P L D 1976 Karachi 306 (PLP)

ZAFAR HUSSAIN MIRZA, J.

The petitioner in this constitutional petition seeks to challenge the validity of an order of detention of detenu Mustaqeem son of Mohammad Ilyas, dated 10 10-1975, passed by the Government of Sind under section 3 (1) of the West Pakistan Maintenance of Public Order Ordinance, 1960 for a period of 90 days with immediate effect.

2. The case of the petitioner is that the detenu was falsely involved by Nazimabad Police Station, Karachi on 9-8-1975, in a case under section 156 (89), Customs Act, 1969, for which a F. I. R. No. 156/75 was registered. The incident in this F. I. R. relates to a charge of smuggling and it was alleged that smuggled goods worth about Rs. 10,00,000 were seized from the detenu. The detenu is said to have been released on bail in the above case by Special Judge (Customs), Karachi. It is then alleged that subsequent to the arrest of the detenu in connection with the aforesaid case, on the same day, an attempt was made by his brother Mohammad Sualeheen to offer bribe to the police for the release of the detenu for which another case with F. I. R. No. 157/75 was registered against the detenu and others. In this case also the detenu was released on bail by the Anti-Corruption Judge, Karachi. On 12-8-1975, the S. H. O. North Nazimabad, Police Station filed a report under section 55/110, Cr. P. C. against the detenu and two others. The detenu alongwith co-accused was produced before the Assistant Com missioner and S. D. M., Liaquatabad, wherein the learned Magistrate drew up proceedings under section 112, Cr. P. C. In the same proceedings, on 5-9-1975, an order under section 117 (iii), Cr. P . C , was passed and the detenu was remanded to jail custody. In the meantime, on 23-8-1975, the police registered yet another case under rule 49/42 (6) (s) of the Defence of Pakistan Rules. Eventually, the detenu succeeded in obtaining an order of bail in the case under the D. P. R. from the Court of VI Additional Sessions Judge, Karachi. Upon a revision petition being filed against the proceedings under, section 110, Cr. P. C. the detenu was granted bail by this Court on 16-10-1975. In the meantime the S. H. O., Nazimabad Police Station had also filed a report under section 14 of the Sind Crimes Control Act, 1975 in the Court of S. D. M., Nazimabad, Karachi against the detenu on 23-8-1975. Learned. S. D. M. Nazimabad, acting as a Tribunal passed an order dated 25-8-1975 for detention of the detenu for a period of 2 months. The detenu then took an appeal against the said order to the Commissioner, Karachi, wherein be was ordered to be released by order of the Commissioner dated 9-10-1975. Thus, according to the petitioner when the detenu succeeded in obtaining orders for his release on bail in all the other cases, the administration in order to deprive him of his right to be released, passed the impugned order of detention in exercise of the power under the West Pakistan Maintenance of Public Order Ordinance.

3. The detention order impugned in this petition may be reproduced) as under :

No. 1/73-H (Special-II)/75.

Whereas credible information has beer received by Government and after careful consideration of the facts of the case and expediency of the matter, the Government of Sind is satisfied that with a view to preventing Mustaqeem son of Mohammad Ilyas resident of Flat No. 26, Fayyaz Chambers, Saddar, Karachi from acting in a manner prejudicial to public safety and the main tenance of public order, it is necessary to take action against the said Mustaqeem son of Mohammad Ilyas under the provisions of the West Pakistan Maintenance of Public Order Ordinance, 1960 ; Now, therefore, in exercise of the powers vested in it under subsection (i) of section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960, the Government of Sind is pleased to order that the said Mustaqeem son of Mohammad Ilyas shall be detained for a period of 90 days with immediate effect and committed to the custody of the Superintendent, Central Prison, Karachi, as Class-III, detenu. By order of the Governor of Sind (Sd.) 10-10-19 7

5. Mumtaz Muhammad Baig Deputy Secretary to Government of Sind Home Department." The detenu was served with the grounds of detention dated 23-10-1975 'pursuant to the impugned order of detention which reads as under; You Mr. Mustaqeem son of Mohammad Ilyas, resident of Flat No. 26 Fayyaz Chambers, Sadar, Karachi have been ordered to be detained for 90 days under subsection (1) of section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960, vide Home Department Order No. 1/73 (Judicial-I)/75, dated 10th October 1975, due to following reasons :- "(1) You area member of gang of smugglers. (2) You were arrested by Raiding Police Party in an under-construction Bunglow No. S. D. 25/Block J-Sohail Market-North Nazimabad, Karachi on 9-8-1975 and a Case No. 156/75 registered by the North Nazimabad Police against you. (3) Smuggled goods belonging to you, worth over Rupees ten lacs was recovered by the Police in the above raid from your possession. (4) You tried to bribe the Police and actually arranged for about Rupees three lacs in hard Cash to get yourself and the smuggled goods released from Police." Since you are confirmed smuggler and have been continuously engaged in your activities prejudicial to the public order it is necessary on the grounds stated above, to detain you with a view to preventing you from acting in a manner prejudicial to the public safety and public order in the Province of Sind. (2) The above grounds of your detention are being communicated to you in pursuance of the provisions of Article (10) of the Constitution Of the Islamic Republic of Pakistan, with a view to enable you to make, if you so desire, a representation to Government against your order of detention and you are hereby informed that you are at liberty to make any such representation to Government against the order of your detention. (Sd.) Mumtaz Muhammad Baig Deputy Secretary to Government of Sind, Home Department."

4. On behalf of the respondents one Abdul Razak son of Mohammad Amin, Section Officer, Home Department, Government of Sind has filed a -counter-affidavit wherein the various cases registered against the appellant and proceedings taken in pursuance thereof are admitted. It is, however, denied that any of the cases referred to in the petition were falsely registered. However the allegation of mala fides has been vehemently denied and it has -been asserted that the impugned order was passed on the basis of the material placed before the detaining authority. The grounds urged in support of the petition were also denied. We asked Mr. Abdul Hafeez Lakho, learned Additional Advocate-General to show us the material on which the detaining authorities' satisfaction was based and he replied that the only material forming such basis consisted of the two cases mentioned in the grounds of detention namely Case No. 156/75 and case relating to the attempted bribing of the police for securing the release of the detenu and the smuggled goods.

5. Mr. Aftab Alvi, learned counsel for the petitioner, raised a two fold contention. He first contended that the first ground mentioned in the statement of grounds of detention being too vague was bad in law and there fore vitiates the entire detention order. Secondly, the learned counsel contended that there was no material on the basis of which the detaining authorities could have been reasonably satisfied that the detenu was a con firmed smuggler and therefore his prejudicial acts could only be prevented by means of the impugned order of detention. Learned counsel laid great stress upon the fact that the detenu is charged with only one instance of smuggling for which he would be tried in a regular trial and therefore one solitary instance was not sufficient to support the conclusion that the detenu was a "confirmed smuggler and have been continuously engaged in activities prejudicial to the public order." The learned Additional Advocate-General, on the other hand supported the impugned order of detention on the basis of the facts leading to the arrest of the detenu in connection with the smuggled goods worth over ten lacs which were recovered from his possession. Coupled with this was an attempt made to secure the release of the detenu and the goods by the daring act of bribing the police with the huge amount of Rs. three lacs. Learned Additional Advocate General forcefully contended that the case of attempted bribe to the police could not be a false case as it is pre-posterous to suggest that the police would procure -the enormous amount of Rs. three lacs in cash and show it as the money offered for bribe.

6. We have given our anxious consideration to the respective con tentions of the learned counsel appearing for the parties and have reached a conclusion that the impugned detention order must be struck down as having been passed without lawful authority. For this purpose, we consider it unnecessary to deal with all the contentions of the learned counsel as it is sufficient to dispose of this petition on consideration of the main ground namely that there is no sufficient material which could have reasonably satisfied the detaining authority that the detenu was likely to act in a manner prejudicial to public safety or the maintenance of public order. The only material as candidly stated by the learned Additional Advocate-General considered by the detaining authority consisted of the two cases mentioned above. The question therefore that arises for consideration is whether the isolated fact of a single act of smuggling committed before the passing of the order of detention did in fact constitute a reasonable ground for believing that the detenu was likely to repeat similar acts of smuggling. In order to support his contention the learned Additional Advocate-General referred us to the explanation appended to section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960 and relevant part whereof is reproduced as under :

"(1) For the purpose of this section :- (i) .

.- (ii) An act of smuggling punishable under the Sea Customs Act, 1878, or the Land Customs Act, 1924, or under any other law for the time being:. in force, shall be deemed to be an act prejudicial to the maintenance of public order." The argument of the learned Additional Advocate-General is that since the detenu had committed an act of smuggling, by virtue of the deeming pro vision contained in the explanation reproduced above, the same constituted an act prejudicial to the maintenance of public order. If, we accept this-, argument the distinction between the preventive and punitive detention would be completely obliterated. The argument in substance is that if once it is. shown to the detaining authority that an act of smuggling punishable under the Sea Customs Act or Land Customs Act or under any other law for the time being in force had been committed by the person proceeded against, the detaining authority would be competent to pass an order under section 3 detaining such person for the permissible period. Now, there can be no doubt that the West Pakistan Maintenance of Public Order Ordinance, 1960 is a law which relates to preventive detention as is quite clear from its pre amble and from the specific provisions of section 3 thereof which are in the, following terms :

"(1) Government, if satisfied that with a view to preventing any 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, subject to the other provisions of this section, be specified in the order

" A plain reading of the above provisions and specially the underlined portion shows that the power of detention vesting in the Government under section 3 is a preventive power and is to be exercised when the Government is satisfied that it is necessary to exercise such power in order to prevent a person from acting in a prejudicial manner. In Mairaj Muhammad Khan v. Government of West Pakistan (P L D 1966 Kar. 282) while explaining the distinction between. preventive and punitive detention it was observed as under :

"It is well settled that preventive detention can properly be contrasted to punitive detention one having reference to the apprehension of wrong doing and the other coming after the illegal act is actually committed. Preventive detention is justified by a reasonable probability of the commission of a prejudicial act by the suspected person whereas his conviction can only be justified by legal evidence." Keeping in view this essential distinction between the two classes of detention, it is obvious that if for a single act of smuggling a person entails the liability to be detained such detention would constitute a penal detention and not preventive detention. However, that is inconsistent with the express object of the statute under discussion. The explanation only statutorily brings within the meaning of the expression "acts prejudicial to the maintenance of public order," the act of smuggling punishable under any of the statutes or other law for the time being in force. The intention was to bring within the purview of section 3 the prevention of a suspected or apprehended act of smuggling by means of an order of detention if such materials were placed before the detaining authority for its satisfaction. There is thus no merit in the contention that a past act of smuggling, by itself could constitute sufficient basis for passing of the impugned order of detention. So far as the material on the basis of which the impugned order has been passed, as already stated, consists basically of the case registered with regard to the alleged smuggling of goods. No other material has been placed before us which could have been considered by the detaining authority to indicate that the detenu indulged in repeated acts of smuggling nor is there any tangible material to warrant the apprehension that the detenu is likely to commit further acts of smuggling. Accordingly, the materials placed before us, consisting as they do of an isolated act of smuggling did not warrant an order of detention under section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960.

6. For the foregoing reasons, the impugned order of detention before us is quashed. The detenu shall be set at liberty immediately, if not required in any other case. S. Q. Petition accepted.