MUHAMMAD HANIF KHAN Versus AZAD GOVERNMENT OF J & K

ORDER

1. This habeas corpus petition is filed by Mr. Muhammad Hanif, a friend of the detenus, namely Raja Ibrar Hussain, Bashir Ahmed Awan, Manzoor Shah and Gul Majid against orders of their detention under section 3 read with section 2'7 of the Azad Jammu & Kashmir Maintenance of Public Order Ordinance. It is alleged that detention of the said detenus is not lawful as no grounds of detention were provided to them as warranted by law. According to the petitioner the so-called grounds communicate to the detenus after the lapse of a period of 11 days are no grounds and that too with undesired delay which could not, in the circumstances, be caused in the face-of the Constitution. The Constitution provides that when any person is detained under any law, the authority detaining him shall, as soon as may be, communicate to such person, the grounds on which order of detention has been made and shall afford him the earliest opportunity of making a representation before the Government under subsection (6) of section 3 of the Ordinance provided that the detaining authority may refuse to disclose the facts which that authority considers to be against the public interest. In the Ordinance a period of 15 days has been fixed from the date of detention within which the grounds are to be supplied to a detenu. Obviously the fixation of the period is ultra vires of the Constitution because the words "as soon as may be" do not mean that under the cover of fixation of time, delay should be caused in furnishing grounds of detention to a detenu. No law offending the provisions of the Constitution can be framed by the Legislature. The Constitution requires that when a person is detained, the grounds of detention are to be supplied to him, as soon as may be, without delay in a short time. Suppose, if ~a person is detained for a fortnight or say 16 days, the purpose of fixation of time is frustrated for itself. The detaining authority may take a time not to furnish the grounds of detention, as soon as may be, and thus the purpose of the Constitutional law may be defeated in this way. The phrase "as soon as may be" used in the Constitution under section 4 (4). The Right (4) was also. incorporated in section 3 of the Ordinance but was immediately followed by the words not later than 15 days that is to say that a time limit of 15 days was unwarrantedly fixed which is ultra vices of the constitution. The phrase "as soon-as may be", itself provides a reason able time according to the circumstances of the case within which the grounds are to be communicated to a person detained and the fixation of the time by the law-making authority thereby causing delay as was done in this case is against the constitutional law and as such the fixation of time of 15 days is beyond the scope of valid legislation and that being the case the grounds furnished to the detenus on 28th March, 1981 or somewhere afterwards, were evidently., delayed. The detention of the detenus before me becomes illegal because the grounds were furnished to them not within a reasonable time under the provision, as soon as may be contained in the Constitution as well as in the Ordinance itself by the detaining authority so as to enable them to make representation as required by law and thus instead of making representation for want of grounds they had to challenge their orders of detention by way of this petition under section 491, Cr. P. C. through their friend. The friend ship is confirmed by the affidavits of the detenus to which there are no counter-affidavits by the respondents, Hence, no question for the petition being incompetent arises. Besides, the grounds constituting the facts were not provided to the detenus. The grounds, namely, their activities (detenus activities) according to the District Magistrate

(a) Firstly, were calculated to inciting the Public to violence against the present Government of Azad Jammu & Kashmir;

(b) secondly, were aimed at creating hatred, contempt and alarms and

(c) thirdly, have been in a manner prejudicial to public safety and maintenance of public order," cannot be termed as grounds, but reasons. Of course, certain facts relating to detention of a person are allowed by law not to be disclosed in the interest of the public but here no such fact or facts are made visible by the respondents. The disclosure of material constituting facts was not shown against the interest of the public. The reasons for which the detentions in question were made by the District Magistrate do not indicate that there was any material constituting the facts which could have fallen within the mischief of proviso added to the section concerned i.e. section 3 of the Ordinance. It is thus clear that no grounds as envi saged by law were provided to the detenus by the District Magistrate. and that being so, the orders of detention in question become illegal so also no earliest opportunity for filing a representation was afforded to the detenus. In the circumstances above a bar of jurisdiction under section 24 of the Ordinance is removed and the High Court in the exercise of powers under section 491, Cr. P. C. is within its competence to look into the matter for its being illegal in respect of detentions in question so as to redress a wrong done to a person by the executive authority.

2. In the result this petition is accepted and the orders of detention in question are hereby rescinded and the immediate release of Raja Ibrar Hussain, Bashir Ahmad Awan Manzoor Hussain Shah and Gul Majid Khan is ordered hereby. The Superintendent Jail, Muzaffarabad is to set them free forthwith, if not wanted in connection with some other case.

3. Petition allowed.