This petition under section 491 of the Criminal Procedure Code in the nature of habeas corpus was filed by Abdul Majid petitioner, a resident of village Khali Dharamme, Tehsil Haveli, District Poonch (Azad Kashmir) challenging the validity of an order of detention passed by the Central Government, Ministry of Home and Kashmir Affairs against his brother Abdul Karim Faizan under section 3(2)(g) of the Foreigners Act, 1946 for a period of one year. (Annex. 'B').
2. Some of the admitted facts of the case are that the detenu Abdul Karim Faizan left his village at the age of I6 years long before the Partition and migrated to Bombay. He was not heard of thereafter till December 1969, when he entered the territory of Pakistan without a valid permit or passport, came to Lahore and voluntarily contacted the intelligence authorities. A case under the Pakistan (Control of Entry) Act, 1952, was registered against him but it appears that the proceedings were dropped and instead the impugned order was passed by the Central Government under the Foreigners Act, 1946, which was served on him on the 6th of June 1970. ?
3. On the various dates of hearing fixed in the matter, the detenu was summoned by me through Jail authorities and happened to be present to assist his learned counsel Mr. K. H. Khurshid. ln reply to the petition, learned counsel for the Government of Pakistan filed a written reply supported by a sworn affidavit by Mr. Abdul. Ghani, Section Officer, Home Affairs Division. The position taken up therein was that although the detenu originally belonged to Poonch District he was for all intents and purposes an Indian National for he had never applied for a Pakistan Passport or that of Azad Jammu and Kashmir. It was also revealed that the order impugned in the petition was in succession to the earlier orders dated 21-2-1970, 5-4-70 and 5-5-70, directing the detention of the detenu for a period of 2 months, 15 days and 3 months respectively. It was asserted that the detenu had come on a mission of espionage having continuously resided in India for about 30 years and that the impugned order was passed in a perfectly bona fide manner after proper investigation.
4. Learned counsel for the petitioner raised the following contentions before me :-- (/) That the detenu was not an Indian national as erroneously held in the impugned order but a national of Azad Jammu and Kashmir by birth and as such the provisions of the Foreigners Act could n6t be invoked against him ;
(ii) That the allegations of espionage which had been made the basis of the impugned order were false and baseless ; and
(iii) That the ground of detention, namely, espionage, as mentioned in the impugned order was so vague, cryptic and indefinite that no representation could be made by the detenu to controvert the same without the details being furnished to him which was not done and as such the order could not be maintained.
The Superintendent, District Jail, Lahore (Kot Lakhpat), respondent No. 1, and Government of the Punjab, respondent No. 2, were merely pro forma-defendants represented by the learned Advocate-General who had not much to say and the impugned order was defended by the Government of Pakistan (respondent No. 3) which was represented by its standing counsel Shaikh Aftab Hussain, Advocate, now Mr. Justice Aftab Hussain.
5. In support of the contentions, it was argued on behalf of the detenu that since the first order of detention was never communicated to him at any point of time, the impugned order passed on the basis of the earlier orders would be ipso facto null and void.
6. It was next argued that under section 8 of the Foreigners Act when the precise nationality of a person remained uncertain, he be deemed to retain the nationality acquired by birth and as such on that score too the detenu could be deemed to be a national of Azad Jammu and Kashmir to whom the provisions of the Foreigners Act were not applicable.
It was further argued that for the purposes of the Government of India which claimed the accession of the State of Jammu and Kashmir though illegitimately a resident of any part of Jammu and Kashmir would be only technically an Indian national. On the other hand although the expression "Foreigner" as defined in clausg (a) of section 2 of the Foreigners Act meant a person who was not a citizen of Pakistan, all n^ionals of Azad Jammu and Kashmir and even those who crossed from occupied back as a result of Indian Aggression had invariably been deemed to be and treated* for all practical purposes as Pakistan nationals, having not only been settled on available State Lands but also been accorded the right of franchise in Pakistan, besides facility of travelling abroad on Pakistan passport. It was contended that in the affidavit filed on behalf of the Government of Pakistan the nationality of the detenu acquired by birth had not been controverted and as such by implied admission, he could be presumed to be a national of Azad Jammu and Kashmir. Thus considered from every point of view the provisions of the Foreigners Act could not be legitimately invoked against him.
6. On the question of vagueness of grounds, learned counsel relied on Abdul Samad v. State (1) and Muhamntad Anwar v. Govemment of Pakistan (2).
7. It was frankly admitted on behalf of the State that the detenu himself made a confessional statement before the Intelligence Authorities which formed the basis of his detention order. This statement was produced before the Court but privilege under sections 123, 124 of the Evidence Act was claimed on behalf of the Government on the ground that its disclosure would be prejudicial to public interest and detrimental to good diplomatic relations.
This position was strongly controverted by the learned counsel for the petitioner who contended that the disclosure of the detenu's statement was not hit by any of the provisions contained in section 123/124 of the Evidence Act.
8. The first question to be considered is that of the status of the detenu who was admittedly a national of Azad Jammu and Kashmir by birth but had left for Bombay while a youngster of about 16 years of age having completely lost all contacts with that country or for that matter with Pakistan till such time as he crossed the border in December 1969, when a case under the Pakistan (Control of Entry) Act, 1952, was registered against him. Although these proceedings were subsequently dropped yet it would not be out of place to examine some of the relevant provisions of this Act. Under section 3(1) no Indian citizen can enter Pakistan unless he is in possession of a passport with a visa authorising his entry. Likewise, no Pakistani citizen can enter Pakistan from India unless he is in possession of a Passport, emergency certificate and repatriation certificate etc. etc. It is further provided that if such a Pakistani citizen has entered India (l)PLD 1963 Kar, 853 y-4& on a permit lawfully issued, he shall be Pakistan before the expiry of -- ,j
(a) the period specified in the permit, or J 1
(b) the period of three months beginning on the 14th October 1952. whichever is the shorter.
It is thus clear that even a Pakistani national cannot return to Pakistan except in a proper and legal manner. As rightly suggested in the affidavit filed on behalf of the Central Government, the detenu could have entered Pakistan after obtaining a passport from Pakistan High Commissioner at New Delhi. Again, it cannot be denied that notwithstanding the generous treatment meted out by the Pakistan Government to displaced persons from Jammu and Kashmir including the grant of right of franchise, Passport facilities etc. strictly speaking it would be difficult to treat them as Pakistani national, inasmuch as Azad Kashmir is not a de jure part of Pakistan. It would be appropriate to examine in this context some of the relevant provisions of the Pakistan Citizenship Act, 1951. Under section 3 of the said Act every person shall be deemed to be a citizen of Pakistan --
(a) who or any of whose parents or grand-parents was born in the territory now included in Pakistan and who after the fourteenth day of August 1947, has not been permanently resident in any country outside Pakistan; or
(b) who or any of whose parents or grand-parents was born in the territories included in India on the 31st day of March 1937, and who, except in the case of a person who was in the service of Pakistan or any Government or Administration in Pakistan at the commencement of this Act, has or had his domicile within the meaning of Part II of the Succession Act, 1925, as in force at the commencement of this Act, in Pakistan or in the territories now included in Pakistan ; or
(c) who is a person naturalised as a British subject in Pakistan ; and who, if before the date of the commencement of this act he has acquired the citizenship of any foreign State, has before that date renounced the same by depositing a declaration in writing to that effect with an authority appointed or empowered to receive it ; or
(d) who before the commencement of this Act migrated to the territories now included in Pakistan from any territory in the Indo-Pak sub-continent outside those territories with the intention of residing permanently in those territories.
It is clear that the case of the detenu does not fall in any of the four above-mentioned categories.
Section 4 of the Act refers to citizenship by birth and provides that every person born in Pakistan after the commencement of this Act is to be deemed a citizen of Pakistan by birth subject to certain conditions. Obviously these provisions as well do not cover the case of the detenu. This brings us to the Foreigners Act, 1946 under which the impugned order was passed. In section 2 the expression "foreigner" has been defined as meaning a person who is not a citizen of Pakistan. Obviously, having not been held to be a citizen of Pakistan, the detenu was foreigner within the meaning of definition.
9. Learned counsel for the petitioner tried to invoke section 8 of the Foreigners Act in support of the contention that the detenu still retained his nationality by birih as an original resident of Azad Kashmir. The relevant provision reads as under "6 (1). When a foreigner is recognised as a national by the law of more than one foreign country or where for any reason it is uncertain what nationality if any is to be ascribed to a foreigner, that foreigner may be treated as the national of the country with which he appears to the prescribed authority to be most closely connected for the time being in interest or sympathy or if he is of uncertain nationality, of the country with which he was last so connected. Provided that-where a foreigner, acquired a nationality by birth, he shall, except where the Central Government so directs either generally or in a particular case, be deemed to retain that nationality unless he proves to the satisfaction of the said authority that he has subsequently acquired by naturalization or otherwise some other nationality and still recognised as entitled to protection by the Government of the country whose nationality he has so acquired."
The main provision contained in subsection (1) would be obviously not helpful to the detenu who is to be considered a foreigner having been connected with lndia for more than 30 years and having entered Pakistan without valid documents. Likewise, the proviso is not of much help to him. Even assuming that for all practical purposes Azad Kashmir is a part of Pakistan, the detenu though originally born in Azad Kashmir had by naturalisation acquired Indian Nationality. The grant or acceptance of his original nationality by birth vested in the discretion of the Central Government which refused to exercise the same in his favour. In subsection (2) of section 8 of the decision of the Central Government has been made final in regard to the determination of a case of disputed nationality.
Thus considered from every point of view the detenu could hot claim to be a Pakistani national and as such as a foreigner to whom the provisions' of the Foreigners Act of 1940 are fully applicable.
9. Under the proviso to clause (g) of subsection (2) of section 3 of the Foreigners Act, 1946 which was the provision invoked against the detenu, a person could not be detained for a period exceeding three months unless an Advisory Board consisting of a Judge of the Supreme Court, to be nominated by the Chief Justice of that Court, and a senior Officer in the service of Pakistan to be nominated by the President, had reported before the expiration of the said period of three months that there was in its opinion, sufficient cause for such detention. Subsection (4) of section 3 provided that the provisions of subsection (2) of section 6 of the Security of Pakistan Act, 1932, and those of section 6-A of that Act, mutatis mutanais applied to the case of a person detained under this Act who for that matter would be placed at par with a detenu under that Act.
Section 6(2) of the Security of Pakistan Act, 1932, makes it incumbent on the Authority making the order of detention to inform the person detained of the grounds of his detention not later than 13 days from the date of detention. Section 6-A provides for a reference to Board in case of detention for a period exceeding three months, lt may be mentioned in this context that the Provisional Constitution Order, issued by the Chief Martial Law Administrator, on the 4th of April l9o9, which revived the 1962-Constitution after its formal abrogation, subject to regulations or orders made by the Chief Martial Law Administrator, expressly dispensed with the provision relating to the reference of detention order to the Advisory Board, which henceforth was to be of 'no effect', vide section 6(2) ibid. Having regard to the qualified manner in which the Constitution was sought to be kept alive after its formal abrogation and in particular the disappearance of most of the fundamental rights and the prevalence of regulations and orders by the Chief Martial Law Administrator over the Constitutional Provisions to which the latter was made subject, the only reasonable inference that can be drawn from the expression shall be of 'no effect' as employed in section 7(2) of the Provisional Constitution Order is that the safeguard of a reference to an Advisory Board in the event of a detention in excess of a period of three months was abolished forthwith, ln other words the detaining authority could pass an order of detention for any period of time to which the maximum limit of three months prescribed earlier of course extendable on a report by the Advisory Board, was no longer applicable. It could perhaps be contended that since the revival of the Provisional Constitution had been made subject to the Martial Law Regulations and Orders which could take precedence over it and a person could be more effectively dealt with under the relevant Martial Law Regulations and Orders such as M- L. R. 16-A which were more stringent, the object of the law- giver in making the reference to the Advisory Board ineffectual was to prescribe a b maximum limit of three months if the order of detention was made under the Security of Pakistan Act or the Foreigners Act.
I am afraid this view is based on a presumed inconsistency and repugnancy in the different legal provisions, contrary to accepted principles of interpretations of statutes. Again it does not seem to take note of the restricted and qualified manner in which the Constitution has been revived denying justiciability of most of the fundamental rights. Accordingly 1 am inclined to think (though it may not be deemed to be a positive finding), that section 7(2) of the Provisional Constitution Order has the effect of removing the restriction on the period of detention and as such the impugned order is not assailable on that ground. But the impugned order is liable to be set aside on other grounds as will be presently seen.
10. Coming now to the next contentions, namely, the noncommunication of the grounds of detention and the claim of privilege by the Government regarding the incriminating material under section 123/124 of the Evidence Act, 1 do not find them without substance, lt may be observed in the first instance that the sole basis of the order of detention was nothing but a so- called confessional statement made by the detenu himself while in the custody of the Intelligence Authorities. This statement though made available to the Court was not placed before the detenu or his learned counsel. I am afraid the provisions contained in section 123/124 of the Evidence Act cannot be invoked by the Government of Pakistan with any .semblance of justification. Under section 123 privilege could be claimed in regard to an unpublished official record relating to the affairs of the .
State. By no stretch of imagination can the confessional state-' ment of the detenu be brought within a reasonable definition of "unpublished official record". Likewise it would be difficult to bring the confessional statement of the detenu within the scope of a communication made in official confidence, whose disclosure could be detrimental to public interest as envisaged by section 124. It was argued on behalf of the Government of Pakistan that such a disclosure was likely to embarrass the Government vis-a-vis its diplomatic relations with the Government of India. I am afraid the diplomatic relations between the two countries being already strained to a breaking point the question of such a disclosure giving rise to further complication is simply absurd.
11. A perusal of the impugned order clearly indicates that it vaguely refers to the detenu's admission of espionage without giving any details thereof with a view to enable him to make an effective representation by controverting the specific allegations.
I am, therefore, in no manner of doubt that notwithstanding the bona fide nature of the order of detention which might otherwise have been based on good reasons, there has been no compliance with the legal provisions relating to the communication of grounds of detention which the order must necessarily contain and which are simply conspicuous by their absence. The authorities relied on behalf of the detenu in this regard appear to be directly in point. In Muhammad Anwar v. Govemment of West Pakistan (1) an order of detention was passed against Muhammad Anwar petitioner under section 5(1 )(ft), West Pakistan Maintenance of Public Order Ordinance (XXXl of i960) purporting to restrict the movements of the petitioner within a specified area. The order referred to the existence of strong grounds to believe that the activities of the person concerned were prejudicial to the public safety and the maintenance of public order regarding which the Governor was satisfied. It was a Full Bench case and it would be advantageous to reproduce the relevant observations made by their Lordships regarding sufficiency and the disclosure of the grounds of detention. Shabhir Ahmed, J. observed :-- "While, therefore, it would be open to the authority that passed the order of detention to refuse to disclose the source (l)PLD 1963 Lah. 109 from which information had come to it, it would not be open to the authority to refuse to disclose to the detenu the information about what he is suspected of having done."
Manzur Qadir, Chief Justice, as he then was, observed as follows "Personal liberty is a basic human right of every individual. An invasion of that right is a matter of most earnest and anxious concern. When that invasion is made without prior opportunity of being heard, a responsibility is cast upon those who in the interest of the State, or of the well-being of society are required to perform this onerous duty, to exercise a degree of care and caution which would reduce the ex parte nature of that invasion to a minimum. The Ordinance we are dealing with permits such an ex parte invasion of liberty. If then it brings as a substitute a post facto opportunity of making a representation that opportunity must be as real, as effective, as full and as speedy, as it possibly can be in the circumstances. Since it can never in fact be a substitute for a prior opportunity, every effort should be made to reduce its ineffectiveness, and nothing must be done to take away from whatever protection it might provide."
His Lordship went on to say :-- "What has been furnished to the petitioners as grounds in these two cases are not grounds at all but merely assertions as to the satisfaction of the authorities regarding the existence of grounds which have not been disclosed." l2. In view of the close anology between the provisions contained in West Pakistan Maintenance of Public Order Ordinance and those of the Foreigners Act invoked in the instant case both insisting on the disclosure of grounds of detention with a view to enable the detenu to make a representation, I am firmly of the view that the Full Bench judgment is directly on the point and as such the cryptic manner in which the mere allegations of espionage were communicated to the detenu could hardly be exercised as communication of the grounds.
The next case Abdul Samad v. State (1) was a D. B. Authority which dealt with a case under the Security of Pakistan Act (XXXV of 1952). In this case it appears that the grounds of detention were not communicated to the detenu within fifteen days of the commencement of his detention. It was observed by their Lordships as follows "A detenu is not debarred from making representations without being informed of the grounds of his detention but section 6(1) of tfie Security of Pakistan Act connects the information so furnished with his right of representation and imposes an obligation on the officers concerned 'to afford him the earliest opportunity of doing so.' Moreover, furnishing a detenu with old grounds of his detention is not without value because he may make an effective representation by, for instance, pointing out that they have outlived their purposes."
13. The upshot of the discussion, therefore, is that the order is unsustainable and is accordingly set aside. Even otherwise, its term has already expired and the detenu would have been released unless a fresh order was passed for his detention. .