1983 P Cr (PLP)

WHEREAS, from the information laid before me, I am satisfied that there are reasonable grounds to believe that Mr. Khalid Ibrahim son of S. Muhammad Ibrahim Khan, Caste Sudhan Resident of Village Trar/Rawalakot Tehsil Rawalakot, District Poonch (A K) within the territorial jurisdiction of Poonch District has acted/is about to act in manner prejudicial to the public safety or the maintenance of public order. And whereas, it is necessary to prevent him from acting in such a manner, Therefore, I, Muhammad Naeem Khan, District Magistrate, Poonch in exercise of the powers vested in me under section 3 (2), read with section 27 of the Azad Government of the State of Jammu and Kashmir A K Maintenance of Public Order Ordinance, 1979 and Notification No. H & P/1416/79 dated 25th March, 1979, do hereby order and direct the Superintendent of Police Poonch that the said Khalid Ibrahim son of S. Muhammad Ibrahim Khan, be arrested and detained in the District Jail, Pallandri for a period of fifteen days/months. This order shall take effect from the date of the arrest of the said person, Issued under my signature and seal of the Court on this‑‑day of 7th September, 1982. ( Sd.) District Magistrate Poonch (Rawalakot)." The warrants of arrest and detention of the other petitioners have also been issued in the similar phraseology and form. From the bare reading of the contents of the warrant of arrest reproduced above, it becomes quite clear that the orders of detention of the petitioners have been made by the District Magistrate in the purported exercise of the powers conferred upon him under the Ordinance which bad expired since long at the time of A making the said orders. It is common place knowledge that an Ordinance issued by the President in exercise of the powers given to him by the Constitution, remains in force for a period of four months only after which it ceases to have any validity and thus, any order which derives its authority from such an expired and dead Ordinance is void ab initio. When the learned Advocate‑General was confronted with this legal lacuna in the detention orders of the petitioners, he was unable to say anything in defence of the action based on an expired Ordinance except stating that the District Magistrate Poonch has issued a clarification in respect of the Warrants of arrest and detention of the said petitioners issued bar him and which is to the effect that the same have been issued by, him under the Ordinance "which has been repeated and still in force". A photostat copy of the aforesaid explanation was also placed on the record by the learned Advocate General but, in my view, this explanation does not make the orders of detention in question lawful if they otherwise lack legal sanction behind theta. The explanation of the District Magistrate concerned that the Notification under which the petitioners were detained by him, to say in his own words, "has been repeated and still in force", carries no legal weight, whatsoever, which appears to be an over thought and exercise in futility. The interpretation of a statute falls exclusively within the province of the authority of the Court which is called upon to make the same in a case seized of by it and is not to be interpreted by an executive authority which has passed an order under the said statute and is impugned in such a case. The correct legal position in this respect, in my view, is that an Ordinance after remaining in force for a period of four months only, dies its natural death and no fresh Ordinance can be promulgated for reviving and extending its validity beyond the said period fixed in the Constitution and Ordinance. A fresh Ordinance on the same subject, even coached in the same phraseology and containing the same provisions, as were contained in the previous expiring Ordinance, of course, is permissible to be made but it will have its effect from the date of its promulgation and by no stretch of imagination, it can be construed to have provided any extension to the span of life to the previous one existing on the subject. As would appear from the orders of detention made by the District Magistrate for the arrest and detention of the petitioners, they have been issued under the Ordinance which was made in the year 1979 and was not in existence at the time of detaining the petitioners. Thus, it is a case of founding the detention of the petitioners on a law which had already completed its span of life and was dead and gone. If such a law which has no legal existence, has been invoked for passing an order by any authority, such order is unlawful and of no legal effect from its very inception and any action based on it cannot be sustained and must be struck down having been taken without lawful authority, The same point was involved in cases entitled "Ch. Latif Akbar v. Azad Government" and "Sardar Muhammad Yusuf Khan v. State", decided on 1st November, 1982 and 7th November, 1982 respectively, before this Court in which the detention was held unlawful on account of having been made under the authority of an Ordinance which stood expired when the detentions were made. In this view of the matter, I have no hesita tion but to declare the detention of the petitioners illegal on this ground alone. The second ground of attack on the validity of detention of the peti tioners is to the effect that the detentions are unjustified in law because of non‑furnishing the grounds of detention to the petitioners, It has been argued by the learned counsel for the petitioners that it was incumbent upon the detaining authority to furnish the grounds of detention to the petitioners under the Constitution "as soon as may be" and under the Ordinance, within a period of 15 days from the date of their detention but in these cases, Sardar Muhammad Arif Khan son of Jehandad Khan, Ch. Muhammad Bashir and Sardar Muhammad Arif Khan, petitioners have not been provided with the grounds of detention so far while to other petitioners, namely, Sardar Sawar Khan and Muhammad Hanif Awan, the same were communicated to them after the expiry of period of 15 days stipulated in the Ordinance. It is thus, contended that the non compliance with the mandatory provision 'of the Constitution and Ordi nance regarding the communication of grounds of detention to the detenues has rendered their confinement illegal. This contention of the learned counsel for the petitioners is also much weighty. The first three above named petitioners have filed the affidavits averring therein that they have not received the grounds of detention so far and no counter affidavit has been filed on behalf of the respondents to rebut this version of the peti tioners and neither any document showing that the said petitioners were furnished with the grounds of detentions, has been placed on the record. The learned Advocate‑General, on the date of hearing of the arguments, had undertaken to place on record such material after ascertaining the factual position from the District Magistrate concerned but to date he has failed to do so. In the absence of any counter affidavit rebutting the plea of the petitioners regarding the non‑furnishing of grounds of detention to them and any other material to that effect on the record. I have no option but to hold that the said petitioners have not been conveyed the grounds of their detention by the detaining authority which the detaining authority was under legal obligation to communicate to the petitioners. As regards Sardar Sawar Khan and Muhammad Hanif, petitioners, they have taken the plea that the District Magistrate Muzaffarabad under whose authority they are detained, has communicated to them the grounds of detention on 2nd November, 1982 and 30th October, 1982 respec tively. The grounds of detention of the said petitioners placed on the respective file of the petitioners do not show the date of their issue by the detaining authority and receipt of the same by the petitioners. The documents containing the aforesaid grounds are undated and no document has been placed on record which may show the date of receipt of the grounds of detention by the said petitioners. In the case of Sardar Sawar Khan, it was admitted by the learned counsel appearing on behalf of the respondents that the grounds of detention were sent to him from the District Magistrate's Office on 31st October, 1982 while in case of Muhammad Hanif Khan petitioner, the learned counsel sought time to place the documents showing the date of communication on grounds of detention to him after obtaining the same from the District Magistrate's Office before close of the Court hours on 10th November, 1982 on which date the arguments on the petition of the said petitioner were heard, but this undertaking was not fulfilled. No counter‑affidavit has been filed on behalf of the respondents denying the allegations of the above-named petitioners of grounds of their detention having not been conveyed to them within the period fixed in the Ordinance i.e. 15 days. Taking into consi deration the various facts and circumstances referred to just above, there is no alternative left but to hold that the said petitioners were communica ted the grounds of their detention after the lapse of period of more than 20 days from the date of their detention. After coming to the above conclusion regarding the stand taken by the petitioners in respect of non communication of grounds of their detention to them by the detaining authority, it appears necessary to examine the legal position qua the same in the light of the provisions in the Constitution and the Ordinance with regard to the communication of grounds of detention to a detenu. The relevant provisions in the Constitution and the Ordinance read as under respectively :‑ 4 (2) (5). Constitution: When any person is detained in pursuance of an order made tinder any law providing for preventive detention, the authority making the order shall as soon as may be, communicate to such person the grounds on which the order has been made, and ‑shall afford him the earliest opportunity of making a representation against the order Provided that the authority making any such order may refuse to disclose facts which such authority considers it to be against the public interest to disclose." 3 (6) Ordinance Where a detention order has been made under this section the autho rity making the order shall, as soon as may be, but not later than 15 days from the date of detention, communicate to such person the grounds on which the order has been made, inform him that he is at liberty to make a representation to the Government against the order and afford him the earliest opportunity of doing so Provided that the authority making any such order may refuse to disclose facts which such authority considers it to be against public interest to disclose." From the perusal of the above provisions, it becomes clear that both the Constitution and the Ordinance enjoin upon the detaining authority to communicate to a detenu the grounds on the basis of which the order of his detention has been made, "as soon as may be" except that the latter fixes the period of 15 days within which said grounds are to be furnished to the detenu. The various superior Courts of Pakistan and Azad Kashmir have interpreted the phrase "as soon as may be" occurring in the Consti tution and the Ordinance and out of them, P L D 1966 S C 286, P L D 1967 Pesh. 195, P L D 1977 Kar. 523, P L D 1978 (S C) A J & K 12 and 1979 P Cr. L 162, may be referred to. In all the above authorities, the words "as soon as may be" have been interpreted as to mean that the detaining authority must supply the grounds of detention to the detenu simultaneously with the order of his detention or soon after making the same without any undue and unreasonable delay and have fixed different periods within which the grounds of detention should be conveyed to the detenu from the date of the order of his detention. In P L D 1966 S C 286, delay of 5/6 days in the communication of grounds of detention to the detenu was considered as fatal to the validity of action taken under the East Pakistan Public Safety Ordinance, while in P L D 1967 Pesh. 195; it was held that the detaining authority must serve the grounds of deten tion on the detenu along with the order of his 'detention but not later than 24 hours, taking into consideration the facts of the particular case. In P L D 1977 Kar. 523, an interval of 11 days between the date of detention and the date of communication of grounds of detention to the detenu, was considered abnormal vitiating the detention. In P L D 1978 S C (A J & K) 12, while interpreting the words "as soon as may be" in a case entitled "Sardar Sikandar Hayat Khan v. Azad, Government", it was opined that the above phrase cannot be used to fix a definite period in abstract and has to be considered in context of each case and was defined as meaning to do a thing within reasonable and in the shortest practicable time and after expressing the above opinion, the period less than a week was considered reasonable for conveying the grounds of detention to the detenu detained therein, namely, Sardar Muhammad Abdul Qaiyyum Khan, after taking into consideration the distance between the seat of the office of the detaining authority and the place of detention .of the detenu. In the last mentioned case entitled "Miss Benazeer Bhutto v. District Magistrate, Karachi", (1979 P Cr. L J 62) the unexplained delay of 6 days in furnishing the grounds of detention to the detenu detained under the Sind Maintenance of Public Order Ordinance (Ordinance XXXI of 1960); was considered not coming within the ambit of expression as soon as may be" and the same was held to be sufficient to make the order of detention without lawful autho rity. When the present cases of detention of the petitioners are considered in the light of the above authorities, there remains no doubt, whatsoever,) that their detention is devoid of legal justification. In the cases in hand, the question of not furnishing the grounds of detention to a detenu within a certain period is not only involved but here either the grounds of detention have not been furnished to some of the petitioners or where have been communicated to others, the same have been done after the expiry of period afixed as dead line for the purpose by section 3 (6), of the Ordi nance under which they have been detained. As seen earlier, three peti tioners, namely. Sardar Muhammad Arif Khan son of Jehandad Khan, Ch. Muhammad Bashir and Sardar Muhammad Arif son of Muhammad Hussain were never supplied the grounds of their detention while Sardar Sawar Khan and Muhammad Hanif petitioners, were communicated the grounds of their detention beyond the period of more than 20 days. Section 3 (6) of the Ordinance lays down in no unambiguous terms that the detaining authority must communicate the grounds of detention to a detenu "as soon as may be" but not in any case later than 15 days from the date of his detention provided the disclosure of facts constituting any such ground is considered by such authority to be against the public interest. The provisions regarding furnishing the grounds of detention to a detenu are of binding force which the detaining authority is bound to obey and comply with, failing which the order of detention loses its validity. In view of above discussion, the orders of detention of the pet tioners made by the District Magistrate concerned are not legal and consequently the orders of the Government extending the initial period of detention of some of the petitioners also become invalid because extension of their previous illegal detention is not permissible and automatically becomes unlawful. The next contention of the learned counsel for the petitioners is that the detention of the petitioners except that of Sardar Sawar Khan and Muhammad Hanif is also invalid because the District Magistrate was not empowered under the Ordinance to detain them outside the limits of District Poonch. This argument is based on section 27 of the Ordinance which confers powers upon the Government to delegate its powers vested in it under section 3 (1) of the Ordinance, to any District Magistrate which reads as under :‑ "

27. Delegation of powers to Deputy Commissioners.‑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 exercisable by any District Magistrate within his jurisdiction." As would appear from the bare reading of the above section, the District Magistrate can exercise powers which are vested in the Government under section 3 (1) of the Ordinance subject to restriction that the same would be exercisable by him within his, jurisdiction. This means that the District Magistrate can only detain a person under the Ordinance within the territory to which his executive jurisdiction extends i.e a within the limits of his District and he has no powers, whatsoever, to detain anybody beyond his territorial jurisdiction. Since the above‑named petitioners have been detained in Muzaffarabad Jail under the authority of the District Magistrate, Poonch, their detention is obviously without lawful authority as the detaining authority by detaining them in Central Jail Muzaffarabad has exceeded his powers delegated to him under section 27, of the Ordinance and the Notification. This point also came up for consideration before this Court in some cases wherein it was held that the authority of the District Magistrate to detain a person under the Ordi nance extends only to his District and not beyond that. In this connec tion, reference may be made to cases entitled "Sardar Sawar Khan v. The Stare" and "Surdar Muhammad Yusuf Khan v. The State", decided on 8th August, 1982 and 7th November, 1982 respectively. The next ground urged by the learned counsel for the petitioners is that the grounds of detention which have been furnished to some of the petitioners being vague, indefinite and lacking in necessary particulars, cannot be treated as grounds of detention as visualised under the Ordinance and the Constitution and as such, the detention of such petitioners being violative of the Constitution and the Ordinance, is bad in law. This argu ment is also much weighty. The grounds of detention furnished to the petitioner in petitions Nos. 78 and 95 of 1982, are exactly in the same terms out of which the grounds supplied to Sardar Khalid Ibrahim, petitioner, are reproduced here for the sake of facility of reference and read as follows :‑ "That your activities in the recent past in Jammu & Kashmir territory: ‑ (1) Were calculated to inviting the public to violence against the present Government of Azad Jammu & Kashmir. (2) Were aimed at creating hatred, contempt an alarm; (3) Have been in a manner prejudicial to public safety and mainten ance of public order." A perusal of the above grounds would show that the petitioners were detained by the District Magistrates as their activities were calculated to inviting the public to violence against the Government, were aimed at creating hatred, contempt and alarm and have been in a manner prejudicial to public safety and maintenance of public order. In the said grounds, there is no mention at all of the acts of the petitioners which, in the opinion of the detaining authority, were calculated to produce the effects stated therein and referred to above. These grounds even do not disclose the nature, place and time of the activities of the petitioners having been made the basis of their detention after considering the same to be such as necessitating their confinement with a view to preventing them from acting in a manner prejudicial to public safety of maintenance of public order. The preventive detention involves the liberty of a citizen which has bee jeolously guarded by Fundamental Right to that effect enshrined in the Constitution and that is why the detaining authority has been placed under the obligation to supply the grounds of detention to the person whose liberty has been put under restrain by way of his preventive detention both under the Constitution (as well as law relating to preventive detention. The grounds visualized in the Constitution and the Ordinance to be furnished to the detenu should be definite, clear and unambiguous containing full facts and particulars constituting the objectionable acts of the detenu which, in the opinion of the detaining authority, fall within the ambit section 3 (1) of the Ordinance and should not be indefinite, vague, ambiguous and shorn of necessary particulars otherwise the very object behind communicating grounds of detention to the detenu which is to provide him with an adequate opportunity to enable him to make an effective representation against his detention .to the detaining authority so that it may release him if it is satisfied with his representation, shall stand defeated. The numerous authorities of the superior Courts of Pakistani and Azad Kashmir, while considering the grounds to be furnished to the detenu under the preventive laws have laid down a rule that such grounds must be precise and definite containing full particulars of facts constituting objectionable material attributed to the detenu, thereby enabling him to make a representation to the detaining authority with regard to his innocence in the matter. In this regard, reference to 1979 P Cr L J 62, P L D 1973 Kar. 694, P L D 1974 Lah. 214 and P L D 1982 Azad J & K 36 may be made. A similar view was also taken by this Court in an un reported case entitled "Sardar Muhammad Yusuf Khan v. The State", decided on 7th November, 1982. Seen in the light of the grounds reproduced above, the present cases are not only those of grounds of detention being indefinite and vague but are the cases of non‑existence of the same. Here, in the grounds of detention, the petitioners have only been informed that their past activities were objectionable so as to attract the provisions of the Ordinance but those activities have not been enumeration and have been left to their guessing. In such a state of affairs when the petitioners have not been made aware of the facts constituting their activities which have induced the detaining authority to take action against them by way of their preventive detention, how it can be possible for the petitioners to make any effective representation against their detention to the detaining authority. By not particularising the activities of the petitioners in the grounds of their detention, the detaining authority has, in fact, deprived them of their right given to them by the law. This lapse on the part of the detaining authority amounts to infringement of the mandatory and statutory requirements which must be rigorously and strictly complied with, because the preventive detention amounts to making inroads and encroachments on the personal liberty of a citizen guaranteed by the Constitution. In this view of the matter, the detention of the said petitioners cannot be sustained on account of not meeting the requirement of law relating to preventive detention regarding communication of ground of detention to the petitioners. The last ground urged in support of the above petitions by the learned counsel for the petitioners is that the orders of the Government extending the period of detention of the petitioners have been made without satisfy ing itself about the necessity of detaining the petitioners as has been enjoined upon it under it under section 3 (1) of the Ordinance and on the contrary, it has been pleased to pass the said orders. This contention is also not without any substance.. The orders of the Government whereby it extended the initial period of detention of the petitioners except Sardar Sawar Khan and Muhammad Hanif, are identical and it would suffice to reproduce one of them with regard to Sardar Khalid Ibrahim, which runs as udder :‑ "Azad, Government of the State of Jammu & Kashmir Home Depart ment Muzaffarabad. The Azad Government of the State of Jammu and Kashmir is pleased to extend the detention of S. Khalid Ibrahim son of S. Muhammad Ibrahim Khan, Resident of Poonch A. K., District Poonch, for a further period of one months with effect from the date of expiry of previous detention." (Sd.) Section Officer (Home) A bare reading of the above order makes it clear that the orders extending the intial period of detention of the petitioners have been passed by the Government without applying its mind to the facts of each case of the detenu and without satisfying itself as to the necessity of detaining him. These orders themselves speak of the fact that the Government has been pleased to pass the same, rather than after satisfying itself that the detention of the petitioners is necessary with a view to preventing then from acting in a manner prejudicial to public safety or maintenance of public order in view of their activities. Such satisfaction is a condition precedent for making an order of preventive detention‑of a person as the Government is only empowered to detain a person under section 3(1) of the Ordinance if it is satisfied that it is necessary to do so with a view to preventing him from acting in a manner prejudicial to public safety or maintenance of public order. It cannot detain a person simply at it pleasure as has been done in the instant case. There is substantial distinction between satisfaction and pleasure and they cannot be construed to mean one and the same thing. The detention made a pleasure does not connote that the same has been made after satisfying that the conditions necessary for detaining a person did exist at the time of passing of his detention order. This patent legal flaw in the Govern ment Orders in question has also rendered the detention of the said petitioners unlawful. For the foregoing reasons, accepting the above petitions, the orders of detention of the petitioners are set aside and consequently they are ordered to be released forthwith if not required in any other case. Petitions accepted.