MUHAMMAD HANIF Versus AZAD GOVERNMENT OF J & K

ORDER

1. This petition under section 491, Cr. P. C: is in nature of habeas corpus seeking release of Muhammad Fareed who, was detained by the District Magistrate Muzaffarabad under section 3 read with section 27 of the Azad Jammu and Kashmir Maintenance of Public Order Ordinance for a period of 30 days from the date of his arrest for the following reasons, i.e. his activities:-

2. "(a) were calculated to inciting the public to violence against the present Government of Azad Jammu and Kashmir;

(b) were aimed at creating hatred, contempt and alarm;

(c) have been in a manner prejudicial to public safety and Maintenance of Public Order."

3. The main contention of the petitioner who is a friend of the above said detenu and whose friendship is supported by an affidavit filed by the detenu to which no counter-affidavit is made by the District Magistrate and so there can be no question to the competency of the petitioner to file this petition, is that no grounds were communicated to the detenu so as to enable him to file a representation before the Government as required by subsection (6) of section 3 of the Ordinance. A photostat copy of the grounds as framed by the District Magistrate was brought on record to show that the grounds were communicated to the detenu on 28th March, 1981 a week after his arrest. The very reasons for which the arrest was made were reproduced as the grounds on which the order of detention was made by the District Magistrate. The reasons are to be differentiated from the grounds on the basis of which it was reasoned by the District Magistrate to secure arrest of Muhammad Fareed in the manner above. The words `reasons' and `grounds' used in section 3 and in subsection (6) of the same section respectively bear clearly to show different meaning, The grounds constitute the facts on the basis of which a justification for the action is made by the detaining authority. No material constituting the grounds or facts was made available to the detenu as required by law so that he could have filed representation before the Government under subsection (6) of section 3 of the Ordinance for which earliest opportunity was to be afforded to him but no such opportunity would be said to have been given to him for the purpose as no material was supplied to him so as to let him know as to what were his acts for which he was made liable under section 3 of the Ordinance for the reasons above. No doubt disclosure of facts in case it is against the public interest is excepted but there is no such indication that such a privilege was at all claimed by the detaining authority and as a matter of fact the circumstances show that there was nothing of facts which, if to be disclosed, could have been against the interest of the public. And so it was ail the more necessary for the District Magistrate to communicate the grounds that is the facts of the case to the detenu as warranted by law and the failure of the District Magistrate to comply with the mandatory provision of law contained in subsection (6) of section 3 renders the detention of Muhammad Fareed as illegal ab i nitio. When an illegality is committed by the authority concerned, his order cannot be protected by section 24 of the Ordinance which bars the jurisdiction of a Court. Thus when a proceeding or order taken under the Ordinance is called in question for its being against the provisions of law contained therein, a duty is cast upon the High Court to intervene in the matter thereby doing away with the ouster of jurisdiction of a Court under section 24 of the Ordinance. Such a bar can only be allowed to remain in tact, if proceedings or orders taken and made under the Ordinance are strictly in accordance with the provisions of law contained therein and if any breach of law concerned is committed by the detaining authority it cannot be allowed to take protection under section 24 of the Ordinance in order to save his impugned action.

4. That being so, the impugned detention of Muhammad Fareed is declared illegal and consequently his immediate release is hereby ordered by acceptance of this petition. Superintendent Jail Muzaffarabad is directed to set him free at once, if he is not wanted in connection with some other case.

5. Petition allowed.