1986 P Cr (PLP)

Date of hearing: 3rd September, 1986. NASIR ASLAM ZAHID, J.‑‑

This petition filed by the petitioner Fatehyab Ali Khan calls into question the order, dated 12‑8‑ 1986 passed by the District Magistrate, Karachi (East) under section 3(1) of the Maintenance of Public Order Ordinance, 1960, ordering detention in judicial custody of the petitioner for a period of 30 days. According to the petitioner, he was served with this order on 13‑8‑1986 and since then he has been in detention. We have heard Mr: Fatehyab Ali Khan, the petitioner and Mr. Sayeed A. Shaikh, learned Advocate‑General, Sind.

2. When this matter came up before us on 1‑9‑1986 we asked the learned Advocate‑General to produce the material before the Court for its perusal, on the basis of which the aforesaid order of detention had been passed. The case was adjourned to 2‑9‑1986, on which date the material was produced for our perusal. However, the hearing could not be completed yesterday and as such the case was adjourned for today for further hearing. We have perused the material, on the basis of which the District Magistrate passed the detention order. An application had been' filed under‑Articles 6 and 7 of the Qanoon‑e‑Shahadat Order, 1984 by the learned Advocate General that the material, which had been produced by the respondents in a sealed cover for perusal by the Court, may not be disclosed to the petitioner, as the respondents were claiming privilege. We have gone through the two documents in the material produced before us, which relate to the petitioner and we find that there is nothing in the said material, on the basis of which privilege could be claimed by the respondents. He may also observe here that the petitioner has challenged the detention order, dated 12‑8‑1986 and unless he peruses or is allowed to go through the material, on the basis of which the order of detention is passed under section 3 of the Maintenance of Public Order Ordinance, 1960, he is prejudiced in the prosecution of this petition. In the circumstances, we allowed the petitioner to peruse the two reports, which form the material, on the basis of which the impugned order, dated ‑12‑8‑1986 had been passed by the District Magistrate for his detention. However, we find it not necessary to give any decision on whether the material, on the basis of which the detention order was passed, was such that an order of detention could or could not have been passed by the detaining authority, as another legal point has been raised by the petitioner and we are of the view that on this point the detention order is liable to be set aside. The point raised by the petitioner is that subsection (6). of section 3 of the Maintenance of Public Order Ordinance, 1960, provides that where a detention order has been made the authority making the order shall as soon as may communicate to such person the grounds on which the order has been made informing him that he is at liberty to make ,e representation to the Government against the order and afford him the earliest opportunity of doing so, but in his case although the detention order was passed on 12‑8‑1986 and the memo containing the grounds for communication to the petitioner had been prepared and signed by the detaining authority i.e. the District Magistrate, Karachi (East) on 19‑8‑1986, according to respondents, the grounds were communicated to the petitioner in the evening of 27‑8‑1986. It may be observed here that according to the petitioner, the grounds were not served upon the petitioner even on 27‑8‑1986. In support of his contention that on account of inordinate delay in the communication of the grounds the detention order becomes illegal and is liable to be set aside, the petitioner has referred to and relied upon the following reported decisions:‑- (i) Liaquat Ali v. Government of Sind P .L D 1973 Kar. 78. (ii) Hakim Khan v. Government of Sind P L D 1976 Kar. 448. (iii) Miss Benazir Bhutto v. Government of Sind 1979 P Cr. L 3

62. In all the aforesaid decisions by this Court it has been held in unambiguous terms that grounds, upon which the detention order is passed under the Maintenance of Public Order Ordinance, 1960, must be communicated to the detenu as soon as may be and 1979 P Cr. L J 62 this Court has gone on to hold that this expression 'as soon as may be' cannot be interpreted to mean more than 24 hours. The learned Advocate‑General Sind first took up the plea that this point, that has been raised, is not specifically taken in the memo. of petition and in any case the respondents may be granted time to file an affidavit explaining the reasons for the delay that has taken place in the communication of the grounds in this case to the petitioner. In so far as the first submission of the learned Advocate‑General is concerned, it may be observed that in para. 5 of the memo. of petition it has been stated what no grounds have been supplied to the petitioner and this petition was filed on 13‑8‑1986. We find no merit in the first contention of the learned Advocate‑General. In so far as the other submission of the learned Advocate‑General is concerned, that he may be granted time to file an affidavit explaining the delay, it may be observed that normally when such a request is made, the court grants time to the party making such request but in the instant case we are of the view that no time can be granted to the respondents. Firstly, we may observe that the detention order is only for 30 days. Secondly, we may mention that it has taken the District Magistrate, the detaining authority nearly 15 days to communicate the grounds to the petitioner to inform him as to why he is being detained for a period of 30 days. Even if there may be some explanation for the delay of a few days in communicating the grounds, the record shows that the memo. for communication of the grounds to the petitioner was ready and also signed by the District Magistrate (East), Karachi on 19‑8‑1986 but even then it took nearly one week for the detaining authority to communicate the same to the petitioner. No explanation whatsoever can condone this delay. It may be observed that the learned Advocate‑General had referred to pare: 9 of the counter‑affidavit, dated 1‑9‑1986 of the District Magistrate (East), Karachi, which reads as follows:‑ "It is submitted that as apprehended large scale public disorders and disturbances, causing damage to person and property broke out in Karachi District East from 14‑8‑1986 under my administrative charge and the entire administration including myself became engaged and pre‑occupied in controlling the law and order situation, which continues to require my and my administration's constant vigilance till today." Even if what the District Magistrate has stated in para. 9 of his counter‑affidavit, dated 1‑9‑1986 is correct, could not possibly justify or condone the delay of 15 days that has taken place in the communication of the grounds of detention to the petitioner, who has been detained for a period of 30 days only. . Constitutional Petition No. D‑670 of 1986 is allowed. The detention order, dated 12 8‑1986 passed by the learned District Magistrate, Karachi East ordering detention of the petitioner Mr. Fatehyab Ali Khan under section 3(1) of Maintenance of Public Order Ordinance, 1960, for a period of 30 days is declared to be unlawful and it is hereby quashed. The petitioner should be released forthwith unless he is required in any other case. M.Y.H. ‑‑‑‑‑ Petition accepted.