1989 PLP 4132 (MLD)

2. The impugned order of detention is based on the following grounds, conveyed to the petitioner vide Memorandum of Grounds dated 8‑6‑1988:‑‑ (1) It has been brought to my notice that your activities are hazardous to the public peace. (2) That as per report of the local police, you have been repeatedly indulging in anti‑social and criminal activities and you intend to continue with such anti‑social/criminal activities, thus endangering public peace and public safety. (3) In view of the above, you have been detained for a period of ninety days in ‑order to prevent you from the above explained activities. (4) You are at liberty to make a representation to Government against the detention order and you will be provided with every facility to do so.

3. Learned counsel for the petitioner submits that the impugned order of detention is without lawful authority, inasmuch as the grounds of detention suffer from vagueness. In Malik Sohrab Khan v. The District Magistrate, Rawalpindi and 2 others (PLD 1974 Lah. 214), it was held that the true test for holding whether the grounds on which the detention order is founded are adequate is to find out if apart from bare denial on the basis of such grounds an effective representation can be made by the detenu. The same view was taken by this Court m an unreported judgment of Mahboob Ali v. The District Magistrate, Rawalpindi, in Writ Petition No. 340 of 1988, decided on 13‑7‑1988, and in Qadri Abdul Hamid Qadri v. Government of the Punjab (PLD 1982 Lah. 255) applying the test laid down in the aforementioned decision, the grounds impugned in this cast are not adequate and suffer from vagueness.

4. When faced with this situation, the learned Assistant Advocate‑General vehemently opposed the writ petition on the ground that the writ petition has become infructuous; inasmuch as, the detenu has already been released, subject to the furnishing of good conduct bond with surety amount of Rs. 20,000 to the satisfaction of the Ilaqa Magistrate, by order dated 28‑8‑1988 of the District Magistrate, Rawalpindi. The learned counsel for the petitioner contested this assertion and submitted that the detenu is still confined in jail and cannot be released till he furnishes security bond.

5. I am not impressed by the arguments of the learned Assistant Advocate -General. It is true that under subsection (9) of Section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960, the Government may at any time, subject to such conditions as it may think fit to impose, release a person detained under this section and may require him to enter into a bond, with or without sureties, for the due observance of the conditions. But the power under this subsection can be exercised by the Government only if the detenu has been lawfully detained. In the instant case, since the order of detention itself is without lawful authority, the question of exercising powers under subsection (9) does not arise.

6. At this stage, the learned Assistant Advocate‑General submitted that although the ground that the detenu is indulging in anti‑social and criminal activities has not been specified with particularity in the Memorandum of Grounds, yet adequate material is available with the District Magistrate to sustain the same.

7. I am afraid the mere possession of material against the detenu would not justify the issuance of the impugned order of detention, unless and until the p petitioner was served with grounds specifying therein, with particularity the allegations levelled against him, so as to afford him opportunity to make an effective representation to the Government which has been denied in this case.

8. In view of the above, I hold that the impugned order of the District; Magistrate, Rawalpindi, dated 8‑6‑1988, is without lawful authority and of no legal effect and any order passed in consequence thereof is also of no legal effect. C This order will not debar initiation of fresh proceedings by the competent authority in accordance with law, if so required. The writ petition is accepted but there shall be no order as to costs. S.A./Q‑22/L Petition accepted