1988 PLP 36 (MLD)

Nooruddin Sarki for Petitioner. A.A. Mohammadally Add1.A‑G. for Respondents. Date of hearing: 29th December 1987: NASIR ASLAM ZAHID, J.‑‑This petition challenges the order dated 12‑12‑1987 of the Secretary, Home Department, Government of Sind passed under section 3(1) of the Sind Maintenance of' Public Order Ordinance, 1960 ordering dctenu Ayoub Ahmed Khan s/o Masood Ahmed Khan to be detained for a period of 30 days. Pursuant to the orders passed on 27‑12‑1987, the Additional Home Secretary, Government of Sind is present in Court alongwith the record on the basis of which the impugned order was passed. We have heard Mr. Azizullah K. Shaikh, learned counsel for the petitioner and Mr. A.A. Muhammadally, learned Additional Advocate‑General.

2. In this case admittedly the impugned order dated 12‑12‑1987 has been served upon the detenu on the some day i.e. 12‑12‑1987 but according to the learned counsel for the petitioner, grounds for such detention were served upon the detenu on 20‑12‑1987 whereas according to the instructions of the learned Additional Advocate‑General, grounds were served on 23‑12‑1987. According to the petitioner, therefore, the grounds were served after nearly two weeks of his detention and according to the instructions of the learned Additional Advocate‑General after about 11 days. As observed earlier, the period of detention according to the impugned order is 30 days.

3. Mr. Azizullah K. Shaikh, learned counsel for the Petitioner, contends r that the impugned order is liable to be declared as unlawful on the ground that the grounds of detention have been served after two weeks or, even if the statement of the learned Additional Advocate‑General is accepted, after about 11 days of the detention which delay by itself is sufficient for grant of this Constitutional Petition. Section 3 (6) of the Maintenance of Public Order Ordinance, 1960, provides that where a detention order has been made under section 3, the authority making !he order shall, as soon as may be, communicate to such person the grounds on which the order has been made informing him that he is at liberty to make a representation to the Government against the order and afford him with earliest opportunity of doing so. Where the period of detention under the order of detention is 30 days, a period of 11 or 14 days is not a period which will be covered by the words "ac, soon as may be" employed in section 3(6) of the Sind Maintenance of Public Order Ordinance, 1960. Then Mr. All7ullah Shaikh had also relied upon several Judgments including the Judgment of this Bench in the case of Falchyab Ali Khan v. Government of Sind (1986 P Cr. L J 2938) and also a recent unreported Judgment of another Division Bench of this Court of Constitutional Petition No. D‑1146 of 1987 (Ghulam Ahmad v. Government of Sind) dated 3‑11‑1987. The Judgments cited by the learned counsel for the petitioner support his contention that on account of delay of 11 or 14 days in the service of grounds of detention upon the detenu, the impugned order of detention is liable to be quashed. We had asked the learned Additional Advocate‑General whether any other view had been taken by this Court or by the Supreme Court but the learned Additional Advocate‑General could not refer to any decision where a different view has been taken by this Court or the Supreme Court. However, the learned Additional Advocate‑General has submitted that there are very serious allegations against the detenu and in the circumstances even if some delay has taken place, the impugned order is not liable to be quashed. We do not agree with the learned Additional Advocate‑General in the facts and circumstances of this case. Whether serious allegations are made or very serious allegations are made, the law is not different. The law provides that where an order under subsection (1) of section 3 of the Ordinance, 1960 is passed, grounds of detention must be served upon the detenu as soon as may be after the order of detention is passed. No distinction is made between a case where serious allegations are made and a'case where very serious allegations are made.

4. As observed earlier this is a case where the impugned order requires the detention of the detenu for a period of 30 days. The detention order is dated 12‑12‑1987. It is served upon the detenu on 12‑12‑1987. Grounds of detention are not served "as soon as may be" after the passing of the detention order but are served after 11 or 14 days of the impugned order.

5. As. a result, this petition is allowed and the detention order dated 12‑12‑ A 1987 passed by the Secretary Home Department, Government of Sind ordering detention of the detenu Ayoub Ahmed Khan is declared to be unlawful and it is hereby quashed. The petitioner should be released today unless he is required in any other case. There will be no order as to costs. S.A./S‑217/k. Detenu released.