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Petitioner: MUHAMMAD ASLAM AWAN VS Respondent: (1) THE GOVERNMENT OF WEST PAKISTAN THROUGH HOME SECRETARY, LAHORE (2) DISTRICT MAGISTRATE, LAHORE
P L D 1968 Lahore 667
P L D 1968 Lahore 667
Before Nazeer Ahmad Mahmood and Ataullah Sajjad, JJ
MUHAMMAD ASLAM AWAN‑Petitioner
Versus
(1) THE GOVERNMENT OF WEST PAKISTAN THROUGH HOME
SECRETARY, LAHORE
(2) DISTRICT MAGISTRATE, LAHORE‑Respondents
Writ Petition No. 457 of 1967, decided on 2nd September 1967.
(a) Defence of Pakistan Rules, 1965---r. 32‑Object of rule is "suppressive and preventive".
(b) Defence of Pakistan Rules, 1965-----r 32‑Permissible to authorities to entertain an "inferential belief" from reports received from various Government agencies that detenus were likely to indulge in prejudicial activities.
(c) Constitution of Pakistan (1962)----Art. 98‑Order of deten tion under r. 32, Defence of Pakistan Rules sought to be vacated on ground of mala fides‑Such mala fides to be proved against the authority passing order or his functionaries‑Defence of Pakistan Rules, 1965, r. 32.
(d) Evidence Act (I of 1872)----Ss. 123 & 124‑Privilege claimed by Home Secretary while giving evidence in a detention case‑Petitioner not addressing any argument on question of privilege‑Claim presumed to be conceded by detenu's counsel.
(e) Defence of Pakistan Rules, 1965----r. 32‑(Extension of detention)‑"If satisfied"‑Grounds for satisfaction should be directly relatable to an act of commission or omission on the part of detenu‑Presumption that Executive Authority formed its opinion in a responsible manner‑Does not detract from power of Superior Courts to examine question whether in reality such authority was satisfied that an order of extension of detention be passed‑Further restrictions must be based on some factual basis.
The grounds for satisfaction of the detaining authority should be directly relatable to an act of commission or omission on the part of the detenu. The liberty of a person cannot be kept in jeopardy, because of the opinions expressed by some other persons, who are not proved to have any liaison with the detenus.
The presumption that the Executive Authority formed its opinion in a responsible manner does not detract from the power of the Superior Courts to examine the question, whether in reality the Executive Authority was satisfied about the neces sity of the passing of an order of extension of detention. There should be in existence some factual basis for the imposition of further restrictions on the liberty of a citizen who is already detained and a heavy duty is cast on this Court to see that a citizen is deprived of his freedom only on reasonable grounds.
Saiyyid Abul Ala Maudoodi v. The Government of West Pakistan P L D 1964 S C 673; Inayatullah Khan Mashriqi v. The Crown P L D 1952 Lab. 331; Mst. Nasim Fatima v. Government of West Pakistan P L D 1967 Lab. 103 and Sibte Hassan v. Crown P L D 1954 Lab. 142 ref.
Where, in oral and documentary evidence produced by Executive authority, there was no factual basis for the satisfaction expressed in the impugned order of extension with regard to the apprehended activities of the detenus it was held that the orders of extension of detention were of no legal effect and were without lawful authority.
(f) Defence of Pakistan Rules, 1965----r. 32‑"Satisfied" Detenu considered to be the "brain" behind activities of laboul union leaders‑No facts on record to sustain that conclusion‑Held: there were no grounds before detaining authority which could reasonably lead to belief that detenu was likely to commit acts prejudicial to public order‑[ Malik Ghulam Jillani v. Government of West Pakistan P L ‑D 1967 S C 373 ref.].
(g) Defence of Pakistan Rules, 1965----r. 32‑Original order of detention vitiated‑Order of extension of detention also falls through‑[Abdul Wali Khan v. Crown P L D 1954 F C 1 and Masum v. State P L D 1961 Pesh. 102 ref.].
(h) Defence of Pakistan Rules, 1965---r. 32‑Order of extension of detention passed before expiry of original detention period but served on detenu after such expiry‑Order unexceptionable [Abdul Wali Khan v. Crown P L D 1954 F C 1 distinguished.]
(i) Defence of Pakistan Rules, 1965---r. 32‑Allowance payable to detenu‑Failure of jail authorities to make payment because of departmental delays‑Does not render order of detention invalid.
(j) Evidence Act (I of 1872)----Ss. 123 & 324‑Plea of privilege admitted by one Bench of High Court‑Another Bench refused to record different finding‑[Ghulam Ali v. Abdul Hafiz P L D 1962 Lab. 765 and Mst. Nasim Fatima v. Government of West Pakistan P L D 1967 Lab. 103 ref.].
M. A. Khadim for Petitioner.
Ghulam Safdar Shah, Addl. A.‑G. and Muzafar Ahmad for Respondents.
Dates of hearing: 15th, 16th, 17th, 18th and 19th August 1967.
JUDGMENT
ATAULLAH SAJJAD, J.‑---This order deals with Writ Petition No. 457 of 1967 and Criminal Miscellaneous No. 2920 of 1967. Writ Petition No. 457 of 1967 is directed against the orders, dated the 3rd of February 1967, passed by the Governor of West Pakistan against (1) Ghulam Hussain son of Abdul Rahim, (2) Abdul Khaliq son of Allah Noor, and (3) Madar Bakhsh son of Hassan Khan, for their detention under rule 32 of the Defence of Pakistan Rules, for a period of two months, and subsequent orders of extension, dated the Ist of August 1967, against the same detenus, extending the order of their detention by another two months. Originally Writ Petition No. 457 of 1967 was filed on behalf of 25 detenus, but all others, having been released, during the pendency of the above petition, we are now called upon to decide the question of the legality of the orders of detention, and the subsequent extension of the term of detention by order, dated the 1st of August 1967, only in respect of the above‑named three detenus. As stated above, the original order of detention was passed on the 3rd of February 1967 for a period of two months and then extension in the period of detention was made from time to time; the last order of extension, having been passed for a further period of two months on the 1st of August 1967. In view of this circumstance, the writ petition was amended, in which the legality of the original order of detention, and that of the order of extension, dated the 1st of August 1967 has been assailed.
2. Criminal Miscellaneous No. 2920 of 1967 was sent by Malik Fazal Elahi Qurban, through jail, to challenge the legality of the order of the extension of his detention, dated the 31st of July 1967, passed by the order of the Governor of West Pakistan. He was originally detained for a period of two months by order, dated the 2nd of February 1967, and the period of his detention was extended from time to time. He sent through jail an application, challenging the order of his detention and subsequent extensions. This application was registered as Writ Petition No. 1117 of 1967. Both writ Petitions Nos. 457 and 1117 of 1967 were put up for hearing before another Bench, along with other similar matters, comprising of Muhammad Gul and Muhammad Afzal Cheema, JJ. The connected cases were heard by the above Bench, but these two cases could not be disposed of for certain reasons and were sent to the Vacation Bench for disposal by their order, dated the 26th of July 1967. The case came up before the Court on the 31st of July 1967, and ultimately a notice was issued to the parties for the 9th of August 1967. Since the period of the orders of extension assailed in Writ Petition No. 1117 of 1967 had already expired. We dismissed the same on the 9th of August 1967 as having become infructuous with the result that so far as Malik Fazal Elahi Qurban is concerned, we have to decide Criminal Miscellaneous No. 2920 of 1967, only.
3. Since the background of events, which led to the passing of the detention orders, and the subsequent orders of extension is common to both these cases, we would like to make a factual appraisal of the situation when the orders of detention in both the cases were passed.
4. The facts as culled out from the pleadings of the parties and the oral evidence adduced before us are these. In December 1966 and January 1967, the food situation in the Province became bleak and because of short supply, the prices started rising suddenly. There was discontent among the Railway workers and they started voicing their demands particu larly for supply of wheat at subsidised rates and increase in their dearness allowance through their respective labour Unions.
5. The three detenus in Writ Petition No. 457 of 1967 are members and office‑bearers of the Railway Workers' Union, Lahore, whose General Secretary is Mirza Ibrahim. This is an un‑registered Body and has not been recognised by the Railway authorities. Ghulam Hussain, detenu, is a Cashier of the above Union, Abdul Khaliq detenu is the General Secretary while Madar Bux detenu is the Vice‑President of the above Union. Three other Unions of the Railway workers need mention here. They are United Union of P. W. R. Workers with Ch. Umar Din as its General Secretary, P. W. R. Workers' Union with Sheikh Abdul Ghafoor as its General Secretary and Railway Mazdoor Union, which is presided over by one Mr. M. A. Rahim. Out of the above three Unions, the Unions led by Ch. Umar Din and Mr. M. A. Rahim are registered Bodies and have been recognised by the Railway authorities. The Union led by Sh. Abdul Ghafoor is a registered Body, but has not been recognised by the Railway authorities. It appears that the Railway workers had been feeling the economic pressure due to the rising prices of food even before December 1966 and Sh. Abdul Ghafoor served a notice of strike on the Railway on the 29th of October 1966 on behalf of his Union. Ch. Umar Din also served a notice for strike on the 23rd of December 1966. The Railway Workers' Union, Lahore to which the detenus belong also espoused the cause of its members. We find from the evidence of the Home Secretary that the three detenus were present in a number of meetings held in early January 1967 and subsequent dates, which were addressed by Mirza Ibrahim. It is stated in para. 5 of the writ petition that the workers of this Union were voicing the grievances of the Railway Workers and were making demands since November 1966 by passing resolutions in general meetings, as well as those of the Executive Committee of the said Union. One of the demands was the supply of cheap wheat or Atta by the Railway authorities, and increase in the dearness allowance. It was decided by this Union to take out a procession of Railway workers after the working hours on the 28th of January 1967, so that the workers forming the procession may be able to deliver a memorandum of their demands to the authorities concerned. According to the Home Secretary, the processionists wanted to march to the Government House. The procession, however, could not be taken up, because the District Magistrate of Lahore promulgated an order under section 144 of the Criminal Procedure Code. The Union, therefore, decided that their demands be printed and circulated amongst the workers and the authorities. A Press Conference was held by the President of this Union namely Mirza Ibrahim on the 30th of January 1967, and a printed memorandum of demands was also circulated as decided on the 28th of January 1967.
6. There was a token strike on the 30th of January 1967, followed by a general strike on the 31st of January 1967. The general strike, which started on the 31st of January 1967 spread, in the words of the Home Secretary, like a contagion, and between the 31st of January 1967 and 3rd of February 1967 there was outburst of violence at Railway Stations of Rohri. Sukkur, Mirpur Khas, Hyderabad, Lahore and Karachi. Acts of violence also took place at other places even after the 3rd of February 1967.
7. The Railway authorities came to an agreement with Ch. Umar Din on the 2nd of February 1967 (Copy Exh. R. A.). An agreement was also arrived at between Mirza Ibrahim and the Railway authorities on the night between the 2nd and the 3rd of February 1967 (Copy Exh. P. B.). This agreement was to be signed by four other representatives of the labour, but before it could be finalised, Mirza Ibrahim was arrested and detained under rule 32 of the Defence of Pakistan Rules. The situation became pretty serious. on the morning of the 3rd of February 1967, when Army and Police had to be called to suppress rioting and prevent incendiarism in the Railway Loco shed area. The Railway in order to prevent damage to their property declared a lock‑out and things returned to normalcy only on the 9th of February 1967, when the Railway communi cations started functioning as before. The present three detenus (Writ Petition No. 457 of 1967) were arrested and detained as a result of the order of the Government made orally in the evening of the 3rd of February 1967.
8. In the written statement filed on behalf of the Provincial Government, it was asserted that the detenus were field workers of Mirza Muhammad Ibrahim and were present in almost all the meetings held by Mirza Ibrahim, whether publicly or in camera. It is also asserted that the activities of the detenus culminated in the strike, which took place on the 30th of January 1967, and was mainly the result of the activities of the detenus. In para. 8 of the written statement, it has been asserted that the Police and the Army had to be called on the 3rd of February 1967 in order to ensure protection to public property at different places, because the strikers were resorting to force under the influence of the detenus‑who facilitated the entry of the strikers into the powerhouse with a view to cause damage to it.
9. The learned Additional Advocate‑General produced Mr. Masud Nabi Noor, who took over as Provincial Home Secretary on the forenoon of the 1st of February 1967, as a witness. The trouble, according to the witness was brewing about two months or a little less than two months before the actual date, on which the strike took place and the reasons for this state of affairs were, deteriorating food situation and the rising prices. According to the witness, the food situation and the conditions of economic distress were being exploited by the leaders of the Railway workers and some of the Unions gave notices to the Government putting up fantastic demands, like sudden increase in their allowances by Rs. 50 and increase in their salaries even up to Rs. 150. The witness went on to say bat the Government had received information from various agencies to the effect that the three detenus were actively and directly associating themselves with Mirza Ibrahim in his activities prejudicial to the interests of law and order, and they were the active supporters of the cause taken up by Mirza Ibrahim, and his Union, and that they were present on a number of occasions, when meetings of the workers took place, which were addressed by Mirza Ibrahim and other leaders of the Railway workers. The witness then gave various dates, on which the detenus or some of them were present in the meetings held from the 3rd of January 1967 till the 1st of February 1967. The witness further went on to say that information received by the Government from different quarters, such as Special Branch was to the effect that the detenus were inciting the workers to violence.
10. In reply to a question by the learned Additional Advocate‑General, as to how the Governor came to be satisfied about the necessity of the detention of the present detenus, the Home Secretary said that the Governor was ‑ holding repeated conferences with the Chief Secretary and senior Government Officers of the Railway Department, Police Department, Labour Department, Home Department, and the Law Department, Army Commanders, and Director‑General, Rangers, in order to take personal stock of the situation. He had before him the infor mation furnished to him by various agencies of the Government functioning in that behalf. It was after due consideration of all these facts that the Governor ordered detention of these persons. These orders were in the first instance given orally in a conference, which was held on the 3rd of February 1967, sometimes after 3‑30 in the afternoon, when the Governor returned from Rawalpindi. The witness, however, later on submitted the minutes of the proceedings of this conference to the Governor, which he approved. In reply to a court question, the witness claimed privilege against production of these minutes on the ground that they contained discussions about the overall law and order situation in the Province and certain matters relating to the affairs of the State, publication whereof was against public interest.
11. The learned counsel for the petitioners raised before us three points :‑
(i) That the evidence does not disclose that the detenus were about to commit any act falling within the mischief of rule 32, and on this ground the original order of detention and the subsequent orders of extension were bad in law;
(ii) That the entire material available with regard to the detenus was not placed before the Governor before he passed the order of detention;
(iii) That the detention was, malafide because discrimination bad been made between the Union, to which the detenus belong, and the Unions, which are led by Ch. Umar Din and Mr. M. A. Rahim, and in passing the orders of detention, the condition contained in the settlement arrived at between the Railway authorities and Mirza Ibrahim to the effect that workers, who had gone on strike will not be victimis ed, had been completely ignored.
12. The relevant portion of Rule 32 of the Defence of Pakistan Rules, under which the orders of detention were, passed reads as under :‑
"Rule 32 of the Pakistan Defence Rules.‑The Central Government, if satisfied with respect to any particular person, that with a view to preventing him from acting in a manner prejudicial to the security, the public safety or interest or the Defence of Pakistan, the maintenance of public order; Pakistan's relations with any other powers, the maintenance of peaceful conditions in any part of Pakistan, the maintenance of essential supplies and services, or, the efficient conduct of military operations, or prosecution of war, it is necessary so to do, may. make an order. . . . .
(b) directing that he be detained."
The object of the said rule is suppressive and preventive and the authority has been given power to take action to prevent the A apprehended threat to public order, or other subjects, mentioned in rule 32, if it is satisfied that such a course of action is necessary.
13. We find in this case that the detenus were office‑bearers of the Railway Workers' Union, which is represented by Mirza Ibrahim. They were present in various meetings and according to the averments, contained in para. 5 of the writ petition, were in complete accord with all the decisions of the Union, to which they belonged. It has been alleged in the written statement that the partial strike of the 30th of January 1967, which assumed the shape of a conflagration on the next day, was sponsored by the present detenus, and there is a dim, but distinct admission to this effect in para. 5 of the writ petition, where it is stated that there was a general commotion amongst the Railway workers and when they were informed that their lawful procession was obstructed by an order of the respondent No. 2, they decided to go on a token protest strike for one hour on the 30th January 1967. 'this decision of the workers was spontaneous and was in fact the result of the discrimination with which the authorities had dealt with the different Trade Unions." It is not possible to resist the feeling, after reading the above question from the writ petition, that the detenus had something to do with the sit‑down strike, which was started on the 30th of January 1967, and which assumed colossal proportions on the very next day with the result that not only the whole system of Railway communications was paralysed in the whole of the Province, but the efforts of the Government to rush foodstuffs to deficit areas were completely frustrated. It is also not possible to get over the impression that there was rivalry between various trade Unions, and the motive behind the sit‑down strike of the 30tfi of January 1967 was to demonstrate to the authorities the extent of the hold of such Unions on the workers, which had so far not received any official recognition. The settlement with Mirza Ibrahim was arrived at on the night intervening between the 2nd and the 3rd of February 1957 and the workers were expected to return to work. On the other hand, there was outburst of violence on the morning of the 3rd of February, and the Army and Police had to be called to quell rioting and prevent arson. This outburst of violence came in the wore of the settlement that had been arrived at with Mirza Ibrahim, and the authorities, responsible for maintaining peace and order, could reasonably come to the conclusion that Mirza Ibrahim; and office‑bearers of his Union did not mean business, and were likely to indulge in prejudicial activities in order to sabotage the settlement arrived at with Ch. Umar Din and the Railway authorities.
14. The averments contained in the written statement with regard to the holding of meetings by Mirza Muhammad Ibrahim in camera and the allegations that the present detenus had facilitated the entry of the strikers in the Power‑house have not been supported by the evidence of the Home Secretary. There is, however, a clear reference in his evidence to the reports received from various agencies including the Special Branch to the effect that the present detenus, who were office‑bearers of the Railway Workers Union were inciting the labourers to strike and to commit violence. It is true that during his cross‑examination; thy Home Secretary admitted that the three detenus did not make any speech before or after the 31st of January 1967. It was, however, stated that Madar Bux was found on the 28th of January 1967 instigating the labourers to stick to their demands and also shouted in the presence of a Magistrate that "they had been left in jeopardy and they did not know, where Mirza Ibrahim had been taken away". It is also in the evidence of the above witness that in spite of section 1.44 of the Criminal Procedure Code, Madar Bux was found in a procession of workers, which was formed on the 28th of January 1967. The suggestion of the learned counsel for the petitioners in .the cross‑examination to the effect that actually Madar Bux had peaceful intentions and the procession had been dispersed, because of his persuasion, was denied by the Home Secretary.
15. There was no attempt during the cross‑examination of the witness to find out the nature and extent of the activities of the three detenus, alleged to have been mentioned in the reports, submitted by the various official agencies. The assertion of the Home Secretary, therefore, that reports regarding the prejudicial activities of the three detenus were received by the Government from various quarters has gone unchallenged.
16. In our opinion, it was permissible to the authorities responsible for maintaining law and order on the basis of the above data to entertain an inferential belief that the detenus, who were close associates of Mirza Ibrahim were likely to indulge in prejudicial activities.
17. The learned counsel is not on a firm ground, when he asserts that the order of detention was vitiated, because full facts were not brought to the notice of the Governor, when he directed the detention of these detenus. The learned counsel said that the facts regarding Mirza Ibrahim having arrived at a settlement with the Railway authorities and also having issued a Press statement, issued in the daily 'Pakistan Times' of the 3rd of February 1967 were not brought to the notice of the Governor, and this omission on the part of his Officers had prevented him from bringing about full application of his mind to the facts of the present case.
18. The Home Secret2ry has stated that the manuscripts of the settlement arrived at by the Railway authorities with the Unions concerned, were not placed before the Governor, but they were mentioned in the conference, which was held in the afternoon of the 3rd of February 1967 in tire Government House. It is of course not mentioned in the evidence of the Home Secretary that it was brought to the notice of the Governor that an appeal by Mirza Ibrahim had appeared in the `Pakistan Times', dated the 3rd of February 1967, calling upon the workers to resume work, but this fact has no direct bearing on the case of the present detenus and is relatable to the case of Mirza Ibrahim himself. The Governor was faced with a grave situation and had to make important decisions regarding restoration of means of communi cations and law and order among Railway workers. The settlement with Mirza Ibrahim had already failed to bring about desired results and the appeal issued by him bad no…
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