P L D 1979 Lahore 363 (PLP)

The detenu in this case, Mian Muhammad Yasin Khan Wattoo, Advocate, was arrested at Ravi Bridge, Lahore while coming from Campbellpur on the basis of a warrant of arrest issued by the District Magistrate, Sahiwal on 3-10-1978 against him under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960. He was detained in consequence thereof for a period of three months.

2. Ch. Muhammad Anwar Bhinder, learned counsel for the petitioner has raised preliminary objection while relying upon the provision as contained in subsection (3) (a) and (h) of section 3 of the Ordinance that the arrest of the detenu being illegal and without jurisdiction his detention is unlawful. According to him, the arrest was effected by the S. H: O., Police Station Haveli Lakhha, District Sahiwal, at Ravi Bridge, Lahore in spite of the fact that the warrant of arrest bad not been addressed to him by the District Magistrate, nor Ravi Bridge, Lahore was within his jurisdiction.

3. Subsection (3) (a) provides that an order passed under section 3(1) may be addressed to a Police Officer or any other person and such Officer and person shall have the power to arrest the person mentioned in the order. Subsection (3) (6) lays down that a Police Officer not below the rank of Sub-Inspector if satisfied on receipt of credible information that a person against whom' an order of arrest or of arrest and detention has been made under said section is present within his jurisdiction, may arrest him in the same manner as he would have done if such order of arrest had been addressed to him. Section 12 of the Ordinance envisages that any authority, officer or person who is empowered by or in pursuance of the Ordinance to make any order, or to exercise any other power may, in addition to any other action prescribed by or under the Ordinance, take or cause to be taken, such steps and use, or cause to be used, force as may in the opinion of such officer or person to be reasonably necessary for securing the compliance of the order.

4. It is contended by the learned counsel for the petitioner that section 12 does not override the provision as contained in subsection (3)(a) and;(b) of section 3 of the Ordinance being a specific provision for effecting the arrest of a person against whom an order of arrest, or arrest and detention has been passed under section 3(1). It is contended that section 12 contains a general provision for taking necessary action for carrying out the orders passed under various provisions of the Ordinance. I am afraid, this contention has no force. There is no doubt that order of arrest is to be addressed, to a Police Officer or any other person and that Police Officer or person shall have the power to arrest a person against whom order of arrest has been issued. Further, subsection (3)(b) provides that any Police Officer not below the rank of Sub-Inspector can arrest such person against whom an order of arrest has been issued, if he is found to be present within his jurisdiction.

5. In the present case, these is no doubt that S. H. O., Haveli Lakkha was not the Police Officer to whom the order of arrest had been specifically addressed or within whose jurisdiction Ravi Bridge, Lahore was situated, however section 12 of the Ordinance empowered him to effect the arrest of the detenu. As mentioned above, it provides that any authority, officer or person, who is empowered , by the Ordinance or in pursuance thereof to make any order or to exercise any other. power may take or cause to be taken such steps which are necessary for securing the compliance of the order passed under the Ordinance. It means that a Police Officer or a person whom order of arrest has been addressed can arrest the person concerned himself or can cause him to be arrested by any Police Officer in pursuance of the order of arrest made under the Ordinance. This provision has got a reason behind it. If a Police Officer in whose name the warrant of arrest is addressed by the District Magistrate is to effect the arrest himself alone, then it will cause much administrative inconvenience. In such cases usually the S. P. of a District is asked by the District Magistrate to effect the arrest and he being the administrative head of the District Police is not expected to go himself for arresting any person. He can under section 12 of the Ordinance cause such person to be arrested by any Police Officer,) whom he authorises to take steps in this behalf. The provision as contained in subsection (3)(b) of section 3 gives further authority to a Police Officer, not below the rank of Sub-Inspector, to arrest any person against who order of arrest has been issued, if he is found within his jurisdiction. This provision does not offend against the provision as contained in section 1 of the Ordinance. This step can be taken by such Police Officer if h finds such a person within his jurisdiction irrespective of the fact whether order of arrest has been addressed to him or otherwise he has been asked by any authority, under section 12 of the Ordinance to cause arrest of such person. In this view of the matter the preliminary objection raised by the learned counsel for the petitioner has no substance and the same is hereby repelled.

6. The necessary material of the case has been produced by the learned Assistant Advocate-General. It shows that four complaints were submitted by various persons, such as Mushtaq Ahmed, Muhammad Akram Khan, Abdul Aziz and Haji Muhammad Arif, on 10-9-1978, 15-9-1978, 12-9-1978 and 13-9-1978 respectively. The last complaint was addressed to the Superintendent of Police, Sahiwal while the other three were addressed to the S. H. O. concerned. The first three complaints were submitted by the S. H. O. to the S. P. after due verification of the allegations contained therein on 9-10-1978 whereas the last complaint was marked by the S. P. to the S. H. O. for report on the same day when it was received. This report was submitted after due inquiry on 21-10-1975, which was received back on 22-10-1978.

7. It is admitted on record that the order of arrest against the detenu was passed on 2-10-1978 by the District Magistrate, Sahiwal. The question which needs consideration is whether there was sufficient material before the detaining authority at the time when the detention order was passed by it. So far as the aforesaid complaints are concerned, which have been relied upon by the learned Assistant Advocate-General to support the order of detention, they do not appear to be with the District Magistrate at the relevant time. There is nothing on record to show that they were even shown to the District Magistrate after having been received. The record only shows that due verification of the allegations made therein was asked for by the S. P., Sahiwal and the Police Officers concerned took some time to submit their reports after recording the statements of the complainants and some other persons.

8. The other material which has been placed on the record is in the form of two extracts from Daily Secret Report, dated 9-9-1978 and 1-10-1978, submitted by the Special Branch, Punjab Lahore. According to the first report, a meeting was held on 7-9-1978, which is subject-matter of the first three complaints referred to above. The meeting is alleged to have been addressed by the detenu alongwith others. They all are stated to have demanded the release of Mr. Bhutto and holding of general elections at an early time. It is also mentioned that they criticised P. N. A. leadership for getting Wali Khan, Mir Ghous Bakhsh Bizienjo and Sardar Ataullah Mangal released, they being against the Ideology of Pakistan. It is reported that the policy of Genl. Zia-ul-Haq, President of Pakistan, with regard to Re-processing Plant was also criticised. The second report shows that the detenu laid stress for the release of Mr. Bhutto and said that it could be effected by offering sacrifices.

9. The aforesaid reports do not show that the detenu pleaded for violence or asked the audience to hold public meetings, take out processions, stage demonstrations or otherwise indulge in acts prejudicial to maintenance of law and order and public tranquillity for getting Mr. Bhutto released. It is possible that the aforesaid two reports may be available with the District Magistrate on 3-10-1978, when he passed the order of detention. But even then, I don't think that there was sufficient material before hi for passing such order against the detenu, who by delivering the speeches mentioned in the two reports did not indulge in activities prejudicial to maintenance of law and order as well as public peace and tranquillity. He had only criticised the policies of the present Government as well as o the P. N. A. leadership, but not in a violent manner.

10. As a result of the above discussion, the writ petition is accepted without any order as to costs, and the detention order dated 3-10-1978 passed against the detenu, Mian Muhammad Yasin Khan Wattoo, is hereby set aside. He shall be released forthwith, if not required in any other case. Petition accepted.