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Petitioner: LIAQUAT ALI VS Respondent: GOVERNMENT OF SIND THROUGH SECRETARY, HOME
Court Name: Sindh High Court Judge(s): Imdad Ali H. Agha, Noorul Arfin Title:LIAQUAT ALI vs GOVERNMENT OF SIND THROUGH SECRETARY, HOME
JUDGMENT
Reported As: PLD 1973 Karachi 78 Result: Petition accepted Judgment JUDGMENT NOORUL ARFIN, J.-The petitioner is the son of Mr. Abdul Hamid Khan Jatoi, a Member of the National Assembly of Pakistan. He has brought this petition under Article 201 of the Interim Constitution to question the validity of the order, dated 29th May 1972, made under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960) (which will hereinafter be also referred to as "the Ordinance") by which the Provincial Government of Sind ordered that Mr. Abdul Hamid Khan Jatoi be arrested and detained for a period of 30 days from the date of the service of the order in the Central Prison, Karachi and be treated as `A' class detenu. 2. The detenu is a resident of village Beto, Taluka Mehar, District Dadu. According to the averments made in the petition, the detenu was arrested at 2-00 p.m. On 16th May 1972 from his village by the Larkana Police and taken to Bagrani Police Sta--petition in connection with a case registered under section 363/366, P. P. C. On 27th February 1972 with regard to the alleged kid. Napping/abduction of one Mst. Hidayat Khatoon and her child. However, by order dated 18-5-1972, the learned Sessions Judge, Larkana ordered that the detenu be released on ball. The order of bail was based on the ground that the offence was committed between the night of 26th and 27th February 1972 and the sub--stantial part of investigation was carried out in April or May 1972, but that the first information report produced before the learned Sessions Judge did not directly or indirectly implicate the detenu in the commission of the offences under section 363/366, P. P. C. In the order of bail, it is stated that neither the main accused had been arrested nor Mst. Hidayat Khatoon nor her child had been recovered till then. In the evidence before us, the Investigating Officer, Mr. Abdur Razzaq Memon, stated that the accused in the first information report were (1) Pario, (2) Ramzan, (3) Attan,
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(4) Hamza and (5) Akram, this last person being alleged to be the `Kamdar' of the detenu. Before the order of bail could be given effect to. Another case was registered against the detenu on 17th May 1972 under section 353/506, P. P. C. On the allegation that the detenu either actually hit or tried to hit the Investigating Officer. Mr. Abdur Razziq Memon, with a station diary lying on the table of the Bagrani Police Station. The allegation of the petitioner is that this second case was registered in anticipation of the possibility of grant of bail fn the first case, that is, the one registered under section 363/366, P. P. C. In the second case, the learned Sessions Judge of Larkana ordered release of the detenu by his order dated 19-5-1972, on the ground that, in the first Information report, it had been stated that the detenu had himself appeared at the Bagrani Police Station on 17-5-1972, when he committed the offences under section 353/506, P. P. C., whereas there was a writing in the hand of the Investigating Officer him-- self. Which showed that the detenu had been under arrest since 2-00 p.m. On 16th May 1972, the photostat copy of this writing being Exh.7/1 of this Court's record. This order of bail was not given effect to by jail authorities as its the meantime proceedings under section 107/117 of the Criminal Procedure Code were instituted in the Court of the Sub-Divisional Magistrate, Larkana, on 19th May 1972, who issued a letter to the jail authorities to produce the detenu before him the next day, that is, 20-5-1972 It is admitted that this letter was not a warrant of arrest and detention, and if so, then there would appear to be no justification for the jail authorities to fail to give effect to the order of bail, It is contended before us that the detention of Mr. Abdul Hamid Khan Jatoi in pursuance of this letter would amount to his illegal confinement. However, the petitioner states that security was given by the detenu in these proceedings also, and that two of the cases against him are the subject-matter of proceedings for quashment pending in this Court and that one of the cases is the subject-matter of a criminal transfer application pending in this Court. The petition before us goes on to state that, notwithstanding tine fact that sureties were furnished in all these three cases, the detenu was still not released, but on the other hand, the District Magistrate, Dadu, by an order dated 19-5-1972, directed him to be detained under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960) for a period of 30 days. This order of detention was challenged in Constitutional Petition No. 203 of 1971, in which another Bench of this Court issued rule nisi for 30th May 1922. On this date, the detenu was produced in this Court before a Bench which consisted of one of us. Mr. A. H. Memon, the Advocate- General, then stated at the Bar that the order of deten--petition passed by the District Magistrate, Dadu, which was the sub--ject-matter of Constitutional Petition No. 203 of 1972, had been withdrawn, and therefore that petition had become infructuous. It would appear that the order of detention was withdrawn on the ground of a technical defect, in that, though the order of detention was passed in Dadu District by the District Magistrate of that district, it was served on the detenu and given effect to in the Larkana District. It was further stated by the learned Advocate---General that a new order of detention had been passed by the Provincial Government on 29th May 1972, and that the detenu was in detention under this second order. The question then arose whether Petition No. 203 of 1972 could continue or became infructuous. The Court, however, allowed Petition No. 203 of 1972 to be amended, so as to enable the petitioner to challenge the new order of detention, but this amendment was subject to the objection of the learned Advocate-General, which objection was to be argued on 1-6-1972. When the case came up before the Court on this date, both the learned Advocate---General, as well as the petitioner's Advocate, Mr. Azizullah K. Shaikh, were of the view that Constitutional Petition No. 203 of 1972 bad become Infructuous, as the order of detention impugned in that petition had been withdrawn and a new order of detention had been passed by the Provincial Government. Accordingly, that petition was dropped as having become infructuous But, at the same time, Mr. Azizullah K. Shaikh presented a new peti--petition, that is, the present Petition No. 217 of 1972. In view of the fact that it was a habeas corpus petition, the Court agreed to admit the petition immediately and ordered issue of rule nisi for the next date.
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The present petition again came up in Court on 2-6-1972, when the learned Advocate-General requested for time to enable him to file counter-at davit and place the necessary material before the Court in justification of the order of deten--petition gassed by the Provincial Government. This time was granted to him. Till then, the grounds of detention had not been served on the detenu, and accordingly the Court directed that the grounds of detention be served on the detenu by the evening of 3rd June 1972, which direction was duly complied with. On 12.6-1972, this case came before a Bench consisting of the learned Chief Justice and one of us, to consider two applications moved on behalf of the petitioner, one for adjournment of the hearing from 14th to 15th June 1972, and the other for summoning the Home Secrctary to the Government of Sind, the Superintendent of Police, Larkana and the S. H. O. Of Bargrani Police Station, Mr. Abdur Razzaq Memon. Both these applications were granted. But with regard to the second application, it was directed that, though these persons should be presented in Court, the question, whether they should be allowed to be examined by the detenu or not, will be considered at the time of the hearing of the petition. The petition then came up for regular hearing before us on 15-6-1972. The petitioner, in his petition, has attacked the Provincial Government's order of detention dated 29th May 1972 on several grounds, including allegation of malice, which grounds have been elaborated and added to in a statement in writing sent by the detenu himself from the Central Prison, Karachi on 7th June 1972. We will revert to this statement, and the value to be placed thereon, later in the course of this judgment. But, before proceeding further, we consider it convenient to reproduce hereunder the grounds of detention served on the detention 3rd June 1972, as much of the arguments on both sides dwelt con--siderably on these grounds and the material in support thereof. These grounds read as under: "(1) That on 27-2-1972 a F. I. R. No. 23 of 1972 under sections 363 and 366, P. P. C. Was lodged by Lal son of Rabban Kharos of Police Station Bakrani, District Larkana, alleging abduction of his daughter Mst. Hidayat Khatoon and her minor son by accused Pario, Ramzan, Attan, Hamzo and Akram all Jatois by case and residing in your village. As a result of the investigation of the said F. I. R., it transpired in the case diary of the S. H. O. Dated 3-3-1972 that the accused persons, one of whom was your 'Kamdar', were enjoying your full protection. On 6-3-1972, the complainant Lal moved an application to the authorities that you had direct hand in the abduction of the said woman and her minor child and that their lives were in danger and, therefore, requested swift action to be taken by the authorities for their recovery. Consequently, on 10-3-1972 S. H. O. Mir Muhammad of Bakrani Police Station contacted you personally for the recovery of the abducted woman Mst. 1`lidayat Khatoon and her minor son. You are reported to have admitted that the woman and the child had been abducted at your instance and had been sent away to some unknown place by you. Accordingly, when S. H. O. Muhammad Hashim approached you for the recovery of the abducted Noman and her minor child as promised by you earlier, you insolently declared that yon will not return the woman and the child nor would you hand over the accused who were your men, and displayed arrogantly non-co-operative behaviour with a view to stultify the investigation and thwart the administration of law and order. (2) That on 17-5-1972 in the course of investigation, the S. H. O. Abdul Razak on the basis of the material and in the discharge of his duties placed you under arrest but you serious--ly resisted and became very hostile and flew into rage and in that rage threw a station diary right in the face of the Investigating Officer during the discharge of his duties. You further gave out that you would neither return the woman and child nor the accused persons would be handed over and you threatened the S. H. O. That you would see as to how many days you would remain alive at the police station as you would got him killed. (3) The above acts clearly demonstrate that you had directly subverted and thwarted the administration of law and justice and have created thereby a law and order situation in the area to
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paralyze the administration by getting the offences commit--ted and secreting offenders by giving them protection and frustrating the efforts of the Police in detecting the crime as you are aware of the fact that the abducted woman on recovery is, likely to give evidence against you, and therefore, on your release you would see to it that she is not recovered by the Police at all or in any case she is not recovered alive. (4) That the Police has not yet recovered the abducted woman and her child and it is seriously apprehended that if you come out of jail, you would use your full force against the Police in the recovery of the woman which is borne out by your conduct as stated above. (5) That you have always been supporting the criminals and, undesirable persons of your area, who have flouted law with impunity; for instance, Mir Muhammad Janwari a notorious criminal and a history-sheeter of Taluka Mehar was convicted by the Military Court with imprisonment for one year and externment from the District for three years and in his case you were one of the defence witnesses. On account of the cover provided by you to criminals and undesirable persons, it is impossible for the Police to investigate any case independently in the area of your influence. As far back as May 1970, Mr. Abdul Aziz Jaffer, D. S. P. Dadu; on the eve of his transfer left a note for the guidance of his successors that you were always found interfering with the Police adminstration and you bad a teats of bad characters, majority of them being history-- sheeters, through whom you virtually rule the area. The D. S. P. Further remarked in his note that you were in the habit of getting false complaints filed against the Police Officers who do not succumb to your illegal demands. (6) That you have created awe and terror in the area and the people are so scared of you that nobody comes forward to say anything against you. You make private 'faislas' and prevent the people from reporting their case to the Police and thereby you impede the process of law. There is a reliable information that with the help of your associates you collected lot of arms and ammunition in your village Beeto to offer resistance to the Police and thereby create a serious Law and order situation for the local administration. (7). You are extremely revengeful and particularly after your arrest you have become desperate. A secret source reveals that you plan to use your hirelings including the externed Mir Muhammad Janwari, to indulge in very heinous offences in order to avenge yourself on the Government. Your son and some of your relatives have been talking openly that after you are out, they would take full account from the Police and local administration. Your previous record shows that you have always been harassing the officers who had not acted according to your wishes. The following are some of the instances (i) On 22-10-1971 Azam Khan, the then S. H. O. Mehar made a note that you were in the habit of using abusive and obscene language. You asked S. H. O. To help Mir Muhammad Janwari and Muhammad Hasan Gorar in criminal cases in which they were involved and threatened him that if he did not act according to your wishes, he would be put to harm. (ii) A. S. I. Sultan Khan of Police Station Mehar made a note in the case diary of F. I. R. No. 109/71 under sec--petition 302/316/201, P. P. C. That you had told him that if he sent for your 'Kamdar' A.I Haider Jatoi find Ahmad Fakir, who were required in this case, he would land himself in trouble. (iii) A. S. I Muhammad A.I of C. I. A. Dadu mentioned in case diary dated 2-11-1971 (F. I. R. No. 121/71 under section 344, P. P. C.) that one Shaan, who was an accused in this case, had kidnapped Mst. Zainab and was protected by you and one Abdul Rehman Soomro. The A. S. I. Further mentioned in the diary that you had threatened him that if he made any effort to recover Mst. Zainab, you would manipulate complaints against him and also give articles in the papers. (iv) Supervising Officer Muhammad Bux, the then Inspector C. I. A. Also made a report No. CR-121/71 that you and Abdul Rehman Soomro were harassing the police in the investigation of the case. The
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Inspector further remarked that the kidnapped girl and the accused were both under your protection and that of Abdul Rehman Soomro and as such, it was not possible to secure them. (8) That you have generally shown disregard and disrespect for law. During September 1971, the Civil Judge & F. C. M., Mehar had issued summons to you twice for your appearance in his Court, but you refused to take the delivery of the summons, with the result that the said Court had issued a warrant against you. The Civil Judge & F. C M., Mehar, categorically mentioned in his D. O. Letter No. CR/78/71 dated 2-10-1971 addressed to the Deputy Commissioner, Dadu that you being a representative of the people had disregarded the law of the land. That on the grounds stated above, it is necessary to prevent you from acting in a manner prejudicial to the maintenance of public order and that the order of detention under the law referred to above has been passed. The above grounds are being communicated to you in pursuance of the requirement of subsection (5) of section 3 of the aforesaid Ordinance, with a view to enable you to make, if you so desire, a representation to the Government of Sind, against the aforesaid order of the Government, and you are hereby informed that you are at liberty to make such a representation to Government against the said order within a period of 10 days." 3. Now, it would be useful to refer to the relevant provisions of the West Pakistan Maintenance of Public Order .Ordinance (XXXI of 1960). This Ordinance was amended in' Its several provisions by the West Pakistan Ordinance XVIII of 1964. The relevant portions of section 3(1) and (2) of the Ordinance, as amended, read as under :- "3.-(1) Government, if satisfied that with a view to preventing any person from acting in any manner prejudicial to public safety or the maintenance of public order, it is necessary so to do, may, by an order in writing, direct the arrest and detention in such custody as may be prescribed under sub-- section (7), of such person for such period as may, subject to the other provisions of this section, be specified in the order, and Government, if satisfied that for the aforesaid reasons it is necessary so to do, may extend, from time to time the period of such detention for a period not exceeding six months at a time. Explanation. (2) If a District Magistrate or any other servant of Govern--ment authorised in this behalf by a general or special order of Government, has reason to believe that any person within his territorial jurisdiction has acted, is acting or is about to act in a manner prejudicial to public safety or the maintenance of public order, he shall forthwith refer the matter to Government for orders." Subsection (5) of section 3, in the form substituted by the amending Ordinance, provides that the Government shall constitute an advisory board consisting of a Judge of the High Court, who shall be nominated by the Chief Justice, and a Senior Officer in the service of Pakistan, who shall be nominated by the Government. Subsection (5-d) of this section enables the Boari not only to consider the material placed before it by the detaining authority, but also to consider the representation which the detenu may make and even to hear the detenu in person if he so desires and to call for further information from the Government. Under subsection (5-f), it is provided that if the Board reports that there is no sufficient cause for the detention of any detenu whose case had been referred to it, for a period exceeding three months, then in that case the Government shall rescind the detention, order. But, if the Board reports that there is sufficient cause for detention, then the Government may, subject to the provisions of subsection (1), continue the detention of the detenu for such period as the Government may deem fit. Subsections (6) and (6.a) of the Ordinance have also material bearing in this case, and therefore may be reproduced hereunder in full "(6) Where a detention order has been made under this section the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been
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made, inform him that he is at liberty to make a representation to Government against the order and afford him the earliest opportunity of doing so: Provided that the authority making any such order may refuse to disclose facts which such authority considers it to be against public interest to disclose. (6-a) Where a representation is made to Government under subsection (6), Government may, on consideration of the representation and giving the person detained an opportunity of being heard, modify, confirm or rescind the order." It may here be noted that before the amendment introduced in the Ordinance by the amending Ordinance XVIII of 1964, subsection (6) of section 3 required that the grounds of detention shall be served on the detenu as soon as may be, but not later than fifteen days from the date of detention. The expression "but not later than fifteen days from the date of detention" was deleted by the amending Ordinance. Another relevant section of the Ordinance is section 26, which provides that the Provincial Government may, by order in writing, direct that the power under subsection (1) of section 3 shall, subject to such restrictions as may be specified, be exercisable by any District Magistrate within his jurisdiction. 4. We have above referred to the application made on behalf of the detenu for examination of the Home Secretary to the Government of Sind, Superintendent of Police, Larkana and the S. H. O. Of the Bagrani Police Station. When the case came up for regular hearing before us on 15-6-1972, arguments were addressed to us on the question as to whether the Home Secretary should or should not be examined in Court. We disagreed with the objections of the learned Advocate- General and permitted the examination of the Home Secretary on various grounds stated in detail in our order of that date, that is to say, that our opinion was that some of the grounds of detention appear ed to be extraneous to the purpose and object of the Ordinance, such as the ground that the detenu had been giving private judgments in dispute between parties in his District, some of the grounds were attacked as being vague and indefinite and, further, the fact that the order of detention passed by the Provincial Government was in consequence of the withdrawal by the District Magistrate, Dadu, of his own order of detention due to the technical defect noted above, made it necessary, in our opinion, to ascertain, whether the detaining authority had (independently applied its mind and formed its opinion as to the necessity of the detention of Mr. Abdul Hamid Khan Jatoi under the Ordinance. On 16-6-1972, we allowed the examination of Mr. Abdur Razzaq Memon, S. h3. O. Of the Bagrani Police Station, mainly on the it ground that the case set up by the State was that the detenu was placed under arrest only on 17th May 1972, whereas this witness's writing, Exh. 7/1, which he admitted to be In his own hand, signed by him, showed that the detenu was under arrest since 2-00 p.m. Of 16th May 1972. 5. The order of detention, which is the subject-matter of the present petition, has been attacked on several grounds. We propose to discuss these grounds and other grounds which the superior Courts have generally to take into consideration to determine the validity or otherwise of preventive detention. But before doing so, we must refer to four judgments of the Supreme Court in which the law relating to preventive detention has been elucidated with sufficient clarity, so as to remove much of the confusion which arose on this subject due to conflicting judicial opinions. These judgments are :- (1) Ghulam Jilani v. Government of West Pakistan PLD 1967 SC 373. (2) Abdul Baqi Baluch v. Government of Pakistan PLD 1968 SC 313. (3) Govt. Of West Pakistan v. Begum Shorish Kashmirl PLD1969SC14. (4) Govt. Of West Pakistan v. Haider Bun Jalol PLD 1969 SC 210. Before these decisions, the Courts in this country followed the rule laid down by the House of Lords in Liversidge v. Sir John Anderson (L R 1942 A C 206) that the detaining authority was invested with complete power to be the judge of its own satis--faction with regard to the detention of the detenu
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and that this satisfaction was subjective in nature and was therefore immune to judicial examination. However, in Ghulam Jilani's case, the Supreme Court departed from this rule. In this case, the Supreme Court had before it the construction of sections 3(1) and 3 (2) (10) of the Defence of Pakistan Ordinance, 1965, and Rules 32 and 204 of the Defence of Pakistan Rules, 1965. The relevant portions of these rules read as under . . . . . "32.-(1) 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 power, 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 persecution of war, it is necessary so to do, may make an order . . .…
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