P L D 1975 Lahore 4 (PLP)

On the 8th February 1974, I had allowed Writ Petitions Nos. 118 and 119 of 1974 and ordered the release of the detenus in those writ petitions for reasons to be recorded later. Again on the 12th February 1974, similar orders were passed in Writ Petitions Nos. 164, 165 and 167 of 1974. As my reasons for passing these orders in all the above writ petitions are common, I will deal with all these writ petitions together.

2. It is not necessary to give the facts or the arguments of the learned counsel addressed at the Bar in detail for the reason that in my view the Additional Deputy Commissioner, Lahore, who passed these orders was not competent to pass orders of detention of the detenus under the West Pakistan Maintenance of Public Order Ordinance, 1960.

3. All the detenus in the above writ petitions were detained under section 3 of the above Ordinance by Mr. Abdul Rashid Khan, Additional Deputy Commissioner, Lahore acting as a District Magistrate. The ground of detention in all these cases is common, that the detenus had been indulging in smuggling and if not detained they are likely to continue in those activities which amounts to acting in a manner prejudicial to the maintenance of public order.

4. Under section 3 (1) of the above Ordinance the power to detain a person with a view to preventing him from acting in any manner prejudicial, inter alia, to the maintenance of public order, has been conferred upon the Provincial Government. Section 26 of the above Ordinance provides for delegation of powers. It reads as follows :- "Government may, by order in writing, direct that the power under subsection (1) of section 3 shall, subject to such restrictions as may be specified, be exerciseable by any District Magistrate within h is jurisdiction." On the 27th February 1965, Notification No. 3-10-4-H-SPL-I-64 was issued and printed in the Gazette of West Pakistan by the Government of West Pakistan whereby the powers exerciseable by the Government under subsection (1) of section 3 of the above Ordinance were delegated to all the District Magistrates in West Pakistan. Mr. Abdul Rashid Khan, Additional Deputy Commissioner was invested with the powers of a Magistrate Ist Class in the District of Lahore under subsection (1) of section 12 of the Code of Criminal Procedure by Notification No. 8 (10)-SO-(b) and (c)/70 dated the 6th November, 1973. By another notification of even number and date, powers of District Magistrate under subsection (2) of section 10, Cr. P. C. were also conferred upon him, for the District of Lahore.

6. Section 10 under which the powers of District Magistrates have been conferred upon him reads as follows:- "(1) In every district . . . the Provincial Government shall appoint a Magistrate of the First Class, who shall be called the District Magistrate. (2) The Provincial Government may appoint any Magistrate of the first class to be an Additional District Magistrate . . . and such Additional District Magistrate shall have all or any of the powers of a District Magistrate under this Code, or under any other law for the time being in force, as the Provincial Government may direct. (3) For the purposes of section 192, subsection (1), 407, subsection (2) and 528, subsections (2) and'(3), such Additional District Magistrate shall be deemed to be subordinate to the District Magistrate."

7. Subsection (2) of section 10 under which Mr. Abdul Rashid Khan, Additional Deputy Commissioner has been invested with the powers of District Magistrate, authorises the Provincial Government to confer such powers only on Additional District Magistrates. The Provincial Government is authorised to appoint any Magistrate of the first class to be an Additional . District Magistrate and such Additional District Magistrate shall have the powers of a District Magistrate under the Code or under any other law for the time being in force. Evidently this power cannot be conferred upon a person who is not appointed as an Additional District Magistrate. No notification has been placed on the record or shown to me by which Mr. Abdul Rashid might have been appointed as an Additional District Magistrate. The notification conferring upon him the powers of District Magistrate in his capacity as Additional Deputy Commissioner is, therefore., ultra vires. He was neither an Additional District Magistrate nor can be said to be a District Magistrate within the meaning of section 10 (2) of the Criminal Procedure Code.

8. Mr. S. M. Zaffar, Advocate, appearing for the petitioners in Writ Petitions Nos. 118 and 119 of 1974, had urged that even if Mr. Abdul Rashid Khan be deemed to be a District Magistrate under section 10 (2) of the Criminal Procedure Code, he is not a District Magistrate within the meaning of section 26 of the above Ordinance, to whom the powers under section 3 (2) of the above Ordinance could be delegated by the Provincial Government. He relies upon a number of decided cases in this connection. It is not necessary for me to refer to all these cases as many of those cases were not of delegation of powers and have either been overruled later or dissented from specifically or impliedly. There is only one case which is very near the mark. This case is Prabhulal Ramlal Kabara v. Emperor A I R 1944 Nag.

84. The facts of this case are that an order of detention was passed under rule 26 (5) of the Defence of India Rules by an Additional District Magistrate who was invested with all the powers of the District Magistrate under the Criminal Procedure Code or under any other law for the -time being in force. The power was exerciseable by the Provincial Government which had on its own part empowered the District Magistrates to pass orders of detention. It was held by a Division Bench of the Court that the orders empowering the District Magistrates to pass orders of detention is not a statutory but an administrative or executive order, and as such was not covered by the expression "under any other law" in section 10 (2) of the Criminal Procedure Code. It was further held that the expression "under any other law" only means legislative enactments, rules, regulations or orders which have the force of law. It was further held that section 10 (2), Cr. P. C.' and rule 26 (5), Defence of India Rules, under which the power could be conferred on the District Magistrates were quite distinct in their scope and application. The former is concerned with the powers of the Magistrates under; the law and the latter with the powers of the Provincial Government. Con sequently, section 10 (2) cannot be called in aid to confer the powers of the Provincial Government under rule 26 of the Defence of India Rules on any Officer subordinate to it.

9. The object of section 10 (2) was held to be only to relieve the pressure of work falling on the shoulders of the District Magistrate in the course of the performance of his normal duties under the Criminal Procedure Code or any other ordinary law. It was held that the District Magistrate who is invested with the powers of a District Magistrate does :not thereby attain the status of a District Magistrate as subsection (3) of section 10, Cr. P. C. itself makes clear. The fact that the Additional District Magistrate may have all the powers of a District Magistrate does not make him a District Magistrate inasmuch as there can be only one person in the District who can be a District Magistrate. Lastly, it was held that this was a case of delegation of powers and if the delegation is to the District Magistrate, the District Magistrate alone can act. He becomes persona designata and all other persons and authorities are necessarily excluded. No other authority laying down contrary dicta was shown to me.

10. This reasoning is applicable to the facts of the present cases also and I respectfully adopt it. I, therefore, hold that for the reasons mentioned above, Abdul Rashid Khan was not competent to pass the orders of detention under the West Pakistan Maintenance of Public Order Ordinance, 1960. S. A. H. Petitions allowed,