1988L81 (PLP)

This will dispose of ‑Writ Petitions Nos. 3192, 3291, 3240, 3241, 3216, 3281 and 3589 of 1988. All these petitions are under Article 199 of the Constitution and are directed against the orders of detention made under section 3 of the Punjab Maintenance of Public Order Ordinance, 1960 (to be referred to as the Ordinance).

2. The detention orders in W.Ps. Nos.3192 and 3291 were made by Mr. Muhammad Mahmood Butt, Additional Deputy‑ Commissioner, Lahore, in the purported exercise of the‑powers of District Magistrate, Lahore. In W.Ps. Nos.3240 and 3241, the detention orders were made by the District Magistrate, Faisalabad; in W.Ps. Nos.3216 and 3281, the detention orders were made by the District Magistrate, Sheikhupura, and in W.P.No.3589, the detention order was made by the District Magistrate, Okara.

3. While the petitioner Mst. Shazia Parveen in W.P.No.3589 has prayed that her husband Abdul Qayyum be 'set at liberty the petitioners in the remaining writ petitions have approached this court before they could be arrested and detained in pursuance of' the detention orders in question.

4. In W.Ps. Nos.3192 and 3291, the detention orders are dated 12‑6‑1988 and 11‑6‑1988 respectively. In each of them, Mr. Muhammad Mahmood Butt, as District Magistrate, was satisfied on the basis of S.S.Ps report that the petitioner "is indulging in criminal activities by his involvement in cases against persons and property; and by running a Narcotics Den which are prejudicial to the maintenance of public peace and order. In the "memorandum of grounds" it was said that according to the police report, the petitioner had been involved in cases under local and special law and other heinous offences and Hudood Order; this was followed by a list of criminal cases against e ach petitioner. In the case of Ata Muhammad petitioner in W.P.No.3192, the list of cases is as follows:‑ S.No FIR No. Offences Police station 1. 67/65 307/326,PPC Tibbi City 2. 335/65 61/1/14 EA 3. 325/68 4. 337/74 5. 962/75 6. 356/75 7. 549/80 PHO 8. 572/80 9. 609/80 10. 48/81 11. 396/80 506, PPC 12. 563/80 PHO

5. On behalf of the petitioner it is stated that the pioneer was tried but acquitted in all the cases by the courts of competent jurisdiction ; this statement has not been controverted.

6. In W.P.No.3291, the list of criminal cases is as follows:‑ Sr.No.FIR No. Offences Police Station 1. 99/82 3/4/4/79 Bhati Gate 2. 132/82 3. 173/82 4. 252/82 5. 322/82 6. 37/87

7. It is stated and the statement has not been controverted that in the first five cases, which were registered in the year 1982, the petitioner had been duly tried and acquitted by the courts of competent jurisdiction . The case at serial NO .6 It is stated , is pending trial. 8. . The petitioners in W.Ps Nos.3240 and 3241 are Jabbar Khan and Javed Khan, who are real brothers. In regard to Jabbar Khan petitioner, it is stated that he is "possessor of illicit arms/Narcotics/ Swindler. He is a great menace to the society and spoiling the younger generation by his nefarious activities. He being a desperate character, is a danger to public peace and tranquillity. The Superintendent of Police, Faisalabad, has intimated that the said detenu has following criminal record in which he stands challaned:‑ S.No FIR NO. Dated U/S Police Station 1 72 2-4-1983 Samundri Prohibition 2 449 1-12-1987 -do -do- According to the District Magistrate's report ,the Superintendent of Police had recommended "that the petitioner be detained under section 3 of the Maintenance of Public Order ordinance, 1960, for a period of three months in the interest of public peace and order. On the basis of the recommendation of the Superintendent of Police, Faisalabad, order under section 3 of the West Pakistan Maintenance of Public, Order Ordinance, 1960 has been made for the period of two months in good faith".

10. On behalf of the petitioner Jabbar Khan, it is stated that his father had been a local Councillor; that Jabbar Khan himself was elected twice and that even now he is a local councillor. He is also stated to be the Chairman of Mohallah Ushr and Zakat Committee. It is also stated that out of the two cases, mentioned in the District Magistrate's report, the petitioner was tried and convicted in the case of the year 1983; the second case is pending. These facts remain uncontroverted.

11. In regard to Javed Khan petitioner, the District Magistrate's report is in the same terms and the list of cases against him is as follows: ‑ S.No. FIR No. Dated U/S Police Station 1 447 9-12-1986 3/4 Samundri Prohobition 2 448 -do- -do- -do- 3 382 13-10-1985 -do- - do- 12. lt is stated on behalf of the petitioner that he was duly tried and acquitted in all the cases.

13. In W.Ps. Nos. 3216 and 3281, the District Magistrate was, in regard to each petitioner, satisfied that he has been indulging in .acts prejudicial to the maintenance of public safety and the maintenance of public order and is likely to continue so indulging, which amounts to acting in manner prejudicial to the public safety or the maintenance of the public order."

14. In the case of Muhammad Ashraf in W.P.No.3216, it is stated that "the order passed for detention under subsection (1) of section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960 is based on the following grounds, namely, that it has been reported by the Superintendent of Police, Sheikhupura, that: (a) He is narcotics dealer and prosecution on several occasions did not have any reformative effect on him. (b) He provides narcotics to every addict as well as the younger generation and is thus spreading menace of narcotics consumption. (c) He has relations with counter-parts at other places. (d) He is also a desperate criminal involved in murder / attempt to murder and because of his nefarious activities people are afraid of him and co one dares to depose against him. (e) He was challenged in four cases and he is habitual criminal.

15. The list of cases constituting the criminal record against petitioner has also been placed on the file it is as followss S.No FIR NO. Dated U/S Police Station 1. 52 25-4-1981 307/148/ Bara Ghar 149 PPC 2. 132 6-8-1983 302/109, 148/149, PPC -do- 3. 63 24-4-1986 3/4/4/79 -do- 4. 147 19-4-1986 3/4/4/79 Bahawalnagar 5. 149 19-4-1986 13/20/65 -do- A/O. 6. 73 23-4-1988 307/337, 148/149, PPC Bara Ghar

16. On behalf of petitioner ,it is stated that the petitioner has been duly tried and acquitted by the courts of competent jurisdiction in the first five cases ; the sixth case under investigation ,This statement has not been controverted.

17. In PW No. 3281 , it is stated in the ground of detention that the order is based on the basis of the following grounds. It has been reported by the superintendent of police ,Sheikhupora , that:- (a) He is a desperate criminal and indulged in norcotics peddling on large scale (b) His nefarious activities have spread in district. (c) His involvement in criminal cases have no reformative affect. (d) He was challanged in 6 criminal cases and is a habitual criminal A list of six cases has also been placed on file as follows S.No FIR NO. Dated U/S Police Station 1. 132 6-8-1983 302/148/ Bara Ghar 149 PPC 2. 52 25-4-1987 307/148/ 149, PPC -do- 3. 190 15-9-1987 302/307/452/ -do- 148/149 PPC 4. 156 13-10-1987 Prohibition Order Chak Bedi 5. 61 25-3-1988 3/4 Prohibition Order Bara Ghar 6. 63 31-3-1988 4/4/79 Prohibition Order -do-

18. On behalf of the petitioner, it is stated that the petitioner was duly tried and acquitted in the first three cases; the remaining three cases are pending trial. This statement has also remained uncontroverted. 19 In W.P.3589, the District Magistrate was satisfied that with a view to preventing the petitioner "from acting in manner prejudicial to the public safety and maintenance of public order, it is necessary that you be detained in custody." In the accompanying "grounds of detention", it is stated that "you are a notorious rassagir/ habitual offender of area of Police Station Gogera, District Okara and your nefarious activities have caused fear and alarm to the general public. As such you have become a source of constant trouble to the society. You have the following record to your discredit:‑ S.No FIR NO. Dated U/S Police Station 1. 318 11-11-1984 382/411 PPC Gogera 2. 101 16-5-1985 379 PPC Okara 3. 250 27-10-1985 3/4 Prohibition Gogera Order 4. 112 13-6-1983 307, PPC 13/20/65 A.O. do- 5. 101 27-4-1988 354, PPC Gogera 6. 143 5-6-1984 11/7/79 -do- 7. 20 29-1-1988 324/34, PPC -do- 8. 121 23-5-1988 457/330, PPC -do-. It is stated that in cases at serial Nos. 2 to 4, the petitioner was tried and acquitted; the case at serial No.6 was cancelled and the remaining cases are pending trial.

20. By section 3, subsection (1) of the Ordinance, the Provincial Government if satisfied that with a view to preventing a person from acting in any manner prejudicial to public safety or the maintenance of public order, it Is necessary so to do, . may, by an order in writing, direct the arrest and detention in such custody as may be, prescribed under subsection (7), of such person for such period as may be specified in the order. Subsection (2) of section 3 Provide that if a District Magistrate or any other servant of Government authorised in this behalf by a general or special order of Government has reason to believe that any person within his territorial jurisdiction has acted, is acting or is about to act in a manner prejudicial to public safety or the maintenance of public order, he shall forthwith refer the matter to Government for orders. Section 26 of the Ordinance empowers the Government to direct that the power under subsection (1) of section 3 shall, subject to such restrictions as may be specified. be exercisable by any District Magistrate within his jurisdiction.

21. The learned Additional Advocate‑General has placed on the record a copy of a notification dated January 28, 1976, whereby in. exercise of the powers conferred on him by section 26 of the Ordinance, the Governor of Punjab was pleased to direct that:‑ "the powers exercisable by Government under subsection (1) of section 3 of the said Ordinance shall be exercised by all District Magistrates in the Province of Punjab subject to the condition that the period of detention under an order passed in exercise of the said powers shall not exceed three months; and the Provincial Government should be informed of all such detentions.

22. Learned counsel in W.Ps. Nos.3192 and 3291 argued that the delegation of powers of the Provincial Government to the District Magistrates is invalid; for his contention, he relied upon Liaqat Ali v. The Government of Sind through Secretary, Home Department and another P L D 1973 Kar. 78 where it was held that "the requirements laid down in subsection (2) of section 3 are not dispensed with when powers of the Provincial Government under subsection (1) are delegated to the district Magistrates. Notwithstanding such delegation, it would still be necessary for the District Magistrate to make reference to the Provincial Government with regard to the rejudicial activities of a citizen, and, when such reference is made, the Provincial Government may pass such orders as it may deem fit. Therefore, section 26, which permits delegation of the Provincial Government's powers under subsection (1) of section 3 should be interpreted in the context of the provisions of subsection (2) of this section. What can be delegated under section 26 is only the power to arrest and detain a citizen. But the faculty of satisfaction cannot be delegated to the District Magistrate." This view of the Karachi High Court was not followed in Noor Muhammad v. The District Magistrate, Multan P L D 1976 Lah.,

233. It was held that the interpretation that the District Magistrate has to follow the requirement of subsection (2) of section 3, in B respect of the delegation of powers under subsection (1) of hat section has the effect of rendering the provision of section 261 redundant. Regarding Liaqat Ali's case, it was observed: "In formulating its above view, the Division Bench, I may say with all due respect, made no reference to any case‑law, not even to the decision on a similar question by a Full Bench of the Lahore seat of the then High Court of West Pakistan, in Nasim Fatima v. Government of West Pakistan." The view in Nasim Fatima's case, it was observed, was approved by the Supreme Court in Malik dhulam Jilani v. The Government of West Pakistan P L D 1967 S C 373.

23. If I may say so with respect, the view taken in the Lahore case is supportable also on two additional grounds. For one subsection (2) of section 3 of the Ordinance merely provides for a source oil information in regard to a person within the territorial jurisdiction of a particular District Magistrate. But there may be persons against whom action under section 3 of the Ordinance is necessary because their activities are not confined to one district. Secondly, subsection (1) of section 3 does not make a reference by a District Magistrate as a statutory condition precedent to the making of an order under section 3, subsection (1).

24. As has been noticed above, the orders in W.Ps. Nos.3291 and 3192 were, made by the Additional Deputy Commissioner, Mr. Muhammad Mahmood Butt, in the purported exercise of the powers of the District Magistrate, Lahore. A copy of a notification dated December 24, 1987, has been placed on the file; by it, the Governor of the Punjab was pleased to appoint Mr. Muhammad Mahmood Butt, Additional Deputy Commissioner, Lahore, to be the Additional District Magistrate and to invest him with all the powers of a District Magistrate for a period of six months in the Lahore District.

25. Learned counsel for the petitioners maintained that under section 26 of the Ordinance, the delegation of powers can be to the District Magistrate and not to a person who has been vested with the powers of a District Magistrate under the Code of Criminal Procedure. He relied upon Malik Muhammad Aslam v. 'District Magistrate Lahore, and another P L D 1975 Lah. 4, where a similar question arose and the view taken in Prabhulal Ramlal Kabara v. Emperor A I R 1944 Nagpur 84, namely, that the Additional District Magistrate who is invested with the powers of a District Magistrate does not thereby attain the status of a District Magistrate and this is made clear by subsection (3) of section 10 of the Code of Criminal Procedure itself, that "the fact that the Additional District Magistrate may have all the powers of a District Magistrate does not make him a District Magistrate as much as there can be only one person in the District who can be a District Magistrate" and that if the delegation is to the District Magistrate, the District Magistrate as personal designata alone can act, all other persons and authorities being necessarily excluded, was adopted. Respectfully following this view, I agree that Mr. Muhammad Mahmood Butt was not authorised to make the orders in question and the orders are, therefore, without lawful authority and of no ' legal effect.

26. The relief sought by the petitioner in W.P.No 3589 is the relief under Article 199, clause, (1) sub‑clause (b)(i), of the Constitution, namely, that the person in custody within the territorial jurisdiction of the Court be brought in Court so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; and the relief claimed by the petitioners in the remaining writ petitions is the relief under clause (1), sub‑clause (a)(i), namely that the respondents be refrained from doing anything they are not permitted by law to do that is to say from arresting and detaining the petitioners. Common to all these petitions is the contention that in making the orders in question, the District Magistrate had proceeded on the around that the persons, against whom the detention orders have been made, were tried sometime in the past for certain offences but were acquitted by Courts of competent jurisdiction or were prosecuted for certain offences and the cases are pending decision and that on this ground the Government or for that matter the District Magistrates were not competent to make order under section 3, subsection (1) of the Ordinance.

27. Now it has long been settled that the law laid down in England in what are called Reg. 18, B cases, Liversidge v. Sir John Anderson (1942) Act 284 and Greens v. Secretary of State (1924) A C 206, namely, that the discretion of the executive acting arbitrarily could not be inquired into by the Court and that the executive could not be compelled to give its reasons for the detention, is not the law or this country. For, as regards the power conferred' by Article 199, clause (1), sub‑clause (b)(i) of the Constitution, the power of the High, Court is the power to "satisfy itself" that a person is not held in custody (a) without lawful authority or (b) in an unlawfull manner. In "without lawful authority" are comprised all questions of vires of the statute itself as also of the person or persons acting r under the statute, that is, there must be a competent law authorising the detention and the officer issuing such an order must have been lawfully vested with the power. As to the words "in an unlawful manner", they have been used deliberately to give meaning and content' to the solemn declaration under Article 2 of the Constitution itself that it is the inalienable right nr every citizen to‑ be treated in accordance with law. See Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri P L D 1969 S C 14 at page

31. It was held:- "In determining as to how and in what circumstances a detention would be detention in an unlawful manner one would inevitably have first to see whether the action is in accordance with law, if not, then it is action n un unlawful manner. 'Law' is here not confined to statute law alone but is used in its generic sense as connoting all that is treated as law in the country including even the judicial principles laid time to time by the superior Courts. It is in this sense that an action which is mala fide or colourable is not regarded as action in accordance with law. Similarly, action taken upon extraneous or irrelevant considerations is also not an action taken in accordance with law. Action taken upon no ground at all or without proper application of the, mind of the detaining authority would also not qualify as action in accordance with law and would,, therefore, have to be struck down as being action taken in an unlawful manner. The court must nevertheless‑ in deciding the question necessarily have regard to he language of the statute under which the power is exercised, the purpose for which the detention is sought to be made and the circumstances in which it came to be ordered The Court, in order to be satisfied as required by the Constitution, must know that there were no fact grounds relatable to the purposes of the statute upon which the action of the authority concerned could at all have been founded after an honest application of the mind of the authority concerned to all the relevant considerations." 28 Dealing with the question whether the High Court has power to examine the reasonableness of the action when the statute itself does not require the authority to act upon reasonable rounds but leaves him to act upon his own subjective satisfaction, it was observed that in view of the provisions of Article 199, that degree of reasonable has at least to be established which has been indicated in the case of Abdul Baqi Baluch, namely, that what the Court is concerned with is to see that the executive or administrative authority had before it sufficient material upon which a reasonable person could have come to the conclusion that the requirements of law were satisfied. It is in this sense that it was said in The Province of East. Pakistani v. Dr. Azizul Islam P L D 1963 S C 296 that the High Court is not concerned with either the adequacy or the sufficiency of the grounds upon which action is taken. 29 ‑ Both by Article 10, clause (5) of the Constitution and section 3, subsection (6) of the Ordinance, where a detention order has been made, the authority making the orders required to communicate to the person "the grounds on which the order has been made". The expression "grounds" is not defined in the Constitution or the Ordinance, but the words "on which the order has been made" appear to furnish a clue to its meaning. As there must be grounds, on which the order has been made, there can be no order without grounds; therefore, "grounds" are the basis supporting the orders. As was held in Begum Agha Abdul Karim Shorish Kashmiri s case, action taken upon no ground at all would not qualify as action in accordance with law. "Grounds" are, therefore the necessary substratum of fact upon which the satisfaction of the detaining authority' is founded. As was held in Abdul Hamid Khan v. The District Magistrate, Larkana P L D 1973 Kar. 344, the word "grounds" means the basis upon which the detaining authority claims to be satisfied of the necessity of taking action under section 3; the grounds, it was further held, must state the facts; that it is necessary to prevent the detenu from acting in a manner prejudicial to the public safety is obviously a ground which discloses no fact. But there certainly can be grounds which in themselves are statement of facts as was the case in Abdul Hamid, Khan v. The District Magistrate, Larkana P L D 1973 Kar. 344, where the statement of grounds referred to the detenu "having taken part in the recent language agitation, by inciting people to agitate, commit arson and promote hatred between 010 and New Sind his and that he is still doing the above activities".

30. Learned counsel for the petitioners relied upon Liaquat Ali v. Government of Sind P L D 1973 Kar. 78 and Muhammad Younus v. Province of Sind P L D 1973 Kar. 694 for the contention that merely because a case was registered against the detenu or is pending trial does not afford a ground for detention under the Ordinance. It was held in Liaqat Ali's case that the local administration having made up their mind and their choice that the detenu should be prosecuted, "it would ordinarily not be open to the authorities to also use this charge as a ground of preventive detention under the Ordinance." In Muhammad Younus's case also, it was held that "where definite charges have been brought against the detenu for substantive offences and the detenu is undergoing prosecution therefor, the administration has made to their mind and their choice that the detenu should be prosecuted fur these offences, and, having made this choice it would ordinarily not be open to the administration to also use such charge as around of preventive detention under the West Pakistan Maintenance of Public Order Ordinance, 1960." Learned counsel for the petitioners, also referred to Zafar Abbas v. District Magistrate Jhang and others P L D 1977 Lah.

949. There also, the detenus had been tried and acquitted or the cases were pending investigation or trial against them., It was observed that it is surprising that the arresting and the detaining authority should make those very factors the grounds which in fact could not be made the grounds. For example, if a crime is reported, a case is registered and fully investigated and the investigating Officer does not find material to challan a person should that investigation at all form the basis of reasonable suspicion of that individual having acted. or having committed that offence? The investigation being a more elaborate procedure controlled by well se" out and time‑tested provisions of law should be fairly indicative. If. in spite of acquittal, in spite of discharge and in spite of being,, found not implicable during the investigation, the police officer or the detaining authority proclaims that there were reasonable grounds to suspect then they have a heavier duty to discharge viz. to undertake the survey of the entire proceedings of trial or investigation, as the case may be picking out factors which could justify such suspicion. Any other view of the requirement of the law would completely throw the entire administration into disarray and the acquittals, discharge will all be rendered meaningless if without any distinction, without any scrutiny they are all taken to be grounds reasonable for suspicion".

31. For the contrary view, support was sought to be derived from some observations in Abdul Hamid Khan v. The District Magistrate P L D 1973 Kar. 344 and it was contended that there is a marked distinction between preventive and punitive detention and that the detaining authority is within its right to take into consideration for the purpose of section 3, subsection (1) of the Ordinance, the past actions of the detenu. Reference was also made in this behalf to Muhammad Asif v. Sub Martial Law Administrator 1979 P Cr.' L J Note 22 at p.

15. That case was decided when Martial Law was in force in the country; in any case, though the ground, on which the petitioner therein was proceeded against, was the ground that he was named as accused in a number of F.I.Rs., yet, the question that this could not be a ground for detention was not raised and decided.

32. What was held in Abdul Hamid Khan v. The District Magistrate P L D 1973 Kar. 344 was that though it is well‑settled principle of law that a law of preventive detention cannot be used for the purpose of punishing a person for his past actions, however, blameworthy and criminal those actions might be, yet the past conduct of the person can be the basis of the authority's satisfaction that his detention is necessary as a preventive measure. "Indeed unless there is something which the detenu. has already done from which an inference could properly be drawn that his conduct in the future is likely to be prejudicial to one of the purposes which the law seeks to serve, I can hardly conceive of a case where the powers of preventive‑ detention could properly be exercised".

33. If I may say with respect, though a person's past conduct' may be relevant for the purposes of a detention order, yet a line must be drawn between acts for which the administration had decided to prosecute and the past acts for which the administration had not so decided. For, when you detain a person for his past acts, and those acts are acts for which the person bad already been tried and acquitted, then you are detaining him for something which the Court of competent jurisdiction had, as the spokesman of the reasonable man, found not to have been committed by him; and if the past act be an act for which is being prosecuted, then you are detaining him for an act which he has yet to be proved to have e committed. Then, as in preventive detention, at least one of the e objects of detaining a person for an alleged offence during trial is to 0 prevent him from committing more crimes; and according to the e well‑known theory of punishment known as the preventive theory, the object of punishment is to incapacitate the offender from committing further crimes and to save the society from the offender's evil deeds. . Thus, if a person has been arrested for an offence under the Prohibition Order, for being in possession of heroin or opium, he will not ordinarily be allowed bail for a period of one year and that will serve precisely the same purpose as a detention order is intended J to serve. Similarly, if a person is tried and punished, that will automatically produce the result of preventing the repetition of crimes by him. It was then said that preventive detention is not punishment. That, in my opinion, is a play on the meaning of the word 'punishment': Whether the detention is punitive or non‑punitive, the consequence, as regards the person detained, is the same, namely deprivation of f liberty and that is certainly punishment. I am, therefore, in respectful I agreement with the view taken in the cases of Liaqat Ali and Muhammad Younas as also in the case of Zafar Abbas and hold that in proceeding against the detenu in W.P. No.3589 and against the petitioners in other petitions, as they did, the District Magistrates had proceeded on extraneous and irrelevant considerations and that, therefore, the detenu in W.P.No.3589 of 1988 is being held in an unlawful manner and that in directing the arrest and detention of the petitioners in the remaining writ petitions, the District Magistrates have done e something they were not permitted by law to do.

34. For these reasons, I would accept the petitions. and direct t that the detenu in W.P.No.3589 of 1988 shall be set at liberty forthwith and direct the District Magistrates to refrain from arresting and J detaining the petitioners in the remaining writ petitions. M.B.A. /S‑279/L Petitions accepted.