P L D 1976 Karachi 1209 (PLP)

JAMALUDDIN H. AHMAD, J.-The detenu in this case Muhammad Sultan eon of Shaikh Muhammad Usman, is described by the petitioner, his brother, as a broker of cotton yarn. He is now under detention under section 32 (d) (f ) of the Defence of Pakistan Rules, 1971 by an order dated 22-4-1976 passed by the respondent, ordering that he should reside and remain in house No. 89, Delhi Sodagaran Society. Karachi for a period of three months, and not to associate and communicate with any person excepting his family members during that period. This order has been challenged through this petition.

2. The petitioner has given a chequered history of the detenu being in custody from 24-7-75, which has not been controverted as no counter afdavit has been filed on behalf of the respondent and in fact the learned Additional Advocate-General stated that no such counter-affidavit was necessary as the grounds taken in the petition related purely to questions of law.

3. According to the petitioner the detenu was first arrested on 24-7-75 in connection with the F. I. R. No. 76 of 1975 under section 43 (3) of the Abkari Act and while in custody of the Excise Police another F. I. R. No. 67 of 1975 under the same section was registered against him. On 4-8-1975 he was served with a detention order under section 3 of the Sind Maintenance of Public Order Ordinance, 1960 ordering his detention in Thana of Narcotic Control Board Society, Karachi for a period of three months. This order was challenged by a Constitutional Petition, which was dismissed -on 4-11-1975 on account of the expiry of the period rendering the petition infructuous. While still in custody proceedings under section 110, Criminal Procedure Code were instituted on 6-8-75 before the S. D. M., Central Sub-Division, Karachi wherein an order under section 117 (3), Cr. P. C. was passed on 9-8-1975 but same was suspended in Criminal Miscellaneous Application No. 754 of 1975 of this Court. Yet another Report dated 2-9-1975 was filed under section 74 of the Sind Crimes Control Act, 1975 before the same S. D. M., Central Sub-Division, Karachi, in which the detenu was granted bail on 7-11-1975, but while he was in custody F.

1. R. No. 319 of 1975 was registered at the Ferozeabad Police Station under rule 42 (6) read with rule 49 of D. P. R. and in that case this Court ordered the release of the detenu on bail on t9-1-76. Only a few days thereafter I.e. on 23-1-76 the detenu was served with another order under section 5 (4) of the Sind Maintenance of the Public Order Ordinance, 1960 which was challenged by Constitutional Petition No. 126 in this Court. During the pendency of that petition the order was revoked but a fresh order of detention under rule 32 (1) (b) of the D. P. R. was served on him, detaining him for a period of three months in the Frere Police Station. This order was again challenged in Constitutional Petition No. 237 of 1976 when on 22-4-1976 the said order was revoked and a fresh order was passed on that very date which is the impugned order in this petition.

4. In the grounds taken by the petitioner .he has attacked the impugned order as mala fide not only in law but on facts as well. In ground No. 5 he stated:- "That the impugned order is bad in law as it is mala fide in fact as well. The detention orders mentioned above have been passed with sole intent to keep the detenu under detention of one form or another. Since 22-7-1975 whenever any relief is granted by a Court of competent jurisdiction, fresh detention order is passed, or contrivance of revoking earlier order is resorted to whenever writ petitions are fixed for regular hearing. This amounts to punitive detention and depriving of the detenu of liberties granted under the Constitution. Besides this he has also challenged the impugned order as 'not having been passed in accordance with the provisions of law'." On such silegations which were supported by an affidavit a counter afc'avit would ordinarily have been necessary, in absence of which the allegations appeared not to be controverted.

5. Mr. Aftab Ahmad Alvi, the learned counsel for the petitioner, in support of the grounds taken in his petition has first contended that the impugned order purporting to have been passed under rule 32 (d) (f), of the Defence of Pakistan Rules, 1971 is ultra vices of the Defence of Pakistan Ordinance itself as the word 'place mentioned in clause (d) of the Rules is not covered by clause (xiii) of subsection (2) of section 3 of the Ordinance. That clause has made a provision for framing of Rules which may provide for the compelling of a person to reside and remain in an 'area'. He relied on the case of Begum Nazir Abdul Hamid v. Pakistan (P L D 1974 Lah. 7) as in that case the same question came to be considered by the Division Bench and it was observed as under:- "Under rule 32 (1) (b) Central Government may make an order in respect of any person "directing that he be detained" and under clause (d) of rule 32 "requiring him to reside or remain in such place or within such area in Pakistan as may be specified in the order, or to proceed to a place or area within such time as may be specified in the order". The word "place" mentioned in clause (a) is not covered by clause (xiii) of subsection (2) of section 3 of the Ordinance. It only says that rules may provide for "compelling of a person to reside and remain in an area." If the word "place" has been used in the same sense as an "Area" the rules will be valid. If, however, by "place" it is meant something different from "an area" then the rule will be ultra vires the main Ordinance. The dictionary meaning of the word "area" is "a particular extent of (esp. the earth's) surface; a region, tract, a level piece of ground not built over or occupied". "Area" thus connotes something much bigger and larger than a "house" or a "place of residence". The impugned order restricts the movements of the detenu to his house. If the word "such place" used in clause (d) is interpreted to mean a house or place of residence, the same, since it will not be an 'area' is ultra vies the provisions and the impugned order restricting the movements of the detenu in his residence will, therefore, be without lawful authority." Those observations fully support the learned counsel for the petitioner but the learned Additional Advocate-General Mr. Abdul Hafiz Lakho contended that as the above observations were based on a dictionary meaning of the word "place" and "area" he wanted to refer to the meanings of the same terms as given in some other dictionaries. In his submission an "area" would include even a house or a room irrespective of its dimensions. In his opinion, however unjust it may appear, if the movements of a person are confined to the smallest of the places, yet since it is only a question of interpretation of the vires of the framing of the rules under the main law the question is to be looked at from that view only. Obviously the learned Additional Advocate-General has not fully appreciated the import of the observation, that 'If the word place has been used in the same sense as in area the rules will be valid. If however by 'place' it is meant something different from 'an area' then the rules would be ultra vires the main Ordinance. So far as the principles of interpretation are concerned, nothing can be clearer than what is said above for otherwise the use of word 'place' appears to be superfluous in the Defence of Pakistan Rules. I, however, find no reason to disagree with the interpretation given by the Lahore High Court in the above-quoted observation in spite of several dictionaries referred to by the learned Additional Advocate-General and find that the impugned order is bad on that limited question alone.

6. Mr. Aftab Alvi then reverted to the question of the mala fide exercise of the power in passing successive orders of detention against the detenu which in fact were all based on the same facts that related to the original case filed against him under Abkari Act. He referred to the language of the impugned order which said that it was for the purpose of preventing the detenu from acting in a manner prejudicial to the interest of Pakistan by smuggling Cbaras out of the country in contravention of restrictions imposed by law for the time being in force. In the same case i,e, Begum Nazir Abdul Hamid v. Pakistan cited above the facts were somewhat similar to the Instant case, as there had been successive orders passed against the detenu and the last order that was impugned before the Court was also in continuation of an earlier order, which in that case had been rescinded by the Government upon a report of he Review Board. Relying on the case of Government of Pakistan v. Rowshan Bijaya Shoukat Ali Khan (PLD1966SC286), and also some observations in Sherer v. Shields (1914AC808) the Lahore High Court came to the conclusion that successive orders of detention passed for some collateral or ulterior purpose however innocent or honest, would amount malice in law. It was observed: "The malice in law is to be inferred when an order is made contrary to the objects and purpose of the Act, or the Rules made thereunder. It is not enough that the order is passed under a colour of the power conferred. It must be done in actual exercise of it and no power is conferred to make such an order in abuse of the Act"

7. The grievance of the petitioner in his ground No. 2 of the petition is that no ground of detention had been supplied to the detenu. But we find on record a copy of the grounds of detention which is dated 3rd of May, 1976, in which it is said that the movements of the detenu have been restricted to his house due to the following reasons:- "That credible information has been received by Government that you are still engaged in smuggling of narcotics from Pakistan to Federal Republic of Germany, through your collaborators in that country, in contrevantion and prohibition of restriction imposed by law." It was contended vehemently that the detenu being continuously in detention the above ground was not validly attracted. He being under continuous detention of the respondent, it could not be said that he could possibly be a party to the alleged activities. The ground was thus prima facie a false ground. Moreover it was a bad ground on account of its being vague and want of particulars as in Muhammad Younus v. Province of Sind (P L D 1973 Kar. 694) to which decision one of us (Mir Khuda Bakhsh Marri, J.) was a party, relying on a previously decided case Liaqaat Ali v. Government of Sind (P L D 1973 Kar. 78), it was said that the grounds of detention should not be vague and indefinite and should be comprehensive enough to enable the detenu to make representation against his detention, to the authorities prescribed by law. Vagueness in the grounds may be evidence of the vagueness in the mind of the detaining authority and the failure on the part of the detaining authority to apply its mind properly and conscientiously to the available material to find out whether there is imminent and real necessity to order preventive detention of a citizen. It was also observed ". . .some of the grounds are in fact found to be vague by the Court then the order of detention itself would be vitiated on the ground that there was failure to meet with the statutory requirements relating to prevet5tive detention", and further, "that if any obligation is placed by law it is upon the detaining authority which is to supply to the detenu the grounds of detention, with such particularity and preciseness as to enable him to make an effective representation to the prescribed authority against his detention." The grounds specified in the impugned order obviously lack clarity and fail to communicate to the detenu the particulars of the instances upon which the same is framed. The grounds are therefore not valid and render the order of detention itself bad in law. The same principle was also laid down 9n the case of Khadija Bhabha v. Province of Sind (P L D 1972 Kar. 421).

9. For the reasons stated above the impugned order is declared to be not in accordance with law and therefore set aside, and petition is allowed, with no order as to costs.

10. At the time of the pronouncement of this judgment Mr. Hafiz Lakho the learned Additional Advocate-General had made a statement that the respondent had this day revoked the impugned order and the detenu, set at liberty. MIR KHUDA BARHSH MARRY, J.-I agree. S. Q. Petition allowed.