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Petitioner: MIRZA CHUGHTAI VS Respondent: GOVERNMENT OF WEST PAKISTAN
P L D 1968 Lahore 728
P L D 1968 Lahore 728
Before Muhammad Gul and Muhammad Afzal Cheema, JJ
MIRZA CHUGHTAI‑Petitioner
Versus
GOVERNMENT OF WEST PAKISTAN AND ANOTHER Respondents
Writ Petition No. 456 of 1967, decided on 18th August 1967.
(a) Evidence Act (I of 1872)---Ss. 123, 114 (e) & 114 (g) Evidence as to affairs of State‑Document regarding which privilege claimed on basis of its being unpublished record relating to affairs of State‑Objection regarding its production? in evidence if taken in proper form by head of department Conclusive ‑ Adverse presumption, in such circumstances, cannot be raised on account of non production of such document Action taken under r. 32, Defence of Pakistan Rules, 1965‑Pre‑ ventive and not punitive‑Contention that raising of initial presump tion of regular performance in favour of official act likely to displace initial presumption of innocence of accused‑Held, falla clous‑Defence of Pakistan Rules, 1965, r. 32.
On the point of privilege that can be claimed under section 123 of the Evidence Act, 1872 in respect of a document on the basis of its being unpublished record relating to tilt: affairs of the State, Judicial authorities are not quite uniform. However, the view that has been expressed in Ghulam Ali v. Abdul Hafeez P L D 1962 Lah. 765 and subsequently approved by a Full Bench in Nasim Fatma v. Government of West Pakistan P L D 1967 Lah. 103 holds the field wherein it has been stated that " if objection is taken in proper form by a head of depart ment under section 123 of the Evidence Act to the production of an evidence on the ground that it relates to affairs of State, it is conclusive. The anxiety expressed in some of the judg ments in which the opposite view has been taken is with due respect misplaced. In the larger interest of the State the provision of section 123 of the Evidence Act must be given full effect irrespective of any possible injury to a private litigant".
Where, therefore, the Court as satisfied from the sworn state ment of the Home Secretary that privilege had been claimed in respect of document falling within ambit of section 123 of the Evidence Act, 1872, the Court would not be justified in raising an adverse presumption on account of non‑production of such document in evidence and a fortiori an initial presumption regard ing the regular performance of the official act would be available under S. 114 (e) of the Evidence Act, 1872. The contention that the availability of the initial presumption of regular performance in favour of official act in such circumstance would run counter to the initial presumption of innocence available to an accused person under the law, is fallacious where the cases do not concern punitive actions but relate to preventive detention (e.g. under r. 32 of the Defence of Pakistan Rules, 1965) which is not resorted to in normal circumstances but is an action sought to be taken in exceptional circumstances, when there is imminent threat to public peace and tranquility.
Ghulam Ali v. Abdul Hafiz P L D 1962 Lah. 765 ; Nasim Fatima v. Government of West Pakistan P L D 1967 Lah. 103 and Umar Hayat v. Crown P L D 1951 F C 15 ref.
(b) Defence of Pakistan Rules, 1965----r. 32‑Order of deten tion signed by Home Secretary on direction of Provincial Governor who had satisfied himself on basin of information received from various sources‑Order challenged in writ petition and Home Secre tary examined in Court as to satisfaction of Governor‑Contention that evidence of Home Secretary mere hearsay and, therefore, could not be relied upon‑Held, not valid‑Constitution of Pakistan (1962), Arts. 80 & 81‑Evidence Act (I of 1872), S. 60.
In order of detention under Rule, 32 of the Defence of Pakistan Rules, 1965 against a person mentioned that "whereas the Governor of West Pakistan" was satisfied and further that "there fore in exercise of the powers conferred on him by clause (b) of sub‑rule (1) of rule 32 of the Defence of Pakistan Rules, 1965 . . . the Governor of West Pakistan was pleased to direct" that that person should be taken into custody. This order of detention was authenticated by the Home Secretary. The order was impugn ed in a writ petition. The Home Secretary was examined by the High Court and he gave evidence as to the satisfaction of the Governor in respect of the passing of the impugned order. The petitioner argued with vehemence before the High Court that the evidence of the Home Secretary as to the satisfaction of the Governor was mere hearsay and therefore could not be relied upon to sustain the impugned order. The High Court repelled the contention and relying on provisions of Articles 80 and 81 of the Constitution of Pakistan, 1962.
Held : According to the Concise Oxford Dictionary the expression "authenticate" means, 'establish the truth of; establish the authorship of; make valid . . . .'. Therefore, a proper authen tication of an order signifying the Governor's satisfaction for the relevant purpose will establish the factum or the truth of such satisfaction obviating the requirement of direct proof. Rules excluding hearsay evidence fur the purpose of any judicial pro ceedings must be read subject to the provisions of the Constitution. To give effect to the above rule of evidence would amount to robbing the above provisions of the Constitution of their content and true meaning. According to rule 2 (x) of the Rules of Busi ness of the West Pakistan Government, the Government means, the executive Government of the Province of West Pakistan and the 'Governor' means the Governor of the Province and both these terms are differently defined. There is thus no warrant for the view that the power conferred by the Central Government under section 3 (4) of the Defence of Pakistan Ordinance was a confirmation on the Governor personally and not on the executive authority of the Province, to be exercised in accordance with the provisions contained in the Rules of Business. The Home Secretary is admittedly the departmental head responsible for the conduct of business under rule 3. Public Order and preventive detention are respectively mentioned as entries (1) and (26) in the list of business assigned to the Home Department. In the case the impugned orders emanated from the Governor himself. But even otherwise matters relating to preventive detention under rule 32 (1) (b) could be disposed of by the Home Secretary and no reference to the Governor under rule 11(1) was necessary inas much as the cases were not likely to cause major political repurcussions.
Malik Ghulam Jilani v. Government of West Pakistan P L D 1967 S C 373 and Concise Oxford Dictionary ref.
(c) Defence of Pakistan Rules, 1965---r. 32‑Renewal of order of detention from time to time Justified if Government satisfied and honestly formed opinion that detenu if released would engage himself in same activity.
Inayatullah Khan Mashriqi v. Crown P L D 1952 Lah. 331 rel.
Abid Hasan Minto for Petitioner.
Ghulam Safdar Shah, Additional A.‑G., Mian Aslam Riaz Hussain, A. A.‑G. assisted by Mian Muzafar Ahmad for Respon dents.
Dates of hearing : 19th, 20th, 21st, 22nd, 24th and 25th July 1967.
JUDGMENT
MUHAMMAD AFZAL CHEEMA, J.‑---Writ Petitions Nos. 456, 414 and 455 of 1967 have been moved under Article 98 of the Constitution to call in question a number of orders made under Rule 32 (1) (b) of the Defence of Pakistan Rules, 1965, for the datention of certain Trade Union leaders and railway workers for their alleged prejudicial activities in connection with the railway strike lasting for eight days or so from 31st January 1967, completely paralyzing the railway communi cations in the province at a time when there was an acute food shortage and the Government was seriously engaged to rush food grains from Karachi port and surplus areas with the greatest possible speed to deficit areas to obviate general distress.
2. Writ Petition No. 456 of 1967 relates to the deten tion of Mirza Muhammad Ibrahim, President, Railway Workers Union. The initial order of his detention was made by the Governor on 3rd February 1967 and authenticated by Mr. Masud Nabi Nur, the Home Secretary. The order read as follows:
"Whereas the Governor of West Pakistan is satisfied that with a view to preventing Mirza Muhammad Ibrahim . . . . from acting in a manner prejudicial to the maintenance of public order, it is necessary to arrest and detain the said Mirza Muhammad Ibrahim immediately.
Now therefore in exercise of the powers . . . . . by clause (b) of sub‑rule (1) of rule 32 of the Defence of Pakistan Rules . .. . The Governor of West Pakistan is pleased to direct the said Mirza Muhammad Ibrahim shall be arrested and committed to the custody of the Deputy Inspector‑General of the Police, Special Branch, West Pakistan, at Fort Lahore for detention for a period of two months from the date of the arrest as class III detenu."
By two subsequent similar orders, respectively, dated 31st March and 31st May 1967, fresh orders for the detention of Mirza Muhammad Ibrahim were made by the Governor each to be effective for a period of two months from the expiry of the previous order but nevertheless with the modification that the detenu was to remain in the custody of Superintendent Jail in the District Jail, Lahore, instead that of Deputy Inspector‑General Special Police.
3. Writ Petition No. 414 of 1967 relates to the detention of Shaikh Abdul Ghafur, General Secretary, (P. W. R. 'Workers Union'). The order for his detention was made on 7th January 1967, by the Governor and authenticated by the Home Secretary and was in similar terms as the order relating to the detention of Mirza Muhammad Ibrahim. There were similar subsequent orders for the detention of Shaikh Abdul Ghafur made on the 31st March and 31st May 1967, each for a period of two months to be effective on the expiry of the previous order. There was also a similar change in the place of detention.
4. Writ Petition No. 455 originally related to the detention of Muhammad Anwar, Muhammad Tufail and Nisar Ahmad, railway workmen. It was subsequently amended to include the case of Abbas Khan also. Of the four detenus in this Writ Petition, Muhammad Anwar is the Joint Secretary of the `Railway Workers' Union' led by Mirza Muhammad Ibrahim detenu in Writ Petition No. 456. The other three detenus are active members of the same Union. The orders for their detention were made by the Deputy Commissioner, Lahore either on 3rd or 4th February 1967, each of which for the material purpose read as follows:--
" . . Whereas on consideration of the report of the Divisional Superintendent Pakistan Western Railway, Lahore Division, I, S. Mustafa Zaidi, Q. P. A., C. S. P., Deputy Commissioner, Lahore, am satisfied that the activities of Anwar Muhammad Tufail, Nisar Ahmad and Abbas Khan are prejudicial to the interest of States as well as of public, in that he is inciting the railway workers to become violent and to stop work of utmost public utility. On his incitement, the railway workers are likely to damage the railway property and it is absolutely necessary to detain the aforesaid Abbas Khan with a view to prevent him from acting in a manner prejudicial to public saftey, maintenance of public order and peaceful conditions in Lahore and elsewhere in West Pakistan.
Now, therefore, in exercise of the powers delegated to me . . . . I, S. M. Zaidi . . . . . do hereby direct that the said Abbas Khan etc., shall be arrested forthwith under rule 32 (1)(b) of the Defence of Pakistan Rules, 1965 and be detained in the District Jail, Lahore, for a period till further orders.
The detenu shall be treated as class III detenu.
With each order of detention, grounds of detention were separately served upon such detenu, although it was not the requirement of the law. It appears that since the institution. of this Writ Petition, Muhammad Tufail and Nisar Ahmad have been released and, therefore, the Writ Petition so far as it concerns them has abated and only the cases of Muhammad Anwar and Abbas Khan fall for determination.
5. According to the averments in the three Writ Petitions, the railway strike beginning on 31st January 1967, was altogether spontaneous, being the result of rising prices particularly of food grains and other strain and stresses under which the railway workers had to work and the apathy of the Railway Administration to the demands of the railway workers made from time to time for the supply of wheat atta at subsidized rates and also grant of Rs. 50 per month as special dearness allowance to each worker in view of the price‑spiral obtaining in the country. On behalf of each detenu it was denied that he incited the railway workers. to strike work or to resort to violence or holliganism. In. Writ Petitions 456 and 414 it was, however, admitted that Mirza Muhammad Ibrahim and Sheikh Abdul Ghafur were in full sympathy with the strikers and their demands though each of them protested that they urged the strikers to remain peaceful. On behalf of Mtrza Muhammad Ibrahim it was further averred that he by his conduct had shown that he was anxious for a settlement and indeed was a party to settlement signed at the residence of the Provincial Labour Minister at about midnight on the night of 2nd February which the authorities concerned deliberately suppressed to prop up the rival labour Union and its leader, Ch. Umar Din. It was further averred that the order of detention in each case was ultra vires and without lawful authority in that it was made mechanically without there being real or genuine satisfaction of the detaining authority as required by the statute. Absence of reasonable grounds necessary to induce satisfaction in the detaining authority were also pleaded. Plea of mala fide of the order of detention was also raised in each case.
6 The respondent in the written statements and counter affidavits maintained the validity of each detention order on the grounds that it was made by the detaining authority concerned after a careful consideration of the situation reports submitted by the Special ' Police, reports of the Railway Administration and other information reaching the detaining authority in the context of the general situation then obtaining in the province. Allegation of the mala fide nature of the impugned order was also denied in each case.
7. The main points urged being common, this judgment will dispose of all the three Writ Petitions.
8. A brief statement of facts leading to the arrest and the detention of each of the four detenus appears necessary at this stage. There are four labour Unions of the labour workers with their head office at Lahore They are:
(i) `The United Union of P. W. R. Workers' is led by its General Secretary, Ch. Umar Din. It is registered under the Trade Unions Act, 1926 and is also recognized by the Railway Administration. In the course of arguments on behalf of the petitioners in Writ Petitions 456 and 414 of 1967 this Union was, however, referred to more than once as "pocket Union" and Ch. Umar Din as a puppet of the Railway Administration who did not exercise any effective influence with the majority of railway workers at Lahore.
(ii) "Mazdoor Union" led by its Chairman, Mr. M. A. Rahim. It is also both registered and recognized by the Railway Administration. However, its membership does not appear to be sizeable nor is it otherwise very effective.
(iii) "The P. W. R. Union" led by its General Secretary Shaikh Abdul Ghafur (detenu in Writ Petition No. 414 of 1967). It is registered under the Trade Union Act, but is not recognized by the Railway Administration. It com prises two sub‑unions, namely, "P. W. R. Union (Workshops)" and P. W. R. Union (Open Lines)", each having office bearers of its own.
(iv) "The Railway Workers Union" led by its President, Mirza Muhammad Ibrahim detenu in Writ Petition No. 456 of 1967. It is neither registered nor recognized by the Railway Administration. It appears that the majority of the workers employed in the Carriage Shops and the Power House are members of this Union.
Though each Union exists for the avowed object of ameliorating the service conditions of the workers yet there appears to be considerable rivalry between them, particularly the 'P. W. R. Union' led by its 'General Secretary, Shaikh Abdul Ghafur and the `Railway Workers Union' led by its President, Mirza Muhammad Ibrahim on the one hand and the `United Union of P. W. R. Workers' led by its General Secretary, Ch. Umar Din on the other. This was brought into sharp relief in the course of arguments in these cases.
9. It is common knowledge that the Province of West Pakistan was in the grip of an acute food crisis towards the end of 1966. Wheat, which is the stable food in the province became non‑available except at prohibitive prices, far beyond the reach of common man. The situation became really grave in November and December 1966. To relieve this food shortage, the Government imported large quantities of wheat and other food grains which had to be rushed to different. parts of the Province, with the greatest possible speed. Obviously railway was the quickest and cheapest means of transport. The railway workers who had the largest concentration at Lahore were under similar strains and stresses. Their demands made from time to time through their Unions, particularly for the opening of cheap ration shops had gone unheeded or at any rate were not redressed. For instance, the `P. W. R. Workers Union' though its General Secretary, Shaikh Abdul Ghafur gave a strike notice on 9th October 1966, listing 112 demands includ ing the one for the opening of cheap ration shops for the supply of wheat atta at subsidized rates to the railway workers. The matter was discussed by a representative committee under the presindency of Raja Salim Akhtar, Additional Deputy Commissioner (General) Lahore, on 1st and 10th November 1966. This Committee unanimously recommended to the Government for the acceptance of the workers' demand for the opening of the cheap ration shops. The other 111 demands were not pressed by Shaikh Abdul Ghafur. The strike notice was also withdrawn. However no action was taken on this recommendation. Ch. Umar Din's Union, namely, `United Union of the P. W. R. Workers' also gave a notice on 23rd January 1967, for strike demanding inter alia the opening of the cheap ration shops and the grant of special de4rness allowance to the railway workers. This notice was to expire on the 30th January 1967, so that if the demand was not accepted in the meantime then the Union would strike work on the 31st January 1967.
10. A few days before the expiry of the notice served by Ch. Umar Din, the `Railway Workers Union' led by Mirza Muhammad Ibrahim, which appears to have the largest following among railway workers in the Carriage Shops and the Power House decided to take out, what is, described as "mammoth procession" on 28th January 1967, just two days before the zero hour fixed for general strike to present a memorandum of demands upon the authorities concerned including the Governor. A copy of the memo. of demands is Annex. `B' to Writ Petition No. 456 of 1967 which listed twenty‑nine demands. The move to take out the procession was, however, frustrated because the Deputy Commissioner, Lahore in the meantime issued an order under section 144 of the Criminal Procedure Code, 1898, prohibiting assembly of more than five persons and taking out processions within the railway premises. On the 30th January 1967, Mirza Muhammad Ibrahim held a press conference in Lahore Hotel where lie read a prepared statement protesting against the prohibitory order under section 144, Cr. P. Code. A copy of the prepared statement is also on the record of Writ Petition No. 456. In his statement, Mirza Muhammad Ibrahim had also a fing at the "self‑styled labour leaders" whom he described as stooges of the Administration propped up to impede the Trade Union activities of the true represen tatives of the railway workers by driving a wedge between the workers employed in the Carriage Shops and the Loco Shed. The statement ended on a note of self‑praise and denunciation of the discreminatory attitude of the Administration. At about the same time a pamphlet captioned as "the unholy alliance between the Railway Administration and the self‑styled labour leaders exposed" was also issued by the Secretary of the same Union:
11. There can be no manner of doubt that references in the prepared statement by Mirza Muhammad Ibrahim and in the pamphlet issued by the Secretary of his Union to the self‑styled labour leaders in the unholy alliance with the Administration was to Ch. Umar Din whose Union had been accorded recognition and who also secured membership of the West Pakistan Labour Advisory Board. Ch. Umar Din incidentally had also stolen a march in serving the strike notice which was to expire in matter of two days and unless there was a settlement, in the meantime, the workers belonging to that Union could have struck work under his leadership. To attract the attention of the authorities, Mirza Muhammad Ibrahim planned to take out a mammoth procession on the 28th January 1967, but the move was frustrated by the prohibitory order under section 144, Cr. P. Code which he and his secretary had no qualms to attribute to the unholy alliance between the Administration and the "self‑styled labour leader", the oblique reference obviously being to Ch. Umar Din.
12. On 30th January 1967, there was a token strike lasting for about an hour in Carriage Shops where Mirza Muhammad Ibrahim had undoubtedly the largest following. This also infected the workers employed in the Power House. This is described in the Writ Petition No. 456 as spontaneous and symptomatic of the general unrest among the workers. By the 31st January 1967, the strike spread throughout Pakistan Western Railway bringing railway traffic to an almost complete standstill. Cases of damage to the Railway property were reported, ultimately Army had to be called in to protect the Railway property at Lahore, it had once to resort to firing. Army was alerted at other places of potential danger to come to the aid of the civil authorities where the situation was getting out of control.
13. It appears that Mirza Muhammad Ibrahim was in the meantime contacted by the Administration to use his influence with the striking workers at Lahore to call off the strike. The Provincial Ministers for Finance and Labour also tried to address the strikers in the premises of the railway workshops but the workers were in no mood to hear them and proclaimed Mirza Muhammad Ibrahim as their true leader who alone could negotiate on their behalf. The Ministers are said to have sent for Mirza Muhammad Ibrahim who on arriving addressed the workers reiterating their demands, but at the same time urged them to hear the Ministers as well. After the speeches, the strikers showed their readiness to call off the strike if the following two demands were accepted forthwith, namely:--
(i) that the Railway Administration shall open cheap ration shops where wheat atta shall be sold to the railway workers at subsidized rates ; and
(ii) that the Railway Workers' Union headed by Mirza Muhammad Ibrahim shall be duly recognized by the Administration so that he could negotiate a binding settlement on their behalf.
The two Ministers are stated to have accepted in principle the above two demands adding that the second demand required certain legal formalities to be satisfied. The strikers are then stated to have insisted that the acceptance of the above demands should be reduced into writing to exclude the possibility of going back upon them by any of the parties. However, the above terms despite the persistent demands of the strikers could not be reduced into writing either on the 31st January or 1st February 1967. It is alleged in the Writ Petitions that "certain interested parties both inside and outside the Government" pooh‑poohed the idea of executing the written agreement with the Railway Workers Union, led by Mirza Muhammad Ibrahim. Instead these "interested elements" suggested written agreement with the Union of Ch. Umar Din. In consequence of this stalemate, the strike continued unabated even on the 2nd February 1967. It was late in the evening of 2nd February 1967 that a meeting was convened at the residence of the Labour Minister where just before midnight a formal agreement (a Photostat copy of which is Annex. A') was signed by the Chairman and the Vice‑Chairman Railway Board, representing the employer and Mirza Muhammad Ibrahim as the sole representative of the Railway Worker, Union. The terms of the settlement read as follows :--
"It has been agreed, in principle, that the atta will be supplied to the workers of Railway Workers' Union (Unregistered) at a rate lower than the controlled rate. The quantum of this subsidy will be decided within…
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