' SHAMEEM HUSSAIN KADRI, J.-By this short order we dispose of Writ Petitions Nos. 568 and 621 of 1977 wherein challenge has been thrown to the detention of Mr. Aamer Raaa, President of the Lahore High Court Bar Association and 2 other Advocates of this Court, namely, Rana Abdur Rahim and Mr. Gulzar Hassan. After going through the evidence which is recorded in this case and the provisions of clauses (e), (h), (o) and ( p) of sub-rule (6) of rule 42 of the Defence of Pakistan Rules, 1971, we are of the view that the preliminary objection raised by Mr. Khalil Ramdey, Assistant Advocate- General, in this case that this Court should abstain from exercising jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, after placing reliance on Malik Ghulam Ahmad v. Haji Muhammad Yousaf and others (1), is untenable. The police after having completed the investigation has put in the challan before the Special Tribunal which for all purposes is a Court whose judgment is appealable to this Court. The colourable exercise of jurisdiction by the Tribunal when the material on the record does not constitute an offence under rule 49 of the Defence of A Pakistan Rules, can be challenged in this Court in the exercise of its extraordinary jurisdiction under Article 199 of the Constitution. Reliance is placed on Ch. Zahoor Ilahi v. The State (2). Thus this Court has the jurisdiction to examine and decide whether the alleged offence under rule 49
(I) PLD 1976 SC 271 (2) PLD 1977 SC 273 of the Defence of Pakistan Rules is made out on the basis of the resolution which has been passed by the Lahore High Court Bar Association. The rules of the High Court Bar Association in regard to the duties of the President are clearly manifest. If a requisition is tabled in a proper manner, signed by a particular number of members it is the duty of the President to call a meeting and preside over the same and it is for the House to pass or reject a resolution. In this case Mr. Aamar Raza has not acted in any manner which can bring his action within the purview of the offence. So far as the others are concerned, we are of the view that the resolution does not offend any of the provisions mentioned above. Reliance has been placed on Masihur Rahman v. The State (1) in which a string of authorities Emperor v. Sadushiv Narayan Bhalarao (2), Sher Muhammad v. The Crown (3), Niharendu Dutt Majumdar v. Emperor (4), Malik Nasorullah Khan Aziz v. Crown (5), Sangbad v.
Province of East Pakistan (6), Tofazzal Hussain v. Province of Ea't Pakistan and others (1). And Sheikh Fazlu' Hague alias Mond v. The State (8), have been examined. The other cases cited by Mr. M.
Anwar are Debi Soren and others v. The State (9). The State v. Abdul Ghaffar Van (10) and Z. A.
Sulleri and ethers v. The Crown (11) in which again large number of cases base been examined by Z.
H. Lari, J. Namely, Mrs. Annie-Besent v. Emperor (12), In re : Sunderlal (13), Padmamoni &psi v. E" peror (14), Diwan Parkash Chand v. Emperor (15) and Mufti Fakhrui Islam v. Emperor (161. Two cases from American Jurisdiction were also cited by Mr. M. Anwar Arthur Terminkilo v. City of Chicago (17) and Dirk De Jonge v. State of Oregon (18). Similarly certain cases were cited to show that criticism of the Government, unless It clearly preaches violence in a democratic set up would not attract the provisions of clause (e) of subrule (6) of rule 42 of the Defence of Pakistan Rule!. Reference is made to Shahidul Hague v. Government of East Pakistan and others (19), Reazuddin Ahmed v. Deputy Commissioner, Dacca and others (20) and M. Mansur Ali v. The State (21). It was further argued that Ministers are not public servants and so are not the M. N. As. Reliance was placed on Hussain Bakhsh Kausar v. The State (22). There is a Division Bench judgment Ghulam Ahmad v. Punjab Province and another (23) wherein Dr. Ghulam Hussain former M. N. A. Was detained who criticised the former Prime Minister In very strong language. II was held that such a criticism of Minister of a party in power would not fall within the purview of 'prejudicial act' as defined in sub-rule (0) of rule 42 ibid. Whether the case falls within the purview of clause (a) Mr. M. Anwar cited Muhammad Aslam Saleemi v. The Pakistan Television
(1) 1971 D L C 750
(3) AIR 1949 Lab. 218 (5) PLD 1950 Lab. 420 (7) PLD 1966 Dacca 478 (9) AIR 1954 Pat. 254 (11) PLD 1954 Sind, 80 (13) I L R 42 All. 233 (15) AIR 1937 Lab. 513 (17) 337 U S 1
(19) 1969 P Cr. L J 449 (21) 1969 P Cr. L J 818
(2) PLD 1947 P C 32
(4) AIR 1942 FC 22
(6) PLD 1958 Dacca 324
(8) PLD 1971 Dacca 154 (10) PLD 1957 Lab. 142 (12) I L R 39 Mad. 1085 (14) I L R 1932 Cal. 457 (16) AIR 1943 All. 244 (18) 299 U S 353
(20) 1969 P Cr. L J 619 (22) PLD 1959 Pesh. 15
(23) PLD 1976 Lab. 773 ' Corporation and another (1) and Parveen Malik v. The State (2). Parveen Mahk's case under the Defence of Pakistan Rules, 1971, was quashed by our brother Gulbaz Khan, J. There is also an unreported case Wazir All v. The State &Writ Petition No, 526/H of 1977), wherein certain offences under the Penal Code have been quashed by a Division Bench of this Court in the exercise of its extraordinary jurisdiction under Article 199 of the Constitution.
' The other two cases from American jurisdiction deal with the point of freedom of discussion. Right to express one's opinion is a part of freedom of speech in a public place. Mr. Shahzad Jahangir who appeared as amicus curiae in this case flied written arguments which are placed on the record,. He referred to a number of cases mentioned in the written arguments. He submitted that the preliminary objection regarding exercise of jurisdiction by this Court under Article 199 of the Constitution is not well-founde. He argued that from the facts of the case, looking from the evidence and the case-law it clearly appears that the action taken by the Authorities in arresting the three Advocates was illegal, without law ful authority and is not free from malice. Since the petition has not been contested by the Advocate-General on the instructions received by him, we have applied our mind and after going thoroughly into the record and the law have come to the conclusion that the arrest and detention of the detenus was illegal, without lawful authority and we cannot rule out malice therein. We will, however, refrain from giving finding on the question of malice in this case because the detenus have filed cases for damages against certain officials so that anyone of the parties may not be embarrassed before the trial Court. Malice has to be proved and onus is on the person who makes the allegation. We would not like to embark upon an enquiry in the exercise of our extraordinary jurisdiction under Article 199 of the Constitution.
3. The case pending before the Tribunal under Defence of Pakistan Rules arising from F.
1. R. No, 188 is quashed as no offence is made out from the material on the record before us. We accept both these petitions, but would not like to burden the respondents with costs as they have not contested these petitions. Mr. Shahzad Jahangir will be paid Rs, 2,000 whereas Mr. Abid Hassan Minto will be paid R s. 1,000. Before parting with this case we must place on record our deep appreciation of the assistan:e rendered to us by Mr. M. Anwar learned counsel for one of the petitioners. Mr. Shahzad Jahangir has also argued the case and assisted the Court with case-law.
He also discussed the pros and cons of the cases before us with independence and vigour. We are grateful for his assistance. Unfortunately on the final date of hearing we could not avail of full assistance from Mr. Abid Hassan Minto, perhaps on account of his professional engagements out of Lahore, otherwise, he was also helpful during the time he remained present in Court.
' M. S. H. QURESHI, J.-This judgment incorporates our reasons for the acceptance of two petitions under Article 199 of the Constitution, namely, W. P. No, 568/77 filed on 25-3-1977 by Mr. Muhammad Inam Ullah Khan to challenge the arrest and detention of his son Mr. Aamer Raza A. Khan, President High, Court Bar Association, Lahore, and Vice-Chairman, Punjab Bar Council ; and W. P. No, 621/77 filed on 2-4-1917 by the Lahore High Court Bar Association, to challenge the arrest and detention of its
(1) PLD 1977 Lab. 852 (2) PLD 1977 Lab. 1017 ' Members, viz. Aforesaid Mr. Aamer Raza A. Khan, Rana A. Rahim, also Member, Punjab Bar Council, and Mr. Gulzar Hassan. The three detenus bad been arrested from their respective houses in a pre- dawn sweep made by the police on 25th March 1977. It is alleged in the petitions that no warrants of arrest had been shown nor had any reason been given by the police at the time of their arrest in spite of enquiries made in that regard, that the arrest and detention was illegal being in violation of Article 10 of the Constitution and was also motivated by malice. It was, therefore, prayed that the detenus be directed to be produced befcre this Court in order that the Court may satisfy itself that they were not being held without lawful authority or in an unlawful manner.
2. In response to notice issued by the Court, Mr. D. M. Awan, the then Advocate-General, appeared and stated that the deteous bad been arrested in a case having been registered against them under rule 49 of the Defence of Pakistan Rules. In the written statement filed on behalf of the State, a preliminary objection was taken that the case being under the Defence of Pakistan Rules, a writ petition was neither competent nor maintainable. On merits, it was contended that a cognizable case having been registered, the persons arrested were not detenus but accused, that the case being cognizable, the police could effect the arrest without warrant and that in any case the reason for the arrest had been disclosed to all of them at the time of their arrest. The allegation of malice was also denied. Since motive had been alleged and the petitioners had asked for summoning certain officials to substantiate that allegation, a decision on the preliminary objection was deferred until the recording of the evidence.
3. At the Instance of the petitioners, the following officials were summoned and were allowed to be cross-examined ' R. W./I.-Mr. Taqi-ud-Din Pal, Deputy Secretary, Home Department, Government of the Punjab, Lahore, on the basis of whose letter the relevant F. I. R. Had been entered ; ' R. W./2.--Rana Mukhtar Abmad, Ilaqa Magistrate, Old Anarkali, Lahore, who had remanded the detenu to custody till 7th April 1977 ; R. W./3.-Muhammad Yousaf, Sub-Inspector, P. S, Old Anarkali, Lahore ; ' R. W./4.-Riaz Hussain, D. S. P., Old Anarkali, Lahore ; and ' R. W./5.-Abdul Hamid Tahir, Inspector, P. S. Old Anarkali, Lahore.
' In the course of the hearing, an application was made on 7-4-1977 by Rana A. Rahim for summoning Mr. D. M. Awan, too, as a witness in Writ Petition No, 621/77. He accordingly appeared as R. W.
6. At the instance of the State Messrs A. H. Najafi (R. W. 7) and Zaffar Pasha (R. W. 8) were also examined.
4. Mr. Aamer Raza A. Khan had sent from the Jail a statement in writing dated 263-1977, which was later converted into an affidavit. For this reason, he appeared as P. W. 1 and offered himself for cross-exsminatioo, which was, however, declined by Mr. Asif Jan, learned Assistant Advocate- General, who was then conducting the case in place of Mr. D. M. Awan.
5. During the proceeding, the detenus' counsel, namely, Messrs M. Anwar knd S. M. Zafar, were arrested. On the other hand, Mr. D. M. Awan, learned Advocate-General, having been summoned as a witness, could not represent the State. In the circumstance, the Court called upon Messrs Shahzad Jahangir and Abid Hassan Minto, Advocates, to appear and assist the Court as amicus curiae.
6. From the evidence brought on record, it appears that a report (Exh. R. W. 1/4) was received by the Home Secretary from the Deputy inspector-General, Special Branch, Lahore, dated 24.3-1977 with the following content ' An emergent meeting of the Lahore High Court Bar Association was held at 12-30 p.m. On 22nd March 19 77. The meeting which was presided over by Mr. Aamer Raza A. Khan, President of the High Court Bar Association, adopted the following resolution :- ' We resolve to take out procession at 12-00 p.m. On Friday, the 25th March 1977 and give a call to all the Bar Associations of Pakistan to take out processions at that time on that day.
' The 26th March 1977 will be blackest day in the country when the so-called members of the National Assembly have to take oath in response to a call from Mr. Z. A. Bhutto who has lost confidence of the entire populace of Pakistan. We call upon the so-called members of the National Assembly not to attend the aforesaid meeting on 26th March 1977, the blackest day of Pakistan's History, otherwise, they will not be spared of the Wrath of God and our people. As patriotic Pakistanis, our hearts ache when we find quislings and ranked opportunists in our community. We call upon our fraternity to excommunicate such members whether in National Assembly or in Bar Council and force them to resign forthwith. All members of the Executive Committee including the office-bearers of the Association and Bar Councils should spear-bead the procession in a disciplined way'
(2) It is also learnt that the aforesaid resolution is being sent to Press for publication in the newspapers.
(3) Prima facie the resolution appears to attract the provisions of D. P. R. No,
49. The matter may please be examined with a view to take nesessary legal action in the matter'
' The Home Secretary passed on this report to his Deputy Secretary with the note "Please examine urgently". Deputy Secretary Taqi-ud-Din Pal, in consultation with the Law Department put up a note to the Home Secretary on the same date, I e., 24-3-1977, to the effect "The following elements appear to be the highlights of this resolution-
(1) Hatred, contempt and disaffection towards the Government.
(2) The members-elect of the National Assembly have been threatened with the Wrath of God and people if they attended the meeting of the National Assembly on 26th March 1977.
(3) Lawyers have been incited to excommunicate the members-elect of the National Assembly who belong to their fraternity.
(4) The threats and instigations made in this resolution cause fear to a section of lawyers community."
' The note goes on to say "In view of the present conditions it is apprehended that the implementation of this resolution is likely to adversely affect the law and order situation which has already become unsatisfactory due to civil disobedience launched by the Opposition against the Government. The resolution by itself appears to be actionable and any action in pursuance thereof will add to the criminal liability of the sponsors and participants, in addition to the undesirable effect on the normal life of the community."
' At the end of the note, the Deputy Secretary suggested that the D. I.-G. Of Police, Lahore, be asked to initiate action under the Defence of Pakistan Rules and appended for his guidance a draft F. I. R.
The Home Secretary agreed with the note and, accordingly, the Deputy Secretary sent the draft F. I.
R. (Exh. R. W.-1/2) with a covering letter dated 24.3-1977 (Exh. R. W.-1/1) to the Deputy Inspector- General of Police, Lahore. In the letter, it was mentioned that the contents of the resolution passed by the High Court Bar Association in their meeting held at 12-30 noon on 22-3-1977 and presided over by Mr. Aamer Raza A. Khan, came within the mischief of clauses (e). (h), (o) and (p) of rule 42 of the Defence of Pakistan Rules and as such punishable under rule 49 of the said Rules. It was further stated in the letter that "Messrs Gulzar Hassan, Advocate, Temple Road, Lahore and Rana - Abdul Rahim, Advocate, Lytton Road, Lahore are said to be the proposer and secondor respectively of this Resolution."
' The letter ended with a request for Immediate necessary action with intimation to the Department.
7. The draft F. I. R. Sent by the Deputy Secretary which formed the basis of the first report entered by the police reais as below : "1 have come to know from relable sources that an emergent meeting of the General House of the Lahore High Court Bar Association was convened on March 22, 1977 at 12.30 p.m. At t e instance of Mr. Aamer Raza A. Khan, President of the High Court Bar Association who also presided the said meeting. The said meeting was called in support of the unlawful activities and the movement launched by the members of the 'Pakistan National Alliance' after their defeat in the general elections held on 7th March 1977. Mr. Aamer Raza A. Khan not only presided the said meeting but also encouraged certain members of the High Court Bar Association and manoeuvred the passing of a Resolution to the effect- "We resolve to take out procession at 12-00 p.m. On Friday the 251 March 1977 and give a call to all the Bar Associations of Pakistan to take out processions at that time on that day.
' The 26th March 1977 will be blackest day in the country when the so-called members of the National Assembly have to take oath in response to a call from Mr. Z. A. Bhutto who has lost confidence of the entire populace of Pakistan. We call upon the so-called members-elect of the National Assembly not to attend the aforesaid meeting on 26th March 1977, the blackest day of Pakistan's history otherwise they will not be spared of the Wrath of God and our people. As patriotic Pakistanis, our hearts ache when we find quislings and ranked opportunists in our community. We call upon our fraternity to excommunicate such members whether in National Assembly or in Bar Council and force them to resign forthwith. All members of the Executive Committee including the office-bearers of the Association and Bar Councils should spear-head the procession in a disciplined way.{{URDU TEXT}} ' The encouraging, inducing, abetting and allowing the members of the Lahore High Court Bar Association to pass the afore-quoted Resolution amounts to prejudicial acts within the meaning of paragraphs (e), (h), (o) and (p) of sub-rule (6) of rule 42 of the Defence of Pakistan Rules, 1971.
' In view of the unlawful activity of the members and the supporters of the Pakistan National Alliance and the consequential political disturbances obtaining in the country, the gravity of the prejudicial acts, referred to above is further enhanced. Under the circumstances, a case is hereby registered against the said Mr. Aamer Raza A. Khan under the provisions of paragraphs (e) (h) (o) and (p) of sub-rule (6) .Of rule 42 read with rule 49 of the Defence of Pakistan Rules, 1971."
' It may be noted that the portion written in Urdu is by pencil at the foot of the first page. It is also unrelated to the context because the names of Rana A. Rahim and Mr. Gulzar Hassan do not figure anywhere else in the draft F. r. R. And also because the direction to register a case was only against Mr. Aamer Raza A. Khan. This pencil insertion also does not appear at all in the office copy of the draft P. I. R.
8. On receipt of the letter and the draft F. I. R. From the Deputy Secretary, a case was registered under F. I. R. No, 188 at P. S. Old Anarkali at 12-30 a.m. On 25-3-1977. A police party headed by Inspector Abdul Hamid Tahir raided the respective houses of the detenus and effected their arrest.
Riaz Hussain, D. S. P., also joined the raiding party at the house of Mr. Aamer Raza A. Khan, who was last to be arrested. The detenus were taken to Badami Bagh Police Post and after obtaining remand from the Ilaqa Magistrate, they were taken to and lodged in Camp Jail, Kot Lakhpat.
9.The resolution in question had been passed by the High Court Bar Association, Lahore, in an emergent general meeting convened on requisition sent by a number of its members on 22-3-1971.
The name of Mr. Gu'zar Hassan only appears among those members. Mr. Aamer Raza A. Khan, the President of the Association, noted on the requisition. In view of the fact that 23rd is a holiday, let the meeting be called for today at 12-30 noon."
' The meeting was accordingly held and the resolution (Exh. P. W. 1/i) as incorporated in the D.I.G report, reproduced in para. 6 ante, was passed.
10. It was submitted on behalf of the petitioners that Mr. Aamer Raza A. Khan had no hand in the passing of the resolution except that he had presided at the meeting requisitioned by certain members of the Bar, which he had to do as a matter of duty under rule 29 of the Rules of the High Court Bar Association, Lahore, and as such he could not be said to have "encouraged", "induced" or "abetted" the passing of the resolution ; that the resolution taken as a whole did not attract any of the provisions of the Defence of Pakistan Rules contained in clauses (e), (h), (o) and (p) or any other clause of sub-rule (6) of rule 42 of the said Rules, and as such the participation of the detenus, if any, in the passing of the resolution could not inculpate them in any manner, whatsoever ; that only the three detenus had been picked up from among the large number of members who had voted for the resolution ; and that although another resolution similar in substance had been passed by the Punjab Bar Council under the chairmanship of Mr. D. M. Awan, but no action had been taken on that account. It was, therefore, submitted that the action of the authorities was not only discriminatory but also mala fide and malicious in attributing to them a role which was not warranted by the facts and in implicating them in offences which they had not committed. It was also urged that the arrest and the detention of the detenus was effected in a highhanded and unlawful manner.
11. The resolution of the Punjab Bar Council to which the petitioners referred had been passed in a meeting of the Council held on 19-3-1977 and presided over by Mr. a M. Awan, then Advocate- General, Punjab and ex officio Chairman of the Council. The resolution which had been proposed by Mr. Bashir Ahmad Khawar and seconded by Mirza Abdul Ghafoor Barg is in the following words (Exh. R. W.-1/8)
"The Punjab Bar Council views with grave concern the constitutional crisis. Resulting out of the general elections held on 7th and 10th March 1917.
' There is strong basis for the belief that there has been serious malfunctioning in the electoral process and the Election Commission and the Executive have failed in their constitutional obligation to ensure honest, just and fair election. This belief is supported by the resolutions passed by various Bar Associations in Pakistan which represents informed opinion, and there is also no doubt in the public mind regarding this fact as has been manifested by the boycott of the Provincial Elections on 1Cth March, 1977 and the strike of 11th March 1977 and also from the subsequent public reaction which is evident in every nook and corner of Pakistan.
' This Council is further of the opinion that it was the constitutional obligation of the Election Commission and the Executive to ensure honest, just and fair election and in having failed to do so they have violated the Constitutional mandate and the results so far declared on the Radio and T.
V. Are not reflective of public opinion.
' This Council calls upon the Election Commission and the Government to take immediate remedial steps to ensure that the National Assembly and the Provincial Assemblies are constituted of persons representing / the electorate and in this behalf calls upon them to annul the elections of 7th and 10th March, 1977.
' This Council takes serious note of the current public unrest and condemns the use of force and violence on the peaceful citizens of Pakistan who are doing no more than asserting their Constitutional and Political rights as guaranteed to them under the Constitution.
' This Council condemns the imposition of section 144 by order of the Federal Government throughout the country and is of the view that the imposition is illegal and mala fide.
' This Council also condemns the recent wholesale arrests of the citizens of Pakistan including the arrest of the leaders of the National Alliance parties, as such action will only be counter productive and will further aggravate the political crisis and hereby calls upon the Government to release them all forthwith.
' This Council endorses the Resolution passed by the Lahore High Court Bar Association on 9th March 1977.
' In order to further the aims and objectives behind this Resolution this Council calls upon all the Members of the legal fraternity in Pakistan to abstain from appearance in Courts on Saturday, 26th of March 1977 from 9-00 a.m. To 12-00 noon."
' It can be seen that the resolution calls in question the fairness of the general elections to the National and Provincial Assemblies, blames the Executive and the Election Commission for failure to discharge their constitutional obligations, endorses the earlier resolution passed by the High Court Bar Association on 9-3-1977 and calls upon the legal fraternity in Pakistan to abstain from appearance in Courts on 26th March 1977. The resolution is thus similar in object to the one in question passed by the High Court Bar Association.
12. I may first take up the preliminary objection raised by the respondent-State to the maintainability of the writ petition. The objection had been Lased on the ground that (1) the detenus actually being persons accused of cognizable offence under the Defence of Pakistan^ Rules, their remedy did not lie by way of a writ and (ii) no specific prayer having been made for quashment of the F. I. R. Itself, no writ to that effect could be claimed. It is to he noted that the case is no longer at the investigation stage, for, during the hearing of arguments, it was disclosed by Rana A. Rahim, and he was not contradicted, that interim challan had already been put before the Tribunal. It is not in doubt that where a case has been actually registered against a person on the basis of allegations of his having committed a cognizable offence. No relief under section 561-A or 491, Cr. P. C. Can ordinarily be given. In Malik Ghulam Ahmad v. Haji Muiammad Yousaf e;c (1), their Lordships of the Supreme Court, endorsing the decision in Emperor v. Nazir Ahmad (2), held that "judiciary should not interfere with the p slice in mitten which are within their province and into which the law imposes upon them the duty of enquiry", and that the High Court has no power under section 561-A, Cr. P. C. Even to quash an investigation. Similar view had been taken in Shahnaz Begum v. The Hon'ble Judges of the High Court of Sind & Baluchistan and another (3). In this cited case, the Supreme Court bad, however, observed that "If an investigation is launched mala fide or is clearly beyond the jurisdiction of the investigating agencies concened then it may be possible for the action of the investigating agences to be corrected by a proper proceeding either under Article 98 of P the Constitution of 1962 or under the provisions of section 491 of the Criminal Procedure Code, if the applicant is in the latter case in detention, but not by invoking the inherent power under section 561-A of the Criminal Procedure Code". In Government of West Pakistan etc. v. Begun Agha Abdul Karim Shorish Kashmari (4), the Supreme Court, after discussing the import and scope of the words "in an unlawful manner" occurring in sub-clause (b) of Article 98
(2) of the then Constitution, had held : "It would seem, therefore, that by these words, at any rate, so far as the deprivation of the liberty of a citizen was concerned, the Constitution-makers intended that this most cherished right should not be taken
(1) PLD 1976 SC 271 (2) AIR 1945 P C 18
(3) PLD 1971 SC 677 (4) PLD 1969 SC 14 away in an arbitrary manner and hence by sub-clause (b) of clause (2) of Article 98 they advisedly left it to the High Courts to review the actions of the detaining authority, untrammelled by the formalities or technicalities of either section 491 of the Criminal Procedure Code or the old prerogative writ of habeas corpus not only with regard to the vires of the law or the officer concerned but also enjoined upon them to satisfy themselves that the detention is not in any manner contrary to law. The scope of the enquiry is, therefore, not in any way fettered by the procedure of a writ of habeas corpus or the rules laid down under the various Habeas Corpus Acts."
' In Ch. Manzoor Elahi v. The Federation of Pakistan etc. (1) it was ruled that "a High Court has jurisdiction under Article 1:9 of the Constitution to grant relief to a person arrested illegally within its jurisdiction", and that "a High Court under that Article has a variety of powers, any of which can be exercised to grant relief to the aggrieved person". In Zahur Elahi v. The State (2), the majority view was that the High Court can examine the lack of bona fide or the misuse of the powers and has "unquestionably" the power and jurisdiction to interfere when the question of liberty of a citizen is involved. The law on the subject has been examined by a Division, Bench of this Court recently in Malik Wazir Alt v. The State (W. P. No, 526/H of 1977) in the result of which a similar preliminary objection taken therein was rejected. In yet another case, i,e,, Parveen Malik v. State (3) Gulbaz Khan, J., held "The allegations levelled against an accused person can be looked into to) find out as to whether the case has been registered under the proper offence. By merely registering a case under rule 49, D. P. R., the jurisdiction of this Court is not ousted."
' Mr. Shabzad Jahangir, Advocate, who assisted us as a friend of the Court, urged 'hat the Court had jurisdiction and that the preliminary objection bad no merit. Mr. Maqbool Elahi Malik, the newly appointed Advocate General, who argued the case on behalf of the State, also conceded as to the competency of this Court to interfere. The preliminary objection, therefore, is overruled.
13. Coming to the merits, I may now examine if the provisions of clauses (e), (h), (0) and (p) of sub- rule (6) of rule 42 cited in the F. T. R., or some other provision of the said Rules is attracted in the case. Sub: rule (6) defines and spells out "prejudicial, act". According to clause (e), a prejudicial act means : "any act which is intended or is likely to bring into hatred or contempt or to excite disaffecion towards the Government established by law in Pakistan."
' This in substance is identical to the provision of section 124-A of the Penal Code, which reads : "124-A. Sedition.-Whoever by words, either spoken or written, or by signs or by visible representation, or otherwise, beings or attempts to bring into hatred or contempt, excites or attempts to excite disaffection towards the Central or Provincial Government established by law shall be punished with imprisonment for life or shorter terms..............
(1) PLD 1975 SC 66 (2) PLD 1977 SC 147
(3) PLD 1977 Lab. 1017 ' Explanation 1.-The expression "disaffection" includes disloyalty and all feelings of enmity.
' Explanation 2.-Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section ' Explanation 3.-Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred contempt or disaffection , do not constitute an offence under this section"
14. It can be observer that the gist of the offence either under clause (e) of rule 42 (6) of the Defence of Pakistan Rules or under section 124-A of the Code, lies in bringing or attempting to bring into hatred or contempt or in exciting or attempting to excite disaffection towards the Government established by law. The words "hatred, contempt and disaffection" have not been defined in either of the Statutes. Strachoy. In Queen peror v. Dal Gangadhur Tilak (1) defined the word "disaffection" s meaning "hatred, enmity, dislike, hostility, contempt and every form of to the Government". In Sher Muhammad V. The Crown (2), the word "contempt" was defined to mean "the act of viewing another as mean, vile or worthless", and "hatred" to mean "a sustained feeling of bitter aversion or dislike generally combined with a desire to injure, destroy or get rid of Its object". Disloyalty is an element of disaffection as is clear from Explanation 1 above. In applying the law, however, we must be mindful that the interpretation of the words has been constantly undergoing change with the change in the political conditions, i,e, from colonial to popular Government. For, the right to criticise the Government and to bring about a change of it through the ballot is the essence of democracy.
The Government is no more than an organizaion adopted by the people themselves to regulate their political affairs and to advance their social and material well-being. If the people have the right to hire and fire their representatives, they must be conceded the right to question the policies and the actions of the Government constituted of such representatives and to bring about change in the same so as to make it responsive and alive to their expected and aspiration. Explanations 2 and 3 above point out to such right. Eve otherwise, in a country which cherishes the Islamic values of liberty an equality and where the Constitution itself guarantees freedom of speech without undue restrictions, the provisions of the law cannot be too strictly construed against the citizens.
15. In Debi Soren and others v. The State (3), it was held that though "a change in the spirit of the time cannot justify a change in a principle of law by judicial decision", but "where two interpretations can be given to the words of in existing law, the Court should accept that interpretation which is in favour of the constitutionality rather than an interpretation which will make the law unconstitutional"". It was further held "In a democratic country criticisms of Governmental measures and administrative actions are to some extent unavoidable ; they are made for the purpose of enlisting popular support, and in considering the
(1) t L R 22 Born. 112 (2) AIR 1949 Lab. 218
(3) A 1 R 1954 Pat. 254 effect of such criticisms no serious notice ought to be taken of crude, blundering attempts or of rhetorical exaggerations by which nobody Is likely to be impressed. With the change of times, the effect of criticisms also changes I what was damaging contempt or hatred of a bureaucratic Government is not so of a popular Government-a Government which can neither afford to be hypersensitive, nor impervious, to criticism,"
16. In Z. A. ABM etc. v. The Crown (1) Z. H. Lari, J. After examining the precedent law notably Mrs. Annie-Basant v. Emperor (2), In re Petition of Sunderial (3), Kashitish Chandra Roy v. Emperor (4), Diwan Parkash Chand v. Emperor (5) and Emperor v. Sadhashive Narayan (6), observed:-- "In Islamic Democracy, where, Jima' is the determinant factor, it is essential that masses should know the pros and cons of every measure, good, bad or indifferent. The essence of the crime of sedition consists in the intention with which the language is used. In arriving at its conclusions as to the intention of the accused the Court must have regard to the occasion on which and the circumstances in which the writing was published or representation made. Criticisms or condemnation of measures taken or policies pursued by the Government with a view to their withdrawal or alternation cannot per se be seditious. It is not every kind of disaffection, hatred or contempt which would constitute sedition. To my mind, it is that degree of disaffection, hatred or contempt which induces people to refuse to recognize the Government at all and leads them to unconstitutional methods which is essential before a charge of sedition can be held to be established."
' In Hassan Bakhsh Kausar v. The State ,7) it was held that ; "Section 124-A, P. P. C., whatever its significance and the scope of its application was before the Constitution, will have to be read in the light of the changed circumstances, and subject to Article 8 of the Constitution of the Islamic Republic of Pakistan, which lays down that every citizen shall have the right to freedom of speech or expression subject to any reasonable restrictions imposed by law in the interest and security of Pakistan, friendly relations with foreign State, public order, decency, or morality, or in relation to contempt of Court, defamation or incitement of an offence."
' The learned Judge further observed "It is permissible for a citizen to hold up the men who are charged or have been charged with the Executive Government of the country and the care of her destinies to ridicule and contempt if they are guilty of mal-administration." . . . .
"It is not criticism of the Government, in whatever venomous and enraging words it Is cloaked which constitutes an offence under section 124-A but the adoption of methods for the attainment of a purpose which encourage force and violence and which may lead to conflict with the authorities with the certainty that there will be grievous loss of life. Short of that, every criticism of Government is permissible."
(1) PLD 1954 Sind 80 (2) I L R 39 Mad. 1085
(3) I L R 42 All. 233 (4) AIR 1932 Cal. 547
(5) AIR 1937 Lab. 513 (6) PLD 1947 P C 32
(7) PLD 1958 Robe 15 ' In Shahidul Hague v. Government of East Pakistan etc. (1), a Division Bench of the Dacca High Court expressed that no exception could be taken for the purposes of invoking the provisions of Defence of Pakistan Rules to general criticism of the Government and its policies. Another Division Bench of that Court in Reazuddin Ahmad v. Deputy Commissioner, Dacca (2) expressed the same view and further held that action under a special law like the Defence of Pakistan Rules was not called for "unless such opinion tends to disturb the peace and tranquillity of any region, or creates a law and order situation or endangers the maintenance of essential supplies and services", In M. Mansur All v. The State (3) Abdullah Jabir, J. Observed ' In a democratic country, such as Pakistan was claimed to be at the time the resolution was passed, people's right to express themselves freely and, if need be, strongly and even bitterly against what were considered to be lapses of the Government could not be denied, so long as such expression did not degenerate to mere abuse tending to rouse people's emotions to a pitch at which they might resort to violence.'
17. The case-law on the question as to what constitutes "sedition" was once again gone into in some detail in Masihur Rehman v. The State (4), wherein, after examining particularly the cases reported as Emperor v. Sadashive Narapan Bhalerao Sher Muhammad v. The Crown (5), Malik Nasarullah Khan Azlr v. Crown (6), Sangbad v. Province of East Pakistan etc. (7), Tofazzal Hussain v.
Province of East Pakistan etc. (8) and Sh. Faaul Hague alias Mond v. The State (9), it was held "In construing a speech or a writing to determine whether it contains words which are seditious the Court has to consider the speech or writing 'as a whole in fair, free and liberal spirit', with reference to context and the circumstances and environments in which it was spoken or written. Needless to say that circumstances and environments have changed since the incorporation of section 124-A In the Penal Code and they are changing fast. In modern times the State is conceived as an instrument for the advancement of the well-being of the people and 'Government' is the vehicle through which the State carries its beneficial activities. If a Government for the time being holding the reins, fails to respond effectively to the needs and aspirations of the people, it must be prepared for onslaughts by the people through their representatives."
18. It, thus, appears that the view that has prevailed with the Court is that a mere criticism of the actions and policies of the Government even though harsh in language, will not attract the definition of sedition, there was refusal to recognize the Government established by law or a call to rebel against such Government or to resort to unconstitutional methods by use of force so as to disturb the public peace or to disrupt the maintenance of essential supplies. It is significant to note in this connection that the
(1) 1969 P Cr. L J 449 (2) 1969 P Cr. L 3 619
(3) 1969 P Cr. L J 818 (4) 1971 D L C 750
(5) AIR 1949 Lab. 218 (6) PLD 1950 Lab. 420
(7) PLD 1958 Dacca 324 (8) PLD 1965 Dams 478
(9) PLD 1971 Dacca 154 view taken by Sir Maurice lawyer, C.
3. In Niharendu Dun Majumdar v. Emperor (1) that "the acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that Is their intention or tendency" was not approved by the Judicial Committee of the Privy Council in Sadashiv Narayan Bhalerao's case, where it was held that the language of section 124-A, or the Defence of India Rules did not justify the statement of the law as made by the learned Chief Justice and that the expression "excite disaffection" did not include "excite disorder". In this regard, their Lordships followed the line taken by them in Bal Gangadhar Tildes case, wherein they had approved the following observation made by Strachey, J.
"It is not the exciting or attempting to excite mutiny or rebellion. Or any sort of actual disturbance, great or small. Whether any disturbance, or outbreak was caused by these articles, absolutely immaterial."
The Privy Council, in this connection, also referred to its own previous decision in Wallace Johnson v. The King (2), which was a case under subsection (8) of section 326 of the Criminal Code of the Gold Coast, which defined "seditious intention" in terms similar to the words of section 124-A of our Penal Code. In that case, their Lordships had ruled that incitement to violence was not a necessary ingredient of the crime of sedition as defined in that law,
19. Now, none of the ingredients of sedition can be read in the offending resolution. If the members of the Public genuinely apprehended that the elections had been stage-managed and the sanctity of the ballot box violated, their sense of outrage had to be taken into account, particularly when the subsequent disclosures made by the Election Commission in the result of the enquiries held by them in some of the complaints (see In re : Complaint of Malpractices in Constituency No, N-A-57, Sargodha V (3), In re : Complaint of fatal liussain son of Kashmir (Regarding Irregularities committed N in the Election) to Constituency No, N. A.-6I-Mtanwali-II (4), In re t Complaints regarding the malpractices committed during the election to Constituency No, N. A.-80-Lyallpur- XIII (5), In re t Complaint of Malpractices in the Election to Constituency No, N. A -76-Lyallpur-IX ,6) and In re : Malpractices Committed in the Election to Constituency No, N. A.-89-Kasur-I (7) and the events that have happened since, went only to strengthen their such apprehensions. Their criticism of the Government and their projected protest "in a disciplined way" on that account could not, therefore, amount to sedition.
20, In the resolution, they had charged that Mr. Z. A. Bhutto had lost confidence of the entire populace of Pakistan ; and had called upon the Bar Associations of Pakistan to take out procession on 25th March 1977 "in a disciplined way" 1 and the members-elect of the National Assembly not to attend meeting of the Assembly convened for 26th March 1977,10 "otherwise they will not be spared of the Wrath of God and our people" and the members of the lawyers fraternity "to excommunicate such members whether in National Assembly or in Bar Council and force them to resign forthwith".
It will be noted that the criticism in the first place
(1) AIR 1942 FC 22 (2) 1940 A C 231
(3) PLD 1977 Jour. 164 (4) PLD 1977 Jour. 183
(5) P L 13 1977 Jour. 187 (6) PLD 1977 Jour. 190
(7) PLD 1977 Jour. 198 against Mr. Z. A. Bhutto. The resolution does not indicate whether the criticism against him was in his capacity as Chairman of the People's Party or as the Prime Minister of Pakistan. A criticism of his in the former capacity can hardly be said to be directed against the "Government established by law". But a criticism of his even in his capacity as the Prime Minister need not necessarily mean a criticism of the Government if I related to his failure, if any, to ensure fair elections, and for which alleged failure the sponsors of the resolution believed he could not call upon the members of the National Assembly to take oath, who had been elected in the result of such elections. Such criticism could not necessarily be said to be directed against "Government established by law". In the afore- cited case of Z. A. Sulleri, it was observed .
"A minister has got his own individual personality and may enjoy other capacities. It is for the prosecution to establish in each case that a particular attack directed against a Minister necessarily means attack on the Government established by law. If the attack be on his individual personality or other capacity, it cannot possibly amount to an attack on the Government."
' Similarly in Hussain Bakhsh Kausar's case it was hold that -Ministers may form the Government but they are certainly not the Government within the meaning of the word used in section 124-A, P, P. C. On the same point a Division Bench of this Court in a recent case of Ghulam Ahmad v. Punjab Province etc. (1), while examining the order of detention under the Defence of Pakistan Rules, endorsed the following from Basu's Commentary on Constitution of India "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."
Government "established by law" is distinguishable from the Government of a party in power for the time being. The former is essentially used in the sense of the "State" the security and the continuity of which alone is to be protected by law. It is not without significance that section 124-A occurs in a chapter of the Code which relates to "offences against the State". I may in this connection refer to the case of Kidar Nash Singh (2) from the Indian jurisdiction in which the Supreme Court of India observed : "Now, the expression 'the Government established by law' has to be distinguished from the persons for the time being engaged in carrying on the administration. 'Government established by law' is the visible symbol of the State. The very existence of tie State will be in jeopardy if the Government established by law is subverted. Hence, the continued existence of the Government established by law is an essential condition of the stability of the State. That is why 'sedition', as the offence in section 124-A has been characterised, comes under Chapter VI relating to offences against the State."
21. Nor can reference to "Wrath of God and our people" be interpreted to mean incitement to violence, because, in the first place, every Muslim believes he is accountable for his deeds to God and in the second, every person) P L. D 1976 Lab. 773 (2) AIR 1962 SC 955 in whose hands the administration of the affairs of the people rests is accountable to those people in any democratic system. In Ghulam Ahmads case earlier cited, the Division Bench had taken note of the utterances of Dr. Ghulam Hussain containing a warning to the Prime Minister against a fate similar to that of U. Mujib-ur-Rehman or even worse and had held : "Reference to the events in Bangla Desh resulting in the assassination of Sb. Mujib-ur-Rehman was obviously made as a lesson to all that even a popular leader like Sb. Mujeeb-ur-Rehman could sometimes come to a sorry end. But It is not possible to infer that detenu was trying to incite the public to enact the same drama in Pakistan."
22. All that the offending resolution thus aimed at was to organize procession of the members of the Bar Associations of Pakistan against the convening of the Assembly which procession was to be "in a disciplined way". The Deputy Secretary Home ( R. W. 1) conceded that "in case the elections had been rigged, people had a right to protest". He also admitted, "It is true that no such report was received by me indicating use of force or exhibition of violence by the members of the Bar in the course of their processions". There is in fact nothing to indicate that the procession, R which had actually been taken, in pursuance of the resolution, had been otherwise than peaceful.
23. A citizen in a democracy has the right to demonstrate peacefully and within the bounds of law, for redress of his political grievances against the Government. He is also entitled to canvass publicly for such demonstration and it will be the duty of the Government to protect him from interference in the exercise of his such right. In Dirk De Jonge v. State a Oregon (1) the U, S. Supreme Court held "Freedom of speech and of the press, and the right of peaceable Assembly, are fundamental rights which are safeguarded by the due process clause of the Fourteenth Amendment from infringement by State action.
' It follows from these considerations that, consistently with the Federal Constitution, peaceable Assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceful political action cannot be prescribed. Those who assist in the conduct of such meetings cannot be branded as criminals on that score."
' A similar view was taken In Arthur Terminielo v. City of Chicago (2). Wherein it was held by Douglas, J. : "The constitutional right to freedom of speech, though not absolute, is protected against censorship or punishment unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest."
24. The result is that the passing of the offending re_ solution does not constitute an offence envisaged under clause (e). Nor can the resolution be said to "cause fear or alarm to the public or to any section of the public" which is the requirement of clause (h) of rule 42 (6) of the Defence of S Pakistan Rules. The Deputy Secretary Home justified the invoking of the clause on the basis of the call to excommunicate certain members of the Bar, which, according to him, amounted to causing "mental torture" which
(1) 299 1.1 S 333 (2) 337 U S 1 "will amount to causing of fear and alarm and the provision of t Defence of Pakistan Rules will be attracted". This is no more than his opinion not worthy of any weight, because he himself later admitted "I agree that the moral weapon is not the same thing as physical one". The mention of "Wrath of God and our people" cannot also be said to cause fear and alarm as is clear from Ghulam Ahmad's case in which reference to the events in Bangla Desh had been held to only mean a lesson to all without giving rise to any impression that it was meant to incite the public to enact the same drama in Pakistan. In Muhammad Salahuddin and others v. The State (1), where the language used was appealing to Divinity and warning people generally of expected Wrath of God, it was held : "The fear or alarm spoken of in clause (h) of rule 42 (6) is merely a fear or alarm to be expected from a temporal power or authority or at any rate of a temporal character there is no reference to the anger or punishment visited upon humanity by the Divinity."
25. Under clause (o), an act is prejudicial which is intended or is likely "to instigate directly or indirectly the use of criminal force against public servants generally or any class of public servants or any individual public servant". The clause postulates two essential conditions, i,e,, (i) use of criminal force and (ii) against public servant. Criminal force is defined in section 350 read with section 349, P. P. C. And contemplates the use of physical force by causing motion, change of motion, or cessation of motion to a person, in order to the committing of an offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force, injury, fear or annoyance will be caused to the person to whom the force is used. There is nothing in the resolution to justify that it meant the use of any such physical force for any such specified purpose.
Excommunication is meant only to bring social and moral pressure by way of disapprobation of a particular conduct or action, but such step cannot be said to amount to physical force contemplated by the definition of' criminal force. Moreover, as conceded by the Deputy Secretary, as also by Mr. Khalil Ramdey, learned Assistant Advocate-General, none of the persons to be affected, if any, by the resolution, was a public servant.
26. Clause (p) relates to such act as is intended or is likely "to instigate or incite directly or indirectly the commission or abetment of an offence punishable under section 121, section 121-A, section 122, section 131, or section 436 of the Pakistan Penal Code (Act XLV of 1860), or of the offence of robbery or dacoity". The offences under the Penal Code referred to above are "121. Waging or attempt to wage war or abetting waging of war against Pakistan.-Whoever wages war against Pakistan, or attempts to wage such war, or abets the waging of such war, shall be punished with death or Imprisonment for life, and shall also be liable to fine.
121-A. Conspiracy to commit offences punishable by section 121.- Whoever within or without Pakistan conspires to commit any of the offences punishable by section 121, or to deprive Pakistan of the sovereignty of her territories or of any part thereof, or conspires to overawe, by means of criminal force or the show of criminal force, the Central Government, or any Provincial Government, shall be punished with imprisonment for life or any shorter term, or with
(1) 1974 P Cr. L I Note 47 at p. 31 imprisonment of either description which may extend to the years, and shall also be liable to fine.
' Explanation.-To constitute a conspiracy under this section, it Is not necessary that any act or illegal omission shall take place in pursuance thereof.
122. Collecting arms, etc., with intention of waging war against Pakistan.-Whoever collects men, arms or ammunition or otherwise prepares to wage with the intention of either waging or being prepared to wage war against Pakistan, shall be punished with imprisonment for life or imprisonment of either description for a term not exceeding ten years and shall be also liable to fine.
131. Abetting mutiny, or attempting to seduce a soldier, sailor or airman from his duty.---Whoever abets the committing of mutiny by an officer, soldier, sailor or airman, in the Army, Navy or Air Force of Pakistan, or attempts to seduce any such officer, soldier, sailor or airman from bis allegiance or his duty, shall be punished with imprisonment for life. Or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
' Explanation.-In this section the words 'officer', 'soldier', 'sailor' and 'airman include any person subject to the Army Act, the Indian Army Act, 1911, the Pakistan Army Act, 1952, the Naval Discipline Act or that Act as modified by the Pakistan Navy (Discipline) Act, 1934, the Air Force Act or the Indian Air Force Act, 1932 or the Pakistan Air Force Act, 1953, as the case may be.
436. Mischief by fire or explosive substance with intent to destroy house, etc.-Whoever commits mischief by fire or any explosive substance, intending to cause, or knowing it to be likely that he will thereby cause, the destruction of any building which is ordinarily used as a place of worship or as a human dwelling or as a place for the custody of property, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
' A perusal of the resolution makes it clear that the ingredients of none of the above-mentioned offences are present so as to invoke clause (p). The Deputy Secretary Home (R. W. 1) failed to specify any particular portion of the resolution that could be said to attract the clause. In fact, he conceded "I now think that the provision of clause '(p)' is not attracted to the resolution".
27. We, thus, find that none of the aforesaid clauses, which had been cited in the F. I. R., is attracted in the case against the detenus. No other provision of the Defence of Pakistan Rules was cited as being applicable.
28. Not only that the resolution in question could not give rise to the case against the detenus, but it appears also from the statements of the witnesss recorded that no proper scrutiny of the fact or the law was made before ordering their arrest and detention. Mr. Aamer Raza A. Khan bad only presided, as required of him under the rules of the Association, at the meeting in which the offending resolution had been passed. There is no other part ascribed to him in the D. I. G.'a report (Exh. R. W. 1/4). Yet it was alleged in the F. I. R. That he had "also encouraged certain members of the High Court Bat Association and manoeuvred the passing of the Resolution". It was further stated in the F. I. R. That "the encouraging, inducing, abetting and allowing the members of the Lahore High Court Bar Association to pass the afore quoted Resolution amounts to prejudicial act". The Deputy Secretary Home repeatedly admitted that the D. I- G. Report was the only basis upon which he had acted. He stated "I had actually one source which was the report received from the Special Branch.
I had no other material in this regard except the report. That being so, it is not understood how he imported the words "encouraging", "inducing", "manoeuvring" and "abetting" in his F. I. R. When confronted, he explained, "The words "encouraging, inducing, abetting and allowing the members" were not in the report of the Special Branch. The words are mine". All he could say in justification was "The conclusion that Mr. Aamer Reza A. Khan had been encouraging, inducing, abetting and allowing was on account of the fact that be was holding the commanding position of Chairman". It is obvious that not only he had no material to justify the use, of those words but he had also not even cared to ascertain as to the actual role played by Mr. Aamer Raza A. Khan, for which he could be arraigned. He admitted "I did not enquire as to the functions of the President of the Association in regard to the meetings of the Association. I am not conversant with the rules about the meetings of the Association and as such cannot say that the President of the Association has to preside over a meeting called by the members by requisition. At another place, he admitted "In the report itself there were no details of the 'manoeuvring'. The word 'manoeuvred' was not in the report. I thought the word best expressed that aspect of the matter contained in the report". Again, "The reports do not in so many words indioate that the resolution had been passed at the instance of Mr. Aamer Raze A. Khan". The names of the other two detenus were apparently inserted in Urdu and in pencil in the draft F. I. R. As an afterthought, and without specifying their role for which they were made liable. The Deputy Secretary Home stated: "On enquiry from the police I had come to know that two members had been concerned with moving and seconding the resolution. I had made the enquiries telephonically after going through the report. Further checking had revealed that the resolution was moved by Rana Abdur Rahim, Advocate, and was seconded by Mr. Gulzar Hassan, Advocate. I had checked it with an officer of the Special Branch whose name I do not remember,"
I ' In his letter addressed to the D. L.O. tExh. R. W. 1/1), he had stated that the resolution had been proposed by Mr. Gulaar Hassan and seconded by Rana A. Rahim. According to Mr. Aamer Rua A.
Khan (P. W. I), the resolution had been moved by Mr. Gulzar Hassan, Advocate, and was seconded by Mr. M. D. Tahir, Advocate. He also stated that Rana A. Rahim did not second the resolution. This factual position was not rebutted. The Deputy Secretary also expressed the opinions "All those persons who bad voted for the resolution would be guilty in the same manner as the three detenus", but he did not explain as to why he thought it fit to name in the F. I. R. Only the three detenus and not the others too who had also voted for the resolution. It may be noted that there is nothing to show that Mr. Aamer Rasa A. Khan had voted for the resolution). At one place, he denied that the report had been lodged with the police for the purpose of preventing the three detenus from taking out the projected procession on 25-3-1977, but at another place, he admitted "The urgency of the letter was to prevent the taking out of the procession". In fact, the' haste and promptitude with which the arrest and the detention was carried out could only go to support such "urgency", for the arrests were made by a raiding party which had knocked at the doors of the detenus for the purpose in the early hours of 25th March 1977, on which date the projected procession was to be taken out. The further fact that soon after their arrest, a remand was obtained for their judicial custody lends further support, for, otherwise, it is clear that their person was not required for investigation of the case.
29. In the matter of remand, we find that Rana Mukhtar Ahmed, Ilaq Magistrate, had been taken to the Badami Bagh Police Post, where the detenus had been brought after their arrest. The reason for this extra ordinary step was that "There was apprehension of breach of peace if they were brought to the District Courts". But what is surprising is that the Police Officer who had obtained the remand, i,e,, Muhammad Yousaf S. I. (R. W. 3), had earlier before this Court, on 4-4-1971, stated that "the remand was from the Magistrate from his Court, by taking the detenus there" (side order-sheet of that date in Writ Petition No, 568/7)). The Sub-Inspector also admitted : "The entry in the relevant zimni is in accord with this statement made by me in this Court on 4-4-1977". Nevertheless, he went on to explain had meant by 'Court' the spot where the Magistrate sat and where the detenus had been produced".
30. It had been alleged by the petitioners that the detenus had not been told the reason for their arrest either at the time of the arrest or of granting the remand. Although the Police Officers and the Magistrate, denied it but they failed to bring out any material to show that they had done so.
The Magistrate had not recorded anywhere the reasons for granting the remand or the fact that he had seen the F. I. R. And the police and had informed the detenus of their contents. It is to be noted that under Article 10 of the Constitution, a person arrested has to be informed as soon as may be, of the grounds of his arrest.
31. As already mentioned, a resolution admittedly similar in substance and object had been passed by the Punjab Bar Council under the Chairmanship of Mr. D. M. Awan on 19-3-1977 and although the role of Mr. Aamer Raza A. Khan In the matter of passing of the offending resolution is not much different from that of Mr. D. M. Awan in respect of the said resolution of the Bar Council. Yet the authorities had taken no notice. It came out in the evidence that at the time of passing of the resolution by the Punjab Bar Council, an altercation had taken place between Mr. D. M. Awan and Mr. Aamer Raza A. Khan and hot words had also been exchanged between him and Rana A. Rahim.
In this connection. Mr. D. M. Awan stated : "At the present, I do not recollect the exact words he (Mr. Aamer Raza) used but I did take strong exception to the harsh tone he used and I said I know the conduct of the gentleman and I know that he was removed from the legal advisership of the Industrial Development Corporation of Pakistan, wherefrom he earned lot of money and after the removal the gentleman did come to me and I took him to the learned Attorney-General as well, but since his legal advisership was not restored, so he is using harsh tone."
T' he case of Mr. Aamer Raza A. Khan was that he had, in fact, resigned his legal advisership, and when such suggestion was put to Mr. D. M. Awan and he was shown the resignation letter (Exh. R. W.
5/1) and its acceptance by the Industrial Development Bank of Pakistan (ash. R. W. 6/2) he replied "I know nothing". Mr. D. M. Awan was admittedly a member of the Pakistan People's Party which he had joined in October last and had also been elected to the Punjab Assembly. He admitted "being sympathiser and well-wisher of the party in power. I did ask and request some of my learned colleagues to join the Pakistan People's Party". He stated : "On the 26th of October 1976, I had organized a reception in honour of Mr. Yahya Bakhtiar, Attorney- General of Pakistan, and in that function Mr. Sadiq Hussain Qureshl, Chief Minister of Punjab, was also present and in that function myself and certain other honourable members of the Bar declared joining the Pakistan People's Party."
' On another occasion, i,e,, the 6th April 1977, he had "invited about 450 lawyers to a reception again in the honour of Mr. Yahya Bakhtiar, Attorney-General". To the question whether any promises were held out for bringing the names of the Advocates on the State list or legal advisership on their joining the Pakistan People's Party, he replied : "No such promises were made to any of the hon'ble members who joined the Pakistan People's Party on that occasion. But it is true that the policy of the Government is that whosoever is anti- Government will not be given legal advisership of such institutions or bodies which are controlled by the Federal Government or the Provincial Government. Nor such members should be brought on the State list."
' In respect of the expenditure incurred in the functions held in honour of Mr. Yahya Bakhtiar, he stated .- "1 did pay the bill from my own pocket but after a week or so the amount was sanctioned by the Government though payment has not been made to me so far. . . .
I paid Rs, 3,000 as advance from my own pocket and probably Re. 750 to the Allied Press for printing of cards and the remaining bill of Inter-Continental, which is probably Re.
6.000 and something, is yet to be paid. So far there is no sanction by the Government for payment of this amount. I do not know whether the Government is to foot the bill of this reception or not according to the present position. Approximately Re.
11.000 was the amount spent on the earlier reception of Mr. Yahya Bakhtiar."
' In respect of the case against the detenus, when asked whether he had examined the provisions of clauses (e), (h). (o) and (p) of sub-rule (6) of rule 42 of the Defence of Pakistan with reference to the contents of the F. I. R., Mr. D. M. Awan replied "There was no such critical examination made by me personally because there is no assertion in the writ petition that the case does not fall within the purview of rule 42."
32. It is thus obvious that resort to institution of prosecution against the detenus was nothing but unwarranted and a gross abuse of the process of law. In such situation, this Court has to interfere and strike down the case irrespective of the stage at which it may be. Mr. Maqbool Elahi Malik, learned Advocate-General, during the hearing of the arguments submitted that he had instructions not to contest the writ petitions. Of the two learned Advocates, namely, Messrs Abid Hassan Minto and Shahzad Jahangir, only the latter was present at the time of the hearing of arguments and submitted written arguments, in which, after relying on a number of case-law, most of which has already been discussed above, he urged that "the resolution in question does not come within the mischief of rule 49 read with rule 42 (6) (e) or (h) or (o) or (p). And, therefore.
The arrest and detention of these detenus under rule 49 of the Defence of Pakistan Rules does properly call for interference"
33. For these aforegoing reasons we accepted both the writ petitions and by a short order which we made and announced in the Court at the conclusion of the arguments on 13-7-1977. We declared the arrest and detention of the detenus to be illegal and without lawful authority and quashed the case arising from F 1. R. No,
188. Now pending before the Tribunal.