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Petitioner: KAZI MOHIUDDIN VS Respondent: GOVERNMENT OF EAST PAKISTAN
P L D 1965 Dacca 514
P L D 1965 Dacca 514
Before Baquer and .4. Subhan Chaudhry, JJ
Kazi MOHIUDDIN‑Petitioner
Versus
GOVERNMENT OF EAST PAKISTAN AND OTHERS‑Respondents
Petitions Nos. 304 and 307 of 1964, decided on 26th August 1964.
(a) Criminal Procedure Code (V of 1898),
S. 491‑Habeas corpus, petition for‑Detention of person under preventive law by successive orders‑Court to see whether last order of detention' legal or not‑Valid order of detention in existence‑Court cannot order detenu to be set at liberty simply because at some prior stage there had been no valid cause for detention‑East Pakistan Public Safety Ordinance, 1958, Ss. 17 & 41.
Arbab Muhammad Hasham Khan v. The Crown 6 D L R (F C) 1; Sardar Fazlul Karim v. Government of East Pakistan 8 D L R 700 and (1952) S C A 230 ref.
(b) East Pakistan Public Safety Ordinance, 1958,
Ss. 17 & 41 ---Cruel treatment and hours long protracted interrogation of detenu --Not warranted.
H. H. Choudhry with S. R. Pal, H. h. Choudhry, M. M. Haq and Shamsul Haq Choudhry for Petitioner (in Petition No. 304).
Mirza Md. Golam Hafez with M. M. Haq and Shamsul Haq Choudhry for Petitioner (in Petition No. 307).
K. Hussain with S. M. Abbas for Respondent No. 1.
Dates of hearing 7th, 10th, 11th, 12th and 13th August 1964.
JUDGMENT
BAQUER. J.‑--Petition No. 304 of 1964 and Petition No. 307 of 1964 under section 491 of the Code of Criminal Procedure relating to detenus Kazi Zafar Ahmed and Anisuzzaman respec tively are being disposed of together by this one judgment.
The petition in No. 304 of 1964 is directed against the order dated the 15th June 1964, passed under section 17 (1) (a) of the East Pakistan Public Safety 'Ordinance 1958, as amended by East Pakistan Act VI of 1962.
The petition in No. 307 of 1964 is directed against the order dated the 21st May 1964 passed under section 17 (1) (a) of the East Pakistan Public Safety Ordinance, 1958, as amended by Act VI of 1962.
The allegations in Petition No. 304, in substance, are to the effect that on 28‑5‑64 detenue Kazi Zafar Ahmed appeared before the Court of the Sub‑Divisional Magistrate, Dacca, in a criminal case under section 151 of the Code of Criminal Procedure and while he was returning home after attending the Court, he was arrested without warrant in the Court compound by two plain dressed police constables at about. 5 p. m. on 28‑5‑64. Kazi Zafar Ahmed having asked the arresting police as to whether there was any warrant of arrest against him, he was simply told that he was under arrest under section 41 (1) of the East Pakistan Public Safety Ordinance, 1958 for which no warrant of arrest was required; that the said detenue was detained within the Court compound and at about 6‑30 p. m. of the same day he was taken to the office of the Additional Superintendent of Police, District Special Branch, Dacca and was detained and interrogated throughout the night and the next day, namely up to 1 p. m. of 29‑5‑64. During the period of arrest namely 5 p. m. of 28‑5‑64 till about 1 p. m. of 29‑5‑64 the said detenue was subjected to continuous and uninterrupted interrogation and was not allowed to sleep. On 29‑5‑64 at about 1‑30 p.m. he was committed to the Dacca Central Jail where he is now detained. The petitioner representing the detenue had an interview with the detenue on 4‑6‑64 and he was told by the detenue that no order of arrest and detention was served upon the detenue till that day, i.e., 4‑6‑64 and that the detenue was arrested under section 41 (1) of the East Pakistan Public Safety Ordinance.
It has been stated in the petition that on 8‑6‑64 the petitioner on behalf of the detenue moved a petition under section ‑491 of the Code of Criminal Procedure before Mr. Justice Siddiqi and Mr. Justice Salahuddin Ahmed for the release of the detenue complaining that the detenue was illegally and improperly detained in the Dacca Central Jail and also challenging the validity of the said section 41 (1) of the said Ordinance and the arrest and detention thereunder. The validity of the said section of the said Ordinance was challenged on the ground that it did not provide for making a representation against the arrest and detention and also for supplying of grounds of detention and also denied the right of the detenue to have his case reviewed by the Advisory Board; that the said section 41 imposed unreason able restrictions on the movement of the detenue and that the said section, therefore, offended against the provision of Chapter on Rights Article 2 (5) and Article 7 of the Constitution. A Rule Nisi was issued and when the rule came up‑for hearing on 18‑6‑64 it was adjourned by the Court till 23‑6‑64 on the joint prayer of both the parties, and it appears that this rule was ultimately not pursued and the rule was discharged. Once again before us the initial arrest and detention of the detenue under section 41 of the Ordinance has been characterised as illegal, and it has been argued that section 41 of the said Ordinance militates with the Articles 1, 2, 5 and 7 of the Constitution.
It has been argued that the detenue was not produced at all before any Magistrate in violation of the Constitutional right guaranteed by the Chapter on Rights, Article 2 of the Constitution of Pakistan as amended and as such, the arrest and detention of detenue Zafar Ahmed under section 41 of the Ordinance was illegal and that no grounds of detention were served on the detenue during his detention from 28‑5‑64 to 14‑6‑64, and as such, his detention during the said period was illegal and further that the impugned order of detention dated 15‑6‑64 under section 17 of the Ordinance is an extension of the initial illegal detention under section 41 inasmuch as the order of detention dated 15‑6‑64 takes effect from the first date of arrest and deten tion, and that as the initial arrest and detention was illegal, its extension was also illegal. Further that the impugned order of detention under section 17 (1) (a) of the Ordinance is itself bad and mala fide and vague and indefinite. Further that there was inordinate delay in serving the grounds of detention to the detenue who was first arrested on 28‑5‑64 and detained in Jail on 29‑5‑64; that the grounds of detention under section 19 of the said Ordinance as served on the detenue are vague and indefinite and the particulars given therein are such as to render effective representation impossible.
It has been stated in the affidavit in opposition that the detenue was arrested under section 41 (1) of the East Pakistan Public Safety Ordinance, 1958 by the Additional Superintendent of Police, respondent No. 2 and that police officer (not below the rank of Sub‑Inspector) has power to arrest any person without any warrant whom he reasonably suspects of having done or of doing or of being about to do a prejudicial act; that the detenue was not put through any protracted interrogation and that he was not asked to sign any prepared statement and that so far .as the detention under section 41 goes, it called for no reply inasmuch the detenue was no longer under arrest under section 41 (1) of the Ordinance and that at present the subject matter of the petition is the order of detention passed by the respondent No. 1 under section 17 (1) (a) of the Ordinance which is a distinct and independent order and that the rule obtained with regard to the vires of section 41 (1) of the Ordinance having been discharged, the said subject‑matter could not be re‑agitated again in this petition and that the detenue having been arrested under the East Pakistan Public Safety Ordinance, 1958 with a view to preventing him from indulging in prejudicial activities, he was not required to be produced before a Magistrate in terms of sub‑para. (2) of para. 2 of Chapter on Rights of the Constitution which excluded the provisions of sub‑paras. 1 and 2 by reason of 3 (b) of the Chapter on Rights. It has been further stated that a person arrested under section 41 (1) of the Ordinance could be detained in Jail for a period of 30 days and even 60 days by order of Provincial Government and in the present case the order under section 17 (1) (a) of the Ordinance having been passed by the respondent No. 1 after a little over a fortnight, there was no delay. It has also been denied that the grounds supplied are vague and indefinite and in the supple mentary affidavit in opposition it has been stated that the detenue was permitted to attend in person before the Board constituted under the East Pakistan Public Safety Ordinance on 1‑8‑64 and that the Board gave hearing and perused the record and reports which were placed before it and the Board there after reported to the Government that in its opinion there were sufficient grounds for his detention. On receipt of the aforesaid report, fresh order of detention dated 8‑8‑64 along with the grounds has been issued. The affidavit in reply is practically repetition of the allegations in the petition.
The allegations in Petition No. 307 of 1964 are that the detenue Anisuzzaman was arrested without warrant at 3‑30 a. m. on 11‑5‑64 and that he is now illegally and improperly detained in the Dacca Central Jail. It is alleged that the detenue was returning home from his work in his office at the Azad Press in the company of one Mr. Shamsul Haq Khan, a compositor in the said press and when they had approached his residence, some unknown police man stopped the detenue and told him that he was under arrest, as he was wanted by the police. On being asked the reasons, the police informed him that he was under arrest under the provisions of section 41 of the East Pakistan Public Safety Ordinance, 1958, that after arrest he was taken to the Lalbagh Police Station and thereafter to the Additional Superintendent of Police of Dacca District Special Branch where the detenue was interrogated and a long statement was taken from him in the presence of the Additional Superinten dent of Police and at about 11 a. m. of that day, namely, 11‑5‑64 the detenue was taken to the Dacca Central Jail. The petitioner on obtaining permission from proper authority interviewed the detenue on 14‑5‑64 and was informed that the detenue did not receive any order of arrest issued by the Govern ment nor was any ground of detention served on him. It has been stated that the detenue has been in bad health presently in jail hospital. It has been stated that the petitioner moved a petition in this case also before Mr. Justice Siddiqi and Mr. Justice Salahuddin Ahmed for the release of the detenue complaining that the detenue was illegally and improperly detained in the Dacca Central Jail and also challenging the validity of the said section 41 (1) of the said Ordinance and the Via, arrest and detention made thereunder. The validity of section 41(1) of the Ordinance was challenged on the ground that it did not provide for making representation against the arrest and detention and also for supplying of grounds of tension and also denied the right of the detenue to have his case reviewed by the Advisory Board. The Rule Nisi as issued on 1‑6‑64 by their Lordships was in this case made returnable within 7 days i.e., within 8‑6‑64. It has been stated that when the said petition came up for hearing on 8‑6‑64, the learned Advocate- General appeared on behalf of the respondents and prayed for time to file affidavit‑in‑opposition stating that the detenue would be detained under section 17 (1) (a) of the said Ordinance; that time was allowed and that the said petition was now pending for hearing in this Hon'ble Court. It has been admitted that the arrest and detention of the detenue under of the said Ordinance was illegal and mala fide as the police constable had no authority to arrest the detenue and had no material before them to suspect that the detenue had done or was doing or was about to do any prejudicial act within the meaning of the said section and the arrest and detention of the detenue has been done out of animus, that section 41 of the said Ordinance which authorises the arrest and detention in Jail without warrant and without trial, does not provide for making any representation against the order of arrest and detention, nor does it provide for supply of any grounds of detention to the detenue and as such, the impugned order of arrest and detention militates with the Articles 1, 2, 5 and 7 of the Fundamental Rights guaranteed by the Constitution that the detenue was never produced before any Magistrate after his arrest; that no grounds of detention were served on the detenue during his detention from 11‑5‑64 to 24‑5‑64 under section 41 (1) of the said Ordinance and as such, his detention during the said period was illegal; that the impugned order of detention dated 21‑5‑64 under section 17 of the Ordinance was an extension and continuation of the initial illegal detention under section 41 inasmuch as the order of detention dated 21‑5‑64 takes from the first date of detention and as the initial detention was illegal and mala fide, this extension was also illegal and mala fide; that the impugned order of detention under section 17 (1) (a) of the said Ordinance is bad and mala fide as it is vague and indefinite as no specific period of detention is mentioned in the said order; that the grounds of detention under section 19 of the said Ordinance as supplied to the detenue on 24‑5‑64 were quite vague and indefinite and that sufficient particulars have not been given so as to, enable effective represent ation against the charges.
It has been stated in the affidavit in opposition by the State that the detenue was arrested under section 41 (1) of the East Pakistan Public Safety Ordinance, 1958, by the Additional Superintendent of Police for his prejudicial activities and he was detained in the Dacca Central Jail on the same date; that on perusing the reports received from the Additional Superintendent of Police, respondent No. 2, under section 41 (2) of the said Ordinance and also from the D. I. G. Special Branch and the Government of East Pakistan being satisfied on persual of the aforesaid reports and record that with a view to preventing the detenue from indulging in prejudicial acts, it was necessary to detain him, issued the aforesaid order under section 17(1) (a) dated 21‑5‑64 for his detention and the said order under section 17 (1) (a) and the grounds of detention under section 19 were served on the detenue on 24‑5‑64. It has further been stated that the rule in Petition No. 32 of 1964 was discharged being infructuous and the rule in Petition No. 237 of 1964 had been discharged by this Court on 2‑7‑64 and ‑a certificate had been granted in the said petition to appeal to the Supreme Court, and that those rules related to imposition of certain restrictions in the matter of publication of certain matters at the time of communal disturbance, those being petitions under Article 98 of the Constitution.
It has been stated that the detenue was arrested by respondent No. 2 under section 41(1) of the Ordinance and that a police officer not below the rank of the Sub‑Inspector of Police has powers under the Ordinance to arrest any person without warrant whom he reasonably suspects of having done or of doing or of being about to do a prejudicial act and that the order under section 17 of the Ordinance ,had been passed, by Government after perusing the records and reports and being satisfied that with a view to preventing the detenue from doing any prejudicial act, it was necessary to pass the said order and that so long as the detenue was under arrest under section 41 of the Ordinance, neither any order nor any ground of arrest was served on him, as the Ordinance did not provide for the same. It has been stated that the petition as made by the petitioner challenging the validity of the arrest and detention under section 41 of the Ordinance has since been disposed of, the High Court having discharged the rule by reason of the rule obtained being rendered infructuous; that the arrest and detention under section 41 of the Ordinance is not the subject‑matter of the present rule and that the detenue having been arrested under the East Pakistan Public Safety Ordinance with a view to preventing him from indulging .in prejudicial activities, it was not necessary to produce him before a Magistrate in terms of sub‑para. 2 of para. 2 of the Chapt. on Rights of the Constitution and that it was incorrect to say that the present order of detention was an extension .and continuation of the initial arrest by the respondent No. 2 under section 41 of the Ordinance and that the present order had‑ been passed by the Provincial Government after perusing the records and reports and being satisfied that an order under section 17 (1) (a) of the Ordinance was necessary for the purpose of preventing the detenue from indulging in prejudicial activities and although the arrest of the detenue was made by the respondent No. 2 under section 41 (1) of the Ordinance the present detention of the detenue under section 17 (1) (a) was a distinct and separate order passed by a different authority and it was not an extension of arrest and detention in custody under section 41 of the Ordinance and hence the order of detention was legal. Further that the order under section 17 (1) (a) was passed on 21‑5‑64 and was served upon the detenue on 24‑5‑64 and that the grounds as supplied were not vague inasmuch as the said grounds were fully understood by the detenue who made a representation on 26‑5‑64 and the detenue never com plained about the vagueness of the grounds. There is a supplementary affidavit in opposition stating that the detenue was permitted to attend in person before the Board constituted under the East Pakistan Public Safety Ordinance on 1‑8‑64 and that the Board gave hearing and perused the records and reports which were placed before it. The Board reported thereafter to Government that in its opinion there were sufficient grounds for his detention, and on receipt of the aforesaid report, fresh order of detention dated 6‑8‑64 along with grounds had been issued.
The affidavit in reply has not added anything except reiterat ing statements made in the petition itself.
The contentions in both these petitions, as it will appear from the above, are similar and more or less common. In none of these petitions, the present orders under section 17 (1) (a) of the Ordinance have been challenged independently.
What has been challenged actually is the validity of the detention under section 41 of the Ordinance and it has been argued that the detention under section 41 being bad in law, the joining up of that detention with the present order of the detention under section 17 of the Ordinance has affected and rendered the present order under section 17 (1) (a) invalid.
In substance, we have been called upon to hold post‑mortem examination of the detention under section 41 of the Ordinance which is now over and has changed into an order of detention under section 17 (1) (a) itself. . It will appear from the above that the Constitutionality or otherwise of the detention under section 41 was not properly perused at the proper time when it was a detention under section 41 of the Ordinance. The rules obtained for canvassing the validity of the section 41, were for some reason or other allowed to be discharged and presently by indirect method, the same question has been sought to be revived before us, although the petitions are directed solely against the present orders of detention.
The direct challenge of section 41 of the Ordinance having been given the go by previously, we do not feel inclined to give a decision on the Constitutionality or otherwise of the section at this stage.
The decision in Arbab Muhammad Hasham Khan on behalf of Arbab Abdul Ghafoor Khan and Abdul Wali Khan v. The Crown (6 D L R (F C) 1), has been cited to support the proposition that when a bad order is joined up with a good order, the subsequent good order is also affected and vitiated. It was observed, inter alia, in that decision as under:‑
"That there is a material distinction, between a fresh order of detention and an order of extension of detention, is common ground, and these very fact that the learned Advocate‑General pressed for the order of the 10th December 1952, being regarded as a fresh order emphasises the importance of the distinction, which lies in this, that a fresh order is not affected by the previous detention having been illegal, whereas an order of extension of detention becomes illegal, if the detention, which it extends, was itself illegal. It therefore appears to me that when an order purports to be one of extension it cannot be regarded as an original order unless there be circumstances that compel as to such a conclusion."
Even assuming that the original detention in the present case was bad in law, it does not appear that the principles of that decision fully apply to the present case. In that case there were two orders and the subsequent order was an extension of the original order and the original order having been found to be bad, it was held that the subsequent order of detention was affected and vitiated by reason of the original order being bad.
In the present case there was no earlier order under section 41 of the Ordinance, nor does section 41 envisage any order for detention except for the purpose of temporary custody subject to section 41 (2) of the Ordinance.
Hence, in these two cases the question of joining up of good order with a bad order does not seem to arise.
Furthermore, the decision in Sardar Fazlul Karim v. Government of East Pakistan (8 D L R 700) as cited by the learned Advocate for the State, seems to be a halter to speculation upon a detention that is already dead and over. It was held in this decision, inter alia, as under
"On an application under section 491, Cr. P. Code, challenging an order of detention as being illegal what the Courts have got to see is whether the last orders of detention under which a detenue has been in confinement are legal and valid; the Court cannot direct the release of a detenue on the ground that the original detention was illegal."
The grounds served on the detenue ran as follows:‑
"(1) That you have been and are associated with the illegal activities of a secret association in the district of Mymensingh the object of which is to indulge in prejudicial acts and to overthrow the Government, (i.e.) Government of East Pakistan by violent means and that during the years 1947 (after partition), 1948 and 1955 (till your arrest and when you were not in all you were concerned in prejudicial acts in the district of Mymensingh, particularly in the months of September 1947, March 1948, and October 195 5, you with the help of some anti‑State elements indulged in prejudicial acts and propaganda amongst the students, peasants and labourers and incited them against the Government of East Pakistan with the ulterior object of disrupting the stability or integrity of East Pakistan and to overthrow the Government. Furnishing of any more facts and particulars than those given above would be against public interest.
(2) That all your activities mentioned above threaten and are likely to endanger the existence of public order and safety in this Province."
Held: The grounds served were in compliance with the requirements of law and were sufficient to enable the detenue to make an effective representation to the Government against the detention order and that they cannot be held to be in way vague and indefinite to debar the detenue from making representation.
All that is required under section 19 of the East Bengal Public Safety Act and sub‑Article (5) of Article 7 of the Constitution of Pakistan is that the grounds on which a detention order has been made should be served on the person affected to enable him to make a representation against the order. Section 19 of the Act, however, mentions in addition such other particulars as are in the opinion of the authority sufficient to enable the detenue to make a representation against the order. Neither section 19 of the Act nor sub-Article (5) of Article 7 of the Constitution provides that all the material facts should be embodied in the grounds to enable the person affected by the detention order to make a representation."
The following lines of that decision are worth quoting in extenso:‑
"In the cited case, (meaning Arbab Mohammad's case) the prisoner in question was detained illegally for two days between 8‑12‑52 and 10‑12‑52 to which day the previous order was sought to be extended by another order which was held to be illegal. In the present case, the facts are different and at no point of time was any detenue being held illegally in the absence of any order by the Government. The cited authority has held further that a fresh order was not affected by the previous detention having been…
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