The detenu, Rao Abdul Rashid Khan former Inspector-General of Police. Punjab and Special Secretary to the Ex-Prime Minister of Pakistan, was first taken into custody on 5-7-1977 when Martial Law was promulgated. He was kept under detention at Abbottabad and then at Islamabad for a period of about 10 months. He was released on 17-4-1978 but was again detained under C. M. L. O.
No. 12 on the basis of an order dated 5-6-1978. Writ Petition No. 3129 of 1978 was filed challenging the validity of his detention. During the pendency of the writ petition the period of detention expired and fresh order was passed detaining him on 5-9-1978. Another Writ Petition No. 4633 of 1978 was filed challenging the aforesaid detention. Again during the pendency of the writ petition, period of detention expired but he was released thereafter. After his release no action was taken against him by the Administration for about two months till 5-2-1979 when he was served with an order of the said date passed by respondent No. 1, District Magistrate, Rawalpindi, restricting his movements at his house situated at Nazim-ud-Din Road, Islamabad. This order was however, rescinded by a subsequent order passed by the respondent on 6-2-1979 under that order passed under section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960, he was directed to be arrested and detained forthwith in the District Jail, Rawalpindi. The present writ petition was filed challenging the validity of this order. However, during the pendency of the writ petition his detention was extended for a further period of one month by the District Magistrate, Rawalpindi by his order dated 4th of March, 1979 and for another one month by the order dated 3-4-1979. An application was moved thereafter by the petitioner praying that the present writ petition already filed challenging the order of detention dated 6-2-1979 may be entertained and treated as writ petition challenging the last order of detention.
2. It may be mentioned that the District Magistrate, Rawalpindi passed his aforesaid last three orders on the basis of the reports submitted by the S. S. P., Rawalpindi dated 5-2-1979, 3-3-1979 and 2-4-1979 respectively. According to the first report the detenu was described having remained very closely associated with the Ex-Prime Minister of Pakistan and other high ranking leaders. It was reported that since the Supreme Court of Pakistan was likely to announce the judgment in the appeal of Mr. Zulfiqar Ali Bhutto in the near future, therefore, in view of detenu's close association with the P. P. P., Mr Zulfiqar Ali Bhutto and his family, it was apprehended that he would exploit the occasion-whatever the nature of judgment may be to whip up public agitation and create conditions of lawlessness and disorder. The S. S. P. Therefore recommended to the District Magistrate that in order to prevent the detenu from acting in a prejudicial manner in that behalf his movements might be restricted at his residence. As mentioned above, this order was rescinded and he was arrested and detained under an order passed on 6-2-1979 by the District Magistrate detaining him at District Jail, Rawalpindi, for one month but vide his order dated 4-3-1979 the period was extended for another month. Yet another order was passed on 3-4-1979 extending the period for further one month.
3. The last order was passed by the District Magistrate on the basis of a report dated 2-4-1979 submitted by the S. S. P. Recommending that in view of the detenu's close association with the P. P.
P., Mr. Bhutto and his family, it was apprehended that he would exploit the situation after the announcement of judgment in the review petition filed by Mr. Bhutto against the judgment of the Supreme Court announced in Nawab Muhammad Ahmad Khan's murder case, therefore, in order to prevent him from acting in a prejudicial manner he might be detained for a further period of one month.
4. Rao Abdul Rashid Khan, the detenu in this case filed an affidavit duly sworn by him in the case titled Zulfikar Ali Bhutto v. The State, appeal filed by Mr, Bhutto against the conviction and sentence of death awarded by the Lahore High Court, pending before the Supreme Court of Pakistan on 17th of May, 1979. The detenu gave his own version with regard to the facts of the case already under adjudication. It was prima facie an effort to subvert the judicial process. He admitted in the affidavit that he was in contact with some of the police officers once subordinate to him.
5. Learned counsel for the petitioner has argued that even if it is accepted for arguments sake that the affidavit filed by the detenu in May, 1978 was objectionable the same could not be availed of by the respondent for detaining him under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960 in February-March, 1979. The detenu remained outside Jail during the period December, 1978 and January, 1979 and there is no report whatsoever to the effect that he indulged in a manner prejudicial to public peace, tranquillity and maintenance of law and order. It is contended that all the orders of detention passed in February, 1979 to April 1979 are based upon vague and indefinite reports submitted by the S. S. P., Rawalpindi. Such reports do not contain time, date, place and names of P. P. P. Workers who were contacted by the detenu in connection with his alleged objectionable activities. The detenu according to. The learned counsel even after his release remained under surveillance in December, 1978 and January, 1979. If he had associated with some of the political workers or otherwise indulged in activities prejudicial to public peace, then report to that effect would have been made against him.
6. As mentioned above, the last order extending the period of detention was passed on 3-4-1979.
According to law it is this order which is now in the field.
7. The learned Advocate-General has contended that the ground on the basis of which the detenu has been detained is contained in the order and is mostly based upon his affidavit, referred to above. He has taken me through some portions of the affidavit in order to show the extent of detenu's association with the P. P. P., Mr. Bhutto and his family members. He submits that since Mr. Bhutto's review petition was dismissed by the Supreme Court when the last order of detention was passed, therefore, in view of detenu's close association with the P. P. P. And Mr. Bhutto as well as some of the Police Officials, who had some time back served under him, and his effort to subvert the judicial process by giving his own version of the Merits of the case in his said affidavit, the order is justified being based upon sufficient material. The detenu has named some of the Police Officials who told him as to how and under what circumstances they acted in connection with the investigation of Nawab Muhammad Ahmad Khan's murder case.
Apart from the affidavit, reports of the S. S. P., Rawalpindi, dated 3-3-1979 and 2-4-1979 have also been taken into consideration by the detaining authority for passing the impugned order of detention dated 4-3-1979 and 3-4-1979.
8. The main question which requires consideration is whether there was sufficient material before the detaining authority in the fo;m of detenu's affdavit as well as the S. S. P's. Reports dated 3-3- 1979 and 2-4-1979 for the purpose of detaining the detenu. There is no doubt that reports made by the Police officials concerned of the Special Branch Police are, worth consideration along with the grounds of detention supplied to the detenu while deciding the detention. As to the authority or authenticity of the information contained in such reports, they should come ordinarily in the course of official duty. Their Lordships of the Privy Council while deciding Rajah Muttu Ramlinga Setupati v.
Perianayagum Pillai (11 I A 209), observed that when such reports expressed opinions on the private rights of the parties, such opinions were not to be regarded as having judicial authority or force. But being the reports of the Public Officers they were entitled to great consideration so far as they supplied information of official proceedings. Nevertheless the fact remains that in spite of having some colour of authenticity, having been made in performance of official duty, it is the duty of the Court to see whether they contain sufficient material for detention purposes and have been made in a genuine manner. Such reports made by the Police officials concerned were relied upon in Rehman v. Province of East Pakistan and others (PLD 1969 Dacca 339). They, however, contained a specific, clear and extensive information regarding the activities of the detenus and, as observed by the Dacca High Court in that case, mere perusal of the same could cause no doubt in the mind of an ordinary man that the utterances attributed to the detenu could invariably amount to subversive activities and the activities prejudicial to the integrity and security of the State established by law. The speech made by the detenu in that case on two occasions was reported verbatum in the Daily Diary submitted by the Police official concerned and the above observation was made by the High Court while examining the said diary.
9. According to law, it is not possible to make any observation with regard to the truth or otherwise of the allegations contained in the Police official's reports. While examining the material, considered by the detaining authority, the jurisdiction of this Court is not unlimited. When the validity of detention order is challenged, it is not by way of appeal or revision, but through a petition for judicial review. As such, discretion of the detaining authority if exercised in a reasonable manner cannot be substituted by that of the Court. It is only to be seen whether the conclusion arrived at is reasonable, based upon sufficient material ; and if it is so, then no interference will be made by the Court. It is also possible that there may be two view with regard to the sufficiency or otherwise of the material and the order of detention being reasonable or otherwise. In that case it will not be possible to say that the material considered by the detaining .Authority was not sufficient to persuade the authority to pass the detention order. There is no doubt that past conduct of a person is a relevant factor to be taken into consideration if he has indulged in a manner prejudicial to the public peace, tranquillity and law and order.
10. In the present case. As mentioned above, the detenu remained outside the jail during the months of December, 1978 and January, 1979 and was arrested and detained on 5-2-1979. The learned Advocate-General has vehemently argued that since the conduct and state of mind of the detenu was revealed from the contents of the affidavit and since there was apprehension and likelihood of his indulging in a prejudicial manner at the time of the announcement of judgment of the Supreme Court in the aforesaid review petition, therefore, his detention cannot be termed to be unjustified.
The affidavit was duly sworn on 17-5-1978, when the detenu was, identified by Mr. D. M. Awan, Advocate, before the Oath Commissioner. As a consequence of that, the detenu was again detained on 5-6-1978 under C. M. L. A---s. Order No. 12, for a period of three months. His detention period was extended and he was ultimately released after the expiry thereof.
He remained outside jail for a period of two months thereafter. Them should be some objectionable material on record in addition to his affidavit to justify his detention. The learned Advocate-General has relied upon the report of the S. S. P. Rawalpindi in this regard. Its contents have already been referred to above. It does not contain any definite and 'precise information as to when and where the detenu indulged in such activity prejudicial to the public peace and tranquillity which gave rise to reasonable apprehension in the mind of the Police official on the basis of which the detention order was passed. The only reason for recommending detention as given in the report is that he has been closely associated with the P. P. P., Mr. Bhutto and his family and in view of the decision in the aforesaid review petition he -was likely to act in a prejudicial manner.
11. As discussed above, there is no doubt that the detenu's affidavit reveals, prima facie, his objectionable conduct and such state of mind and conduct could definitely give rise to the apprehension as revealed by the S. S. P. Rawalpindi, provided the detenu had indulged in such activity after his release in the first week of December, 1978. There is no report, whatsoever, by any Police official to the effect that the detenu has indulged in such activity, prejudicial to the public peace, during the months of December, 1978 and January, 1979. If the detenu had not been released in the first week of December, 1978 and his period of detention had been extended on the basis of the previous record, the situation might have been different, butt law does not contemplate preventive detention again and again on the basis of the same material after short intervals in the absence of any prejudicial activity on the part of the detenu during the period of intervals.
12. A Division Bench of Sind High Court while deciding the case of Mumtaz Ali Bhutto and another v.
D. M. L. A., Karachi (PLD 1979 Kar. 307) took into consideration the conduct and activities of both the detenus, Abdul Hafiz Peerzada and Mumtaz Ali Bhutto, indulged in by them in the High Court premises while appearing before the Court in connection with their detention cases. They had been issuing statements to the Press and addressing party workers before and after the Court proceedings. The fact that on account of such statements and addresses to the party workers a bus was burnt down on a public road at Karachi by P. P. P. Supporters ; and that serious disturbances occurred in the Court premises on 5-12-1977, when the detenus were brought to the Court for hearing of the case, were also taken into consideration by the Court while deciding the case. It was held that in view of the material already placed on the file and their conduct and state of mind expressed by the detenus before and after the Court proceedings in the High Court premises, their detention was justified.
Such conditions, however, do not obtain in the present case.
13. It has been argued by the learned Advocate-General that on account of the conduct and state of mind as expressed by the detenu in his affidavit, the detention order will be justified in the absence of any overt act on the part of the detenu after his release. I am afraid, this contention has no force. It would amount to giving unlimited powers to the Executive to detain a person again and again on the basis of his past conduct in spite of the fact that he has mended himself and has not, at all, indulged in activities prejudicial to the public peace and tranquillity.
The learned Advocate-General has pointed out an admission on the part of the petitioner; wife of the detenu, in a rejoinder that after his release the detenu once or twice met Begum Nusrat Bhutto on her request. It has been contended that this fact alone would he sufficient to justify the detention. This contention has no force. This fact was never before the detaining authority while passing the impugned order. The S. S. P., Rawalpindi, while recommending detention of Rao Abdur Rashid never brought this fact to the notice of the detaining authority and in the absence of that it cannot be said that there was sufficient material before the detaining authority.
14. According to law, as held by their Lordships of the Supreme Court in Malik Ghulam Jillani v.
Government of West Pakistan (PLD 1969 SC 673), satisfaction of the detaining authority must be a state of mind which has been induced by the existence of reasonable grounds for such satisfaction. It is the duty of the detaining authority in such circumstances to satisfy the Court that it had reasonable grounds for the suspicion expressed in the detaining order. I am afraid the conduct and state of mind of the detenu as expressed in his affidavit or his close association with Mr. Bhutto and his family would not be sufficient and reasonable grounds for detaining him after his release in the 1st week of December, '978 ; unless he was shown to have indulged in some prejudicial activity. The Court, no doubt, can be influenced in its decision by the evidence and material placed on record, but it has to see whether on the basis of such evidence and material justification existed for the satisfaction expressed by the detaining authority. In the case of Malik Ghulam Jillani, reports were received by the detaining authority as well as the Ho to Secretary, Government of West Pakistan, about the prejudicial activities of the detenus that they had planned to launch direct action and civil disobedience. In the statement made by the Home Secretary as well as the detaining authority in the Court, it was said that detention orders were passed because of apprehension based on information that the detenus planned disturbance of public peace by various methods-a conference of the Opposition leaders was held on 5-2-1966, address of welcome was presented by Mian Tufail Muhammad (present Ameer Jama'at-i-Islami, Pakistan).
According to the finding of the Supreme Court, the aforesaid address provided sufficient material to justify the detention order. Nawabzada Nasarullah Khan, an Opposition leader, also admitted that a committee of five persons had been set up to examine and assess the general situation and to report thereon to the conference by the middle of March, 1966. Yet another admission was made by Malik Ghulam Jillani, one of the detenus, that there was a plan to set up a national high command to launch agitation against the Government. Mr. M. Anwar, then learned counsel for some of the detenus as well as a member of the aforesaid five persons' committee admitted before the Court that public meetings were addressed by the detenus for the purpose of criticising Tashkent Declaration, Cease-Fire and the system of the Government in the country and to show to the public that Tashkent Declaration was opposed to the national interest and that in signing the same the people of Kashmir had been let down. The Supreme Court observed that it was in respect of such matters that the Court was called upon to exercise the function of judicial review to ascertain whether in the circumstances appearing, the necessity of the detention order to prevent disturbance of public peace was or was not established. It was observed that after due appraisal of the address of welcome made on 5-2-1966, it was set out with a high degree of clarity that the objective was to plan and launch after careful consideration a determined, organized and sustained struggle. To secure radical changes in the Constitution. It was held that against such situation it would be the duty of the authorities operating under the law to maintain public peace and order. After reviewing the factual position available on record it was held that there seemed no escape from the conclusion that the action taken by the authorities to detain the detenus, by whom such threat to the public peace had clearly been issued, was justifiable for the purpose of preventing disturbances which were. Likely gravely to prejudice the maintenance of the public order.
15. There is no doubt that the Supreme Court in the case of Malik Ghulam Jillani relied upon apprehension on the part of the detaining authority in preventing the detenus from acting in a prejudicial manner, but such apprehension was based upon definite and precise material, correctness of which was admitted even by the detenus themselves, when examined by the Court.
No such position obtains in the present case. Nothing has been brought on record to show that after his release in the first week of December, 1978, the detenu has contacted any P. P. P.
Worker/leader for the purpose of launching campaign or starting demonstration in favour of Mr. Bhutto and against the Government. There being no sufficient material, the detention order cannot be sustained in law.
16. In view of the above, the impugned order of detention passed by the District Magistrate, Rawalpindi, detaining the detenu Rao Abdul Rashid, is hereby set aside. He shall be released forthwith, if not required in any other case.
The writ petition is accepted without any order as to costs.
S. A. H.