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Petitioner: Master ABDUL RASHID VS Respondent: SUBMARTIAL LAW ADMINISTRATOR, SECTOR 2, JUDGMENT
Court Name: Lahore High Court Judge(s): Aamer Raza A. Khan Title:Master ABDUL RASHID vs SUBMARTIAL LAW ADMINISTRATOR, SECTOR 2,
JUDGMENT
Reported As: PLD 1980 Lahore 356 Result: Petition accepted Judgment JUDGMENT ' This Constitutional petition calls in question the detention of petitioner, Abdur Rashid alias Master Rashid son of Nizam Din, who was directed to be placed under preventive detention for a period of three months under C. M. L. 0. 12 by the order of the respondent D. M. L. A., Rawalpindi, on 19-12-1979. The Detaining Authority was directed to produce the material and the record on the basis of which the detention order has been made. Learned A. A.-G. Did so on 30-1-1980. 2. The petitioner is admittedly the President of the Labour Union of the Rachna Textile Mills, Gujjar Khan, where he is employed as a Head Jobber. According to the allegation contained in the petition, which is borne out by the record, the petitioner has been ordered to be detained on the basis of his involvement in the occurrence of December 11, 1979, an account of which is given in F. I. R. No, 234, registered under section 307/325/148/149, P. P. C. At P. S., Gujjar Khan on 11-12-1979, at the instance of Ijaz Ahmad, Spinning Manager of the Rachna Textile Mills. According to the F. I. R., the informant and three other Officers were attacked by Nazar Hussain and six others, resulting in serious injuries to him and two of his colleagues. The incident is stated to have occurred on account of the petitioner and Nazar Hussain, afore-referred, having been charge-sheeted by the Labour Department and the Mills Management respectively. 3. According to the memorandum containing the grounds of detention, the petitioner is stated to habitually indulge in criminal activity, having been involved in the following cases:- AO F. I. R. No, 131 dated 12-8-1964 under section 308, P. P. C. P. S. Cantt., Rawalpindi.
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(b) F. I. R. No, 134 dated 7-9-68 under sections 148/149/452/307 and 364, P. P. C., P. S. Warburton, Tehsil and District Sheikhupura. (c) F. I. R. No, 1135, dated 7-9-1968 under sections 148/149/3071;53 and 332, P. P. C., P. S. Warburton, Tehsil and District Sheikhupura. (d) F. I. R. No, 115 dated 6-10-1969 under sections 148/149/452 and 320, P. P. C., P. S. Warburton, Tehsil and District Sheikhupura. (e) F. I. R. No, 115 dated 6-10-1972, under sections 148/149, 324/325 and 452, P. P. C. Police Station Jatli, Tehsil Gujjar Khan, District Rawalpindi. (f) F. I. R. No, 158 dated 15-7-74 under sections 379/307/365, 506/148/149, P. P. C., P. S. Gujjar Khan, District Rawalpindi. In this case you were convicted by the Court of A. C. Guar Khan, for 5 years. You are now on bail by the High Court till the proceedings start. (g) You were involved in a case under section 307, P. P. C. Pending in the Court of Magistrate, Section 30, Gujjar Khan." 4. It is not denied on behalf of the ,petitioner that he was involved in the cases enumerated above, excepting one. However, it is stated that he was convicted only in one case. A. S. I. Awais Muhammad, S. H. 0., Gujjar Khan, who produced the past record of the petitioner did not deny that the petitioner had been acquitted in the cases arising out of F. I. Rs, Nos, 131/64, and 115/72, was discharged in the cases arising out of F. 1. Rs, Nos, 114/68 and 1135/68 and was neither named nor challana in F. I. R. No, 115/69. The petitioner was, however, convicted in the case arising out of F. I. R. No, 158/74 and sentenced to undergo 5 years' imprisonment against which sentence an appeal is pending disposal before this Court. Learned A. A.-G. Stated that the case registered under F. I. R. No, 234 on 11-12-1979 has been investigated, and on 31-1-1980 a challan has been submitted against seven persons excluding the petitioner. It was stated by learned A. A.-G., that no punitive action was initiated against the petitioner, despite his being named in F. I. R. 234, that it was decided to proceed against him on the preventive side, and accordingly he was ordered to be detained on 19-12.1979. 5. The ground for the detention of the petitioner is:- "You are involved in cases of criminal trespass, violence, attempt to murder, kidnapping, armed conflict and use of arms in conflict. Again you started up trouble in Rachna Textile Mills, Gujjar Khan, employing 1290 workers on the evening of 11th December, 1979, as a result of which three Officers of the Mills were seriously injured and another received minor injuries. It becomes clear from your activities over the years that your future designs will be detrimental to the purpose for which Martial Law has been proclaimed." 6. There is a clear distinction between preventive detention and punitive detention. Preventive detention is based on apprehensions and its purpose is to obviate apprehended future acts, whereas the purpose of puniti confinement is to punish the wrong doer. As pointed out in Amina Yaqub v. District Magistrate (1), preventive detention is essentially designed to contain future activities of the detenu. However, this does not mean that preventive action cannot be taken against a person on the basis of his past conduct. In this context it was observed by the late Chief Justice Tufail All A. Rehman, in Abdul Hamid v. District Magistrate (2), that:- "I am fully in agreement with the argument that a law of preventive detention could not be used for the purpose of punishing a person for his past actions, however, blameworthy or criminal those actions might be. This is a well-established principle of law and, although Mr. Jatoi never put the argument in so many words, underlying his contention there was, (apart from the question of mala fides with (1) PLJ 1978 Lah. 295=1979 P Cr. L J Note 75 at p. 50 (2) PLD 1973 Kar. 344
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which I will deal separately), an under current, suggesting that the detenu is really being punished for what he has done that his detention is not a preventive measure taken in the interest of public order. But while it is true to say that a power of preventive detention cannot be used for punishment this is not the same thing as saying that the past conduct of a person cannot be the basis of the authorities' satisfaction that his detention is necessary as a preventive measure. Indeed unless there is something which the detenu has already done from which an inference could properly be drawn that his conduct in the future is likely to be prejudicial to one of the purposes which the law seeks to serve I can hardly conceive of a case where the powers of preventive detention could properly be exercised. The contrast between the two kinds of action was admirably stated, if I may say so with respect, by Mr. Justice Sajjad Ahmad Jan while still a Judge of the High Court in the case of Mairaj Muhammad Khan v. The Government of West Pakistan PLD 1966 Kar. 282 in which at page 287 he observed:- ' It is now well-settled that preventive detention can properly be contrasted to punitive detention, one having reference to the apprehension of wrongdoing and the other coming after the illegal act is actually committed. Preventive detention is justified by a reasonable probability of commission of a prejudicial act by the suspected person whereas his conviction can only be justified by legal evidence. ' Now upon what basis is the reasonable probability of the commission of prejudicial act to be inferred if not upon the basis of what the suspect is already known to have done? I do not say that it is not conceivable that a person should be suspected of the likelihood of future prejudicial activity except upon the basis of past conduct; in a given case an inference of this kind might possibly be reasonably drawn by reason of the suspect's own professed beliefs but since I any not dealing with a case of that kind it is unnecessary to dilate further upon this particular aspect. I do think, however, that in the great majority of cases the material upon which the likelihood of a person's future conduct will be judged will in all probability be his previous conduct." [p. 351] 7. Situations in which contemporaneous action both on the preventive and punitive sides may be necessary are not difficult to envisage. See Muhammad Asif v. D. M. L. A. (1). Indeed as observed by Sajjad Ahmad Jan, J in Mairaj Muhammad Khan v. Government of West Pakistan (2) : "As for the argument that the action of the Government under the preventive law of detention is bad as the petitioner is being prosecuted for his alleged unlawful activities under the punitive law, we find that it does not hold good legally. The two actions, preventive and punitive, are not mutually exclusive, and resort can be had to either or both, depending on the choice of the executive authority, with this limitation that the Courts will certainly interfere in aid of the accused person if it is found that the action is taken to deprive him of his legal rights and privileges arising from his trial under the punitive law by action under the preventive law, or when such action is manifestly malicious and mala fide." [p. 288] (1) PLJ 1978 Lab. 378 =1979 P Cr. L J Note 22 at p. 15 (2) PLD 1966 Kar. 282 ' In this context reference may also be made to the following paragraph from the judgment in Muhammad Youns= V. Province of Sind (1) : "Where definite charges are brought against the detenu for substantive offences and the detenu is undergoing prosecution thereof, the administration has made up their mind and their choice, that is, that the detenu should be prosecuted for these offences, and, having made this choice, it would ordinarily not be open to the administration to also use such charge as ground of preventive detention." [p. 711] 8. Where there are allegations of lawlessness or illegal activities against a person, it is for the executive authorities to decide whether to take punitive or preventive action. The discretion is theirs. However, after it has been decided to proceed on the punitive side, and the accused is either
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facing trial or has been convicted, it may be difficult to justify preventive action based on the same allegations. This may amount to the utilization of the power to order preventive detention for purpose of punishment. Ref: Shams Din v. D. M. L. A. (2). The past conduct of a person, including his past record and conviction, is, and cannot but be, relevant for the purposes of, determining whether or not to detain such a person in order to prevent the repetition of such acts in future. In Masood Ahmad v. Government of Sind (3), it was observed that:- "There is no doubt that in a given case the executive authority may, on the basis of the past conduct of a person resulting in the commission of offences indicating an apprehension that such conduct would be repeated in the future, pass an order of detention. But it would be the onus of the detaining authority to show that the past instances do really indicate alongwith other materials a probability that the detenu would indulge in prejudicial activities, if not detained." [p. 315] ' This view was further elaborated in Shams Din v. D. M. L. A. Where it was observed that:- "It has been held by the Sind High Court in Abdul Hamid Khan v. District Magistrate, Larkana (2) that a law of preventive detention cannot be used for the purpose of punishing a person for his past actions, however, blameworthy or criminal those actions might be. But while it is true to say that power of preventive detention cannot be used for punishment, this is not the same thing as saying that the past conduct of a person cannot be the basis of the authorities' satisfaction that his detention is necessary as a preventive measure. It means that if a person has done something from which inference can properly be drawn that his conduct in future is likely to be prejudicial to any of the purposes which the law seeks to serve, his detention on that ground would be justified." [p. 78] 9. However, where a person is sought to be detained on the basis of past activity or past convictions then in the words of Shafi-ur-Rehman, J. In Syed Zafar Abbas v. District Magistrate, Jhang (4) : "For invoking powers possessed under rule 208 of the Defence Pakistan Rules, it is necessary that the suspicion should be and the suspicion should relate to the detenu's having acted, or acting (1) PLD 1973 Kar. 694 (2) PLD 1979 Lah. 74 (3) PLD 1976 Kar. 311 (4) PLD 1976 Lah. 622 or of being about to act 'inter alia' in a manner prejudicial to the security, the public safety or interest or the defence of Pakistan". A person cannot be said to have so acted if the only factors were that in the year 1931, 1935, or for that matter, in 1953, pie was accused of having committed a cognizable offence for which a regular trial had taken place. There must be the proximity of time, the causal nexus between the activity complained of and the threat to the public safety before resort could be had to rule 208. In other words, the past bad conduct of an individual cannot be the ground for action under rule 208 unless there be the connecting material to show that such past conduct combined with such material presented an imminent threat to public safety or was already threatening it." [p. 6281 10. Prior to July, 1954, the 'habeas corpus' jurisdiction vested in the High Courts under the provisions of section 491 of the Code of Criminal Procedure, 1898. The High Courts were for the first time conferred jurisdiction to issue writs in the nature of habeas corpus, by the insertion of section 223- in the Government of India Act, 1935, by the Government of India (Amend ment) Act, 1954. This jurisdiction was continued in the same form b Article 170 of the Constitution of 1956. The Constitutional jurisdiction in th nature of 'habeas corpus', presently vesting in the superior Courts w initially conferred by Article 98 of the Constitution of 1962, and has bee continued as such by Article 199 of the Constitution of 1973. See Mumtaz Ali Bhutto v. D. M. L. A. (1), Muhammad Ajmal Khan v. Muhammad Shafaat (2). The Constitutional jurisdiction under Article 199 is similar to, but wide than the jurisdiction conferred by section 491 of the Code of Criminal Procedure, 1898. See Muhammad Ajmal Khan v. Muhammad Shafaat; Ghulam Jilani v. Federal Government (3). The distinction
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between the constitutional jurisdiction of the superior Courts in proceedings in the nature of 'habeas corpus' as conferred by the Constitution of 1956, and that of 1962 was examined in 1967, by the Supreme Court in its celebrated judgment delivered on 12th May, 1967, in Malik Ghulam Jitani's case (4). 11. Before the judgment in Malik Ghulam Jilani's case the view was that the 'satisfaction' of the detaining authority was subjective in nature, i. e. The 'reasonableness' of the grounds of detention was 'personal' to the detaining authority. In other words it was not an 'objective satisfaction', and as such superior Courts would not in the exercise of their constitutional jurisdiction enquire into the reasonableness of the satisfaction of the detaining authority. The last of a long series of judicial pronouncements following this view, was that of a Full Bench of the West Pakistan High Court in the case of Nasim Fatima v. Government of West Pakisum (5). In this context reference can also be invited to Liversidge v. Anderson (6), Emperor v. Sibnath Banerji (7), Emperor v. Vintlabai Deshpande (8), Muhammad Hayat v. Crown (9) and Syed Sibte Hasan v. The Crown (10). 12. The judgment in Nasim Fatima's case was the subject-matter of the appeal in Malik Ghulam Jilani's case. The Supreme Court after an exhaustive survey of the law and the Constitution, defined and declared the (1) PLD 1979 Kar. 307 (3) PLD 1975 Lah. 65 (5) PLD 1967 Lab. 103 (7) AIR 1945 P C 156 (9) PLD 1951 FC 15 (2) PLD 1976 Lah. 396 (4) PLD 1967 SC 373 (6) (1941) 3 A E R 238=1942 A C 206 (8) AIR 1946 P C 123 (10) PLD 1954 Lab. 142 extent and limits of the constitutional jurisdiction in the nature, of `habeas corpus', conferred on the superior Courts by Article 98 of the 1962 Constitution. It was observed:- "In the conditions existing under the Government of India Act, 1935, a conclusion such as that reached by the Judicial Committee in Sibnath Banerji's case AIR 1945 P C 156 was tenable. It was a period in which the control by the Courts of the exercise of public power by the authorities was at a minimum. The Central Government of India was in respect of matters of the highest importance, not an independent Government. Through the machinery provided by the Government of India Act, 1935, its action and operations were in those highly important respects, placed under the control of the British Government at Whitehall. It was not conceivable that in relation to a law of such critical importance as the Defence of India Act, attracting in many respects the powers of the Governor- General in his discretion, such powers being directly controllable by the Secretary of State for India, there could be any scope for the intervention of the Courts in India to control the exercise of such power. Therefore, the view taken in Sibnath Banerji's case by the Judicial Committee can be placed on a parallel with the view of the House of Lords in the case of Liversidge, 1942 SC 206 where the majority view was largely based on the consideration that the order of detention having been made by a high officer of the State, namely, the Home Secretary it should be presumed that he acted under the relevant provision in the Defence Regulations, I. e. That he had acted on reasonable satisfaction. ' Under the Constitution of Pakistan a wholly different state of affairs prevails. Power is expressly given by Article 98 to the Superior Courts to probe into the exercise of public power by executive authorities, how highsoever, to determine whether they have acted with lawful authority. The judicial power is reduced to a nullity if laws are so worded or interpreted that the executive authorities may make what statutory rules they please thereunder and may use this freedom to make themselves the final judges of their own 'satisfaction' for imposing restraints on the enjoyment of the fundamental rights of citizens. Article 2 of the Constitution could be deprived of all its content through this process and the Courts would cease to be guardians of the nation's
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liberties. It is therefore impossible to construe the relevant provisions in the Defence of Pakistan Ordinance in the manner adopted by the Judicial Committee in the case of Sibnath Banerji for interpreting the somewhat similar provisions in the Defence of India Act and Rules. Clause (x) of subsection (2) of section 3 must be construed as providing the specific guidelines which control any rules as to apprehension and detention that are to be made under the power given by subsection (1) of section 3. ' On that view, it is clear that `satisfaction' of the detaining authority acting under rule 32 must be a state of mind, which has been induced by the existence of reasonable grounds for such satisfaction. The power of an authority acting under rule 32 is therefore no more immune to judicial review than is the power of a Police Officer acting under rule 204. With reference to rule 29 of the Defence of India Rules (corresponding to our rule 204), the Judicial Committee felt no hesitation in finding that there was an onus upon a Police Officer to satisfy the Court that he has reasonable grounds for his suspicion. Suspicion would include belief or knowledge, whether inferential or actual. On the same reasoning, it must follow that actions by other and perhaps higher authorities, under stile 32, like all other actions relatable to the power delineated in clause (x) aforesaid, are equally susceptible of judicial review, subject, of course to the right of the State to claim privilege in respect of secret information and the Court's power to hold proceedings in camera. ' Indeed, once the authorities have placed before the Court oral evidence and other material, whose purpose is to justify an action of arrest and detention, judicial review by the Court has already been attracted and the Court cannot but be influenced in its decision by that evidence. The learned Judges in the High Court, placing reliance on the case of Liversidge, have come to the conclusion that satisfaction under rule 32 is subjective and its reasonableness, cannot be examined in a Court of law; they in effect precluded themselves from bringing into the process of decision, the evidence which they had themselves recorded and received. On a true construction of the relevant provisions in the Constitution, the Defence of Pakistan Ordinance and the relevant rules that view appears not to be sustainable." [p. 392] 13. The issue was again raised before the Supreme Court, in Mir Abdul Baqi Baloch v. Government of Pakistan (1), where it was reiterated that:- "Under a constitutional system which provides for a judicial review of executive action, it is, in my opinion, a fallacy to think that such a judicial review must be in the nature of an appeal against the decision of the executive authority. It is not the purpose of judicial authority reviewing executive actions to sit on appeal over the executive or to substitute the discretion of the Court for that of the administrative agency. What the Court is concerned with is to see that the executive or administrative authority had before it sufficient materials upon which a reasonable person could have come to the conclusion that the requirements of law were satisfied. It is not uncommon that even high executive authorities act upon the basis of information supplied to them by their subordinates. In the circumstances it cannot be said that it would be unreasonable for the Court in the proper exercise of its constitutional duty, to insist upon a disclosure of the materials upon which the authority had so acted so that it should satisfy itself that the authority had not acted in an 'unlawful manner'. . . . [p. 324] ' However, as I have said earlier, my reading of the majority decision in Ghulam Jilani's case to which I am a party, is that it alters the law laid down in Liversidge's case only to the extent that it is no longer regarded as sufficient for the executive authority, merely to produce its order, saying that it is satisfied. It must also place before a Court the material upon which it so claims to have been satisfied so that the Court can in discharge of its duty under Article 98(2) (b) (i) be in turn satisfied that the detenu is not being held without lawful authority or in an unlawful manner. The wording of clause (b) (i) of Article 98(2) shows that not only the jurisdiction but also the manner of the exercise of that jurisdiction is subject to judicial review, If this function is to be discharged in a
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judicial manner, then it is necessary that the Court should have before it the materials upon which the (1) P L 1968 SC 313 authorites have purported to act. If any such material is of a nature for which privilege can be claimed, then that too would be, a matter for the Court to decide as to whether the document concerned is really so privileged. In exercising this power the High Court does not sit as an appellate authority nor does it substitute its own -opinion for the opinion of the authority concerned." [p. 325] 14. Consequent to certain amendments in the law relating to preventive detention, the extent of the constitutional jurisdiction again came up for examination of the Supreme Court in Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmir' (1). The Court re-affirmed its earlier pronouncements in Malik Ghulam Jilani's case and Abdul Baqi's case. Notwithstanding the alterations made in the sub-constitutional law and declared:- "It would seem, therefore, that by these words, at any rate, so far as the deprivation of the liberty of a citizen was concerned, the Constitution makers intended that this most cherished right should not be taken away in an arbitrary manner and hence by sub-clause (b) of clause (2) of Article 98 they advisedly left it to the High Courts to review the actions of the detaining authority, untrammelled by the formalities or technicalities of either section 491 of the Criminal Procedure Code or the old prerogative writ of habeas corpus not only with regard to, the vires of the law or the Officer concerned but also enjoined upon them to satisfy themselves that the detention is not in any manner contrary to law. The scope of the enquiry is, therefore, not in any way fettered by the procedure of writ of habeas corpus or the rules laid down under the various Habeas Corpus Acts. The Court must, nevertheless, in deciding this question necessarily have regard to the language of the statute under which the power is exercised, the purpose for which the detention is sought to be made…
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