K. M. A. SAMDANI, J.-This petition for a writ of habeas corpus has,, arisen out of the arrest and detention of Dr. Ghulam Hussain, M. N. A., a former Adviser to the Governor of the Punjab who was, in the first place, arrested on the 26th of September 1975, in connection with a case (F.
1. R. No. 246) registered on the 25th of September 1975, at the railway Police Station, Lahore, under sections 147, 148, 353, 506, 186 and 188, P. P. C. And section 13 of the Arms Ordinance XX of 1965. On an application for bail moved on behalf of the detenu, he was admitted to interim bail on the 29th of September 1973 by this Court. In compliance with the bail order be was released in the afternoon of the 29th of September but was soon thereafter served with an order of detention passed under rule 32" read with rule 213 of the Defence of Pakistan Rules, 1971. For two months. The order was dated 27-9-1975.
In pursuance of this order he was --re-arrested and committed to the custody of the Superintendent Camp Jail, Lahore, only a few minutes after his release. This circumstance led Ghulam Ahmad petitioner, the brother of the detenu, to file the present writ'. Petition (No. 2436 of 1975).
The order of detention dated 27th of September 1975 read as fol--lows :- "Government of the Punjab Home Department Dated Lahore, the 27th September 1975.
No. 3-20-H-S.I- 1/75.-Whereas in the opinion of the Governor of the Punjab, it is necessary to arrest and detain Dr. Ghulam Hussain M. N. A. Son---resident of Jhelum with a view to preventing him from acting in a manner prejudicial to security, public safety and interest and defence of Pakistan ; Now, therefore, in exercise of the powers conferred on him by clause (b) of sub-rule (1) of rule 32, read with rule 213 of the Defence of Pakistan Rules, 1971 the Governor of the Punjab is pleased to direct that the said Dr. Ghulam Hussain be arrested and detained for a period of two months w. e. f.
27-9-1975 and he may be committed to the custody of Superintendent Camp Jail, Lahore, as Class I detenu.
By Order of the Governor of Punjab (Sd.)
(Section Officer Special-I)
Home Department." ft may be mentioned here that this order was not brought to the notice of the Court on the 29th of September 1975, the data on which the detenu was admitted to ad interim bail in connection with the criminal case referred to above. The impropriety involved in the concealment of this fact from the Court and the affected party is too obvious to be pointed out.
However, while the writ petition was still under consideration the order ,of detention was rescinded on the 12th of October 1975 by the following ---order :- .
"RESCINDING ORDER Government of the Punjab, Home Department Dated Lahore, the 12th October 1975.
No. 3-20-H-S.I -1/75.-Whereas the Governor of the Punjab vide Home Department Order No. 3-20- H-S.I.-1/75 dated the 27th September 1975 made under rule 32, read with rule 213 of D-fence of Pakistan Rules, 1971, directed the detention of Dr. Ghulam Hussain M. N. A. Son of--resident of Jhelum for a period of two months, with a view to preventing him from acting in a manner prejudicial to public safety.
And whereas the Governor of the Punjab is satisfied that the said order detaining the said Dr. Ghulam Hussain s/o should be rescinded.
Tow, therefore, in exercise of the powers conferred on him under rule 32 read with rule 213 of Defence of Pakistan Rules, 1971, the Governor of the Punjab is pleased to direct that the said order detaining the said Dr. Ghulam Hussain shall stand rescinded with effect from 12th October 1975."
By Order of the Governor of the Punjab Home Department"
This order was served upon the detenu on the 13th of October 1975, and he was released at 16.00 hours. But again his freedom was extremely short lived as there was yet another order of detention ready or service on him which was actually served at 16.10 hours. The detenu was re-arrested and committed to Jail under the second order of detention dated 13th October 1975, at 16.35 hours the same day. This second order of detention reads as follows :-- "New DETENTION ORDER , Government of the Punjab, Home Department Dated Lahore, the 13th October 1975
No. 3-30-H-S.I -1/75.-Whereas in the opinion of the Governor of the Punjab, it is necessary to arrest and detain Dr. Ghulam Hussain M. N. A. Resident of Jhelum with a view to preventing him from acting in a manner prejudicial to the maintenance of public safety and peaceful conditions in the Province of Punjab.
Now, therefore, in exercise-of the powers conferred on him by clause (b) of sub-rule (1) of rule 32, read with rule 213 of the Defence of Pakistan Rules, 1971, the Governor of the Punjab is pleased to direct that the said Dr. Ghulam Hussain be arrested and detained for a period of two months w.e.f.
13th October 1975, and he may be committed to the custody of Superintendent, Camp Jail, Lahore, as Class I detenu.
By Order of the Governor of Punjab (Sd.)
(Section Officer Special-I) Home Department."
This order necessitated amendment in the writ petition. The petition was accordingly amended. It was in these circumstances that the detenu remained in custody until he was directed to be released by a short order of this Court on the 22nd of October 1975. Our reasons for directing the release of the detenu are as follows :-
2. From the facts narrated above it is evident that the preven--tive detention commenced on the 29th of September 1975, and continued until the detenu was released on the .22nd October 1975, except for a brief break of a few minutes on the 13th of October 1975. But the grounds of detention were not communicated to the detenu until 15th October 1975. Therefore, the first question for consideration in this case is whether the provisions of clause (5) of Article 10 of the Constitution regarding communication of grounds to the detenu were complied with.
The learned Advocate-General, however, contended that the earlier order of detention having been rescinded on the 12th of October, a fresh detention began under the second order on the 13th of October. According to him, there--fore, the second detention was not in continuation of the first and so the period of 15 days should be computed from the 13th of October and not from the 29th of September 1975. At the same time, however, he also asserted that the second order of detention though based on the same material as the first was not improper or illegal despite the rescission of the first one inasmuch as by rescinding the first order and passing a fresh one, the detaining authority merely sought to remove a formal defect occurring in the order dated 27th of September 1975, namely the mention therein of security and defence of Pakistan which was superfluous. Here we need not go into the question whether it amounted .In a formal defect or not. Instead, we may pass straight to the question whether, in the circumstances, the detention under the order of the 13th October was indeed a fresh detention and not a continuation of the one that commenced on the 29th of September 1975. It must be mentioned at the very outset that mere termination of a detention by the rescission of an earlier order and resumption thereof under a fresh order does not necessarily mean the commencement of afresh detention. The actual physical discontinuation of detention for a few minutes or a few hours or even for a longer period bas no bearing-on the question of the continuity of detention. What is in fact basis to a detention is the material on which it is based. It is the material alone which should determine whether a subsequent detention is the continuation of the earlier one and not the fact that the detenu was put out of Jail for a certain length of time and then placed again under custody. ,
3. We have perused the file of the Government containing the material which prompted the detaining authority to pass the first order of detention. It discloses that the detenu made a speech on 25th of September 1975, and also brought a few armed persons to Lahore. When the second order of detention was passed on the 13th October there was no fresh material before the detaining authority. In fact the two grounds served upon the detenu on 15th October 1975, are formulation of the material already available. It is thus clear that the basis of the second order of detention is exactly the same as that of the first. Therefore, the detention from the 13th October cannot be treated as a fresh detention.
4. Another way of looking at this issue is to ask the question. "if the detaining authority had not made the mistake of mentioning the security and defence of Pakistan in the first order of detention, would he rescind the order on the 12th .Of October and pass a fresh order of detention on the 13th?"
The learned Advocate-General has rightly answered this question in the negative. Thus it is clear that, but for the mistake, no question with regard to the continuity of the detention would have arisen.
So, the next question will be whether the detaining authority can press his own mistake into service to deprive the detenu of his constitutional right to know the grounds of his detention within 15 days of the commen--cement thereof. Obviously. The answer to this question must also be in the negative.
Moreover, when the fresh order was passed on the basis of the material that was available to the authority on the 24th of September 1975, it is not understandable why the grounds could not be communicated to the C detenu, along with the order itself, on the 13th of October.
5. In short what emerges from this survey of the legal position obtain--ing in the case is that the detenu remained in continuous detention since 29th of September 1975, and that he was not informed of the grounds of detention within 15 days as required by clause (5) of Article 10 of the Consti--tution.
6. As to the effect of the failure of the detaining authority to comply With that constitutional provisions relating to communication of grounds to the detenu, we need only refer to the case of Muhammad Aslam Malik decided by a Division Bench of this Court PLD 1968 Lah. 1234 wherein it has been ruled out that such failure renders the detention unlawful. The detention in question was, therefore, liable to be set aside on this short ground alone.
7. We shall nevertheless examine the grounds of detention communicated to the detenu on 15-10-
75. They read as follows :- "You. Dr. Ghulam Hussain, M. N. A. Have been indulging in the activities which are prejudicial to the public safety and the mainten--ance of peaceful conditions in the Province of Punjab.
(i) That you made a speech at the residence of Mr. Zulfiqar Ahmad Bajwa, M. N. A., on 25-9-75, in which you made the following allega--tions in order to bring into hatred or contempt and to excite dissatisfaction towards the Government established by law in Pakistan;
(a) that the present Government had deceived the people by the slogan of `Roti, Kapra and Makan' and the country was brought to the verge of ruination and Prime Minister Bhutto had a hand in it.
(a) that the Prime Minister bad caused the country to be divided into two parts for the sake of his own office, because he knew that in case Pakistan remained united he could not get the high office. Be disin--tegrated the country because of chair. You further said "that Bhutto is a traitor and no one else could be such a mean person as he is".
(c) that the Prime Minister was planning to murder Mr. Ghulam Mustafa Khar.
(d) You also threatened the Prime Minister with the fate of Sheikh Mujib--ur-Rehman "even worse" and called him a "traitor,', stating that he would be forced to flee the country soon and that end of Bhutto's regime was very near.
(e) that you also made disparaging remarks against the person of the Prime Minister as well as other public servants.
(ii) That inter alia you on 25-9-75 managed to bring, to take after their participation in Gujranwala meeting, the following "goondas" and desparadoes duly armed to disrupt public peace and commit acts of violence during fort becoming be-election in Constituency Lahore-6. The said persons bad subsequently to be externed by District Magis--trate, Lahore from the jurisdiction of Lahore District.
(1) Abbas Ali Shah son of Safdar Ali Shah caste Syed of village Chohan, P. S. Dumman at present of Mohalla Islamia School, P. S. City, Jhelum.
(2) Raja Muhammad Yousaf son of Ghulam Qadir, caste Gakhar of Piraghaib, P. S. City Jhelum.
(3) Raja Muhammad Akbar son of Ghulam Qadir caste Gakhar of Piraghaib, P. S. City Jhelum.
(4) Raja Muhammad Afzal alias Rajan son of Ghulam Qadir, caste Gakhar of Piraghaib, P. S. City Jhelum.
(5) Raja Salim son of Muhammad Amin, caste Gujar of Jada, P. S. Saddar Jhelum.
(6) Khurshid Bhatti son of Ghulam Hussain, caste Rajput, Machine Mohalla, Jhelum.
(7) Qureshi Abdul Karim son of Muhammad Ramzan, Cement Shop keeper, Iqbal Road, Jhelum.
(8) Muhammad Bashir Kabaria son of Allah Dad of Saila, P. S. Saddar Jhelum.
(9) Abdul Ghafoor son of Abdul Ghani of Gali Syedan, P. S. Domeli.
For the above reasons the Government of the Punjab is satisfied that you have acted in a manner prejudicial to the public safety and maintenance of peaceful conditions in the Punjab and for the purpose of preventing you from acting in such a manner you are hereby informed of the above grounds of your arrest/detention to enable you to make if you wish a representation in writing against the order of detention.
(Sd.)
Home Secretary, Government of the Punjab."
A perusal of these grounds will show that ground No. (i)(e) states that "--you also made disparaging remarks against the person of the Prime Minister as well as other public servants." The ground does not specify as E to what the said disparaging remarks were-(apart from those which had been reproduced in the earlier grounds)-and who were the other public servants and what remarks were made by the detenu against them. The ground indefinite and vague.
Same is the position of ground No. (ii) which is prefixed with the phrase "inter alia" and states that "inter alia" you on 25-9-75 managed to bring the following "Goondas" and desparadoes duly armed to disrupt public peace and commit acts of violence during forthcoming be-election m Constituency Lahore-6" The phrase "Inter alia" in this context means that among other things matters, or acts the detenu did the acts mentioned after this phrase.Now what those other things matters, and acts were which were sought to be covered by the phrase "inter alga" are a mystery and the ground aforesaid, therefore, is also vague and indefinite. In the case: Begum Sardar Muhammad Hayot Khan of Tumman v. Government of West Pakistan and another (PLD 1969 Lab.
985this Court had the occasion to deal with a similar situation where also the grounds supplied stated that-(amongst others),-the detenu had done certain acts which however were mentioned therein. It was held at page 1019 in paragraph 4 that- "Last but not the least, another factor to be noticed is that the impugned order shows that the detention was being ordered "amongst others" on three reasons mentioned therein. This indicates that there were some other reasons also which were intended to be covered by the words "amongst others". This has not been shown as to what those other reasons were and nor their particulars were given to the detenu. Reading the order as a whole, the inference is inescapable that the order is vague and indefinite. The Court is not in a position to judge as to what those reasons were which were covered by the phrase "amongst others" and how far could they have led to a reasonable satisfaction for passing an order of detention."
The position in the instant case is not dissimilar. For the proposition that where the grounds are indefinite, irrelevant or vague the order of detention is without lawful authority see Mir Abdul Baqi Baluch v. Government oft Pakistan and others (1), Muhammad Jarnadar v. Government of East Pakistan and 3 others (2), Muhammad Nasrullah v. The Municipal Corporation (3), M. S. K. Lbrat v.
The Commander-in-Chief, Royal Pakistan Navy etc. (4), Abdul Karim v. Sh. Muhammad Rafique Setjlement Commissioner (5), Abuzar v. The Province of West Pakistan and another (6), Muhammad Ahmad v. The Crown (7), Muhammad Aslam Awan v. The Government of West Pakistan and another (8) and Malik Sohrab Khan v. The District Magistrate, Rawalpindi and 2 others (9;. In the face of the various defects pointed out above, the impugned order of detention shall have to be held as vitiated and without lawful authority. For the proposition that where some of the grounds are vague and indefinite or irrelevant the whole order stands vitiated see Kest-av Talpade v. Emperor (10), Rehmat Elahi v. Government of West Pakistan (11), Dr. Ram Krishan Bhardwaj v. The State of Delhi and others (l2) and Shibban Lal Saksena v. State of Uttar Pradesh and others (13).
8. However, we consider it necessary, for the benefit of all concerned, to examine also the other parts of the grounds of detention on their own merits.
The detention was ordered on two grounds. The first ground is that on the 25th of September 1975, the detenu made a speech at the residence of Mr. Zulfiqar Ahmed Bajwa, M. N. A. In which he made certain allegations which tended to bring into hatred or contempt the Government established by law in Pakistan and to excite disaffection towards it. It is to be noted that the order of detention itself was purportedly passed with a view to preventing the detenu from acting in a manner prejudicial to the maintenance of public safety and peaceful conditions in the Province of the Punjab. But the first ground is relatable neither to public safety nor to maintenance of peaceful conditions in the Province.
(1) PLD 1969 Kar. 87(2) PLD 1970 Dacca 373
(3) PLD 1933 Sind 41(4) PLD 1956 SC (Pak.) 264
(5) PLD 1966 Lab. 33(6) PLD 1966 Kar. 260
(7) PLD 1955 Sind 73(8) PLD 1968 Lab. 667
(9) PLD 1974 Lab. 214(10) AIR 1943 FC 72 (11)PLD1965Lab.112(12)AIR1953SC318 (13)AIR1354SC1/9.
Bringing the Government established by law into hatred or contempt and exciting disaffection towards It may be a `prejudicial act' as defined in rule 42 of the Defence of Pakistan Rules. But every prejudicial act is not necessarily prejudicial to public safety or peaceful conditions. A prejudicial; act may be prejudicial to the interest of an individual, to the party in power, to a Government, to sectarian harmony or also to public safety and tranquility. Therefore, it is necessary for the authority detaining any person under rule 32 of the Defence of Pakistan Rules in the interest of public order to satisfy himself that the person concerned is likely, if not detained, to commit an act prejudicial to public order. If he has merely committed an act prejudicial to the Government, it does not necessarily follow that he will also jeopardize public order. It is evident from the utterances attributed to the detenu under ground (i) that he has levelled serious allegations against the present Government and the Prime Minister [vide sub-paragraphs a, b, c & e of the ground (i)] and also warned the Prime Minister against a fate similar to that of Sh. Mujibur Rehman or even worse [vide clause (d) under ground (1)].
Regardless of whether the allegations made by the detenu against the Government and the Prime Minister are true or baseless, they can at the most be characterised as prejudicial to the fair name of ?He Government and the political career of the Prime Minister. But the allegations do not spell out any threat to public safety or to the maintenance of peaceful conditions in the Province. Further it must be remembered that "disaffection towards the persons holding high offices in a party Government cannot constitute disaffection towards the 'Government established by law' and that mere criticism, however, strongly worded of the official acts or policy of Ministers cannot be restricted in the interest of public order."-[Basu's Commentary on Constitution of India].
In the context of the election in Constituency, Lahore 6, which was held on the 19th of October 1975, it is obvious that the speech made by the detenu was a part of the election campaign, and if a citizen is not permitted the freedom to criticise the Government and the persons in power even in the course of an election campaign, then it would amount to a mockery of the guarantee of freedom of speech and expression enshrined in the Constitu--tion. This freedom, however, does not imply a licence to incite violence or to threaten peace and safety. But in the utterances attributed to the detenu we have not been able to find any incitement to violence even when read with reference to the context of the full speech. Reference to the events in Bangla Desh resulting in the assassination of Sh. Mujib-ur-Rehman was obviously made as a lesson to all that even a popular leader like Sh. Mujib-ur-Rehman could sometimes come to a sorry end. But it is not possible to infer that the detenu was trying to incite the public to enact the same drama in Pakistan.
9. In short the utterances reproduced under ground (i) cannot be said to be prejudicial either to public safety or to the maintenance of peaceful conditions in the Province. Nor did the detaining authority characterise them as such in the grounds furnished to the detenu.
10. The second ground is that the detenu brought nine armed Goondas and desparadoes to Lahore to disrupt public peace and commit acts of violence "during the forthcoming be-election in Constituency Lahore 6." Apart from the fact that the record does not disclose the basis on which the nine persons referred to above were treated as 'Goondas' or "desparadoes," it may be observed with regard to this ground that although the Government apprehended violence only in connection with the election of the 19th October 1975, the detaining authority thought it fit to pass an order of detention on the 13th of October 1975, for as long a period as two months. No doubt, it is for the detaining authority to determine the period for which detention is necessary. But the period has to bear a reasonable relationship with the purpose of detention. There could be no justification for detaining a man till the 13th of December 1975 when the ground of detention was that he was likely to disrupt public peace and commit acts of violence in connection with an event that was to take place on the 19th of October 1975. It may further be noted here that the first order of detention had also been passed for two months and it was dated 27th of September 1975. This clearly shows that regardless of the ,dates on which the orders were to be passed the detaining authority was determined to order detention for two month without any reference to necessity. If it was considered necessary on the 27 of September 1.975, to detain the detenu for two months then, on the basis of the same material and the same grounds, detention beyond the 27th of November 1975 could not justifiably be ordered. Nevertheless when a fresh order was passed on the 1 h of October the same period of two months was incorporated in the order without paying attention to the duration for which' detention was necessary.
11. We are, therefore, satisfied that the detention was ordered without due regard to the necessity of such detention and without much respect for the citizen's right to liberty. It must be borne in mind that preventives detention even for a day longer than necessary is without lawful authority, even if justified otherwise.
12. For these reasons we hold the detention of Dr. Ghulam Hussain, M. N. A. To be without lawful authority ; and it was for these reasons that we directed his release on the 22nd of October 1975. s. A. H. Petition accepted.