P L D 1976 Karachi 355` (PLP)

ZAFFAR HUSSAIN MIRZA, J.

By a short order we had allowed this constitutional petition and ordered the release of the detenu on 10-12-1975. These are the reasons for that order.

2. The petitioner, who claims to be a friend of the detenu Ghulam Shabbir alias Shabbir Khan son of Ghulam Nabi alias Bashir Khan seeks to challenge by this petition the validity of the detention of the aforsaid detenu under an order passed by the Government of Sind, under section 3(l) of the West Pakistan Maintenance of Public Order Ordinance, 1960 (hereinafter referred to as the `Ordinance'). According to the petitioner,, his brother Mustaqueem was falsely involved, on 9-8-1975, by North Nazimabad Police Station Karachi, for an offence punishable under section 156 (89), Customs Act, 1969, and a case was registered with a F. I. R. No. 156 of 1975. It is further alleged that the said Mustaqueem was arrested by the Police in connection with the case thus registered but was. subsequently released by the Special Judge (Customs) Karachi. It is further stated that subsequent to the arrest of Mustaqueem in the above case, on the same day another case was registered against the said Mustaqueem and his brother Muhammad Sualeheen and the said detenu under section 161/165-A, P. P. C. for offering bribe to the Police. According to, the F. I. R. in this case bearing No. 157 of 1975, Mr. Fayyaz Ali Khan A. S. P. New Karachi sub-division, alleged that Mustaqueem had offered Rs. 5,00,000 as bribe for the release of goods and himself in connection with the previous F. I. R. It was alleged that in pursuance of this offer the detenu along with Muhammad Sualeheen and Mustaqueem had given . Rs. 3,00,000 in Pakistani currency by way of advance with a promise of Rs. 2,00,000 after Mustaqueem and the goods were released. The currency notes were offered in two Khaki covers which were counted in the presence of witnesses and found amounting to Rs. 2,96,

365. It is further alleged by the petitioner that on registration of the subsequent F. I. R. the detenu and Muhammad Sualebeen were also joined as accused: in the case registered under the first F. I. R. The petition also refers to proceedings under section 110, Cr. P. C. drawn up against the detenu in which an order under section 117, Cr. P. C. was passed and the detenu remanded to jail custody. On 23-8-1975, the Police is further said to have registered a case under rule 42(6)(s)/49, Defence of Pakistan Rules. In this case the detenu is said to have been released on bail by the VI Additional Sessions Judge Karachi. Against the proceedings under section 110, Cr. P. C. the detenu filed a revision in this Court which was admitted and an order was passed granting bail to the detenu on 16-10-1975. On 23-8-1975, S. H. O. Nazimabad Police Station filed a report under section 14 of the Sind Crime Control Act, 1975 in the Court of S. D. M. Nazimabad Karachi against the detenu and Mustaqueem. In these proceedings the learned S. D. M. and Tribunal passed an order dated 25-8-1975 for the detention of the detenu for a period of two months. Against this order, the detenu filed an appeal before the Commissioner Karachi, which was admitted and the detenu was granted bail. It is alleged in the petition that when the detenu was granted bail in all the above said cases and was to be released, with the object of depriving him of his right to be released on bail, the detenu was served with an order of detention on 11-10-1975 in the Karachi Central Jail. This order of detention is passed under section 3(1) of the Ordinance and directs that the detenu shall be detained for a period of 90 days with immediate effect. This order of detention has been challenged in this petition.

3. The grounds served on the detenu in pursuance of the aforesaid order of detention are in the following terms:

Grounds of Detention "You Mr. Ghulam Shabbir alias Shabbir Khan, resident of C-1/41-I,. Liaquatabad, 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. 1/74-H (Judicial-I)/75, dated 10th October 1975, due to the following reasons:

"(1) You are a member of gang of Smugglers. (2) You were arrested by North Nazimabad Police in Case No. 157/75 under section 161/116/165-A, 10-8-1975. (3) You tried to bribe the Police by actually giving about Rs. 3 lacs for seeking the release of your friend Mustaqeem son of Muhammad Ilyas and the smuggled goods, worth over Rs. ten lacs, siezed in raid on are under construction Bungalow No. SD/25 Block G, Sohail Market North Nazimabad, Karachi. 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. '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 respondent Mr. Abdul Razzak son of Muhammad Amin, Section Officer Home Department Government of Sind, has filed a counter affidavit denying the allegations made in the petition generally except as to the registration of cases by the police and proceedings held in various Courts. The allegation of mala fide has been strongly repudiated and it has been asserted that the impugned order was passed on the basis of the material placed before the detaining authority.

5. Mr. Aftab Ahmed Alvi, learned counsel appearing for the petitioner in support of the petition contended firstly that two grounds at serial Nos. 2 and 3 in the statement of grounds really relate to one incident namely the alleged offer of bribe to the police for the release of Mustaqeem and the seized goods. It is urged by the learned counsel that since this allegation is the subject-matter of a substantive charge in which the detenu would be tried in the competent Court, this could not form the basis of an order of detention. He has placed reliance on an unreported judgment of this Court in the Constitutional Petition No. 109 t of 1975 and the case of Muhammad Younus v. Province of Sind (P L D 1973 Kar. 694). In our opinion this contention must succeed, as the learned Additional Advocate-General very fairly conceded that the only material forming the basis of the impugned detention order was the case registered by the Police against the detenu on 10-8-1975. We are quite unable to understand how any reasonable person could on the basis of an isolated incident be satisfied that the detenu was a confirmed smuggler. No other material has been placed before us which was taken into consideration for arriving at the satisfaction requisite under the law. Following the view taken in the two cited cases of this Court, therefore, we find that the impugned order is unsustainable in law.

6. For the foregoing reasons the order of detention impugned in these proceedings is quashed. The detenu shall be set at liberty forthwith unless required in any other case. S. Q. Petition accepted.