P L D 1969 Peshawar 50 (PLP)

3. The detention order is attacked on the following grounds :‑ "(a) That the said order is the result of mala fide. (b) That respondent No. 2 is not empowered under the law to pass such order. (c) That reasons contained in the said order are not relatable to the provisions of section 3 (1) of the West Pakistan Maintenance of Public Order Ordinance. (d) That the reasons given in the said order are covered by the field of fair criticism made on the Government of the party in power by the opposition in a democratic country. (e) That the said order has been passed by respondent No. 2 as punishment for the speech made on 12‑5‑1968, and not for preventing the breach of public Order and such order could not be passed under section 3 (1) of the Ordinance."

4. The learned counsel for the petitioner urged that the order passed by the District Magistrate does not come within the purview of section 3, subsection (1) of the Ordinance, as the District Magistrate has failed to state in so many words in the impugned order that he was satisfied that the action was taken by him against the detenu with a view to preventing him from acting in any manner prejudicial to the public safety or the maintenance of Public Order. There is some force in this con tention, because the District Magistrate has to satisfy himself about the necessity of arresting the person to prevent him from committing an act which is against the public interest. In other words, the person being arrested is likely to commit an act which is prejudicial to the public safety or the maintenance of public order. The District Magistrate is also to apply his mind that it is necessary to detain and arrest the person. The maintenance of Public Order Ordinance is a preventive law which curbs the liberty of subjects, and the law has to be strictly interpreted. Reliance was placed on Municipality, Peshawar v. Sayed Abdullah Shah (P L D 1964 Pesh. 243). At page 245, their Lordships observed :‑ "It is a well‑settled principle of construction of Statutes that `Statutes which encroach on the rights of the subject, whether as regards person or property, are similarly subject to strict construction. They should be interpreted if possible so as to respect such rights." His Lordship then quoted a portion from the judgment delivered in Metropolitan Asylum District v. Hill ((1881) 6 A C 193) which is as under :‑ "It is clear that the burden lies on those who seek to establish that the Legislature intended to take away the private rights of individuals, to show that by express words, or by necessary implication, such an intention appears." By reading the impugned order in the light of the authority cited above, the following material defects appear in it :‑ (1) The District Magistrate has not specifically said in the order that he has satisfied himself that the detenu is about or is likely to act in a manner prejudicial to the public safety, or maintenance of public order ; and (2) that he (District Magistrate) has not expressly said in the order that arrest has become necessary. It was, therefore, urged that these defects mentioned above were sufficient to declare the impugned order as illegal.

5. A careful perusal of the impugned order would show that. It did not occur to the detaining authority that after the speech was made by the detenu casting aspersions on the Government, there was any likelihood of the breach of peace on the ground of the detenu repeating the criticism in the future. It also does not appear from the above‑mentioned order that in view of the above‑mentioned speech the public was so excited as to prejudice the public safety in case the criticism was repeated by the detenu in another speech. Taking these facts into consideration it would appear that the action was taken by the District Magistrate against the detenu for the past speech which was made by him on the 12th of May 1968, and there was no material before him to have come to the conclusion that the detenu was in future likely to commit any act which should have been covered by section 3, subsection (1). Reference was made to Writ Petition No. 255 of 1968 Hakim Muhammad Anwar Babri v. The District Magistrate, Hazara (P L D 1969 Pesh. 55) where it was observed :‑ "But it is for the detaining authority to have said specifically that the detention order was intended to prevent the detenu from acting in a manner prejudicial to the public safety or the maintenance of public order in future, and the speech already made by him itself furnished sufficient material for the detaining authority for passing the order. It is one thing to say that the detenu was likely to act in any manner prejudicial to public safety or the maintenance of public order in future, and quite a different thing that he had already so acted. In the former case, the order of detention would be a valid order, but in the latter case it will not be relatable to the objects of section 3 of the Ordinance unless it was specifically stated by the detaining authority that the step was necessitated to prevent a similar performance in future which was likely to endanger public safety, peace or maintenance of public order." A reference to the grounds of detention and the order passed by the District Magistrate would show that the District Magistrate did not indicate in the impugned order that it was being passed with a view to preventing the detenu from acting in any manner prejudicial to the public safety or maintenance of public order in future, and so it is obvious that it is not B relatable to the objects of section 3 of the Ordinance, because it is not specifically stated therein by the detaining authority that the step was necessitated to prevant a similar performance in future, which was likely to endanger public safety, peace or) maintenance of public order. Reference was also made to subsection (6) of section 3 of the Ordinance which provides that where a detention order has been made under this section, the authority making the order shall, as soon as may be, but not later than fifteen days from the date of detention, com municate to such person the grounds on which the order has been made, inform him that he is at liberty to make a representation to Government against the order and afford him the earliest opportunity of doing so.

6. It was conceded by the learned counsel for the petitioner that the detenu was given the grounds of detention, but it appears that the mandatory provisions of subsection (6) C enjoined upon the detaining authority to inform the detenu thail he could make a representation to the Government against his detention and also to afford him such opportunity, were not complied with. Reliance was placed on Maulvi Farid Ahmad v. Government of West Pakistan (P L D 1965 Lah. 135). His Lordships Sardar Muhammad Iqbal, J. at page 142 observed "The grounds, therefore, must be grounds which lead to the inference that the person concerned is likely to act in a manner prejudicial to the objects mentioned in section

3. If the grounds are not within the ambit of the Ordinance, the order cannot be justified." His Lordship had relied upon the observation of Cotton, L. J., in Dale's case ((1881) 6 Q B D 376), which is in the following words :‑ "I quite agree with Brett, J., that when persons take upon themselves to cause another to be imprisoned, they must strictly follow the powers under which they are assuming to act, and if they do not, the person imprisoned may be discharged, although the particulars in which they have failed to follow these powers may be matter of mere form. Here, however, the departure from the correct procedure is not in my opinion a mere matter of substance." By reading subsection (6) of section 3 of the Ordinance in the light of the authority cited above, it would appear that the mandatory provisions of subsection (6) of section 3 of the Ordinance have not been complied with by the learned District Magistrate, and on this ground too the impugned order cannot be maintained.

7. As a result of the foregoing discussion, we hold that the impugned order is illegal and consequently we set it aside. A. E. Detention order set aside.