's second contention that the respondent has not placed any material on record to indicate that the detenu is an enemy alien, it may be observed that. Mr. Abdul Rahim Kazi, learned A.A.-G. has placed on record photostat copies of 3 secret letters addressed by the Federal Government to the Provincial Government, two of them have some bearing on the point in issue but the first letter is of 9th October, 1977, the second letter is of 9th February, 1986, we would not divulge the contents thereof. However, we may observe that the 3rd letter, which is dated 26-2-1986 indicates that the Federal Government was of the view that the detenus having Indian and Bangladeshi Nationalities are to be produced before the Review Board which was not by then constituted under Section 3 of the Act. It is, therefore, evident that resort cannot be made to clause 9 of Article 10 of the Constitution, (which dispenses with the production of an enemy alien before the Review Board) at least w.e.f. 9-2-1986.
7. Mr. Sabihuddin Ahmad, learned counsel for the petitioner has referred to the case of M.M. Mansur Ali v. Arodhendu, Shekhar Chatterjee and others reported in P L D 1969 S C 37, in which the Honourable Supreme Court has dilated upon on the question of an alien enemy in context to Section 83, CPC in the following words:-
"Whether we are at war with India and whether in the present circumstances India is an enemy country is a delicate political question which as a matter of State policy lies in the domain of Executive Government and the Courts need not answer it."
It was further held in the above case that the Court would obtain the view of the Federal Government on the question, whether a particular country at a particular point of time is an enemy country. In our view in the present case, in the presence of the above letter datbd 26-2-1986, which indicates that Indian and Bangladeshi Nationals are no longer treated as enemy aliens, it is not necessary to refer the matter to the Federal Government on the question, whether factually India is an enemy alien country.
8. Reverting to the question, whether the detenu has been illegally detained, it may be observed that the respondent has not produced any detention order for the period commencing from 6-4-1982 to 21-1-1985., i.e. for the period of about three (3) years, then there also seems to be no detention order for the periods commencing from 23-3-1985 to 20-7-1985, from 19th September, 1985 to 17th March, 1986, from 12th November, 1986 to 10th January, 1987 and from 12-3 -1987 as none has been produced none has been referred to in the counter-affidavit. The detenu's period of sentence of 10 years' R.I. had expired some time before 5-2-1982.
9. Mr. Sabihuddin Ahmad in order to re-inforce his submission has also' referred to the case of Essa v. Government of Sind, through the Home Secretary, Government of Sind, Karachi and another, reported in Pi L D 1984 Kar. 392 in which a Division Bench of this Court has dealt with the various provisions of the Act and has pointed out that in terms of subsection (2) of section 3 of the Act a person cannot be detained longer than two months without the authority of the Board consisting of a Judge, of the Supreme Court to be nominated by the Hon'ble Chief Justice of the Supreme Court and another senior officer in the service of Pakistan to be nominated by the President of Pakistan. Mr. Abdul Rahim Kazi, learned A.A.-G. has referred to Article 9 -of the Laws (Continuance in Force) Order, 1977, C.M.L.A. Order 1 of 1977, hereinafter referred to as the Order, which provides that "any provision in any law, providing for the reference of a detention order to a Review Board shall be of no effect". Since the Martial Law was lifted with effect from 31st December, 1985, the above provision of the order dispensed with the production of the detenu before the Review Board upto the above date. However, we may point out that the competent authority should have passed the detention order against the detenu in respect of the aforesaid missing periods referred to hereinabove even if there was no requirement to produce the detenu before the Review Board. Furthermore, after the expiry of two months from 31st December, 1985, the detenu should have been produced before Review Board in terms of Section 3 of the Act which was not done in the instant case and, therefore, .his detention is not warranted by law.
10. We may observe that we have given our serious thoughts to the question, whether we should order release of the detenu forthwith or should we pass any other appropriate order. Admitted position is that the detenu was convicted- for having been found at the control line between Indo-Pakistan border when there existed hostility between the two countries in the suspicious circumstances and was convicted and setenced to 10 years' R.I., which sentence he had undergone. We are inclined to hold that unconditional release of the detenu, who is an Indian National as per averment of respondent No.l, will not be just and proper. In this regard reference may be made to the following two cases: -
(i) [Saadullah v. Secretary, Home Department and another] reported in P L D 1986 Quetta 270 in which a Division Bench of Baluchistan High Court, to which one of us (Ajmal Mian, J.) was member has observed as follows:-
"Suffice to observe that the material placed before us indicates that the detenu had links with a foreign country, of which Government is hostile to Pakistan. We may also observe that in a case where State Security is involved, the Court may be reluctant to exercise constitutional writ jurisdiction even in case of detention if the order is bona fide and is supported by the material on record though there might be some infirmity in the order as to the procedure and not as to the substance."
(ii) Bahar Khan v. Inspector-General, Frontier Corps at Quetta and 3 others, reported in P L D 1987 Quetta 13 in which a Division Bench of Baluchistan High Court, to which one of us (Ajmal.Mian, J) made the following observations:-
"We may observe that a Court will be 'allowed to interfere with in a detention case, in which, the impugned order seems to be bona fide and the material placed before the Court indicates that the detenu may indulge in the activities prejudicial to the integrity and security of Pakistan."
We may also observe that when there is a tie between the state) Security/integrity and the liberty of a person, a balance is to be struck down and the Court should pass an order; which should safeguard the security/integrity of the country and the liberty of the individual. We are of the view, that it would be appropriate to D direct respondent No.l to cause the repatriation of the detenu to India within a period of two months, in the meantime he may be produced before the Review Board in its first meeting to be held hereafter at Karachi for approval of his detention in terms of Section 3(2) of the Act. The petition stands disposed of in the above terms in with no order as to costs.
M.Y.H./R-21/R Order accordingly
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