This petition is directed against the orders of detention passed on different dates against the detenu Muhammad Afzal Sindhu, who was arrested on 31-3-1978 from his house at Temple Road, Lahore in connection with a case registered vide F.1. R. No. 127/78 at Police Station, Lohari Gate, Lahore as well as in case vide F.
1. R. 218/78 registered at Police Station. Mozang, Lahore. After his arrest the detenu was produced before a Summary Military Court which remanded him to judicial custody on different dates. He was discharged by the Court in the case registered ride F.
1. R. 127/78 on 14-6-1978. However, before the order of discharge was passed, he was served with the detention order issued under M. L. (). 12 for a period of three months, effective from 9-6-1978. During his detention period he was also discharged in the second case.
2. After the expiry of the initial period of detention another order was passed against him under the said M. L. O., effective from 8-9-1978 , for a period of three months. The third order of detention was passed under the said provision for a period of three months effective from 6-12-1978. The last order of detention was passed on 5-3-1979 for the same period effective from 6-3-1979.
It is admitted by the learned Advocate-General that so far as the first two orders were concerned, they were not accompanied by the grounds of detention whereas such grounds were furnished to the detenu along with the last two orders.
3. As many as 25 persons were interrogated with regard to their alleged subversive activities. Their statements have been attached with the report submitted by the Additional Inspector-General Police, Special Branch, Lahore. The report contains gist of their statements made during the interrogation.
Son of an ex-M. P. A., whose name need not be disclosed, was arrested on 31-3-1978 while receiving a bag containing explosives at a particular place. He disclosed during the interrogation that after the arrest of his father their house became centre of political activity. Many P. P. P. Workers visited their house in order to get instructions with regard to further line of action. During this period the aforesaid son of Ex-M. P. A. And another P. P. P. Worker received message from the detenu to meet him. Consequently they both met him at his residence. Later on the son of Ex-M. P. A. Visited the house of the detenu of and on but alone. At one stage the detenu asked another P. P. P. Worker to arrange for a small press so that message of the party might be communicated to the people through pamphlets as the party organ had been banned. The said P. P. P. Worker informed the detenu that such press was available for amount of Rs. 15,000. Since this amount could not be arranged therefore, press could not be purchased. According to the statement of the son of Ex-M.
P. A:, the detenu, however, assured him as well as some other party workers that arrangement for the supply of explosives was being made and he would inform them as soon as the same was finalised. In reply to a question put by the P. P. P. Worker, he was told that services of some professionals would be hired in order to handle the explosives. According to the report it was further disclosed by the afpresaid son of Ex-M. P. A. That certain P. P. P. Workers, including the lady workers from Gujranwala visited his house and expressed their desire to meet the detenu. They were taken to his house where a lady worker of the P. P. P. Told the detenu that since the workers of the party had become impatient, therefore, some sort of explosives might be supplied to them so as.To make their existence felt. The detenu, according to the report, promised to arrange for the supply of explosives and asked the lady workers to see him next morning. According to the report, the detenu also informed that he was trying to contact Begum Nusrat Bhutto in connection with amount of Rs. 5,000 which had been given to a top leader of the party. The fact that lady worker of the P. P. P. Was taken to the house of the detenu for the aforesaid purpose was confirmed during the interrogation of other detenus whose particulars have been given in the report. Some of them went along with the lady worker and some were present at the residence of the detenu when the supply of arms was promised.
4. The detenu while in custody disclosed during his interrogation, according to the report, that after his appointment as General Secretary of the party in January 1978, he was approached by various workers at different times for the purpose of giving some party line. He admitted that some of them demanded supply of explosives while others asked for money. According to him, he used to put them off by making false promises that some thing would be done in due course of time. He admitted to have met the aforesaid lady worker of the Peoples Party in the company of some other party workers at his residence and confirmed the nature of talk held between them, as referred to above. He further revealed that once he visited the residence of an important P. P. P. Leader where a top leader of the party was sitting. According to him, while discussing the party programme he opposed the idea of taking out a procession by Genl. (Rtd.) Tikka Khan. He admitted that a day before, he was called by that top party leader through a messenger at the residence of 4 party worker. He advised that leader to consult other friends about the situation arising out of the judgment against Mr. Bhutto. He admitted that the aforesaid top party-leader had asked him to lead a procession to be taken out in accordance with some programme, but he declined to do so.
According to him, he also advised the party workers/ leaders not to participate in any such procession. He stated that though he had been asking the party workers to be active yet he never prompted them to take out processions or participate therein in order to engage themselves in subversive activities.
5. The learned counsel for the petitioner has raised the following contentions :
(i) No fresh order can be passed under CMLA's Order No. 12, as contemplated by the language used in the order itself. Since according to the Advocate-General last two detention orders are fresh orders, therefore, they being against M. L. O. 12 itself cannot be sustained in law.
(ii) Since no grounds of detention were furnished to the detenu along with the first two orders, therefore, they being illegal, further orders extending the detention period cannot be sustained being based upon the said illegal orders.
(iii) No additional material has been examined by the detaining authority while passing the last detention orders, which are otherwise based upon the same grounds and material. The orders being mechanical in nature are liable to be set aside.
(iv) Certain incidents occurring during the period March to May 1978, cannot be made basis of detention orders passed in December 1978, and March 1979, particularly in view of the fact that some of the detenus have already been released.
(v) The detenu has never acted in a manner prejudicial to public peace and against the purposes for which the Martial Law has been proclaimed. He was first arrested on account of being involved in two criminal cases and since no material was found against him, therefore, he was discharged. .
However, before he could be released, he was arrested and detained under M. L. O. 12 in a rnala fide manner.
6. According to the provision as contained in M. L. O. 12 an order made under clause (a), para. 2 of the Order cannot remain in force for a period exceeding three months, unless before its expiration the period is extended by the C. M. L. A. Or by the M. L. A., as the case may be, for any period not exceeding, three months. It is further provided that a person shall not be detained under successive orders for a period exceeding two years in the aggregate. The learned counsel has contended that since the word "extended" has been used in the provision, therefore, only successive orders extending the period of detention not exceeding two years in the aggregate can be passed and passing of fresh order of detention while the detenu being in detention is not contemplated by the said provision.
I am afraid, this contention of the learned counsel has no force. There is no doubt that under M. L. O.
12, period of detention cannot be extended beyond three months, but that does not mean that fresh order of detention cannot be passed against a person who is already in detention. According to law, power to detain can be exercised by passing fresh order of detention from time to time where necessary conditions and. Given circumstances sod permit.
7. It has been held in Ust. Nasim Fatima v. The Government of West Pakistan and another (PLD 1967 Lah. 103) that there is nothing unconstitutional in passing successive orders of detention against a person on the same grounds. It is open to the authority to revoke an order of detention found to be defective for an reason and substitute it by a fresh order against him. If, however, the previous illegal detention is continued by a subsequent order, the detention B continues to be illegal. There is a distinction between a fresh order of detention and one extending the period of previous illegal detention. According to law, if at any time, before the Court directs release of a detenu, a valid order directing his detention is produced, the Court cannot direct his release merely on the ground that at some prior stage there was no valid cause for detention.
8. In Mutntaz Ali Bhutto and another v. D. M'. L. A., Karachi (PLD 1979 Kar. 125) validity of detention orders dated 31-3-1978 and 28-6-1978 was in question. By the last orders period of detention was extended for another period of ninety days. 1t was contended by the learned Advocate-General before the High Court that since the last orders of detention passed under M. L. O. 12 were in reality fresh orders, therefore, question with regard to the illegality of the original orders of detention passed against the detenus would not arise. On the contrary, the petitioners contended that since the later orders were merely extensions, therefore, the original orders being illegal the detention of the detenus would fall to the ground. It was held by the High Court that in so far as the material on the basis of which the detention orders dated 31-3-1978 and their purported extension dated 21-6- 1978 was concerned, they were of the same character, namely the statements of the petitioners in the Court made in the course of proceedings in a constitutional petition filed by Begum Nusrat Bhutto challenging the detention of the petitioners by the C. M. L. A. Under M. L. O.
12. In that petition the petitioners had made very long oral statements supplemented by a written memorandum of which only a small portion appeared in the Press. The Press reports together with the noting of the two members of the Armed Forces constituted the material before the detaining authority when the orders dated 31-3-1978 were made. At the time when the later orders dated 28-6-1978 were made, the detaining authority had in addition the actual memorandum of the petitioners' statements. It together with fresh notes prepared by another Officer of the Armed Forces and the earlier Press reports became the material for further detention for ninety days. The contention of the learned Advocate-General that though the character of the material before the detaining authority on both the occasions was the same, on the later occasion it was more extensive as including the entire written statements filed by the two petitioners running into 139 pages and fresh notes put up by an Army Officer and, therefore, the orders of extension were in fact fresh orders of detention was accepted. Reliance in this respect was placed upon Arbab Muhammad Hashim Khan v. The Crown (P LD 1954 FC 1) and Ghulam Ahmad v. Punjab Province and another (PLD 1976 Lah. 773) holding that it was the material alone which could determine whether a subsequent detention was 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 in custody. It was held by the High Court that since the material before the detaining authority while making the orders dated 28-6-1978 by far exceeded the material before it when the orders dated 31-3-1978 were made, therefore, the orders dated 28-6-1978 though purported to be extension of the earlier detention in fact amounted to fresh orders of detention and the petitioners' continued detention under M. L. O. 12 in such circumstances would have to be determined on the basis of the orders dated 28-6-1978.
9. The same view has been taken in Begum Nusrat Bhutto v. D. M. L. A. Etc. (PLD 1979 Lah. 91) by my learned brother Muhammad Siddique, J. -It was contended by the learned counsel for the petitioner that since under M. L. U. 12 the detention could only be extended and no fresh order could be passed while the learned Advocate .General was relying upon the impugned order being fresh one, therefore, the initial order being illegal the subsequent order based upon that would fall to the ground. The High Court after due examination of the entire record came to the conclusion that additional material had been placed before the detaining authority before the subsequent order of detention was passed. The subordinate authorities had recommended for extension of detention on the basis of fresh material. It was, however, held that they had not and could not recommend as to the nature of the order to be passed by the detaining authority. Since the additional material, particulars of which have been given in the judgment, had been considered by the detaining authority, therefore, it was held that irrespective of the word "extension" used in M. L. O. 12, it did not debar the detaining authority to pass a fresh order after considering the fresh material. The impugned order in that case admittedly had continued the detention of the petitioner without any break.
10. In the present case, the relevant record produced by the Advocate General shows that before the orders of detention were passed in December, 1978 and March, 1979, additional material was produced by the Additiona Inspector-General of Police. Special Branch, Punjab, Lahore before the detaining authority in order to show that release of the detenu would b harmful and not in the interest of public peace and tranquillity as well a law and order and would be against the purposes for which the Martial Law C had been proclaimed in the country. He not only put up certain, secret reports duly received by him through Intelligence sources, but also put u lengthy notes drawn by him showing the past conduct of the detenu and hi role with regard to subversive activities and the likely effect of his release. Every time the material produced by him before the detaining authority ran into several pages. In this view of the matter it cannot be said that the last two orders have been passed on the basis of the same material in a mechanical manner.
11. In the aforesaid case of Begum Nusrat Bhutto grounds of detention had not been furnished by the detaining authority along with the detention order-whether extension or fresh order. It was held that since in ordinary cases such grounds were furnished to the detenu along with the detention orders, therefore, it was incumbent upon the detaining authority to furnish the same along with the order of detention passed under M. L. O. 12 irrespective of the fact that their supply was described to be not necessary in the order itself. Mainly on that ground the order of detention passed against Begum Nusrat Bhutto was set aside.
In the present case, it is not denied that grounds of detention were supplied along with the last two orders passed in December, 1978 and March, 1979. The last orders being fresh and independent orders, based upon additional material, would not fall to the ground irrespective of the fact that no grounds were furnished along with the previous two orders. The argument of the learned counsel for the petitioner may have prevailed in case the last two orders had been he'd to bs extension orders without the grounds of detention having been furnished. The alleged invalidity of the previous two orders, as such, would not affect the last two orders which have been passed in a lawful manner.
I refrain myself from dealing with the aspect as to whether furnishing of grounds along with the detention order under M. L. CS. 12 was necessary and in the absence of that such order would be treated to be a nullity, as this contention has not been raised specifically during the arguments.
12. The contention that the incidents occurring during the period March, 1978, to May, 1978 cannot be made basis for detention orders passed in December, 1978 and March, 1979 has no, substance in the light of the discussion made above. The above discussion would show that additional material was duly considered by the detaining authority on both the occasions in December, 1978 and March, 1979, while passing the detention orders, in addition to the material pertaining to the aforesaid occurrences, Lengthy and detailed reports were submitted by the Additional Inspector- General of Police. Special Branch along with the secret reports tendered by the Intelligence dealing with the past conduct of the detenu as well as the likely effect of his release in context of the law and order situation particularly the activities of the extremist elements of the People's Party.
13. The judgment in this case was reserved. Before it could be announced the detenu was further detained for a period of one month with effect from 5-6-1979. The order passed in this behalf has been placed on the file by the learned counsel for the petitioner. The grounds furnished to the detenu along with the detention order show that he had been indulging in planning subversive activities in the province of Punaah leading to the procurement and use of explosives in the months of April and May, 1979, and the v there was strong apprehension, in the light of the detenu's past activities, that he would again indulge in such activities, calculated to create chaoti conditions in the country and inciting the people to violence, lawlessness and sabotage.
14. Notice was issued to the learned Advocate-General to justify the last detention order. He has placed on record copies of Daily Secret Reports submitted during the period March, 1979 to May, 1979 about the activities of the People's Party workers leaders at various places in' the province, T6 meetings held during this period were addressed by the workers and leader of the P. P. P. Some of the speeches alleged to have been delivered and E slogans raised at these meetings are quite objectionable which aim at inciting the people. It is contended by the learned Advocate-General that if in the given conditions, as shown by the Secret Reports about the activities of the P. P. P. The detenu is released, then it is likely that he would indulge is such, activities creating law and order trouble in view of his past conduct.
15. The report of the Additional Inspector-General of Police, Special Branch reveals, as mentioned, that the detenu assured the party workers at, different occasions for the supply of explosives. He told them that arrangements in that behalf were being made and as soon as they were finalized party workers would be informed. He even went to the extent of suggesting that services of professionals would be hired for handling the explosives. When) certain workers from Gujranwala met him at his residence and demanded, certain explosives to be supplied so as to prove the existence of the party, he assured them the needful in that behalf would be done. The detenu, according to the report, himself admitted during his interrogation that h promised many workers to supply explosives. He, however, tried to explain that such promises were made in order to put them off, otherwise no explosives were supplied. The fact that thereafter certain explosions took place in various parts of the province has not been denied.
16. According to law, the jurisdiction of this Court while examining material considered by the detaining authority is not unlimited. This view was taken by me while referring to relevant case law in Shamasud Din v. D. M. L. A., Lahore (PLD 1979 Lah. 74). The relevant portion of the judgment is reproduced below: "When an order passed by an executive authority detaining a particular person is challenged by invoking extraordinary jurisdiction of this Court it is always by means of judicial review and cannot be treated as appeal or revision. The Court cannot substitute its discretion for that of administrative agency. The only function of the Court i such cases is to see whether the order of detention is reasonable and objective. It is also possible that there may be two different opinion Is with -regard to sufficiency or insufficiency of the grounds of detention being reasonable or otherwise but if the material shows that the detaining authority could reasonably reach the conclusion already arrived at then the Court would not interfere with the order. The only test in such cases is that the detaining authority has applied its mind f with all reasonable care in order to see that there is sufficient material for detention. The Court is not concerned whether the material is correct or not unless it is otherwise shown on record."
17. The question which now arises for consideration is as to whether there was sufficient material at the time when the fresh orders were passed in December, 1978 and March, 1979 and June, 1979 and whether the orders otherwise have been passed in a mechanical manner. It has been held in Mumtaz Alf Bhatto v. D. M. L. A., Sector-1, Karachi (PLD 1979 Kar. 307) that extension of an order of detention is permitted if the Government can honestly, come to the conclusion that if released the detenu will again resort to his former activities. While taking this view reliance was placed upon Government of West Pakistan v. Haider Bakhsh Jatoi (PLD 1961 SC 210). It has been held that after the initial period of detention is over further detention is not by way of routine. The examination of the relevant record produced before the detaining authority at the time when the last three orders were passed shows analysis made by the official concerned in the form of his report that in view of the past conduct of the detenu promising supply of explosives resulting in explosions at various places in the province of Punjab his release at this time would be prejudicial for the purpose, for which Martial Law bad been proclaimed and against the public peace and tranquillity. The detenu, as mentioned above, has tried to explain this position during his interrogation by saying that he tried to put the party workers off by those promises- But the fact remains that many workers approached him for the supply of explosives. I am not in a position to say whether such explosives were supplied by the detenu or not, but it has not been denied that explosions did take place at various places during the period. Since the detenu was allegedly directly involved in the supply of explosives therefore, he was detained and it was reasonably apprehended by the detaining authority that if released the detenu would resort to similar) activities.
In this view of the matter, I don't find any substance in the contention of the learned counsel for the petitioner that the last orders were passed in a mechanical manner without application of proper mind. I am of the opinion that in the given circumstances the impugned orders are justified.
18. Consequently the writ petition fails and the same is hereby dismissed without any order as to costs.