1. GHULAM SAFDAR SHAH, C. J.--This constitutional petition under --Article 199 of the Constitution of the Islamic Republic of Pakistan calls in: question the order of Home Secretary, Government of N.-W.
2. F. P. Dated 23-12-1973 passed by him under rule 32(1)(b) of the Defence o: Pakistan Rules, 1971 (hereinafter called the Rules) where under Mohd. Afzal Khan, the detenu in this case, was taken in custody and lodged in jail for a period of 30 days.
3. The grounds on which the impugned order has been assailed are that --it was passed on consideration of male, fides in order to deprive the detenu-- from canvassing for his party candidates (National Awami Party) in the forthcoming by-elections in this province to National and Provincial. Assemblies, that the order in question is not relatable to the objects of the Rules, that in regard to his speeches delivered by the detenu between 17-8-1973 and 28-9-1973 no action was taken against him in September, October and November 1973 and this would show that these speeches were not objectionable, that the other two speeches delivered by him on 21-12-1973 and 22-12-1973 have been misconstrued by the detaining authority and this they would not furnish him sufficient basis in support of the impugned order, that the impugned order was passed by Home Secretary in the colourable exercise of his power and that there is no evidence worth the name to justify the impugned order.
4. The Home Secretary has, in the comments submitted by him to Court, denied all these allegations.
5. However, since the burden to show that the --impugned order was passed by him not only in the proper exercise of his jurisdiction but also on the basis of sufficient credible material, he appeared as witness in the proceedings, was examined by the learned Advocate General and cross- examined by Mr. Zahurul Haq, the learned counsel for detenu. His evidence is that the six speeches made by the detenu between 17-8-1973 and 28-9-1973 had come do his notice soon after they were delivered. But all the same he did not take any action against him-watching at the same time, however his activities in the broader perspective of the law-and---order situation which was prevalent in the province. However, when the --detenu kept pursuing his objectionable activities and delivered two public speeches on 21-12-1973 and 22-12-1973, he was convinced that action under the Rules was required to be taken against him. On this part of his evidence the Home Secretary was cross-examined by Mr. Zahurul Haq, the learned counsel for detenu. But he failed to extract anything from him so as to --cloud his evidence. In fact, he reiterated the position taken by him in examination-in-chief and added that in consequence of the speeches delivered' by the detenu incidents of arson and telephone-wire cutting took place in the province and consequently he was, in the interest of peace, satisfied about the desirability of impugned action.
6. The learned Advocate-General, to begin with, raised a preliminary objection to the maintainability of this petition. He contended that the case of detenu is already before Review Board, constituted under clause (4), of Article 10 of the Constitution, and therefore this Court, the jurisdiction of which is, in view of Article 199 of the Constitution "Subject to the Constitution", would have no jurisdiction to entertain this petition. In order to appreciate this contention, it would be proper to reproduce clause (4) " ibid, which reads as under:- "(4) No law providing for preventive detention shall be made except to deal with persons acting in a manner prejudicial to the integrity, security or defence of Pakistan or any part thereof, or external-- affairs of Pakistan, or public order, or the maintenance of supplies or services, and no such law shall authorise the detention of a person for a period exceeding one month unless the appropriate Review Board has, after affording him an opportunity of being heard in person, reviewed his case and reported, before the expiration of thesaid period, that there is, in its opinion, sufficient cause for such detention, and if the detention is continued after the said period of one month, unless the appropriate Review Board has reviewed his case and reported, before the expiration of each period of three month,, that there is, in its opinion, sufficient cause, for such detention."
7. The object for which this provision seems to have been incorporated in the Constitution is:-
(1) No law providing for preventive detention shall be made except to deal with persons acting in a manner prejudicial to the integrity, security or defence of Pakistan or any part thereof, or external affairs of Pakistan, or public order, or the maintenance of supplies or services,
(2) No such law shall authorise the detention of a person for a period' exceeding one month unless the appropriate Review Board has, after affording him an opportunity of being heard in person, reviewed his --case and reported, before the expiration of the said period, that there-- is, in its opinion sufficient cause for such detention, and
(3) If the detention is continued after the said period of one month, unless the appropriate Review Board has reviewed his copse and reported, before the expiration of each period of three months, that there is, in its opinion, sufficient cause for such detention."
8. There is nothing in this provision to oblige a detaining authority to refer the case of a detenu to Review Board in which he has been detained for a period of thirty days. On the contrary, the jurisdiction of Review Board would appear to be attracted only in that case in which a person has been detained for more than one month or else the original order of his detention is desired to be continued beyond that period. Obviously, therefore, reference to Review Board in this case, in which the detenu has been detained only for 30 days, seems to have been made by the Government entirely gratuitously. And consequently, there would be no bar in the way of this Court to entertain this petition. Moreso, when under sub-clause (1) of Clause 1 of Article 199 of the Constitution, this Court would be obliged to direct the, person in custody should be brought before it with a view to satisfy itself that he has not been detained without lawful authority or in an unlawful manner.
9. As regards the merits of the case, the legal position, spearheaded as it is by a leading judgment of Supreme Court of Pakistan in the case of Malik Ghulam Mani v. Government of West Pakistan and another (PLD 1967 SC 373), is well-- established that in order to justify the incarceration of a citizen under preventive laws it would be the burden of detaining authority to place before Court for its satisfaction the entire material on the basis of which it was -persuaded to take that action.
10. The Home Secretary has, in line with this requirement, produced before us the eight speeches delivered by the detenu between 17-8-1973 and 22-12-1973 in which he is alleged to have stultified the image of Government established by law by saying that Prime Minister of Pakistan (who for quite many years after the Partition of sub-continent was an Indian National) has unconstitutionally dissolved the Governments of NAP-JUI in N.-W. F. P. And Baluchistan, that in order to suppress the ,popular sentiments in Baluchistan, he has mobilized considerable armed forces yin that Province which has let loose reign of terror amongst the people, that an order to reinforce his position there the Prime Minister who has already disintegrated the country, has brought into that province Iranian armed forces, that being the son of Sir Shah Nawaz Khan Bhutto, who until the last stages .Of its rule in sub-continent sided with the cause of British Government, the :prime Minister could not possibly advance the cause of this nation and that the object for which he has brought into Baluchistan Iranian forces is to help the cause of Iran which is wont to annex a part of that Province to its .Own territory. The one significant theme which the detenu seems to have assiduously espoused in his speeches is that Pukhtoons have, for all these years, passively submitted to the tyrannical treatment meted out to them by successive Governments not because they were incapable of retaliating but that under the policy of non-violence of Bacha Khan (Khan Abdul Ghaffar Khan) they were not supposed to resort to any violence. The detenu therefore exhorted his audience that this was no more the policy of National Awami Party and that they should start making suitable preparations with a -view to getting their rights from Government by force.
11. We are conscious of the fact that the detenu is an old political worker having, through the years, attained a prominent position in the hierachy of his political party, and thus there would be no objection to his making political speeches so long as he would conduct himself according to law.
12. Now the legal position is that all such speeches to which exception is taken by Government, will have to be read as a whole in order to see if they would tend to cause a deleterious impression on the minds of the audience. Isolated words and sentences from here and there would not be held against a speaker unless the Court, after reading his speeches in entirety, comes to the conclusion that what the speaker intended to achieve was to incite hi audience to violence or to commit some such activities.
13. Now by reading the speeches of detenu in this light and giving him al allowance for employing pungent, witty and hyperbolic language to which he would, as a prominent leader of NAP, be entitled with a view to conveying his point of view to the audience, he still seems to us to have brought himself within the michief of rule 32(1)(b) of the Rules, For he would have no justification to malign a friendly foreign Muslim country as also to malign Government established by law by accusing it of indulging in tyranny against the people of Baluchistan or exhorting his audience to prepare themselves to wrest their rights from Government by violent means. We are not convinced of the argument of the learned counsel for detenu that the said activities of his client would not come within the purview of rule 32(1)(b) of the Rules, for this is how this rule is worded:- "32. Restriction of movements of suspected persons, restriction orders and detention orders.-Where with respect to any person the Central Government is of opinion that, for the purpose of preventing him ;from acting in a manner prejudicial to Pakistan's relations with .Foreign powers, or to the security, the public safety or interest, the defence of Pakistan or of any part thereof, the maintenance of supplies and services essential to the life of the community, the maintenance of peaceful conditions in any part of Pakistan, or the ,.Efficient conduct of military operations or prosecution of war, it is necessary so to do, it may make an order-
(a) .......
(b) directing that he be detained ; The speeches of detenu, in which he has accused a friendly foreign 'Muslim country of employing its armed forces in Baluchistan, would appear clearly to fall within the mischief of this rule, for, they would tend to prejudice Pakistan's relations with that country. Similarly, his accusation against Government established by law that it has, with a view to suppressing popular sentiments in Baluchistan, employed armed forces in that Province as a measure of tyrannical exercise against the people, his tirade against the people, his tirade against Prime Minister of the country that he was responsible for bringing about the secession of East Pakistan and his many more objectionable utterances, to which we have already referred, would equally bring him within the michief of rule 32 of the Rules, for they too would tend to prejudice public safety, maintenance of peaceful conditions in the country and the security of Pakistan. These being the precise grounds on which the detenu was detained, and which were communicated to him in writing by Home Secretary on the very day on which he was taken in custody, we do not see any force in the contention raised before us by his learned counsel.
14. The not result of this discussion is that the impugned order of Home Secretary in this case was passed by him in the proper exercise of his jurisdiction under rule 32(1)(b) of the Rules and in support of that order he had before him sufficient material on the basis of which any reasonable person would have taken that action against the detenu. This petition therefore fails and is dismissed. But under the circumstances of this case, there would be no order as to costs.
15. K. B. A.