FAKHHUDDIN G. EBRAHIM, J.----For reasons to be recorded later, we, by an oral order dated 6th April 1973, allowed this Petition and ordered that the detenu be forthwith set at liberty unless held under any other valid warrant. My reasons are as follows:--
2. This is an unfortunate case of preventive detention. The detenu Abdul Hamid son of Muhammad Kassim Bhabha was arrested on 26th January 1973, at about 9 p.m. From the place of his residence and taken away by police party to the Preedy Street Police Station. At the time of his arrest he was neither shown for served with any order of detention. However, at the police station the detenu was served with an order of detention dated 26th January 1973, which order reads as follows:-- "No. 1144.---Whereas in the opinion of the Provincial Govern--ment of Sind, it is necessary for the security, public safety, interest and the defence of Pakistan with respect to Mr. Abdul Hameed son of (Late) Muhammad Kassim Bhabha, resident of 38-F, Bath Island, Karachi to order his detention.
And whereas being empowered under rule 32(1)(6) read with rule 213 of the Defence of Pakistan Rules, the Provincial Government of Sind are pleased to direct the detention of the said Mr. Abdul Hameed in Preedy Street Police Station with immediate effect. He should be treated as "B" Class detenu."
3. The aforesaid order purports to detain, for an indefinite period, the detenu under rule 3 2 (1) (b) of the Defence of Pakistan Rules, 1971, at the Preedy Street Police Station and the detenu is to be treated as "B" Class detenu.
4. On 9th February 1973, the petitioner was served with grounds of detention which grounds read as follows:-
(1) That you were noticed to have secret and clandestine contacts with Mr. Ashok Mehta, the Deputy High Commis--sioner for India in Pakistan in the year 1962, for reasons which were never disclosed.
(2) That you have neither applied for nor obtained the Pakistan nationality and are believed to be holding a number of passports of different countries.
(3) That you and your other relations, namely, Abdul Hameed Bhabha brother and Muhammad Bhabha nephew, were and are suspected of smuggling of arms and other essential commodities and thus avoiding to pay customs duty etc., which are offences against the Foreign Exchange Regulation and Imports and Exports Act.
(4) That it has been established that you and your other relations, namely, Abdul Hameed Bhabha brother and Muhammad Bhabha nephew have a hand in the present trouble in Baluchistan and are financing political leaders and others associated with the Baluchistan Liberation, Movement.
(5) That you are at present reported to be organising guerella warfare in Sind and Karachi for organising and fomenting trouble and lawlessness in Baluchistan and with that end, are reported to be importing training material for guerilla warfare and providing the same to Baloch students who have joined the Azad Baluchistan Movement which is working for cessation of Baluchistan from Pakistan, in Karachi and Sind.
(6) That your above activities are such that they are calculated to be prejudicial to the security, public safety, interest and defence of Pakistan."
5. At the hearing of the Petition the learned Additional Advocate-General placed before us the material before the detaining authority at the time of making the impugned order to which material I will at the appropriate time revert to. The aforesaid detention order and the grounds of detention are under the signatures of the Secretary to the Government of Sind, Home Department.
The counter-affidavit filed on behalf of the respondents is of the Deputy Secretary, Government of Sind, Home Department. This fact will have some bearing when I come to examine the contention raised on behalf of the detenu that the detaining authority had not applied its mind to the facts of the case before passing the impugned order of detention. For the moment would suffice that this allegation, that the detaining authority had not so applied its mind, remains un-controverted by the detaining authority himself.
6. Before I come to the merits of the case there are one or two other matters which I consider my duty to refer to. In one of the affidavits filed in this Petition the detenu made a grievance of the fact that he was treated by the Deputy Superintendent. Central Jail, Karachi, where he was shifted on 21-2-1973, as "C" Class prisoner and the facilities that he was entitled to as "B" Class prisoner had been denied to him. Mr. Jamil Ahmed Siddiqi, Superintendent, Central Prison, Karachi, in his counter-affidavit, in reply to these allegations, stated that the detenu was placed in "C" Class as the order of detention did not specify the class. I am surprised at this statement in the counter- affidavit by a responsible officer inasmuch, the detention order clearly states that the detenu is to be treated as a "B" Class detenu. If the officer concerned had, therefore, cared to read the order of detention which he has obviously not, he would not have made the statement that the detenu was to be treated as a 'C' Class prisoner as according to him the order of detention did not specify the class. There is, therefore, no doubt that the detenu had been put to totally unwarranted additional hardship until relieved by this Court by its order dated 28.2-1973. The other aspect which has disturbed me relates to the grievance made by the petitioner in paragraph 4 of the petition that in spite of an application made to the Secretary, Home Department, Govern--ment of Sind she was not permitted to visit the detenu in Jail. The Deputy Secretary in his counter-affidavit in answer contented himself by denying that "any application for Interview with the detenu was made by any person properly as required under the Rules". Thus an allegation was made that the petitioner in spite of an application made in writing was denied an interview with the detenu and all that the Deputy Secretary has to say is that a proper application as required under the rules was not made.
It may be noted that that as application was made by the petitioner for interview has not been denied, nor is it asserted that any reply was given to this written request but it is now stated in the counter-affidavit that this request was denied as it was not made properly as required under the Rules. Was it too much to expect from a responsible officer of the Government to give a proper reply to this very human request and condescend to relieve the harassed petitioner, the wife of the detenu, from the misery of not being able to see her husband? I would venture to think that it is the duty of the detaining officers to see that the benefits available to the detenus under the rules are made available to them and that these are not denied on vague and flimsy grounds that a proper application as required by the rules was not made.
7. Now I come to the material which has been placed before us and which material we are called upon to examine with a view to ascertain how far the conclusions arrived at by the detaining authority in its grounds of detention are justified by this material, in other words the nexus between the material and the grounds of detention and to determine how far the satisfaction of the detaining authority, acting under rule 32 was induced by the existence of reasonable grounds. The material consists of (a) a letter dated 25-1-73 from the Deputy Inspector-General of Police, Special Police Branch, Sind, Karachi, to the Secretary to the Government of Sind. This letter states that it was "reliably learnt" that the Balochi leaders are being financed through "Bhabha family" of Karachi.
Khair Bux Marri and Sher Muhammad Marri are "said to be" in close touch with them and even visiting them at their residences in Karachi from time to time. It is further stated in this letter that information on record about the detenu Abdul Hamid was contained in the accompanying note.
The accompanying note as far as the detenu is concerned is very short and it may be reproduced in toto:- "2. Abdul Hamid Bhabha.- Age: 45 years.
Address: 38-F, Bath Island, Karachi.
Business Address: At present without employment. He came to Pakistan in 1963. He did not come here after the Partition but went to Calcutta where he is reported to have participated in activities of the Communist Party of India. It is said that he was a member of the C. P. I. Guerilla Force. From Calcutta he returned to South Africa after soma time and there too is said to have associated with the activities of the Communist Party. On this account he was expelled by the South African Government. He subsequently came to Pakistan.
After coming here he aligned himself with the leftist leaders who began meeting him at his residence. Mairaj Muhammad Khan, Tariq Aziz, Dr. Rukunnuddin Hassan President of the Underground Sind Communist Party). Syed Sibte Hassan were among those who closely associated with him. He also began associating with the Baluchi Leaders, Khair Bakhsh Marri,M. N.
A., and Sher Muhammad Marri (who is now out of the country) on their visits to Karachi even lived with him. At one stage he was alleged to be instructing students in the art of making Molotov Cocktails and other explosives used in civil disturbances. With his long background of communist activities and his intellectual acumen, was strongly suspected of guiding communist activities in Sind and Karachi. It is said that he often used to remain away from Karachi and the susnicion is that he used to visit places in Baluchistan and Sind in connection with his communist activities.
He still continues to associate with leftist elements in Karachi. He was still recently the Manager of International Travels on Drigh Road but because his office had become a haunt for leftist political workers including Mairaj Muhammad Khan, the owner decided to wind up the Travel Agency altogether. Mairaj Muhammad Khan is reported to have drafted his resignation from the Central Government in the office of Hamid Bhabha. In fact the suspicion is that the resignation was drafted by him."
A merecursory perusal of the aforesaid note shows that the allegations against the detenu are vague, indefinite and completely lacking in any particulars. The first paragraph, deals with the events prior to 1963, which surely could not have been pressed into service for making the order of detentionin the year 1973. The contents of second paragraph are perhaps of a more recent origin but certainly not of immediate past. In fact we are left guessing as to when these alleged activities were being carried on by the detenu. It goes on to say that he met certain leftist leaders and began associating with Baluchi leaders Khair Bux Marri M. N. A. And Sher Muhammad Marri. Now to meet leftist leaders or associate with certain named persons without anything more can hardly constitute an act prejudicial to the security, public safety, interest and defence of Pakistan. Then a suspicion is vaguely asserted that the detenu "at one stage was alleged to be instructing students in the art of making Molotov Cocktails and other explosives used in civil disturbances". Neither the students have been identified nor the time and place of instructions disclosed. The note goes on to state that the detenu was strongly "suspected" of guiding communist activities in Sind and Karachi and because he was "said to" often remain away from Karachi it was suspected that he used to visit places in Baluchistan and Sind in connection with his "communist activities". Now we do not know what is being referred to by "communist activities" nor have we been informed that these activities have to be per se prejudicial, though even this is doubtful for according to the learned Additional Advocate-General Communist Party is not banned in Pakistan. The contents of paragraph 3 of the note are perhaps In point of time, most approximate to the impugned order of detention for the opening words are "He still continues to . . . . : All that this paragraph says is that the detenu continues to associate with the leftist leaders and elements is Karachi. Then it goes on to say that he meets Mairaj Muhammad Khan, who was until recently a Deputy Minister in the Central Government and then it goes on to say that the detenu drafted the resignation of this gentleman Mairaj Muhammad Khan. I am unable to see how these or even other allegations contained in the note can pursuade any reasonable person to make an order of preventive detention under rule 32 of the Defence of Pakistan Rules against the detenu.
8. The position becomes all the more worst when we examine the grounds of detention. The first ground alleges that the detenu had secret and clandestine contacts with Mr. Ashok Mehta, the Deputy High Commissioner for India in Pakistan in the year 1961 for reasons which were never disclosed. The second ground alleges that the detenu fraudulently applied for Pakistan Nationality while he was believed to be holding, a number of Passports and nationalities; and the third accuses the detenu of smuggling of arms and other essential commodities and thus avoiding payment of customs duty etc., which are substantive offences. In so far as these three grounds are concerned there is in the material not one word for its foundation and in so far as the first ground is concerned it materially contradicts the very first sentence in the note that he came to Pakistan in 1963. The fourth ground alleges that the detenu had a hand in the present trouble in Baluchistan and was financing the political leaders associated with the Baluchistan Liberation Movement. In ground No. 5 the allegation is that the detenu was reported to be organising guerilla warfare in Sind and Karachi and fomenting trouble and lawlessness in Baluchistan and imparting training material for guerilla warfare and providing the same to Baloch students who had joined the Azad Baluchistan Movement which was working for cessation of Baluchistan, in Karachi and Sind. In the material there is no warrant for the conclusion that the detenu was financing the political leaders of Baluchistan Liberation Movement, or who these leaders were or that there was any such movement. All that is alleged in the material is that the detenu was strongly suspected of guiding "communist activities" in Sind and Karachi and Baluchistan and that too inferred only from his frequent absence from Karachi. There is no mention in the material of any fomenting of trouble and lawlessness in Baluchistan. There is no material to warrant the conclusion that the detenu was imparting training material for guerilla warfare and providing the same to the Baloch students, etc. I am constrained to agree with Mr. Fazlur Rehman the learned counsel for the detenu that the person who has drawn up the grounds had not applied his mind to the material or to the necessity for making the impugned order of detention. I am appalled that on such material and for these grounds, a person has been deprived of his valued personal liberty and it will be an understatement to say that no reasonable person could have drawn the conclusions stated in the grounds of detention from this material or made this material basis for passing an order for detention under rule 32 of the Defence of Pakistan Rules.
DORAB PATEL, J.---I agree.