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Petitioner: MUHAMMAD INAMULLAH KHAN VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Shamim Hussain Qadri, M. S. H. Qureshi Title: MUHAMMAD INAMULLAH KHAN vs THE STATE Case No.:Writ Petition No, 568 of 1977 Writ Petition No, 526/H of 1977 Writ Petition No,
JUDGMENT
Reported As: PLD 1977 Lahore 1279 Result: Petition accepted Judgment JUDGMENT ' SHAMEEM HUSSAIN KADRI, J.-By this short order we dispose of Writ Petitions Nos. 568 and 621 of 1977 wherein challenge has been thrown to the detention of Mr. Aamer Raaa, President of the Lahore High Court Bar Association and 2 other Advocates of this Court, namely, Rana Abdur Rahim and Mr. Gulzar Hassan. After going through the evidence which is recorded in this case and the provisions of clauses (e), (h), (o) and ( p) of sub-rule (6) of rule 42 of the Defence of Pakistan Rules, 1971, we are of the view that the preliminary objection raised by Mr. Khalil Ramdey, Assistant Advocate- General, in this case that this Court should abstain from exercising jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, after placing reliance on Malik Ghulam Ahmad v. Haji Muhammad Yousaf and others (1), is untenable. The police after having completed the investigation has put in the challan before the Special Tribunal which for all purposes is a Court whose judgment is appealable to this Court. The colourable exercise of jurisdiction by the Tribunal when the material on the record does not constitute an offence under rule 49 of the Defence of A Pakistan Rules, can be challenged in this Court in the exercise of its extraordinary jurisdiction under Article 199 of the Constitution. Reliance is placed on Ch. Zahoor Ilahi v. The State (2). Thus this Court has the jurisdiction to examine and decide whether the alleged offence under rule 49 (I) PLD 1976 SC 271 (2) PLD 1977 SC 273 of the Defence of Pakistan Rules is made out on the basis of the resolution which has been passed by the Lahore High Court Bar Association. The rules of the High Court Bar Association in regard to the duties of the President are clearly manifest. If a requisition is tabled in a proper manner, signed by a particular number of members it is the duty of the President to call a meeting and preside
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over the same and it is for the House to pass or reject a resolution. In this case Mr. Aamar Raza has not acted in any manner which can bring his action within the purview of the offence. So far as the others are concerned, we are of the view that the resolution does not offend any of the provisions mentioned above. Reliance has been placed on Masihur Rahman v. The State (1) in which a string of authorities Emperor v. Sadushiv Narayan Bhalarao (2), Sher Muhammad v. The Crown (3), Niharendu Dutt Majumdar v. Emperor (4), Malik Nasorullah Khan Aziz v. Crown (5), Sangbad v. Province of East Pakistan (6), Tofazzal Hussain v. Province of Ea't Pakistan and others (1). And Sheikh Fazlu' Hague alias Mond v. The State (8), have been examined. The other cases cited by Mr. M. Anwar are Debi Soren and others v. The State (9). The State v. Abdul Ghaffar Van (10) and Z. A. Sulleri and ethers v. The Crown (11) in which again large number of cases base been examined by Z. H. Lari, J. Namely, Mrs. Annie-Besent v. Emperor (12), In re : Sunderlal (13), Padmamoni &psi v. E" peror (14), Diwan Parkash Chand v. Emperor (15) and Mufti Fakhrui Islam v. Emperor (161. Two cases from American Jurisdiction were also cited by Mr. M. Anwar Arthur Terminkilo v. City of Chicago (17) and Dirk De Jonge v. State of Oregon (18). Similarly certain cases were cited to show that criticism of the Government, unless It clearly preaches violence in a democratic set up would not attract the provisions of clause (e) of subrule (6) of rule 42 of the Defence of Pakistan Rule!. Reference is made to Shahidul Hague v. Government of East Pakistan and others (19), Reazuddin Ahmed v. Deputy Commissioner, Dacca and others (20) and M. Mansur Ali v. The State (21). It was further argued that Ministers are not public servants and so are not the M. N. As. Reliance was placed on Hussain Bakhsh Kausar v. The State (22). There is a Division Bench judgment Ghulam Ahmad v. Punjab Province and another (23) wherein Dr. Ghulam Hussain former M. N. A. Was detained who criticised the former Prime Minister In very strong language. II was held that such a criticism of Minister of a party in power would not fall within the purview of 'prejudicial act' as defined in sub-rule (0) of rule 42 ibid. Whether the case falls within the purview of clause (a) Mr. M. Anwar cited Muhammad Aslam Saleemi v. The Pakistan Television (1) 1971 D L C 750 (3) AIR 1949 Lab. 218 (5) PLD 1950 Lab. 420 (7) PLD 1966 Dacca 478 (9) AIR 1954 Pat. 254 (11) PLD 1954 Sind, 80 (13) I L R 42 All. 233 (15) AIR 1937 Lab. 513 (17) 337 U S 1 (19) 1969 P Cr. L J 449 (21) 1969 P Cr. L J 818 (2) PLD 1947 P C 32 (4) AIR 1942 FC 22 (6) PLD 1958 Dacca 324 (8) PLD 1971 Dacca 154 (10) PLD 1957 Lab. 142 (12) I L R 39 Mad. 1085 (14) I L R 1932 Cal. 457 (16) AIR 1943 All. 244 (18) 299 U S 353 (20) 1969 P Cr. L J 619 (22) PLD 1959 Pesh. 15 (23) PLD 1976 Lab. 773 ' Corporation and another (1) and Parveen Malik v. The State (2). Parveen Mahk's case under the Defence of Pakistan Rules, 1971, was quashed by our brother Gulbaz Khan, J. There is also an unreported case Wazir All v. The State &Writ Petition No, 526/H of 1977), wherein certain offences under the Penal Code have been quashed by a Division Bench of this Court in the exercise of its extraordinary jurisdiction under Article 199 of the Constitution. ' The other two cases from American jurisdiction deal with the point of freedom of discussion. Right to express one's opinion is a part of freedom of speech in a public place. Mr. Shahzad Jahangir who appeared as amicus curiae in this case flied written arguments which are placed on the record,. He referred to a number of cases mentioned in the written arguments. He submitted that the preliminary objection regarding exercise of jurisdiction by this Court under Article 199 of the Constitution is not well-founde. He argued that from the facts of the case, looking from the evidence and the case-law it clearly appears that the action taken by the Authorities in arresting
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the three Advocates was illegal, without law ful authority and is not free from malice. Since the petition has not been contested by the Advocate-General on the instructions received by him, we have applied our mind and after going thoroughly into the record and the law have come to the conclusion that the arrest and detention of the detenus was illegal, without lawful authority and we cannot rule out malice therein. We will, however, refrain from giving finding on the question of malice in this case because the detenus have filed cases for damages against certain officials so that anyone of the parties may not be embarrassed before the trial Court. Malice has to be proved and onus is on the person who makes the allegation. We would not like to embark upon an enquiry in the exercise of our extraordinary jurisdiction under Article 199 of the Constitution. 3. The case pending before the Tribunal under Defence of Pakistan Rules arising from F. 1. R. No, 188 is quashed as no offence is made out from the material on the record before us. We accept both these petitions, but would not like to burden the respondents with costs as they have not contested these petitions. Mr. Shahzad Jahangir will be paid Rs, 2,000 whereas Mr. Abid Hassan Minto will be paid R s. 1,000. Before parting with this case we must place on record our deep appreciation of the assistan:e rendered to us by Mr. M. Anwar learned counsel for one of the petitioners. Mr. Shahzad Jahangir has also argued the case and assisted the Court with case-law. He also discussed the pros and cons of the cases before us with independence and vigour. We are grateful for his assistance. Unfortunately on the final date of hearing we could not avail of full assistance from Mr. Abid Hassan Minto, perhaps on account of his professional engagements out of Lahore, otherwise, he was also helpful during the time he remained present in Court. ' M. S. H. QURESHI, J.-This judgment incorporates our reasons for the acceptance of two petitions under Article 199 of the Constitution, namely, W. P. No, 568/77 filed on 25-3-1977 by Mr. Muhammad Inam Ullah Khan to challenge the arrest and detention of his son Mr. Aamer Raza A. Khan, President High, Court Bar Association, Lahore, and Vice-Chairman, Punjab Bar Council ; and W. P. No, 621/77 filed on 2-4-1917 by the Lahore High Court Bar Association, to challenge the arrest and detention of its (1) PLD 1977 Lab. 852 (2) PLD 1977 Lab. 1017 ' Members, viz. Aforesaid Mr. Aamer Raza A. Khan, Rana A. Rahim, also Member, Punjab Bar Council, and Mr. Gulzar Hassan. The three detenus bad been arrested from their respective houses in a pre- dawn sweep made by the police on 25th March 1977. It is alleged in the petitions that no warrants of arrest had been shown nor had any reason been given by the police at the time of their arrest in spite of enquiries made in that regard, that the arrest and detention was illegal being in violation of Article 10 of the Constitution and was also motivated by malice. It was, therefore, prayed that the detenus be directed to be produced befcre this Court in order that the Court may satisfy itself that they were not being held without lawful authority or in an unlawful manner. 2. In response to notice issued by the Court, Mr. D. M. Awan, the then Advocate-General, appeared and stated that the deteous bad been arrested in a case having been registered against them under rule 49 of the Defence of Pakistan Rules. In the written statement filed on behalf of the State, a preliminary objection was taken that the case being under the Defence of Pakistan Rules, a writ petition was neither competent nor maintainable. On merits, it was contended that a cognizable case having been registered, the persons arrested were not detenus but accused, that the case being cognizable, the police could effect the arrest without warrant and that in any case the reason for the arrest had been disclosed to all of them at the time of their arrest. The allegation of malice was also denied. Since motive had been alleged and the petitioners had asked for summoning certain officials to substantiate that allegation, a decision on the preliminary objection was deferred until the recording of the evidence. 3. At the Instance of the petitioners, the following officials were summoned and were allowed to be cross-examined
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' R. W./I.-Mr. Taqi-ud-Din Pal, Deputy Secretary, Home Department, Government of the Punjab, Lahore, on the basis of whose letter the relevant F. I. R. Had been entered ; ' R. W./2.--Rana Mukhtar Abmad, Ilaqa Magistrate, Old Anarkali, Lahore, who had remanded the detenu to custody till 7th April 1977 ; R. W./3.-Muhammad Yousaf, Sub-Inspector, P. S, Old Anarkali, Lahore ; ' R. W./4.-Riaz Hussain, D. S. P., Old Anarkali, Lahore ; and ' R. W./5.-Abdul Hamid Tahir, Inspector, P. S. Old Anarkali, Lahore. ' In the course of the hearing, an application was made on 7-4-1977 by Rana A. Rahim for summoning Mr. D. M. Awan, too, as a witness in Writ Petition No, 621/77. He accordingly appeared as R. W. 6. At the instance of the State Messrs A. H. Najafi (R. W. 7) and Zaffar Pasha (R. W. 8) were also examined. 4. Mr. Aamer Raza A. Khan had sent from the Jail a statement in writing dated 263-1977, which was later converted into an affidavit. For this reason, he appeared as P. W. 1 and offered himself for cross-exsminatioo, which was, however, declined by Mr. Asif Jan, learned Assistant Advocate- General, who was then conducting the case in place of Mr. D. M. Awan. 5. During the proceeding, the detenus' counsel, namely, Messrs M. Anwar knd S. M. Zafar, were arrested. On the other hand, Mr. D. M. Awan, learned Advocate-General, having been summoned as a witness, could not represent the State. In the circumstance, the Court called upon Messrs Shahzad Jahangir and Abid Hassan Minto, Advocates, to appear and assist the Court as amicus curiae. 6. From the evidence brought on record, it appears that a report (Exh. R. W. 1/4) was received by the Home Secretary from the Deputy inspector-General, Special Branch, Lahore, dated 24.3-1977 with the following content ' An emergent meeting of the Lahore High Court Bar Association was held at 12-30 p.m. On 22nd March 19 77. The meeting which was presided over by Mr. Aamer Raza A. Khan, President of the High Court Bar Association, adopted the following resolution :- ' We resolve to take out procession at 12-00 p.m. On Friday, the 25th March 1977 and give a call to all the Bar Associations of Pakistan to take out processions at that time on that day. ' The 26th March 1977 will be blackest day in the country when the so-called members of the National Assembly have to take oath in response to a call from Mr. Z. A. Bhutto who has lost confidence of the entire populace of Pakistan. We call upon the so-called members of the National Assembly not to attend the aforesaid meeting on 26th March 1977, the blackest day of Pakistan's History, otherwise, they will not be spared of the Wrath of God and our people. As patriotic Pakistanis, our hearts ache when we find quislings and ranked opportunists in our community. We call upon our fraternity to excommunicate such members whether in National Assembly or in Bar Council and force them to resign forthwith. All members of the Executive Committee including the office-bearers of the Association and Bar Councils should spear-bead the procession in a disciplined way' (2) It is also learnt that the aforesaid resolution is being sent to Press for publication in the newspapers. (3) Prima facie the resolution appears to attract the provisions of D. P. R. No, 49. The matter may please be examined with a view to take nesessary legal action in the matter' ' The Home Secretary passed on this report to his Deputy Secretary with the note "Please examine urgently". Deputy Secretary Taqi-ud-Din Pal, in consultation with the Law Department put up a note to the Home Secretary on the same date, I e., 24-3-1977, to the effect "The following elements appear to be the highlights of this resolution- (1) Hatred, contempt and disaffection towards the Government.
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(2) The members-elect of the National Assembly have been threatened with the Wrath of God and people if they attended the meeting of the National Assembly on 26th March 1977. (3) Lawyers have been incited to excommunicate the members-elect of the National Assembly who belong to their fraternity. (4) The threats and instigations made in this resolution cause fear to a section of lawyers community." ' The note goes on to say "In view of the present conditions it is apprehended that the implementation of this resolution is likely to adversely affect the law and order situation which has already become unsatisfactory due to civil disobedience launched by the Opposition against the Government. The resolution by itself appears to be actionable and any action in pursuance thereof will add to the criminal liability of the sponsors and participants, in addition to the undesirable effect on the normal life of the community." ' At the end of the note, the Deputy Secretary suggested that the D. I.-G. Of Police, Lahore, be asked to initiate action under the Defence of Pakistan Rules and appended for his guidance a draft F. I. R. The Home Secretary agreed with the note and, accordingly, the Deputy Secretary sent the draft F. I. R. (Exh. R. W.-1/2) with a covering letter dated 24.3-1977 (Exh. R. W.-1/1) to the Deputy Inspector- General of Police, Lahore. In the letter, it was mentioned that the contents of the resolution passed by the High Court Bar Association in their meeting held at 12-30 noon on 22-3-1977 and presided over by Mr. Aamer Raza A. Khan, came within the mischief of clauses (e). (h), (o) and (p) of rule 42 of the Defence of Pakistan Rules and as such punishable under rule 49 of the said Rules. It was further stated in the letter that "Messrs Gulzar Hassan, Advocate, Temple Road, Lahore and Rana - Abdul Rahim, Advocate, Lytton Road, Lahore are said to be the proposer and secondor respectively of this Resolution." ' The letter ended with a request for Immediate necessary action with intimation to the Department. 7. The draft F. I. R. Sent by the Deputy Secretary which formed the basis of the first report entered by the police reais as below : "1 have come to know from relable sources that an emergent meeting of the General House of the Lahore High Court Bar Association was convened on March 22, 1977 at 12.30 p.m. At t e instance of Mr. Aamer Raza A. Khan, President of the High Court Bar Association who also presided the said meeting. The said meeting was called in support of the unlawful activities and the movement launched by the members of the 'Pakistan National Alliance' after their defeat in the general elections held on 7th March 1977. Mr. Aamer Raza A. Khan not only presided the said meeting but also encouraged certain members of the High Court Bar Association and manoeuvred the passing of a Resolution to the effect- "We resolve to take out procession at 12-00 p.m. On Friday the 251 March 1977 and give a call to all the Bar Associations of Pakistan to take out processions at that time on that day. ' The 26th March 1977 will be blackest day in the country when the so-called members of the National Assembly have to take oath in response to a call from Mr. Z. A. Bhutto who has lost confidence of the entire populace of Pakistan. We call upon the so-called members-elect of the National Assembly not to attend the aforesaid meeting on 26th March 1977, the blackest day of Pakistan's history otherwise they will not be spared of the Wrath of God and our people. As patriotic Pakistanis, our hearts ache when we find quislings and ranked opportunists in our community. We call upon our fraternity to excommunicate such members whether in National Assembly or in Bar Council and force them to resign forthwith. All members of the Executive Committee including the office-bearers of the Association and Bar Councils should spear-head the procession in a disciplined way.{{URDU TEXT}}
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' The encouraging, inducing, abetting and allowing the members of the Lahore High Court Bar Association to pass the afore-quoted Resolution amounts to prejudicial acts within the meaning of paragraphs (e), (h), (o) and (p) of sub-rule (6) of rule 42 of the Defence of Pakistan Rules, 1971. ' In view of the unlawful activity of the members and the supporters of the Pakistan National Alliance and the consequential political disturbances obtaining in the country, the gravity of the prejudicial acts, referred to above is further enhanced. Under the circumstances, a case is hereby registered against the said Mr. Aamer Raza A. Khan under the provisions of paragraphs (e) (h) (o) and (p) of sub-rule (6) .Of rule 42 read with rule 49 of the Defence of Pakistan Rules, 1971." ' It may be noted that the portion written in Urdu is by pencil at the foot of the first page. It is also unrelated to the context because the names of Rana A. Rahim and Mr. Gulzar Hassan do not figure anywhere else in the draft F. r. R. And also because the direction to register a case was only against Mr. Aamer Raza A. Khan. This pencil insertion also does not appear at all in the office copy of the draft P. I. R. 8. On receipt of the letter and the draft F. I. R. From the Deputy Secretary, a case was registered under F. I. R. No, 188 at P. S. Old Anarkali at 12-30 a.m. On 25-3-1977. A police party headed by Inspector Abdul Hamid Tahir raided the respective houses of the detenus and effected their arrest. Riaz Hussain, D. S. P., also joined the raiding party at the house of Mr. Aamer Raza A. Khan, who was last to be arrested. The detenus were taken to Badami Bagh Police Post and after obtaining remand from the Ilaqa Magistrate, they were taken to and lodged in Camp Jail, Kot Lakhpat. 9.The resolution in question had been passed by the High Court Bar Association, Lahore, in an emergent general meeting convened on requisition sent by a number of its members on 22-3-1971. The name of Mr. Gu'zar Hassan only appears among those members. Mr. Aamer Raza A. Khan, the President of the Association, noted on the requisition. In view of the fact that 23rd is a holiday, let the meeting be called for today at 12-30 noon." ' The meeting was accordingly held and the resolution (Exh. P. W. 1/i) as incorporated in the D.I.G report, reproduced in para. 6 ante, was passed. 10. It was submitted on behalf of the petitioners that Mr. Aamer Raza A. Khan had no hand in the passing of the resolution except that he had presided at the meeting requisitioned by certain members of the Bar, which he had to do as a matter of duty under rule 29 of the Rules of the High Court Bar Association, Lahore, and as such he could not be said to have "encouraged", "induced" or "abetted" the passing of the resolution ; that the resolution taken as a whole did not attract any of the provisions of the Defence of Pakistan Rules contained in clauses (e), (h), (o) and (p) or any other clause of sub-rule (6) of rule 42 of the said Rules, and as such the participation of the detenus, if any, in the passing of the resolution could not inculpate them in any manner, whatsoever ; that only the three detenus had been picked up from among the large number of members who had voted for the resolution ; and that although another resolution similar in substance had been passed by the Punjab Bar Council under the chairmanship of Mr. D. M. Awan, but no action had been taken on that account. It was, therefore, submitted that the action of the authorities was not only discriminatory but also mala fide and malicious in attributing to them a role which was not warranted by the facts and in implicating them in offences which they had not committed. It was also urged that the arrest and the detention of the detenus was effected in a highhanded and unlawful manner. 11. The resolution of the Punjab Bar Council to which the petitioners referred had been passed in a meeting of the Council held on 19-3-1977 and presided over by Mr. a M. Awan, then Advocate- General, Punjab and ex officio Chairman of the Council. The resolution which had been proposed by Mr. Bashir Ahmad Khawar and seconded by Mirza Abdul Ghafoor Barg is in the following words (Exh. R. W.-1/8)
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"The Punjab Bar Council views with grave concern the constitutional crisis. Resulting out of the general elections held on 7th and 10th March 1917. ' There is strong basis for the belief that there has been serious malfunctioning in the electoral process and the Election Commission and the Executive have failed in their constitutional obligation to ensure honest, just and fair election. This belief is supported by the resolutions passed by various Bar Associations in Pakistan which represents informed opinion, and there is also no doubt in the public mind regarding this fact as has been manifested by the boycott of the Provincial Elections on 1Cth March, 1977 and the strike of 11th March 1977 and also from the subsequent public reaction which is evident in every nook and corner of Pakistan. ' This Council is further of the opinion that it was the constitutional obligation of the Election Commission and the Executive to ensure honest, just and fair election and in having failed to do so they have violated the Constitutional mandate and the results so far declared on the Radio and T. V. Are not reflective of public opinion. ' This Council calls upon the Election Commission and the Government to take immediate remedial steps to ensure that the National Assembly and the Provincial Assemblies are constituted of persons representing / the electorate and in this behalf calls upon them to annul the elections of 7th and 10th March, 1977. ' This Council takes serious note of the current public unrest and condemns the use of force and violence on the peaceful citizens of Pakistan who are doing no more than asserting their Constitutional and Political rights as guaranteed to them under the Constitution. ' This Council condemns the imposition of section 144 by order of the Federal Government throughout the country and is of the view that the imposition is illegal and mala fide. ' This Council also condemns the recent wholesale arrests of the citizens of Pakistan including the arrest of the leaders of the National Alliance parties, as such action will only be counter productive and will further aggravate the political crisis and hereby calls upon the Government to release them all forthwith. ' This Council endorses the Resolution passed by the Lahore High Court Bar Association on 9th March 1977. ' In order to further the aims and objectives…
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