' CHAUDHUARY RAHIM DAD KHAN, C. J.-This is a certificated appeal from an order of the High Court dated 5.12-1976 dismissing the habeas corpus petition in exercise of the powers conferred on it by section 44(2)(b)(1) of the Azad Jammu & Kashmir Interim Constitution Act of 1974 (hereinafter to be called the Constitution).
2. At the outset the Advocate-General contended that during the course of hearing of this appeal the detenu had been released by the Government which fact has rendered the Appeal infructuous and consequently it stands abated. As against this it was urged on bonalf of the appellant that in th instant case future political career of detenu, Sardar Mohammad Abdul Qayyum Khan, who had served the Azad Jammu & Kashmir State twice as its President and once as a Minister and who is heading a most influential political party (All Jammu & Kashmir Muslim Conference) is involved. It is also stressed that the High Court in its judgment has misquoted, misread and misinterpreted his statement attributing to him an apology which he never tendered and if he is not allowed to vindicate his position he would go down in history bearing a stigma of a politician without moral or political fibre and a chicken hearted pseudo leader who could not stand the test of sacrifice for his convictions and tendered abject apoloy simply to secure his release from Jail. This could and would be exploited by his political opponents. It was further contended that the decision of the High Court on many points was bad in law containing radical views for which reason also the judgment requires close re-examination in the broader interest of justice. He, in fact, based his arguments on the case entitled "Ghulwn Jilani v. The Government of West Pakistan" (1), with particular reference to the following observations of Mr. Justice Cornelius, the then Chief Justice : "It remains to mention that during the course of the hearing of those appeals all the three detenus were released by the Provincial Government. In the ordinary cows; such release would have had the effect of causing the appeals to abate, but in these cases, learned counsel urged that since in each case the detention had exceeded a period of nine months, the detenu had thereby incurred disqualification in respect, of their right to stand for elections to representative offices, by the effect of section 53 of the Electoral College Act and section 106 of the National and Provincial Assemblies (Elections) Act. Each of them was a politician of standing and was gravely prejudiced by this result in respect of his future political career and each of them was therefore interested to establish that his detention was illegal. The Court was therefore asked to record a decision as to the legality of the detention order of the 16th February 1966."
' The learned Advocate-General conceded that the decision of the High Court on many legal points ran counter to the well-settled conventional views that are followed in countries whose legal system is based on common law. But he nevertheless maintained that the question regarding the legality of the detention order cannot be examined after the release of the detenu. We do not think that there is any bar, in the circumstances of this case, against hearing the appeal, challenging the legality and other allied matters of the detention. It is more so when it is conceded that on vitel matters of law, High Court has departed from the time tested conventional views. We therefore, proceed to hear the appeal on all points raised therein.
3. Relevant facts giving rise to this appeal are that on the 6th of October 1975, "immediately after 40 days of China" (retirement to a mosque and engaging oneself in fast and divine worship), the detenu was served with an order issued by the District Magistrate, Poonch, under rule 25 of the Civil Defrnce Rules confining his movements within his house for a period of one month. This was followed by two more consecutive orders issued by the same authority. Shortly before the expiry of this period the Azad Government by its order confined detenu's movements within the limits of his village Jholly Cheer'. This last order by the Government passed on 1-2-1976 under No, MP/287-92/76 was challenged through a Writ Petition (Annexure `A') by one Raja Mohammad Azad Khan.
Thereupon the Government withdrew this order on 1-3.1976 (Annexure'B') one day before the date fixed for hearing in the writ petition, and on that very day passed another order (Annexure under clause (b) subsection (1) of section 4 o the Azad Jammu & Kashmir Public Safety Act. By this order of the Government the detenu was directed to remain within the limits of his village `Jholly Cheer' for a period of three months. He was then taken to and confined in Pallandri Jail on 8-5-76 (Annexure 'to). This was followed, it appears, by similar orders till he was released in June 1977. The grounds of detention were served on the detenu on 1-3-1976 (Annexure 'D'). The
(1) PLD 1967 SC 373 detenu made his representation (Annexure 'B') but received no reply may be stated here that though the order of detention under Civil Defence Ruler was withdrawn and replaced by orders under Public Safety Act, the fact remains that the detenu continuously remained under detention from 6-10-1975 to June 1977 when he was released for acting as a mediator between Mr. Z. A.
Bhutto, the then Prime Minister of Pakistan, and the detained leaders of the Pakistan National Alliance, to bring them around the table.
4. Against this background the detention order was challenged inter ea, on the following :
(a) That it is mala fide ;
(b) That it offends against the fundamental rights as guaranteed by the Constitution ; and
(c) That no meeting of the Review Board as stipulated in the Constitution was over convened to report to the Government before the expiry of three months of his detention order dated 6-10.1975.
5. It will be useful to reproduce the grounds that were supplied to the detenu. They were :
(1) That you have been engaged and have been propagating publicly the formation of a militant organisation in order to kill Important functionaries of the Government as established by law.
(2) That in your speeches which you delivered in different places in Azad J & K during the period commencing from middle of April to September 1975, you-
(1) incited the people to start violence for removal of the present Government of Azad J & K ;
(a) incited the people to hatred and contempt against the Government established by law in a manner calculated to create such as aversion amongst the people that they should injure or destroy the object of aversion ; ' WO attempted to create hatred and preached violence against Government functionaries responsible for maintaining law and order ;
(3) That from tenor of your speeches and reliable information in possession of the Government there is a real danger that, if no preventive measures are adopted, you are likely to act in a manner prejudicial to the public safety and/or maintenance of public order.
6. The detenu on receipt of these grounds made representation to the Home Secretary. In his representation he controverted all the grounds and refuted them one by one. He contended that in the light of his conduct at the time of his unlawful removal from the office of the Presidentship of Azad Jammu & Kashmir and his subsequent adherence to peaceful means during the election campaign and thereafter would go a long way to show that he does not believe in using violent methods. He particularly referred to the incident which took place at 'Dulsi' when he, alongwith his large number of followers, was prevented by force from coming to Muzaffarabad during his election compaign. Though this had provoked his followers but he pacified them and averted the clash because he is of the view that Azad Kashmir can ill afford a violent agitation that would help no one except India. As regards the Police Diaries his contention was that they were prompted and corcocted. According to him, such things in the context of the circumstances prevailing then, when Mian Irshad and Iftikhar Ahmed Tani with a number of other persons from Punjab were being unlawfully detained in Azad Kashmir, were order of the day. Mr. Ijial Hussain Zaidi the then Chief Secretary and D. I. G. Major Aurang Zaib, according to him, at the instance of the authority at Islamabad, had got false diaries to create commotion in Azad Kashmir so that in compliance with the terms of the Simla Agreement, Kashmir Issue may be shelved after providin an excuse to Mr. Bhutto for the consumption of the people of Pakistan that the people of Azad Kashmir themselves were responsible for all that.
7. The writ petition was in the first instance made over by the Chief Justice, Mr. M. Y. Saraf, to the Division Bench consisting of other two Judges but subsequently in spite of written objections, raised on behalf of the detenu to the effect that as the Chief Justice had, in the recent past, expressed his bias against the detenu in speeches at Kotli and Rawalakot bars and for these very reasons had already made over two cases of the detenu to other Benches. Should not also sit on this Bench. The Chief Justice overruled these objections and decided to associate himself with other two Judges in the trial for the reasons that the case had been referred to the Pull Bench by the Division Bench itself and that he bore no bias or malice against the detenu rather the detenu had been his political co-worker in Muslim Conference with whom he had a private meeting in Jail. It is also urged that this lone and exclusive meeting by a Judge with the detenu in Jail was uncon ventional and unwarranted.
The judgment is, in fact, written by the Chief Justice and the other two Judges constituting the Bench have made only the following remarks "Keeping the legal and the factual aspects of the case, we agree with the concluding part of the judgment in dismissing the petition in our own way only concerning the matter in issue viz., preventive detention of Sardar Mohammad Abdul Qayyum Khan between the parties."
' Unfortunately this cryptic note does not clearly convey as to on what matters the two learned Judges wanted to differ with the Chief Justice. In fact, different interpretations were sought to be put before us by the contending counsel even about the real intention of the two Judges ; vis-a-vis the acceptance or rejection of the petition.
8. The Court, for upholding the detention order relied on the following material :
(a) the statement of detenu ;
(b) the tape recorded version of his speech at Nila Dutt ; and (c)his failure to give details of speeches with particular reference to the words and phrases that he did not utter.
' The plea that fundamental rights were violated for non-supply of the grounds of detention as early as may be and failure to refer the matter to the Reveiw Board within three months was not accepted. About the plea of mala fide also it was observed t "His detention could not be said to be mala fide in so far as his removal from the Government is concerned because the detention followed and did not precede his removal from power. Again his detention cannot be said mala fide in so far as election is concerned because again it followed and did not precede the elections."
As regards the other factor constituting mala fide, it was remarked t "All these acts only show that the relations between the parties in power in Azad Kashmir and Muslim Conference as Opposition are not normal and that there is mutual bitterness. This, however, is a double-edged sword which cute both ways."
9. We have considered the points raised at the bar by the counsel of the parties and have arrived at the following conclusions ' As regards the allegation of violation of the fundamental rights It may be stated that the movements of Sardar Mohammad Abdul Qayyum Khan, were first restricted to his house on 6th October 1975, under an order of the District Magistrate, Poonch. This order was made under rule 25 of the Civil Defence Rules and it was consecutively renewed twice till an order by the Government was passed under the same Rule for a further period of one month. On being challenged by way of a writ petition filed by Mohammad Azad Khan, the said order was withdrawn by the Government on 1-3-197 and a fresh order was issued on the same day. Though orders were renewed, revoked and varied at different dates and passed under various Acts relating to the preventive detention yet virtually the detenu remained in constinuous detention from 6-10-1975 till he was released from Jail during the pendency of the appeal before this Court. The mere fact that the movements of a person are at first restricted in a house or a village and later on he is confined In a Jail, makes no difference so far as the factum of detention is concerned. Because restricting the movements of a person within a house or the limits of a village amounts to detention. It is more so as contravention of any rule as well as disobedience of any order under Civil Defence Rules is punishable alike escape from prison. In both the cases the detenu has not the liberty to go freely at all times and to all places where he would like to go. Imprisonment is defined in Stroud's Judicial Dictionary, 4th Edis lion, as : "'Imprisonment' is no other thing but the restraint of a man's liberty, whether it be in the open field, or in the stocks, or cage, in the streets, or in a man's own house, as well as in the common Gaole and in all these places the party so restrained is said to be a prisoner so long as be hoth not his liberty freely to go at all times to all places whither he will, without baile or mainprise or otherwise."
10. It is to be examined whether in the circumstances of the case the detention under the order of 1st March 1976, was, in fact, a fresh detention and not a continuation of the one that commenced on 6th October 1975. Learned counsel for the detenu for his stand that the detention order of 1st March 1976 was not a fresh one has referred to PLD 1976 Leh. 773 especially the following observations of the Court : "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 a fresh detention. The actual physical discontinuation of detention for a few minutes or a few hours or even for a longer period has 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."
' In that case what prompted the detaining authority to pass first order against Dr. Ghulam Hussain was the alleged speech delivered by him on 25th September 1975. The second order against him after few minutes of his release under the order of the Court was based on that very material on which the first order was passed. The ratio decidendi in determining the continuity of a detention, it would appear, is the material on which the first order of detention and the subsequent order of detention is based. If both the orders are based on one and the same material the detention shall he deemed to be continuous one.
' In the instant case no speech is imputed to the detenu that was delivered by him after the 26th of August 1975. Immediately after that speech the detenu retired to a mosque for 40 days of 'Chilla' whereafter be was served with an order issued by the District Magistrate Poonch. All subsequent orders were passed on the same material. No fresh material was brought before the detaining authority 1 i,e, before the District Magistrate or the Government. It would, therefore, be said that the detention though passed under different provisions of preventive laws by different authorities yet it was continuous detention on one and the same material.
' In view of this, we are of the opinion that the detention in the instant case was continuous ore right from 6th October 1975 till his release.
11. Rights and privileges conferred on a detenue under the Constitution are contained in pares. (4) and (5), sub-clause (L), subsection (4) of section 4 which reads as follows : "(4) No law providing for preventive detention shall authorise the detention of a person for a period exceeding three months unless the Review Board set up by the Government has reported before the expiration of the said period of three months that there is, in its opinion, sufficient cause for such detention.
(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall as soon as may be, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order : ' Provided that the authority making any such order may refuse to disclose facts which such authority considers it to be against the public interest to disclose."
' It would appear that these provisions confer two rights on the detenu ; firstly a right to be informed as soon as may be, of the grounds on which the order of detention has been made and secondly ; to be provided the earliest opportunity to make representation against the order. In the Constitution of Islamic Republic of Pakistan there is a fixed period of one week within which the detaining authority has to communicate the grounds of detention.
12. In our Constitution though no specific period, like that of Pakistan, is mentioned within which the grounds of detention are to be conveyed to the detenu the phrase "as soon as may be" occurring therein cannot be stretched to justify a delay of over five months (as in the instant case) in conveying the grounds of detention to the detenu. Of course the phrase "as soon as may be" cannot be used to fix a definite period in abstract and it has to be considered in the context of each case. The words "as soon as" have been explained in Butterworths' "Words and Phrases Legally Defined", Vol. 1, 2nd Edition, p. 121' as "as soon as possible" or "within a reasonable time". "To do a thing as soon as possible means to do it within a reasonable time, with an undertaking to do it in the shortest practicable time". In the present case F the Headquarters of the District Magistrate, Poorch, who passed the first and the two subsequent orders of detention is at a distance of about 30 miles from the place of detention while that of the Azad Kashmir Government which passed later orders is at a distance of about 43 miles on motorable road. When considered against this, in over view, the grounds should have been and could be conveyed within less than a period of a week.
13. We find that no grounds were communicated to the detenu within a reasonable period of his first confinement on 6.10-1975 as required under the 0 provisions of the Constitution. The failure on the part of the detaining authority to comply with the mandatory requirements of the provisions of the Constitution renders the detenu's detention unlawful ob lnitio. A similar proposition came up for determination of the Supreme Court of Pakistan in PLD 1966 SC 286. It was observed at page 314:- "If that contention is upheld, action taken under it must, in the alternative be judged in the light of sub-paras. (1) and (2) of para 2 of the Fundamental Rights. These sub-paragraphs lay an obligation on the authority making the arrest or detaining a person in custody, to produce him before the nearest Magistrate within a period of 24 hours of the arrest, excluding the time necessary for the journey from the place of arrest to the Court and to inform him about the grounds of arrest, as soon as may be. These grounds have to be communicated to the person concerned within the period mentioned in sub-para. (2), as otherwise the arrested person would not be able to make a representation in his defence, when he appears before the Magistrate. In the present case, neither the detenu was produced by the arresting Inspector before a Magistrate nor was he informed by him of the grounds of his arrest. The action taken, therefore, on this alternative view, transgressed the clear provisions of sub-paras. (1) and (2) of para. 2 of the Fundamental Rights and could not be upheld as legal."
' A recent case entitled Ghulam Ahmed v. Punjab Province (1), was also referred qua the effect of the omission on the part of the detaining authority to supply grounds to the detenu as enjoined by the Constitution. At pages 778 and 779 the relevant observations are :- "As to the effect of the failure of the detaining authority to comply with the 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."
14. It is also to be noted that the provisions of Civil Defence Act as well as Public Safety Act impose restrictions on the personal liberty of
(t) PLD 1976 Lah. 773 subject and as such they must be strictly and rigorously complied with in lette and spirit. Non observata forma infertur adnullatio actus (non-observance o the prescribed formalities involves the invalidity of the proceeding) is the time-honoured maxim. In pre-constitutional law (Public Safety Act and Civil Defence Act) though there is no provision with regard to the communication of the grounds and holding of the meeting of Advisory Board yet after passing of the Constitution, such requirements would be deemed to have been incorporated in the law under which detention of a person is ordered. These requirements would, therefore, operate pro prio vigori. When detention order in the instant case was challenged in the Court on the grounds that the constitutional requirements were not complied with, the Government rescinded the previous order and on the same day without releasing him even for a moment passed a fresh order against the detenu based on the same facts. The fresh order in spite of being made under the colour of another enactment neither interrupted the continuity of the detention nor it could be deemed to be so. It is not clear as to why the grounds were not communicated within reasonable time to the detenu when the first order was made and why the constitutional requirements were not complied with. In short, for want of compliance with the constitutional requirements the detention order became unlawful and fresh order under the colour of another enactment would not convert the detention into legal one. This proposition is clearly stated in PLD 1966 SC 286 where at page 316 it is observed: "Preventive detention, however, makes an inroad on the personal liberty of a citizen without the safeguards inherent in a formal trial before a judicial tribunal and as has been observed above, it must be jealously kept within the bounds fixed for it by the Constitution and the relevant law. That there is a substantial distinction between a fresh order of detention and one extending a previous illegal order of detention, was brought out clearly in a judgment of the Federal Court, in the case of Arbab Mohammad Hashers Khan on behalf of Arbab Abdul Ghafoor Khan and another v. The Crown. On the face of it the order of detention purports merely to extend the previous detention which has been found to be illegal and consequently the subsequent order of detention must also be held to be vitiated. The detaining authority must be held bound by its own expressly avowed purpose in passing the order."
' In view of the above discussion on this point, we hold that detention order is rendered illegal on this ground alone.
14. Unlike the Constitution of Pakistan where the Board is manned by the Judges of the Supreme Court or High Court, as the case may be, to be appointed by the Chief Justice. No such provision exists in our Constitution. As a result in Azad Kashmir the Review Board generally comprises the executive officers. In fact, the Home Secretary (Chief Secretary) who himself recommends the detention order is the Chairman of the Board. The other members are mostly his subordinate executive. This state of affairs, In our view, cannot inspire confidence that such a Board should, because the Advisory Board is constituted to safeguard the liberty of an individual against the highhandedness of the executive. It is, therefore, desirable that we should follow the same pattern as obtaining in Pakistan 1 otherwise it offends the time honoured rule 'Nemo pores: esse simul actor et judex' (no one can be at once suitor and the Judge).
' In the instant case though in the statement of fasts, supported by an affidavit, filed by the respondent it was alleged that the case was first referred to the Review Board on 31-12-75 ; yet in cross-examination Major Auran Zaib stated at page 90 of the file that the meetings of the Review Board were convened on 27-2-76, 29-2-76 and 24-5-76 thereby belying the statement of facts in this respect. When asked to explain these discrepancies he stated that the affidavit was based on the entries maintained in a different file and not on the basis of the file from which be was making the statement on that day. Such a record would not inspire the confidence of any one. We find much force in the contention of the learned counsel for the appellant that n meeting of properly constituted Board was convened within three months of the first order of detention i,e, 6th October 1975.
' Since the mandatory provisions of the Constitution requiring convening of the Review Board within a period of three months of the first order of detention has not been proved to have been complied with, the detention order becomes illegal for this reason as well.
16. Apart from the inherent illegality in the detention order as discussed above the question of mala fide may be examined here. The period, according to the grounds supplied to the detenu. During which the detinue delivered objectionable speeches spreads over a period of about 5 1/2 months i,e, from middle of April to September 1975. He was removed from the office of the Presidentship of Azad Jammu & Kashmir on 16th of April 1975, at a meeting of Arai Jammu & Kashmir Legislative Assembly convened in violation of the injunction issued by the High Court against its Speaker and the Secretary. This fact is not denied in the statement of facts filed by the respondent, but it is alleged that the Assembly was competent, under law, to pass no confidence motion. It is also to be noted that only about a month remained for holding of new elections. It is not understandable as to why a meeting of the Assembly was convened only a short time prior to the election of the President and that too in defiance of an injunction of the Court. It is also an admitted fact that the detenu boycotted the elections. These facts alongwith the way the President was removed from his office, the subsequent circumstances which forced him to boycott the elections and the arrest of his political workers have to be looked into for determining the mala fide or otherwise. Besides, the dramatic appearance of Major Aurang Zaib in And Kashmir on the eve of the removal of the detinue from the office of the Presidentship, his appointment as D. L-G. Against a post newly created for the purpose ; his assuming tee role of Secretary Home and claiming in the Court as such without any appointment order (apart from legal consequences that are to ensue for perjury) renders the whole atmosphere suspicious and intriguing. Adjudged in this context it cannot be said that allegation of mala fide is wholly unfounded.
17. Mala fide, according to plain dictionary meaning, is 'in bad faith'. Action taken in had faith Is one that is usually taken with a desire to do harm. In other words it is motivated by ends other than the alleged purpose. In Federation of Pakistan v. Sated Ahmed (1), mala fide was explained at page 170 as under : "Maly fides literally means 'in had faith'. Action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives either to burl the person against whom the action is 'taken or to benefit oneself. Action taken in colourable exercise or powers, that is to say, for
(1) PLD 1974 SC 151 collateral purposes not authorised by the law under which the action is taken or action taken in fraud of the law are also mala fide."
' We also are unable to subscribe to the views of the High Court that for establishing mala fide, the mala fide act should succeed the detention and not precede. The circumstances which would lead to an inference of mala fide, in fact, are usually such which precede the detention and not follow.
Therefore, to say that detention that followed his removal from the power and the subsequent boycott of election would not be taken to be constituting a motive is unconvincing.
' We also do not find ourselves in agreement with the views of the High Court that the order of detention was passed immediately after the speeches M were attributed to the detenu. The last speech was delivered by him on 26-8-1975. But the first detention order was served on the detenu on 6th of October 1975. This gap of more than 40 days against the back-drop of the above circumstances casts serious doubts about the bona fide of the action. Mere so when the finding of the High Court is that the relations of the party in power were bitter with the detenu and the fact that a civil suit claiming Presidentship of Muslim Conference by Sardar Muhammad Ibrahim Khan against the detenu was still pending in the High Court point to the presence rather than the absence of mala fide.
18. As regards the admission of apology it was vehemently urged by the learned Advocate for the detenu and emphatically asserted that no apology was ever tendered or admission made by the detenu. The apology attributed to the detenu by the Court in its judgment, according to him, is without any basis and introduced to damage the future political career of the detenu. The learned Chief Justice has not referred to the page of the the where such apology, if any, is placed. We were unable to trace out an such tender of apology on the file and consequently we asked the learned Advocate-General to kelp us to find if there is any. He frankly conceded that there is no such tender of apology. This being a very serious matter touching even the conduct of the Judge we ourselves looked into the record and were unable to find the tender of apoloy in the sense and manner in which it has been attributed to the detenu in the judgment.
' However, after going through the lengthy statement of the detinue we came across a passage at pages 33 and 34 where he says that he considered it below the standard of his personal ethics to use unseerningly language against any person even if that may be Mr. Bhutto or Aurang Zaib and also says that speaking bitter words towards others defiles one's own tongue even though they might be a result of grave provocation. It was in this context that he hypothetically expressed his regrets for any unseemingly language if used against the person of Mr. Zulfikar Ali Bhutto or Major Aurang Zaib or any other person. This becomes further clear when in the same breath he unequivocally asserts that the question involved is not of his person but that of the rights of the people of Jammu & Kashmir whose freedom to elect their representatives had been usurped and that he would continue to struggle for regaining their usurped rights of franchise and restoration of the sanctity of institutions that had been violated by the People's Party Regime ; and that he would make all sacrifices for achieving just and necessary rights. From this passage it would be wrong to interpret that the detenu tendered an unconditional apology. The context shows that it was neither intended nor ,expressed in the way it has been highlighted by the Court for making it as a base for its satisfaction as regards the grounds of detention. Obviously, much more was read into his statement than the words used by the detenu convey.
' In view of the above discussion it is not possible for us to subscribe to the view that the detenu tendered the apology through the High Court.
19. Before proceeding further, it is pertinent to examine the grounds of detention and the relevant material on which they were based. It is mentioned in the grounds supplied to the detenu that his speeches during the period commencing from the middle of April to September 1975, incited the people to start violence for removal of the then Government of Azad Jammu & Kashmir and created hatred besides his preaching violence against Government functionaries responsible for maintaining law and order. Surprisingly the Court did not advert to these grounds in its judgment and instead, object of aversion has been given by it as Central Government of Pakistan and Mr. Zulfikar All Bhutto, the then Prime Minister of Pakistan. Thus it appears that the High Court itself, for its judgment, formulated new grounds that were never communicated to the detenu. They are:-
(1) The detenu described this Government as a Government of Dacoits, thieves and Badmashes.
(2) The &term did preach violence against the Government and exhorted his workers to organise in groups.
(3) The detenu used extremely unbecoming, irresponsible and depraved language against the leader of the country, the Prime Minister of Pakistan, and the leaders of Azad Kashmir, Sardar Mohammad Ibrahim Khan, President and Khan Abdul Hamid Khan, the Primo Minister.
(4) The detenu tried to incite hatred against the Central Government by falsely and without any proof, saying that the Prime Minister wanted to create turmoil in Azad Kashmir so as to be able to invite an invasion by India, and facilitate its occupation by her.
(5) He tried to incite the Army against the Central Government.
(6) He tried to create hatred and aversion also by telling people that the Prime Minister was an enemy of Muslims of Pakistan and Azad Kashmir, that the present Government at Muzaffarabad was a Government of mean people who had sold their conscience.
(7) He preached and predicted violence, etc. Etc. ' The close examination and comparison would reveal that these new grounds, formulated by the High Court, are not the same that were communicated to the detenu by the detaining authority. In our view, with due deference to the learned Chief Justice, this is not permissible under law.
' Preventive detention is a serious invasion on personal liberty of a citizen. It is, therefore, the duty of the Courts to jealously watch and enforce the safeguard this precious right provided by the Constitution against improper and capricious exercise of the powers by the Executive. The Courts are not entitled either to import new material to support the order of the preventive detention or formulate grounds which were never supplied to the detenu.
' The Courts, in detention cases, have to examine the order in detail and maintain it only if it appears that the authority concerned has, after applying its mind honestly on material placed before it, taken the action. In other words, superior Courts are to see whether a prudent man would have formed the same opinion as formed by the detaining authority on the material before the said authority. The satisfaction of the detaining authority obviously would mean the state of mind which has been influenced by existence of grounds considered by it and not on the grounds or facts that were not available to the detaining authority, and rather for the first time were brought before the Court. If the Courts start considering entirely new ground for upholding such detention orders, it would amount to playing the role of the detaining authority which is unwarranted by law.
20. Let us now advert to the material placed before the detaining authority. In the grounds supplied to the detenu it was mentioned that he delivered speeches at different places for the period commencing from April to September 1975. But during the trial only diaries of the four speeches allegedly delivered at Kohalla, Dhirkot, Nile Butt and Bagh during the month of August 1975 were placed before the Court. It was contended on behalf of defence that speech writers not being trained in short-hand could not take down the speeches verbatim and that it would be wrong to place reliance on the diaries which do not contain the full and correct record of the speeches made by the detenu. It is stated that the defence, in order so test the speed of the Diary writers and to establish their inability to record full speech, produced a taped record of the detenu's speech.
This was partly played but subject to the objection of the Advocate-General regarding its admissibility. The Diary writers were asked to write the speech when a part of the tape was played.
They took the notes and then prepared an amplified copy but no transcript of the part of the speech that was played for test writing was got prepared by the High Court. However, we got prepared the transcript for its comparison with the notes taken by the speech writers at the time of the test when tape record was being played. Total number of the words played on tape record was 1847. Mushtaq Ahmed, Diary writer could write only 397 words that is only 22% of the total words, while Zafar Hussain could write 21%. This would mean that none of them was able to write a even 30% of the total words spoken. There is another test writing note on record taken by some person but as his name is not recorded thereon we did not count the number of the words taken down by him. This tape record which was produced by the Advocate for defence, admittedly was not before the detaining authority when order for detention was made. Nevertheless, without deciding the question of its admissibility for even testing the speed, the High Court placed much reliance on this speech of the detenu which material was neither available to the detaining authority nor was tendered in evidence for the purpose for which it was used by the Court. In fact, the learned Advocate-General objected to its being played even for the purpo of testing the speed of the speech writer which objection till now goes un it resolved. It was hotly contested by the defence counsel and not opposed by the Advocate-General that this tape record was never tendered in evidence as a proof of the alleged speech.
21. The objection to improper admission is material only if it can shown that after the exclusion of such evidence there would remain no sufficient evidence to justify the finding. The error complained of in the Instant case consists of the fact that the contents of the taped speech of the detenu was imported by the Court into evidence. Improper admission of evidence may not by itself be a ground for reversal of a decision if there is other evidence for arriving at the same conclusion independently of it. After rejection of the improperly admitted evidence there remains only 30% of what the speaker said in the meeting. The trend of the authorities is against forming opinion on the basis of isolated passages, sentences and strong words here and there. Well-recognised principle in this behalf is that the speech as a whole should be adjudged in the context in which it was made. The &fence counsel referred to PLD 1976 Lab. 695 containing the following observations: "The Stenographer Mr. Muhammad Munir Bhatti covered six out of seven actionable speeches, and only four of these have been verified by reference to tapes. The other two remain untested. The taint attaching to the four speeches will extend to them also because the ability of this Stenographer to prepare the record has been found open to serious doubt. Additionally, what he systematically omitted to record was equally, if not more, important for deriving satisfaction.
' Coming now to the solitary speech reached in long hand by the middle pass Abdul Rahman Constable, his record comprises 370 words. He had noted that the meeting started at 11-10 and ended at 12-25. He admitted that longer time was taken by the detenu in delivering the speech and he has fixed its duration at 40 to 50 minutes. By way of abundant caution I will take it to be half of it.
From the tapes the average words per minute comes to over 100. In the long hand for every word noted five have been omitted. Apart from what has been omitted there is nothing in this speech which could be cognizable for action under Defence of Pakistan Rules."
' On this authority it was argued that it was not safe to place reliance on these diaries. The High Court has tried to meet this flaw by saying that it was not possible for any Stenographer to reproduce verbatim any speech. It may be so but this per se is no ground for relying upon incomplete and disjoined passages from a speech which is not faithfully recorded. It is more so when we find that admittedly the original notes taken at the time of the speech have not been produced on the ground that they were destroyed. With V e invention of the tape r corder now it is very easy to get taped any speech verbatim delivered at any speed. In fact, this is the procedure now being adopted in all such cases, in Pakistan and elsewhere.
22. Apart from this even if the taped speech is taken as a whole, in our view, it would not justify the detention becuase it appears to be balanced one and no threat is made out to murder any dignitory of Azad Kashmir Government or that of Pakistan. The detenu, of course, bitterly criticised the person of Mr. Zulifikar Ali Bhutto, the then Prime Minister of Pakistan, and accused him for creating chaotic conditions in Azad Kashmir and for illegal removal of the detenu from the office of Presidentship. He asserted that hell could react but in the larger interest of Pakistan and Azad Kashmir he decided not to resort to any violent measure as that, in his opinion, would T have provided an excuse to India to attack Azad Kashmir and occupy it. It is quite clear, even from the part that was played for test purpose and the transcript of which has been got prepared, that incitement to violence or to murder was not propagated. He, in fact, says: "We do not want to create disturbance or rise in revolt or commit any mischief but at the same time we banner leave our honour at the mercy of "Goondas and Badmashes". He, of course, advised his hearers to shoot such 'Goondas and Badmashes' if they found any one of them prowling at night. He also, in another part mentioned that incidents of burglary were increasing in Azad Kashmir and `Goondas and Badreashee were at large because nobody was taking any action against them. But he did not apply these epithets against the Ministers of Azad Kashmir Government. He narrated an incident that took place in th house of one of his workers in Tehsil Hsveli where, according to him, some `Goondas' wh a had the support of Mr. Rathore, the then Senior Minister, looted the house of the worker during day time while the Police which was presert there took no action. He, of course, warned the Officers that they should discharge their duties fairly and impartially and should not transgress the limits prescribed by law. Replying to the demand of certain other spealers for action he explained that in war as well as in politics there are two ways of action one is the immediate counter attack and the other is the long term policy. He did not resort to the immediate counter attack at the time he was removed from the once of President because that would have resulted in immense loss of life and caused damage both to Pakistan and Azad Kashmir. Instead, he advised the workers to organise the Muslim Conference and enroll large number of basic members in all the primary branches that would add strength to their demand and if any movement is started in Azad Kashmir that would spread throughout Pakistan. If they are united they can force the Government to restore political rights even by social boycott of the Government functionaries, which is one of peaceful methods.
' In this context, to us, the charges of inciting violence or murder or any act prejudicial to the maintenance of public safety or of public order cannot be sustained. The inference by the High Court seems to be overdrawn.
' In the grounds formulated by the High Court it is laid down that the detenu described the Government as that of dacoits, thieves and 'Badmashes'. "He exhorted his workers to organise in groups and used unbecoming, irresponsible and depraved language against the Prime Minister of Pakistan and leaders of Azad Kashmir, namely, Sardar Mohammad Ibrahim Khan and Abdul Hamid Khan, and incited hatred against the Central Government of Pakistan by saying that Prime Minister of Pakistan wanted to create turmoil in Azad Kashmir so as to invite an invasion by India and facilitate its occupation by her."
' These grounds, as already stated, were not communicated to the date= and could not form the basis of the order. But even if they were included in the grounds supplied to the detenu they would not constitute valid basis for directing the detention. The High Court in support of its finding that using abusive language against the person of the Prime Minister of Pakistan or the President of Mad Kashmir would constitute a ground for detention relied on AIR 1959 SC 1335 and PLD 1973 Leh.
747. These cases have no bearing on the presert case. The facts of AIR 1959 SC 1335 were not similar to this case. The speaker in that case called upon the people to form militia and emphasised that in order to save the refugees and the territory of Indian Union. Pandit Jawahar Lat Nehru should be murdered ; while in the instant case, the speaker rather preached for peaceful methods. He did not exhort to murder Mr. Z. A. Bhutto but simply warned him to take lesson from the sad plight of Mr. Mujib-ur-Rahman. The subsequent circumstances in the instant case have proved his predictions to be true. PLD 1973 Leh. 747 referred by the High Court also bar no application to the instant case as in that ease Mien Tufail Muhammad, Amir Jamaat-i-Islami, applied for grant of bail in a case registered against him under section 1241-A, P. P. C. In view of the fact that the offence under section 124-A of the Penal Code wns punishable with transportation for life his bail application was rejected. In the instant case no such case was registered against the detenu and the question of grant of bail was not at all in issue. The detenu's Counsel has stated at the bar that PLD 1976 Lab. 773 cited by him in the High Court was not purposely discussed. He quoted the following passages from its pages 781 and 782 to support his argument that to criticise the person of the Prime Minister does not amount to a prejudicial act as envisaged in Public Safety Act or Civil Defence Rules t- "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 tranquillity. Therefore, it is necessary for the authosrity 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 ho will also jeopardise public order. It is evident from the utterances attributed to the detenu under ground (1) that he has levelled serious allegations against the present Government and the Prime Minister (ride sub-paragraph (a), (b), (c) and (e) of the ground (I) and also warned the Prime Minister against a fate similar to that of Sh. Mujib-ur- Rahman 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 the 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 publics order.
' In the context of the election in Constitutency, Lahore-6, which was held on the 9th 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 Constitution. The 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 the Bangle Desh resulting in the assassination of Sh. Muiib-ur-Rahman was ohvionsly made as a lesson to all that even a popular leader like Sh. Mujib-urRahman 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 dramma in Pakistan.
' 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."
' The alleged speech in the instant case by the detenu is couched in similar words and phrases in which the speech which was the basis of detention in the above-mentioned case was couched on which the above interpretation and construction was adopted. On the principle of 'stare decisis' also it is not desirable to change the view because the liberty of a subject being involved the Court was justified in giving liberal meaning to the particular words and phrases used by the speaker to defend the public rights of citizens. We are, therefore, unable to subscribe to the different construction adopted in the instant case by the High Court.
' The explanation given by the detenu rather seems to be more p!Ausible.1 The tenor of the speech taken as a whole and the fact that he did not resort to violent means when he was forcibly removed from the o co of the President and his subsequent peaceful boycott of the elections and not permitting his followers to create law and order situation when he was stopped at Dulai, though being capable of doing so with a large number of his! Followers, is an eloquent testimony of his peaceful intentions.
23. A right to freedom of speech and expression invariably carries with it the right to propagate and circulate one's views and opinion subject to reasonable restrictions. If just criticism, however strongly worded, is not allowed In a democratic society, it would lead to underground movements and subversive activities. The inequity would lead to deeper and deeper folly and destruction of the ends for which a State is created. It has been aptly said that "Justice is the end of the Government.
It is the end of the civil society. It ever has been and ever will be pursued until it is obtained, or until the liberty will be lost in pursuit". If any injustice is perpetuated the society has a right to alter the status quo because then it would have become subversive of the ends for which Governments are instituted. In the words of American Declaration of Independence. "All men are created equal, that they are endowed by their creator with certain inalienable rights, that among these are life, liberty and the pursuit of happiness that to secure these rights, Governments are instituted among men, deriving their just power from the consent of the governed, that whenever any form of Government becomes destructive of these ends, it is the right of the people to alter or abolish it and W to institute a new Government laying its foundations on such principle and organising its power in such form as to themselves seem most likely to affect their safety and happiness". Hazrat Abu Bakr, as Caliph, in his inaugural address laid down the golden rule regarding the extent of obedience of citizen to Caliph in these words:- "Obey me as long as I obey Allah and His Prophet ; when I disobey Him and His Prophet then obey me not."
' Emphasising the fact that he could demand the obedience of his people only as long as he acted in accordance with the commands of Allah and His Prophet he propounded the principle that the powers of the Executive are strictly restricted. If they transgress these limits obedience and co- opezatior cannot be demanded in an Islamic State. Even during the colonial rule in AIR 1930 Lab.
892 where the accused in a speech said that war of independente of 1857 unluckily failed and advised his audience to obtain the same object by different means and nowhere advocated violence it was held that this would not constitute an act prejudicial to public safety or order.
Similarly advice by a political leader to his party workers to strengthen tee political organisation for launching a movement would not afford a ground for taking action under the public safety.
' By pointing out social evils in his speech he on one hand advised the party in power to reform itself and on the other to apprise the people in villages as to how the democratic process is being distorted. In a parlia, mentary democracy revelation to the public of wrong activities of the party in power, their misuse of the public funds, corruption and pointing out other social evils prevailing at the time would not amount to either an act prejudicia to the maintenance of peace or safety of the State.
24. In the course of arguments before this Court Mr, Sayab Khalid also urged that association of Mr. Justice Saraf in the Bench during the trial was in violation of the code of conduct adhered to in this behalf by the judiciary throughout the world. He referred to the application filed on behalf of the trial from in which grave apprehensions were expressed about not getting fair from the Beech presided over by Mr. Justice Saraf. These objections and apprehensions, it is said, were reiterated by the detenu at the time of his examination by the Court in Pallandri Jail. In further support, the detenu bad referred to the mode and manner of the conduct of the trial, undue latitude given to and unwarranted liberties taken by Major Aurang Zsib during the trial and the abrupt and surprise arrival of the Court at Pallandari for recording detenu's statement without giving him due notice and providing him reasonable time for consultation.
' It was also pointed out that originally the date for recording the state, ment of the detenu was fixed for 4-10-76. But two days before this date an application on behalf of the Government was moved requesting for fixing another date as the Advocate-General was ill and the Additional Advocate.. General had expressed his inability to conduct the case. On 4.10-1976 the case was adjourned to 16-10-76 for fixing the date for recording the statement at Pallandri. On 16.10-76 orders were passed at Muzaffarabad that the statement of the detenu will be recorded at Pallandri, a place at distance of about 150 mountainous miles, on the next day. The petitioner's counsel has stated that it was against this background that the detenu was taken by surprise and that the Chief Justice without referring to these circumstances has covered his alleged bias by highlighting his private meeting with the detenu in Jail and his remote political associations with him.
25. Justice should not only be done but it should appear to have been done and as such a Judge should be above reproach and he should keep his conduct in all things, official and private, free from impropriety, in particular, he should not indulge in any public controversy, least of all on political questions and conduct of the politicians unless he is officially called upon to do so. In the instant case it is not necessary for us to give any finding on the grievances urged by the Advocate on behalf of the detenu as neither there is sufficient material before us one way or the other nor the point is directly involved for determination of the case before us.
' The result of the above discussion is that we accept the appeal, set aside the impugned order and judgment of the High Court and hold the detention of Sardar Mohammad Abdul Qayyum Khan as illegal and bad ab initio. He will be entitled to costs. The counsel fee shall be rupees two thousands.