Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MRS. HABIBA JILANI VS Respondent: THE FEDERATION OF PAKISTAN THROUGHTHE
Court Name: Lahore High Court Judge(s): Nasim Hasan Shah, Muhammad Siddiq Title: MRS. HABIBA JILANI vs THE FEDERATION OF PAKISTAN THROUGHTHE Case No.: Writ Petition No. 1299 of 1973 Date of Judgment:1973-10-24 Reported As: PLD 1974 Lahore 153 Result: Petition dismissed
JUDGMENT
JUDGMENT NASIM HASAN SHAH, J.--This is a second writ petition filed by the wife of Major-General (Rtd.) Mian Ghulam Jillani to question the detention of her husband. The first writ petition (W. P. No. 380/73) was found to have become infructuous by this Court, on 23-6-1973, because the detaining authority had by its order dated 21-6-73 revoked the order of detention dated 9-6-1973, whereby the detenu was continuing to be kept in detention. 2. The facts, which form the background to the present writ petition, an usefully be gathered by reference to the interim order made in writ petition No. 380/73 by this Court on 23-4-1973: "The facts, about which there is no controversy are that the detenu was taken into custody on 15-2- 1973 in village Jamrud. He was brought to Rawalpindi and thereafter brought in the early hours of the 16th February to the Lahore Fort and lodged in the jail portion thereof. This detention was in pursuance of the orders of the Central Government passed on 15-2-1973 under rule 32(l)(b) of the Defence of Pakistan Rules for a period of one month. He was duly supplied the grounds of detention as required by Article 9(5) of the Interim Constitution so as to enable him to make a written representation against the order of his detention and his case was actually referred to the relevant Advisory Board, on 21st February 1973. The grounds on which the detention was ordered are as follows :------- "(1) Following the discovery of large stock of arms and ammunition at the Iraqi Embassy in Islamabad on Saturday the 10th February 1973, and consequent investigations which have been undertaken throughout the country, you tried to flee the country on Wednesday the 14th February 1973, through the Tribal area and surrendered only when the place was surrounded by the civil armed forces.
---
## Page 2
(2) You had been in contact with the Indian Embassy officials in a neighbouring country and had even gone to the extent of suggesting to them that if the Indian Army attacked West Pakistan during November/December 1971, a dissident group within Pakistan would avail of the opportunity to rise in armed revolt against the Govern--ment. (3) Government have reliable information that illicit arms for use in N.-W. F. P. Had already arrived and stored at tactical points and youn-gmen were being given training in the use of guerrilla weapons. Since you are head of a militant organisation, Government is convinced that you, in league with the guerrillas trained in a foreign country, were preparing for an armed revolt. (4) In view of past actions and high position that you hold as head of the "Zalme Pakhtoon" a militant organisation, there is a real danger that you are likely, if at liberty to act in a manner prejudicial to the security, public safety and interest of Pakistan and the maintenance of peaceful conditions therein. The detenu vehemently contested the correctness of the allegations made in the above grounds. He was eventually produced before the Advisory Board on 12-3-1973 but no order was passed by it about the question whether any sufficient cause for his detention existed or not. Meanwhile, on 26-2-1973 the wife of the detenu moved a petition under Art. 201 of the Interim Constitution before this Court challenging the validity of the detention praying that the detenu be ordered to be brought before this Court and his arrest and detention be declared as without lawful authority. The matter, thereafter came up before the Court from time to time and several interlocutory orders were passed, the details of which are not relevant here. Suffice it to say that under our orders, the petitioner and her ,counsel were allowed to interview the detenu whereafter the petitioner submitted an affidavit disclosing some further facts and thereafter also submitted an amended petition. On behalf of the respondents affidavits were submitted by Mr. A.I Asghar, Secretary, Ministry of Interior States and Frontier Regions. M. Aslam Hayat, Deputy Inspector- General of Police, Special Branch, Lahore, and Mr. Saeed Ahmad Khan, Chief Security Officer to President of Pakistan to refute certain allegations contained in the affidavit of the petitioner and also a written statement signed by Mr. Zia Hussain, Deputy Secretary in response to the amended writ petition. By our order dated 21-3-1973, respondent No. 1 was directed to produce the detenu in Court on 27- 3-1973 on which date Messrs A.I Asghar, Aslam Hayat and Saeed Ahmad Khan were also ordered to be in attendance. When the detenu was produced on 27-3-1973 the counsel for the petitioner requested that the statement of the detenu may be recorded first, even before examining the above three officers. We accordingly proceeded to record his statement and his examination-in- chief continued uptill 29-3-1973. On its conclusion the learned Advocate-General, Punjab, instead of commencing the cross-examination, prayed for time to obtain complete instructions to cross- examine the detenu as his statement had covered a wide range of subjects. The case was accordingly adjourned to 10-4-1973. Meanwhile on 9-4-1973, the present petition for the release of the detenu pendente lite was moved." 3. Two pleas were advanced in support of the prayer for bail:------ "(1) That in so far as the detention of the detenu had exceeded one month without the appropriate Advisory Board advising that in its opinion sufficient cause for his detention existed, his continued detention was without lawful authority; and (2) That the grounds on which the detention was founded were entirely baseless and absurd. Hence the detenu was being held in custody in an unlawful manner." 4. It was found that in so far as the Advisory Board had not given an affirmative finding within the period of one month that the continuation of the detenu's detention was justified, the order dated 12-3-73, whereby detention period was extended, after the expiry of the first one month, for a further period of three months, the detenu's detention had indeed become prima facie unlawful.
---
## Page 3
With respect to the second plea, it was observed that on the facts so far disclosed, there was not enough material to satisfy a reasonable person that the detention was justified. The detenu was, there--fore, ordered to be released on bail. 5. The above interim order was challenged by the respondents before the Supreme Court. The said learned Court was, in the first instance, pleased to suspend the operation of the said order and finally by its order dated 9-5-1973 was pleased to observe as follows:------- "This order of bail is in the nature of an interim order on a writ petition filed to challenge the validity of the order of detention. The writ petition itself has not yet been completely disposed of and is fixed for hearing in the High Court on the 16th of this month when it is to be heard on merits. The learned Attorney-General has conceded that the High Court can notwithstanding the notification under clause (2) of Article 139 of the Interim Constitution suspending the right to move any Court for the enforcement of a fundamental right conferred by Chapter I of Part II of the said Constitution still entertain the writ petition and hear it on merits, namely, to ascertain as to whether the detention is being made on relevant and sufficient grounds under the Defence of Pakistan Rules. 6. The matter, therefore, was taken on 16th May 1973, by this Court again. The evidence of the remaining witnesses was recorded. During the pendency of the proceedings before this Court, the period of the detention of the detenu was again extended for a further period of three months vide order dated 9-6-1973. On 22-6-1973, when arguments in the case had practically concluded, the detenu informed us that early that morning, he was served with an order dated 21-6-73 that the Federal Government had revoked with immediate effect the order dated 9-6-73 in respect of his detention and that simultaneously he was served with another order, bearing the same date, to the effect that the Federal Government had directed that he be again detained for a period of three months from 22-6-73. In view of the fact that the orders of detention stood revoked and a fresh order of detention had been passed, we found, vide our order dated 23-6-73, "that the detention as also the orders in justification of it, which were being challenged, stand revoked and a fresh order had been passed and it is necessary to challenge the said order by a proper application if it is desired to get rid of its effects." The over-all conclusion was that the writ petition had become infructuous and was disposed of accordingly. 7. The petitioner did not challenge the above decision by way of appeal before the Supreme Court but filed the present writ petition to challenge the detention of her husband in pursuance of the order dated 21-6-73 on the ground that he is being held in custody without lawful authority and in an unlawful manner. Meanwhile the respondents are stated to have withdrawn their appeal preferred before the Supreme Court, against the interim order passed by us on 23-4-1973. 8. It may be relevant to mention that after the detention order dated 21-6-73 was passed and the supply of fresh grounds of detention which were furnished to the detenu on 25-6-1973, the Advisory Board examined his case; firstly, on July 14, 1973, and found that his continued detention was amply justified. As a result thereof, the order of detention was extended for a further period of three months i.e. Up to 21st September 1973. Before the expiry of the said period, the Review Board, constituted under Article 10 of the present Constitution, again examined the case of the detenu (either on 8th or 10th September 1973), and came to the conclusion that "there were sufficient reasons for the detention of General Jillani". Thereafter, another order of detention was passed (on 17th September 1973), extending the period of detention by another period of three months, namely from 21st September 1973 to 21st December 1973. 9. The grounds on which the detenu now stands detained and which were served on him on the 25th June 1973, are to the following effect; "You, Maj-General (Rtd.) Mian Ghulam Jilani, have been ordered to be detained for a period of three months by the Federal Government under clause (b) of sub-rule (1) of rule 32 of the Defence of
---
## Page 4
Pakistan Rules vide Interior Division Order No. 10/8/73-Poll.I(1), dated the 21st June 1973, with a view to preventing you from acting in a manner prejudicial to the security of Pakistan, public safety and maintenance of peaceful conditions therein on and for the following grounds:----- (1) You tried to flee from Pakistan on the 14th February 1973, through the Tribunal Area as you had been in contact with the Indian Embassy officials in a neighbouring country and had even gone to the extent of suggesting to them that if the Indian Army attacked West Pakistan during November- December 1971, a dissident group within Pakistan would avail of the opportunity to rise in armed revolt against the Government. You surrendered only when the area was surrounded by the civil forces. (2) Government have reliable information that illicit arms for use in N.-W. F. P. Had already arrived and stored at tactical points and young-men were being trained in the use of guerilla weapons. Since you are commander of a miliant organisation, Government is convinced that you, in league with the guerilla's trained in a foreign country, were preparing for an armed revolt. (3) In view of past actions and high position that you hold as Commander of the "Zalme Pakhtoon", a militant organisation, there is a real danger that you are likely, if at liberty, to act in a manner prejudicial to the security of Pakistan, public safety and maintenance of peaceful conditions therein." The above grounds for your detention are being communicated to you as required by Article 9(5) of the Interim Constitution to enable you to make a written representation against the order of your detention which should be addressed to the Secretary, Interior Division, Islamabad, if you so desire. 10. The grounds, that have been served upon the petitioner with the latest order of detention, are in identical terms with the above grounds. Consequently, the detenu is being detained in custody on account of---- (a) his abortive attempt so flee Pakistan on the night of 14-2-73 to a `neighbouring' country, where he had contacts with the officials of the Indian Embassy;--- (b) his alleged supervisory role in guerilla training and storage of arms at tactical points; and (c) his `high position' in Zalme Pakhtoon a militant organisation. 11. Mr. Mahmud A.I, in support of this petition firstly, submitted that the grounds upon which the detention purports to have been ordered and the material placed on the record in support of them are not sufficient to satisfy any reasonable person that on their basis detention for the purposes of rule 32 of the Defence of Pakistan Rules could be ordered. In this con--nection, each one of the three grounds was separately discussed by him and it was argued that none of the said grounds was believable. With regard to ground No. 1, it was submitted that the alleged conduct of the detenu in trying to flee from the country was directly connected, in the earlier set of detention orders, with the discovery of arms in the Iraqi Embassy. With the admission that the detenu had no connection with. The arms that were recovered, the ground, as presently laid became ridiculous. It was argued that as the detenu had nothing to do with the recovery of arms from the Iraqi Embassy, he had no cause to flee from the country. The attempt made in the present ground to connect the act of fleeing on the evening of 14th February 1973, with the alleged contacts of the detenu with the officials of the Indian Embassy in Afghanistan lacked logic. Moreover, there was no material to show that the detenu was anxious to meet the officials of the Indian Embassy, on a particular date, namely, the 14th February 1973, or around that date and for that reason he was impalled to rush to the Tribal Area. In this behalf, reliance was placed on the statement made by the detenu, in the course of the proceedings of the earlier writ petition (which was allowed to be read as evidence in this case), in which he had made mention of his meritorious services for the cause of Pakistan, his offer to fight the Indians during the December War of 1971 and wherein the purpose of his visit to the Tribal Area on the evening of the 14th February 1973 was explained at some length. Herein, furthermore, the manner in which he had come along, of his own free will, with
---
## Page 5
the Political Agent to Jamrud Port, from where he was later arrested was also mentioned. All these circumstances were relied upon to falsify the allegations made in the first ground. 12. The veracity of ground No. 2 was assailed on the reasoning that there was no material in support of it. In this connection, it was pointed out that no illicit arms had been unearthed in the N.-W. F. P., that the allegation that the detenu was a Commander of a militant organisation was totally false and that the further allegation that he was preparing for an armed rebellion was equally false and, in fact, insulting. 13. Similarly, it was asserted, that the third ground was fallacious. In this connection, it was submitted that it was based on the assumption that the detenu was a Commander of the "Zalme Pakhtoon", which allegation was not true. The assumption, furthermore, that the "Zalme Pakhtoon" was a militant organisation was equally devoid of truth because the said organisa--petition was of the same character as the "Peoples Guard" (maintained by the Pakistan Peoples Party) or the "National Guards" (maintained by the Muslim League Organisation) and the functions of this body were to assist in the orderly organisation of public meetings and to perform duties of Social Welfare. In any case, the detenu had absolutely no connection with the said organisation. On these premises, it was argued that the detention of the detenu was wholly unjustified and no reasonable person could hold in custody a citizen, albeit an elected representative of a Provincial Assembly, on the basis of such grounds. 14. Mr. M. B. Zaman, Advocate-General, Punjab, -placed on record six documents which, according to him, along with other material, had been considered by the detaining authority before passing the order of detention. The document marked "H" dated 15th February 1973, contains the reports sent by one of the Intelligence Services from Peshawar and Quetta about what was happening in these two provincial capitals on the 14th and 15th February 1973. Some of the messages sent on the 14th February 1973, are relevant and these may be reproduced hereunder with advantage:----- "Major-General Jilani (Rtd.), M.P.A., reportedly crossed into tribal territory through Jamrud Check Post 21-25 hours comma possibly in tribal Malik Aliman Shah's vehicle (,) appeared to be in panic (.) IGFC & DDI Peshawar alerted (.) at 21-40 hours S-G Defence asked G.H.Q. To have the retired General intercepted by CAF (Civil Armed Forces). (a) - ------------------------------- Ajmal Khattak likely to go into hiding(.)" Before the above reports about General Jilani's crossing into Tribal territory were received, counsel submitted that Government had been receiving reports that he had been meeting Indian Diplomats in Kabul and enjoying their hospitality. A report sent by the Indian Military Attache at Kabul to his Government, according to which the detenu had suggested that in addition to any military move in East Pakistan, .The Indian Army may attack West Pakistan during November/December 1971, and that he expected that in the event of the destruction of the Punjabi Army Machine by the Indian Army Forces, the Pakhtoons would not miss the opportunity to stage an armed revolt had also been intercepted. (Document `C'). In this background, when the suspicions of the Government had already been aroused about the activities of the detenu his conduct in fleeing, in a state of panic, towards Afghanistan on the 14th February 1972, served to confirm the suspicions already entertained about him. In any case, it was submitted, cogent material did exist in support of ground No. 1. 15. As regards ground No. 2, reliance was placed on the information supplied by a friendly power about the arrival of arms, training of youngmen in their use and the designs of these elements to wage a battle against the Central Government of Pakistan. (Documents B, B/1 and B/2). He also relied upon ; secret report to the effect that the detenu had been appointed as a Commander of the "Zalme Pakhtoon" for West Pakistan in accordance with a decision taken at a party conference
---
## Page 6
in Karachi (Document `E'). It was accordingly submitted that there was sufficient material to support the allegations contained in ground No. 2. 16. As regards the allegations contained in ground No. 3, reliance was placed on document `E', already referred to above. As for the allegation that "Zalme Pakhtoon" was a militant organisation, reliance was placed on the statement made in the course of the earlier writ petition by Mr. Saeed Ahmad Khan, Chief Security Officer to the President and Mr. A.I Asghar, Interior Secretary to the Government of Pakistan. 17. Before examining the relative merits of the, arguments of learned counsel for the parties, with respect to the first contention of Mr. Mahmud A.I, it would be convenient to refer to the other contentions raised by him and the stand of the respondents in regard to them. 18. It was contended- by the counsel for the petitioner that the action against the detenu was taken only on the basis of suspicion. In this con--nection, the following portion of the affidavit of Mr. A.I Asghar, submitted on 17-4-73, in the earlier writ petition, was strongly relied upon; "That the allegation in regard to, apprehend indulgence in activity prejudicial to the security, public safety and interest of Pakistan and maintenance of peaceful conditions therein is amplified by stating that Maj.-Gen. (Rtd.) Mian Ghulam Jilani was suspected to be fleeing from the country on the night between 14th and 15th February 1973; /was believed to be in contact with the Indian Embassy in a neighbour--ing country; and as a Commander of a militant organisation called "Zalme Pakhtoon" was suspected to have connections with guerillas being trained in a foreign country. It was, therefore, necessary to detain him under the Defence of Pakistan Rules." Keeping in view the words underlined above, it was suggested that the action was based simply on suspicion. Hence, the situation was governed by rule 208 of the Defence of Pakistan Rules and not rule 32 whereunderaction was taken. Under rule 208, the maximum duration for which the authority, other than the Central Government can detain a person on reasonable suspicion is 15 days while the Central Government itself can detain a person on this basis for two months at the maximum. It was submitted that apart from the fact that the present case was not even a case of reasonable suspicion but of mere suspicion, even if there was a reasonable suspicion, the maximum period for which the detention could be ordered was two months. As the maximum period prescribed for detention on the basis of suspicion was already over, the detenu could not be kept in detention by the Central Government any longer. Mr. M. B. Zaman's reply to this contention was that in so far as the present order of detention was concerned the affidavit of Mr. A.I Asghar was not in point, because the order presently in force was not passed by him, but was passed by the President of Pakistan. In the instant case, the affidavit filed by Mr. S. S. Zafar, Section Officer, Ministry of Interior, was relevant and according to him:---- "That the President of Pakistan was satisfied that with a view to prevent--ing Mian Ghulam Jilani from acting in a manner prejudicial to the security of Pakistan, Public Safety and maintenance of peaceful con--ditions therein it was necessary to arrest and detain him and the President of Pakistan passed the order for his detention under rule 32(1)(b) of the Defence of Pakistan Rules . . . . ." He further deposed:------ "That the grounds served on the detenu are correct and the order of detention was passed by the President of Pakistan on the basis of material and information which was available with him and which he believed to be correct and genuine." Accordingly, even if the order of Mr. Asghar A.I may have been passed on the ground of suspicion, President Bhutto, when he passed the order of detention, was satisfied of the correctness of the grounds upon which the order of detention was founded. Hence rule 208 of the Defence of Pakistan Rules had no application.
---
## Page 7
19. Mr. Mahmud A.I further argued that there was a deliberate refusal by the detaining authority to examine a version which was placed before this Court and of which it was also made aware. In this connection, learned counsel drew attention to the affidavit of the petitioner filed on 5-3-1973 in which the version of the detenu was set out, namely, that he had gone to the tribal areas with a view to visiting some friends, that the persons on duty at Jamrud barrier had been informed beforehand about the intending visit (a fact which was later confirmed by the report of the Political Agent), that he intended to return the next day which was evident from the circumstance that he was not carrying any money with him nor had taken any clothes, which was the least he would have done if he intended to flee from the country. As for the allegation that he appeared before the Political Agent on the evening of 15th February 1973, only after the situation had become too hot for the tribal Maliks who were hiding him, on account of the action of the civil armed forces, it was averred that as he had spent the night in village Kadam and not in Jamrud and he was not aware that any body was looking out for him and that as soon as he learnt that the Political Agent was looking for him, he drove to the Hujra of Malik Aliman Shah in Jamrud. The argument was that although this version was before the detaining authority, no effort was made to verify it. The following portion of the statement of Mr. A.I Asghar, made in the earlier writ petition, was especially relied upon:------ "Q.-I read to you the affidavit of Mrs. Jilani dated the 5th of March 1973 and the…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.