MUHAMMAD AZIM BUTT Versus AZAD GOVERNMENT OF THE STATE OF JAMMU & KASHMIR
ORDER
1. SARDAR MUHAMMAD SHARIF KHAN (ACTG. C J.) ‑This is a reference by Division Bench of this Court for examining the correctness of the view taken in case entitled Mansha Khan v. State (P L D 1979 Azad J & K 49), to the effect that Civil Defence Rule 23 of the Civil Defence Rules of 1962 framed under section 3 of the Azad Jammu and Kashmir Civil Defence Act of 1951, is applicable only to an alien agent or suspected alien agents.
2. The reference arises out of the detention of Mr. Abdul Khaliq Ansari, Advocate, under Civil Defence Rule No. 23. The question formulated by the Division Bench for decision is :‑
3. Whether the provisions of the rule 23 of the Civil Defence Rules of 1962 are applicable only to an alien agent.
4. We have heard the arguments and gone through the record. Two preliminary objections were raised by the petitioner, firstly that the Judges who constituted the Division Bench should not sit on the Full Bench for the determination of the point involved and secondly, that the case should be remitted back to Division Bunch for decision on question referred, according to the view taken by Full Bench in the aforesaid case because identical question is sub judice is the Azad Jammu and, Kashmir Supreme Court in some appeal.
5. It has been contended by the petitioner that it is not proper that the two members of the Bench who were party to some of the previous decisions in which the matter referred to the Full Bench for decision was also involved, should sit on the present Bench. The petitioner has referred to a case reported as P L D 1960 Lah. 957 wherein the Judges who referred the point to Full Bench did not sit on the Full Bench to which the matter was referred. A perusal of aforesaid authority shows that it does not support the contention of the petitioner because it has not been laid down in the aforesaid case that Judges making reference could not be members of Full Bench which was constituted for the determination of the point referred to it. We find hardly any logic in the argument that the Judges of the Bench which made the reference are in any way debarred from being members of this Bench.
6. The next point urged by the petitioner is that the point should not be determined by the Full Bench because the identical matter is sub judice before the Azad Jammu and Kashmir Supreme Court and as such, the Division Bench should be directed to decide the petition following the view taken by the Full Bench in case already referred to. He has cited a case reported as P L D 1963 Dacca 326 to support his contention. A persual of the aforesaid authority shows that in a matter which is open to divergence of view, the Court should follow its own cursus curiae unless it is of the opinion that former decisions of the Court are clearly wrong. It is evidence that it has not been laid down in the aforesaid authority that Court is bound to follow the former view even if it finds that it is contrary to B law on the very face of it. There is no authority for the proposition that even if the correctness of the former view of the Court is doubted, the matter should not be referred to a larger Bench merely because the same was followed by the Court in some cases.
7. So far as the argument that point referred to Full Bench should not b considered and determined afresh because the identical proposition, in sour other case, is sub judice in the Azad Jammu and Kashmir Supreme Court is concerned, it is not tenable because if the Supreme Court takes a different view from one which may be taken by this Court, this Court would be C bound by the dictum of the Supreme Court and would follow it in future.
8. In view of the fact that quite a number of habeas corpus petitions a pending and their early disposal is necessary, the matter cannot be post poned and left undecided on the ground that decision by the Azad Jammu and Kashmir Supreme Court on the proposition involved, should be awaited. Reference may be made to a case reported as P L D 1963 Lah. 11, wherein the argument that decision of the writ petition should be withheld till the identical question of law involved in the petition before the Supreme Court is decided, was repelled.
9. After disposing of the preliminary objections, we propose to consider the question referred to the Division Bench. Under rule 23 of the Azad Jammu & Kashmir Civil Defence Rules of 1962, any person may be detained if the detaining authority is satisfied that he has acted, is acting or is about to act in a manner prejudicial to the defence or security of the State or is otherwise suspected person. Expression "suspected person" has been defined in explanation (a) to the rule 23 of the Azad Jammu and Kashmir Civil Defence Rules of 1962 which is as under :‑
10. Explanation.‑The expression suspected person shall include‑
(a) a person who is suspected of a prejudicial act as defined in the Civil Defence Act or of activities intended to assist the enemy ;" or
(b) --------------------------------------------
11. It is evident from the aforesaid definition that expression "suspected person" includes a person who is suspected of a "prejudicial act" as defined in the Civil Defence Act of 1951. The expression "prejudicial act" has been defined in section 2 (k) of the Civil Defence Act of 1951 and it would be expedient to reproduce below section 2 (k) so as to appreciate the matter in controversy in its true prospect :‑
12. 2 (k) "Prejudicial Act" shall mean‑
(i) any Act which is intended or likely to prejudice the State's relations with or maintenance of peaceful conditions with any other power or any acceding territory ;
(ii) to cause disaffection among or to prejudice, prevent or interfere with the discipline, health or training of or the performance of their duties, by members of the armed forces of the State or the public servants ;
(iii) to prejudice the recruiting of, or the attendance of persons, in any of the armed forces or Civil Defence Services and A. R. P. services of the State ;
(iv) to cause fear or alarm to the public or any section of the public, to undermine public confidence in the State in any way, to en courage or incite any person or class of persons, or the public generally, to refuse or defer payment of any land revenue, taxes, rates, cesses or other dues or amounts payable to the Government or any local authority ;
(v) to influence the conduct or attitude of public or of any section of the public in a manner likely to be prejudicial to the defence of the State ; and
(vi) otherwise to prejudice in any way the efficient defence of the State or the public safety or interest.
13. Expression "suspected person" as defined in rule 23 of the Azad Jammu & Kashmir Civil Defence Rules of 1962 read with the definition of expression "prejudicial Act" reveals that application of rule 23 is not confined to an alien agent only. If the activities of a person fall within the ambit of definition of words "prejudicial Act" as defined under section 2(k) of the Civil Defence Act of 1951, he would be a "suspected person" within o the meanings of the definition of the expression as given in explanation (a) to rule 23 of the Civil Defence Rules of 1962 and as such, he can b detained under the provisions of rule 23 of the Civil Defence Rules of 962, irrespective of the fact whether he is alien agent or not. t may be observed here that when a statute defines a particular word, phrase or expression and assigns artificial meanings to it, only such artificial meanings are to be considered while interpreting the statute, irrespec tive of the fact as to what are its dictionary meanings.
14. In the light of what has been stated above, the answer to the question referred to the Full Bench is that the application of rule 23 of the Azad Jammu & Kashmir Civil Defence Rules of 1962 is not limited to an alien agent only as has been held in case reported as P L D 1979 (Azad J & K) 49 and as such, we respectfully dissent from the view taken therein.
15. The file shall be remitted back to the Division Bench for decision on merits.
16. Case remanded.