1988 P Cr (PLP)

District Magistrate (East), Karachi. " On 30‑9‑1987 the detenu was served with another order' passed by the Secretary to the Government of Sind, Home Department. The fresh grounds of detention served on the detenu read as under:‑ The grounds on which Dr. Saleem Haider son of Hazoorul Hasnain has been detained are as under:‑

(i) ' That on 18‑4‑1987, he addressed Press Reporters at Press Club, Tando Adam, and stated that the situation would not improve in Sind till declaration of Sind as Two‑Nation‑Province. (ii) That on 14‑8‑1987, he addressed a gathering at Mazar‑e‑Quaid‑i‑Azam and declared that if the Chief Minister of Sind was not removed, they would set ablaze both the Assemblies i.e. National and Provincial. (iii) That, provoked by his incitements, the members of M.I.T. have been taking law into their own hands as is evident from the recent ethnic flare up in the Province. (iv) That for the foregoing reasons, his remaining at large is hazardous to the maintenance of public order. (2) He is at liberty to make representation to the Government of Sind against this order." On 30‑10‑1987 yet another order was served on the detenu ordering his further detention for thirty days with effect from 30‑10‑1987. The grounds of detention served on the detenu however, remained the same as already reproduced above.

3. The petitioner was permitted twice to amend the petition since twice the detenu's detention period was extended by passing of fresh orders, as pointed out above.

4. The contention of Mr. Kamal Azfar, learned counsel for the petitioner, .is that, the detaining authorities have failed to apply their minds properly so as to satisfy themselves as to the necessity of passing the detention orders since the detention cannot be sustained upon any of the grounds served on the detenu. Referring the grounds of detention, the learned counsel has argued that while the first ground is not relatable to the object of the statute relating to preventive detention, the second ground is equally not valid as in respect of the incident alleged therein a case has already been instituted against the detenu and the authorities having already made their choice to prosecute the detenu for a substantive offence, the same cannot form basis for the detention. The third ground according to Mr. Kamal Azfar is vague as it fails to provide sufficient particulars and as such it also cannot be sustained. The fourth ground only refers to the reasons for ordering the detenu's detention and does not in fact form the basis of his detention. Mr. A.R. Kazi, the learned Additional Advocate‑General, on the other hand, has fully supported the order of detention, and has also placed the material before us on which the detaining authority has relied. Such material consists of certain extracts from police reports indicating that on 18‑4‑1987 the detenu had addressed some Press Reporters at the Press Club of Tando Adam and criticised quota system in Sind. He also wanted Sind to be declared as two‑nation Province. Further, allegation made against the detenu was that on 14‑8‑1987 he had visited the Mazar of Quaid‑i‑Azam and addressed a gathering criticising the Chief Minister of Sind The detenu, according to the report, had further threatened to set ablaze both the National and the Provincial Assemblies if the Chief Minister was not removed from his office.

5. Mr. Kamal Azfar has relied upon a number of authorities to support his above contentions, the first being the case reported as Government of Pakistan v. Haider Bux Jatoi P L D 1969 SC

210. In this case the respondent Haider Bux Jatoi had been detained under section 3(1) of the Maintenance of Public Order Ordinance. The case ultimately came before the Supreme Court and it was observed as follows:‑

"The position which emerges from a close study of the provisions of section 3 of the Ordinance reproduced above is: (i) the satisfaction of the Provincial Government is not subjective, but must be based on grounds set out in subsection (1) of section 3 and supported by material which will satisfy the Board that there is sufficient cause for detention; (ii) the person detained has a right to contend against the grounds of detention both before the Provincial Government and the Board; (iii) the opinion of the Board must rest on the material produced before it or the material called for by the Board which is relatable to the grounds on which the order of detention is based and against which the person detained has been given an opportunity to represent; (iv) the proceedings before the Board are of quasi‑judicial nature and amenable to judicial review by Superior Courts; and (v) the authority of the Provincial Government to extend the period of detention is derived from a favourable opinion given by the Board and not under the preliminary power conferred by subsection (1) of section 3." It was further held that:‑

In Keshov Talpada v. Emperor A I R 1943 FC 1 Gawyer, C.J. expressed the opinion 'if a detaining authority gives four reasons for detaining a man without distinguishing between them, and any two or three of the reasons are held to be bad, it can never be certain to what extent the bad reasons operated on the mind of the authority or whether the detentibn order would have been made at all if only one or two good reasons had been before them." The next case relied upon by Mr. Kamal Azfar is the case of Liaquat Ali v. Government of Sind P L D 1973 Kar.

78. In this case, a Division Bench of this Court after considering various judgments of the Supreme Court held that the satisfaction of the following conditions would be necessary before a. detention order could be sustained:‑

"

6. An order of preventive detention has to satisfy the requirements laid down by their Lordships of the Supreme Court in the aforesaid four judgments, that is to say, (1) the Court must be satisfied that the material before the detaining authority was such that a reasonable person would be satisfied as to the necessity for making the order of preventive detention; (ii) that satisfaction should be established with regard to each of the grounds of detention, and, if one of the grounds is shown to be bad, non‑existent or irrelevant, the whole order of detention would be rendered invalid; (iii) that initial burden lies on the detaining authority to show the legality of the preventive detention, and (iv) that the detaining authority must place the whole material, upon which the order of detention is based, before the Court notwithstanding its claim of privilege with respect to any document, the validity of which claim shall be within the competence of the Court to decide. In addition to these requirements, the Court has further to be satisfied, in case of preventive detention, that the order of detention was made by the authority prescribed in the law relating to preventive detention; that each of the requirements of the law relating to preventive detention should be strictly complied with; that 'satisfaction' in fact existed with regard to the necessary of preventive detention of the detenu; that the grounds of detention had been furnished within the period prescribed by law, and if no such period is prescribed, then 'as soon as may be'; that the grounds of detention should not be vague and indefinite and should be comprehensive enough to enable the detenu to make representation against his detention to the authority prescribed by law; that the grounds of detention are within the scope of the law relating to preventive detention, that is, they are not irrelevant to the aim and object of this law and that the detention should not be for extraneous consideration or for purposes which may be attacked on the grounds of malice." Besides the case of Haider Bux Jatoi to which we have just referred, reliance was placed by the Division Bench on the following cases:‑

(1) Ghulam Jilani v. Government of West Pakistan P L D 1967 SC 373, (2) Abdul Baqi Baluch v. Government of Pakistan P L D 1968 SC 313 and (3) Government of West Pakistan v. Begum Shorish Kashmiri P L D 1969 SC

14. The other cases from which support has been sought by Mr. Kamal Azfar are the cases of Muhammad Younus v. Province of Sind P L D 1973 Kar. 694 and Fakir Imdad Ali v. District Magistrate and 2 others P L D 1987 Kar. 530 wherein similar views have been expressed. Mr. Kamal Azfar has also invited our attention to two unreported judgments of this 'Court in Darshan Lal v. District Magistrate Sukkur (Const. Petition No. D‑77/87) and Khadeja Bi v. The District Magistrate Hyderabad (Const. Petition No. D‑889/87), the second being given by this Bench, wherein the detention orders were struck down as being without lawful authority as the grounds of detention were either found to be vague or unrelatable to the object of the legislation under which the detention had been ordered or the same were found to be unsustainable for the reason that on the same charges the detenu was facing prosecution in a Court of law.

6. Turning to the grounds of detention, according to the first ground, as already pointed out above, the detenu had addressed a gathering of Press Reporters at the Press Club of Tando Adam and had advocated his two‑nation theory for the Province of Sind. Now even assuming that the allegations are true, the same in our opinion could not sustain the detention unless it was assumed that exposition of such views could result in a situation which could be detrimental to the maintenance of the public order or the public safety. It may be pointed out that the action contemplated by section 3(1) of the Sind Maintenance of Public Order Ordinance is purely preventive in nature and as was held by the Supreme Court in Shorish Kashmiri's case, the question whether there are grounds on which a reasonable person would have formed the same opinion as that formed by the detaining authority with regard to the detention of the detenu is within the ambit and power of judicial review under the relevant provisions of the Constitution, and that in an enquiry about the reasonableness of detention, the initial burden lies on the detaining authority to establish the legality of action.

7. Reverting to the alleged incident we may further point out that the same occurred in April, 1987 and admittedly, until 30‑9‑1987 when the second order of detention was served on the detenu, it had not been noticed by the detaining authority. The first detention order was served on the detenu on 31‑8‑1987 but as is clear from the grounds of detention served on the detenu after the first order, the aforsaid incident did not form part of the grounds. Now, if the b incident alleged was serious so as to make the preventive detention of the detenu necessary, we are certain the same would not have gone unnoticed at the time of passing of the first order. The very fact that the detaining authority took about five months to take notice of the incident clearly indicates that there was no real necessity or justification for taking action against the detenu on the basis of such material.

8. The learned Additional Advocate‑General has however, contended that although there is no specific reference to this ground in the grounds of detention, nevertheless this ground was covered by the second ground of detention given to the detenu with the first order of detention. it may be pointed out that according to the second ground of detention, it was alleged that the detenu had been trying to create law and order situation as a consequence of which ethnic riots occurred in the District resulting in the loss of human lives and private and public property. The argument advanced by the learned Additional Advocate‑General, in our opinion, would have force if any connection was found between the speech made by the detenu at Tando Adam and the ethnic riots which admittedly followed a few months later. No material has been placed before us which may lead to such an inference. We, therefore, find no merit in this argument.

9. The second ground of detention relates to the alleged speech made by the detenu on 14‑8‑1987 at Mazar‑e‑Quaid‑i‑Azam. The argument of Mr. Kamal Azfar in this respect is that, the alleged incident already forms the subject‑matter of prosecution against the detenu as an F.I.R. was lodged in this respect on the same day when the alleged incident is said to have occurred. A copy of the F.I.R. has also been filed in support of the contention. Mr. Kamal Azfar has, therefore, argued that since the authorities have already made a choice by proceeding against the detenu in a Court of law, the latter cannot be detained on the same ground. Reliance in this respect has been placed on the various pronouncements of this Court in this respect in the judgments already referred to above. The arguments of the learned Additional Advocate‑General in this connection has been that the F.I.R. indicates offences only under sections 6, 8 and 10 of the Quaid‑i‑Azam's Mazar (Protection and Maintenance) Ordinance, 1971 and section 188, P.P.C. but the offence allegedly committed by the detenu may fall within the purview of section 124‑A, P.P.C. in respect of which the detenu has not been prosecuted. Consequently, according to the learned Additional Advocate‑General the ratio of the authorities referred to above is not fully attracted to the facts of the instant case. The argument on the face of it appears to be fallacious as admittedly the alleged incident appears to be fully covered by the F.I.R. Whether on the basis of the same facts, another case under a different provision of law can also be instituted against the detenu, is a question completely alien to the question in hand. Reference has also been made by the learned Additional Advocate‑General to Mairaj Muhammad Khan's case P L D 1966 Kar.

282. In this case the detention of Mairaj Muhammad Khan was upheld by a Division Bench of this Court notwithstanding the fact that the detenu was facing prosecution in four cases for organising violent demonstrations by students and for acts of arson, etc. However, this case is clearly distinguishable as a nexus was found between the different offences allegedly committed by Mairaj Muhammad Khan and his detention in jail. However, this case cannot be equated with the instant case as in the instant case the allegations are only in respect of a single incident which could not have given rise to such an apprehension as pointed out above. We are also intrigued by the fact that although the second ground in the impugned detention order like the first one, was available to the authorities at the time of passing of the first detention order but no reference can be found' to the same in the aforesaid order. If the detenu's remaining at large was detrimental to the public safety or the maintenance of the public order after the alleged incident, then we have no doubt that the second ground referred to above would also have formed the basis of the first detention order. That this ground of detention did not form the basis of the first order is clearly indicative of the fact that the incident referred to therein did not then cause an apprehension in the mind of the detaining authority that the detenu's being at large might prove to be detrimental to the public safety or the maintenance of the public order. The learned Additional Advocate‑General has however, placed reliance on two cases in this connection, the first being the case Mumtaz Ali Bhutto v. The Deputy Martial Law Administrator P L D 1979 Kar. 125 and the second being reported in A I R 1952 SC

106. Both the cases, in our opinion, are not attracted to the facts of the present case as the question in issue therein was, whether the second order of detention purporting to extend period of detention could be sustained if the first order was found to be defective. The question was answered in the affirmative, as it was held that the validity of the detention could be determined on the basis of the second order which had been impugned by the detenu and the detenu could not be released merely for the reason that the first order passed by the detaining authority was invalid. The ratio in the second case reported in A 1 R 1952 SC 106 was also more or less the same. We, therefore, cannot see how the cases relied upon by the learned Additional Advocate‑General are attracted to the question under consideration. The question her does not relate to the validity of the second order but to the bona fides of the action under challenge. We are, therefore, of the opinions that detention cannot be sustained even on this ground.

11. Turning to the third ground of detention, the allegations are that the detenu had incited the members of M.I.T. to take the law into their own hands which had consequently resulted in the recent ethnic flare up in the Sind Province. This ground on the face of its is vague and fails to provide any particulars in respect of the date or time of such acts or the persons who were incited by the detenu. Even the details in respect of the nature of the alleged ethnic flare up are wanting. Apart from that, we find that the ground is not supported by the material which has been placed before us by the learned Additional Advocate‑General. In this connection we would also like to refer to the following passage from the judgment in Muhammad Younus's case. It was held:‑

"In other words, the grounds of detention to be communicated to the detenu must contain particulars or facts which would enable him to make a representation. If the grounds are not precise and lack particulars, then this would constitute an omission to comply with the requirements of law, and, since the liberty of the citizen is involved, the Courts would insist on strict compliance with every requirement of law which permits a citizen to be preventively detained. When I say that the grounds should not be vague, I am strictly interpreting subsection (6) of section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960, which places an obligation on the detaining authority to communicate to the detenu all the facts which constitute the basis of the order of detention except those facts which it is not in the public interest to disclose. Secondly, vague and indefinite grounds would, in effect, deprive the detenu of the statutory (or constitutional) right to make a representation against his detention. This is infringement of the detenu's statutory (or constitutional) safeguard. The West Pakistan Maintenance of Public Order Ordinance, 1960, does not place any obligation on the detenu to apply for more particulars from the detaining authority to remove vagueness from the grounds of detention so that he may be able to make a representation against his detention. If any obligation is placed by this law, it is upon the detaining authority which should supply to the detenu grounds of detention with such particularity and preciseness as would enable him to make an effective representation to the prescribed authority against his detention." In this case the detention of We find ourselves in respectful agreement with the above views. We may also point out that as has been held in the cases referred to above, if one of the grounds of detention is found to be unsustainable, the entire detention order would be vitiated since in that case it would be hard to determine, which of the grounds has led to the passing of the detention order or whether the same was the result o all the grounds taken together.

12. As far as the last ground of detention is concerned, 'the same only gives reasons for the detention and in fact the same is not a ground of detention.

13. For the aforesaid reasons we are clearly of the view that the detaining authority did not apply its mind to the question, whether the detention of the detenu was necessary, under the circumstances stated above. We, therefore, accept this petition and direct that the detenu be released from the custody, unless he is required by the authorities concerned in any other case. A . A . / K‑53/ K Petition accepted.