P L D 1969 Lahore 182 (PLP)

SARDAR MUHAMMAD IQBAL, J.‑The petitioner has been, ordered by the Tribunal to be detained under section 8 (2) of the West Pakistan Control of Goondas Ordinance (XXXV of 1950. He has moved the application for habeas corpus that his detention has been ordered without any lawful basis, or authority and that he be set at liberty.

2. The sole point which has been canvassed before us is that the order of detention is based on the grounds which are relatable to the behaviour of the petitioner, and that being so,, the Tribunal could only order him under subsection (1) of section 8 to "furnish bond with one or more sureties, in suck amount as the Tribunal may have thought" fit to be of good behaviour until the conclusion of the inquiry and could not instead order his detention. Subsection (2) of section 8, under which the Tribunal can order detention does not, according to, the learned counsel, apply to such a case, and that it can be invoked only in case where the conduct of the accused relatable only to his appearance before the Tribunal warrants such an action.

3. The order of detention is passed under subsection (2), section 8 of the Ordinance, and in order to appreciate its scope, we reproduce section 8 in extenso :‑ "8 (1) The Tribunal may, when the person complained against appears before it, take from him a bond, with or without sureties, for his appearance during the inquiry or when called upon, as the case may be, and may also, having regard to the nature of the information laid against him, requires him to furnish a bond, with one or more sureties, in such sum as the Tribunal may think fit, to be of good behaviour until the conclusion of the inquiry and may direct that he be detained in custody until such bond is executed, or in default of execu tion, until the inquiry is concluded. (2) The Tribunal may, for reasons to be recorded, instead of taking a bond for the appearance of the person complained against, order his detention till the conclusion of the inquiry in such prison as it thinks suitable: Provided that such detention shall not exceed two months unless his case has been referred to the Commissioner and the latter has agreed to such detention." Under subsection (1) of section 8, the Tribunal may take from a person a bond, with or without sureties, for his appearance. It may also require him to furnish a bond, with one or more sureties, to be of good behaviour until the conclusion of the inquiry. The Tribunal may direct the detention of a person until such a bond is executed. The bonds required under subsection (1) are specified in unmistakable terms to be (a) for appearance and (b) for good behaviour. Subsection (2) clearly provides that instead of taking a bond for the appearance of the person complained against the Tribunal may order his detention. It is not further provided in subsection (2) that instead of taking a bond "to be of good behaviour," the Tribunal may order his detention. Subsection (2) being specifically applicable only for taking bond for appearance, it, by clear intendment, cannot be applied by the Tribunal in any other case and for that reason it cannot order his detention instead of taking a bond for good behaviour. Thus, in a case for appearance, the Tribunal may take a bond or may, for reasons to be recorded, order detention, but in the case for good behaviour, the Tribunal can only take one action and that is that it can direct the person to furnish a bond in such sum as it nay think fit, to be of good behaviour. Even if, therefore, a person is of a desperate character, the Tribunal cannot order his detention under subsection (2) of section

8. The Legislature has, in making subsection (2) applicable only to a case for the appearance and excluding its application to a case for good behaviour, kept in view the scope and the purpose of the statute. The Ordinance is not punitive in character. It is preventive in nature.

4. The Tribunal can, after inquiry, declare a person to be a goonda under section 13 and it can under section 14 require him to do one or more of the things mentioned in clauses (a) to (e) of clause (I) of section

14. There is no provision in section 14 or for the matter of that in the Ordinance itself by which a person `who is being de claret to be a goonda can be ordered to be detained. It is only where he fails to execute the bond to be of good behaviour under clause (a) of subsection (I) of section 14 that the Tribunal may under sub‑clause (c) order him to be detained in person. The detention, therefore, is not a direct consequence to the declaration of a person to be a goonda, but it can be ordered only indirectly when the bond for good behaviour is not furnished. The purpose of the Ordinance is not to detain the person but to ensure that he adopts a good behaviour. It is, therefore, to ensure the good behaviour only that a bond is required to be executed. In the circumstances, when ultimately only a bond for good behaviour is required, the Legislature in its wisdom has provided that he can be asked to furnish a bond cinder subsection (1) of section 8 to be of good behaviour till the conclusion of the inquiry.

5. It is now to be examined as to what is the precise scope of subsection (2) of section 8, and in what circumstances the Tribunal can order the detention of the person complained against. Section 6 provides for the summoning or arrest of the person through warrants bailable or non‑bailable for appearance before the Tribunal. Section 8 applies after his appearance. Just as non‑bailable warrants can be issued under section 6 for appea rance of a person complained against, the Tribunal can likewise instead of taking bond from him for his appearance order his detention. The reasons to be recorded by the Tribunal for ordering the detention of a person under subsection (2) of section 8 may, therefore, bear some relationship to the factors which are required to be taken into consideration for the issuance of warrants for arrest under section

6. The Tribunal has to be satisfied that the person complained against was hiding himself to evade service of the summons or that he did not appear in spite of the service of summons. The learned counsel does not dispute the powers of the Tribunal to direct the detention of the person on this ground. The Tribunal can also order detention "if it is, for any other reason, satisfied that such action is necessary. The contention of the learned counsel that this clause should be read ejusdem generis with the foregoing clauses, is untenable in view of the very wording of this clause expressly providing for "any other reason" which means for reasons other than the foregoing. What can be those reasons? When the Tribunal orders detention of a person under section 8 (2) instead of taking a bond, obviously it is for the reason that the Tribunal considers it necessary to keep him in detention. It may be for the purpose of ensuring his presence, as for instance in a case where there is likelihood of the person absconding. It may be for other reasons also. The action may be necessary with a view to ensuring that he does not commit any breach of peace on account of or for the reasons connected with the inquiry under the Ordinance. The prevention of breach of peace is different from ensuring good behaviour and this is manifest from the provisions contained in sections 106 and 107 of the Code of Criminal Procedure, which deal with the action for maintaining peace and sections 108 and 110 which are for keeping good behaviour. Section 107, Cr. P. C. is intended to prevent local classes between persons over property or women or other similar objects of disagreement, while section 110 contemplates the keeping under control of persons who are criminal by habit, and who are likely to take their habits with them wherever they go. There may yet be another case where the Tribunal has reasons to be satisfied that the person may, if he is not detained, tamper with the witnesses during the inquiry.

6. The Tribunal on the conclusion of the inquiry and while declaring a person as goonda may further direct him under section 14 to furnish bond for good behaviour and in addition order him not to reside in a certain area or to reside in specified areas and that be should not visit certain places like educational institutions etc. It has, however, no power during the inquiry to pass any interim order in the nature of any of the order contemplated in section 14 (1) (d) and (e), restricting the movements of the person complained against or directing him not to reside within specified area ; not to visit certain places like schools, colleges, certain institutions, theatres, cinema, fair, amusement parks ; public halts, restaurants, tea shops, places of public resort ; public ear private parks and gardens, public or private playing fields and race‑courses, or the scene of any public meeting or procession or any assemblage of the public in connection with any public event or festival or other celebrations. The Tribunal, if it is satisfied on reasonable grounds that the person complained against should not, during the inquiry, have an absolute freedom to move about or to visit certain places, it cannot prevent hire from doing so by taking bond under section 8 (1) for appearance or for good behaviour. It can achieve the object only by keeping him in detention. Thus the reason for taking action under section 8 (2) may be relatable to the conduct of the person as to his appearance before the Tribunal or may pertain to certain matters connected with the inquiry, or that it may be necessary` to prevent such a person from visiting certain places during the inquiry.

7. The Legislature has ensured by proviso to subsection (2) of section 8 that the detention should be for as short a period as possible. The Tribunal can order his detention for a maximum period of two months, and that too after giving reasons for detention, which means that he should not act arbitrarily or capriciously. The satisfaction of the Tribunal does not mean or import arbitrary or irrational state of being satisfied. The detention, in the scheme of the Ordinance, is an exception rather than a rule. It is to be ordered in cases where there are strong reasons for taking such an action because if on a declaration of person as a goonda there is no provision for detaining him, the detention, during inquiry, should be ordered only if formidable grounds exist for adopting such a course of action. The Ordinance is preventive and not punitive. It does not intend to punish a person for past offences, but for controlling the activities of the person who are criminal by habit. It also implies that the Tribunal should act expeditiously in deciding such cases, and the period of two months for which the Tribunal can detain is suggestive of the intention of the Legislature that the inquiry under the Ordinance should, as far as practicable, conclude in that period. The detention can exceed two months only with the agreement of the Commissioner who is otherwise an appellate authority against certain orders of the Tribunal including the one ordering detention. The Commissioner, in the circumstances, will not ordinarily agree to detention beyond two months unless he is satisfied by the facts of the case that such an action was absolutely necessary.

8. The reasons given by the Tribunal in its order dated the 2nd of July 1968 for ordering the detention are : "It is appre hended that, as submitted by the prosecutor if released on bail, the respondent is most likely to misuse his liberty and would suborn the witnesses and would thus defeat the ends of justice as contemplated by this enquiry. I accept the plea advanced by the, Prosecutor and direct that the respondent should be kept in the District Jail (Camp) for a period of one month during the pendency of the enquiry against him in the first instance." We are of the opinion, as already shown, that a person complained against can be ordered to be detained on the ground that he will tamper with the witnesses. The order is, therefore, not without lawful authority. It was, however, contended that the order suffered from a patent infirmity inasmuch as the Tribunal has not referred to any particular conduct of the person complained against, in support of his observations. The petitioner can take up this point in appeal under section 18 of the Ordinance, before the Commissioner.

9. The petition has no merit. It is dismissed. K. B. A. Petition dismissed.