1977 P CF (PLP)

M. S. H. QURESHI, J.‑

A petition i.e. Criminal Miscellaneous No. 162‑H of 1977 was filed on 22‑3‑1977 by Dr. Muhammad Salim under section 491, Cr. P. C. seeking the production and release of the following persons who were allegedly being detained by the respondents :‑ "(1) Mian Abdul Aziz son of Mian Sher Muhammad, Member, Jamaat‑I- Islami, and P. N. A. candidate for Provincial Assembly seat P. P. 207 : (2) Mian Abdul Malik son of Mian Sher Muhammad, Member of the Jamaat‑i‑Islami : (3) Dr. Zakir Hussain, Member Jamaat‑i‑Islami, General Secretary P. N. A. Okara (4) Sardar Sultan Ahmad son of Sardar Jalal Din, Muslim League candidate for P. P. 208 ; (5) Rana Muhammad Ayyub son of Hakim Muhammad Sadiq, candidate for Provincial Assembly who retired in favour of P. N. A. candidate, Maulana Ghulam Ali ; and (6) Syed Amir Hussain Gilani son of Syed Asadullah Shah, Manager of Madrisa Jamla Madnia, Vice‑President of P. N. A. Okara. The matter first came before one of us in Single Bench i.e. Shameem Hussain Kadri, J. who, finding that a question arose whether persons making speeches during election campaign could be prosecuted under section 16 of the Maintenance of Public Order Ordinance, which involved interpretation of law and the Constitution, referred the matter for placing it before a larger Bench. The matter was accordingly referred to the present Division Bench.

2. On 11‑4‑9977, the learned Assistant Advocate‑General, stated that four of the detenus, namely, Mian Abdul Aziz, Mian Abdul Malik, Dr. Zakir Hussain and Syed Amir Hussain Gilani, were no longer in custody having already been discharged and that the remaining two detenus, namely, Sardar Sultan Ahmad and Rana Muhammad Ayyub, were in custody in connection with proceedings under the West Pakistan Control of Goondas Ordinance, which had been initiated against them on 23‑3‑1977, that is the day following the filing of the habeas corpus petition. The record of the proceedings along with the relevant police file was sent for. Meanwhile, Dr. Muhammad Salim, the petitioner, was reportedly arrested and an application was moved under section 561-A, Cr. P. C. for his substitution by Syed Amir Hussain Gilani, which was allowed by us on 13‑4‑1977 In view of the changed circumstance, the petitioner applied on 19‑4‑1977 for treating the Criminal Miscellaneous Application (Criminal Miscellaneous No. 162‑H of 1977) to be a writ petition, which was allowed. In the writ petition, which is before us, a declaration is sought to the effect that the proceedings against Sardar Sultan Ahmad and Muhammad Ayyub under the West Pakistan Control of Goondas Ordinance was without lawful authority and of no legal effect.

3. The record was produced, and the following officers were examined by us: - "(1) Ahmad Sated, S. H. O., Sadar Okara, who had initiated information under the Ordinance against Sardar Sultan Ahmad detune: - (2) Abdul Hafeez Ahmad, P. 1., Okara, who had forwarded the information to the Tribunal: - (3) Inamullah, S. H. O. City, Okara, who had initiated information under the Ordinance against Muhammad Ayyub detune; (4) Mushtaq Ahmad S. H. O. Bhai Pheru; (5) Mr. Habib‑ur-Rehman, Assistant Commissioner, Okara who constituted the Tribunal ; (6) Malik Bashir Ahmad, Magistrate Okara (7) Mr. Ishtiaq Ali, Magistrate Section 30, Okara; and (8) Mr. Muhammad Aslam, D. S. P., Okara."

4. According to the statement of Ahmad Sated, S. 1‑

1. O., the proceeding against Sardar Sultan Ahmad had be n based upon the following six cases. The position of these casts as given by the S. H. O. in the challan and as actually found by this Court in the light of the statements of the officials examined, is indicated against each case: - S. No Particulars of the case. Actual position as transpired. (i) F. I. R. No. 32 dated 3‑11‑1967, P. S. City Okara under sections 392/307/325/149 and 148, P. P. C. Challaned and pending Quashed by High Court as duly noted by the Tribunal in its order dated 1‑4‑1977. (ii) F

1. R. No. 127 dated 5‑5‑1972 under sections 307/353/335/149 and 148, P. P. C Challaned and discharged. Discharged. (iii) F.I. R. No. 176, dated 2‑6‑1973, P. S. Bhai Pheru, under section 448, P. P. C Challaned and pending Compounded in 8‑3‑1975 in the trial Court as stated by S. H. O., Bhai Pheru. (iv) F.1. R. No. 305, dated 3‑7‑197:4, P. S. Depalpur under sections 365, 148, 149, JP, P. C. Challaned and pending Not challaned. (v) F. I. H. No. 123 dated 3‑5‑1976 M. L. R. No. 115, P. S. Hujra. Under investigation. Not proceeded against on account of status quo gran ted in Writ Peti tion No. 1142 of 1976. (vi) F. F. R. No. 108, dated 2d‑5‑1976 under section 379, P. P. C. P. S. Sadar Okars Suspection established. Related to theft of an ova. Both detenus Sardan Sultan Ahmad and Muhammad Ayyub, though not named in F.I.R. arrested on 14‑2‑1977. Sar dar Sultan Ahmad discharged on 29‑3‑19777 by Malik Bashir Ahmad, M. I. C., Okara. The challan against Rana Muhammad Ayyub under the Ordinance had been sent up can the basis of the. following ten cases. The position of each case as dcsoribed in the challan and as transpired from the statements of the officials recorded by this Court is shown as per below S. No Particulars of the case. Actual position as transpired. (i) F. I. R. No. 271 dated 27‑9‑1955 Acquitted on under section 170, P. P. C. Acquitted on 9‑6‑1956 Acquitted on 9‑6‑1955 by Resident Magis trate, Okara. (ii) F. I. R. No. 255 dated 23‑11‑1962. P. S, Okara, under sections 342 and 347, P. P. C. Challaned after investigation. Acquitted on 25‑1‑1963. (iii) F. T. R. No. 17, dated 10‑1‑1963, P. S. Anarkali, Lahore under sections 365, 354 and 342, P. P. C. do Acquitted. (vi) Report No. 23, dated 20‑12‑1962, P. S. Sadar Okara under section 107/150, Cr. P. C. Case sent up. No action taken by the Magistrate. (v) F. I. R. No. 106, dated 2‑5‑1963, P. S. Sadar Okara, under section 342, P. P. C. Challaned Acquitted by S. D. M. on 31‑12‑1963. (vi) Report No., it), dated 8‑6‑1963, P. S. Sadar Okara under section 107/150, Cr. P. C Case sent up. No action taken by the Magistrate (vii) F.I. R. No. 147 dated 12‑3‑1976, P. S. City Okara, under section 380 and 454, P. P. C Could not be Challaned Not Challaned (viii) F. T. R. No. 388 dated 30‑61975, under section 13/20/65 of the Arms Ordinance.s Challaned Result not known. (ix) F. I. R. No. 20 dated 11‑1‑1977 under section 380, P. P. C. lodged by District Magistrate, Sahiwal. Still under investigation. Discharged by Malik Bashir Ahmad, M. T. C., Okara (x) F. I. R. No, 525 of 1975, City. Okara, under section 307/34, P. P. C Challaned Challaned As already stated, Rana Muhammad Ayyub, who had been a co‑accused with Sardar Sultan Ahmed in F. I. R. No. 108 of 26‑5‑1976 and had been arrested on 14‑3‑1977 was discharged by Malik Bashir Ahmed, M. I. C. Okara, on 29‑3‑1977. S. H. O. Inamullah, further stated that Muhammad Ayyub detenu was a history‑sheeter but admitted that the history‑sheet (No. 363/11) had been opened in 1963 without notice and had been placed in his personal file on 25‑9‑1966 and that he had never been under surveillance. In reply to a question, he further admitted that the record of the detenu after F. I. R. No. 10 dated 8‑6‑1963 till 30-6-1975 was "clean".

6. It is apparent that the S. H. Os. Concerned had not given full information in respect of the cases which they had made the basis for initiating action against the two detenus. Prosecuting Inspector, Abdul Hafeez, who had forwarded the challan against Sardar Sultan Ahmad, admitted: - "The present case does not fall within the purview of section 13, yet I forwarded the case to the Tribunal because I am serving in the Police Department. He stated that it vas bid duty to consult the P. D. S. P. before sending the case to Court, but he admitted: - "I did not consult the P. D. S. P., Sahiwal and I told the S. H. O. that this is not a fit case " Mr. Habib-ur‑Rehman, Assistant Commissioner, Okara, who, as the Tribunal had taken cognizance of the matter, admitted before us that he was not aware of nor did he make enquiry from the police as to the fate of the cases upon watch the proceedings had been based. His attention was drawn to the pre‑requisites for taking cognizance contained in the provision of subsection (1) of section 5 of the West Pakistan Control of Goondas ordinance, which is as follows: ‑

5. Cognizance of cases by. Tribunal. ‑(1) No Tribunal shall take Cognizance of a case under this Ordinance unless‑ (a) (i) the person complained against resides; or (ii) the acts mentioned in clauses (a) to (z) of section 13 are alleged to" have been committed, within the local limas of jurisdiction ; and (b) the officer‑in‑charge of the Police Station within tow jurisdiction whereof such place as aforesaid lies, or in areas which are not within the jurisdiction of any Police Station, the Extra Assistant Commis sioner within whose jurisdiction such place lies or any other officer authorised in this behalf by the District Magistrate, lays information with the Tribunal under subsection (2)." The provision of section 13 of the Ordinance was also read to him, but he was unable to satisfy us, if any clause of the same could be attracted to the material placed before him in the challan. The Assistant s Commissioner asserted that he lead considered the whole material mentioned ire the challan for passing the order of detention, including the result of the cases but from his subsequent replies, it was clear that he toad done precious little to apprise himself of the facts of the cases, not even in respect of the old ones, which in all probability, must have concluded by then His attitude can be summed tap from his following replies: ‑ "At tire stage of cognizance it was nor my duty to know the result the old cases, while passing the order off detention under she Goondas Ordinance. In my opinion while applying mind for taking cognizance under section 5 of the Goondas Ordinance it is enough that the person complained against resides within my jurisdiction."

8. The established law is against the course of action adopted by Assistant Commissioner. In Arsala Khan v. The State (1968 P Cr. L J 1910) a conviction in a case vas held necessary for constituting basis for proceeding under the Ordinance. It was observed in Gul Muhammad alias Gullo v. The state etc. (1972 P Cr. L J 374) that a proceeding under section 13 of the Ordinance initiated and based on certain cases, which had failed, totally in the Courts of law, lacked legal foundation because no adverse inference could be drawn in the same connection. Sind & Baluchistan High Court adopted the principle laid d‑own in Arsala Khan s case in Moosa v. State (1974 P Cr. L J Note 80 at p. 49) wherein it was held that involvement in a number of cases never ending in conviction could not form basis for action under the Ordinance. Similarly, This Court held it in Muhammad Salim alias Cheeman v The State (P L D 1976 Lah. 156) that: ‑ "However, if it were to be held that a person can be declared a Goonda merely on the ground that a large number of cases of the type mentioned in clauses (a) to (z) of section 13 of the Ordinance were instituted against him, irrespective of the fact as to whether or not he was, convicted, the situation would be fraught with great danger because in that case it would be quite simple for the police to get false cases instituted against any person for ulterior purposes; to hold a perfunctory inquiry and then to close the cases without sending up any chadan on the ground that enough evidence was not available. After repeating this performance about 8 to 10 times, the police could easily secure an order declaring him to be a Goonda under section I3 of the Ordinance." In a recently reported case i.e. Rehman Ali v. The District Magistrate, Sahiwal and another (P L D 1977 Lah. 341) Sardar Muhammad Iqbal, C. J., as he then was held that proceedings based on cases, which had not succeeded in Court, did not Warrant action under the Ordinance. Recourse to provisions of the Ordinance. Recourse to provisions of the Ordinance in such a situation was then deprecated in the following words: - "The Ordinance was enacted with a view to controlling disorderly persons and taking action against the persons who were known to be Goondas. The object was not to harass the people and use it as an instrument of oppression against persons for ulterior motives. To initiate action against the petitioner on facts, which could not militate against him is capricious, unjust and wanton."

9. Apart from the question of cognizance, the material before the Assistant Commissioner did not even justify the passing of an order of detention. In a proceeding under the Ordinance, the normal course for the Tribunal is to summon the person complained against, though in certain circumstances, as specified in section 6, it can issue a warrant of arrest instead of a summons. It is provided in subsection (2) of section 8 that: ‑ (2) The Tribunal may, for reasons to be recorded, instead of taking a bond for the appearance of the person complained against, order his detention till the conclusion of the inquiry of such person as it thinks suitable Provided that such detention shall not exceed two months unless his case has been referred to the Commissioner and the latter has agreed to such detention." The Assistant Commissioner admitted that he had been remanding the detenus even before the institution of the proceeding under the Ordia4nce. He, thus, knew, that they were already being kept in detention. They continued to remain under detention even after 23‑3‑1977 when tae proceeding under the Ordinance was initiated but a formal order for such detention was not passed by the Assistant Commissioner until 1‑4‑1977. His order of that date shows that he was aware that one of the cases had boon quashed by the High Court and that it was not clear from the record as to what was the outcome of the remaining cases, yet he recorded in the case of Sardar Sultan Ahmad; that he was habitually connected with crime. He went on to say "These are turbulent days and it is undesirable that such persons should remain at large as can endanger the peace and tranquility of the area, especially the Okara City, or can interfere with the peaceful lives of the people of the area." In the case of Muhammad Ayub, he, without specifying that the basis, recorded that he was : "As desperado and habitual mischief monger who seems to have eluded conviction in a larger number of cases registered against him." He went on to record "The existing law and order situation in Okara Sub‑Division, especially in Okara City, requires that such persons are not allowed to play with the lives of the people." The satisfaction of the Assistant Commissioner from which the order of detention had proceeded, had, it is thus apparent, little relationship with the material before him.

10. Any law as is well known, affecting the liberty of the person of citizen has to be strictly construed. Interpreting the provision of subsection (P L D 1975 Kar. 391) of section 8, a Division Bench of Sind & Baluchistan High Court, had, in Allah Bakhsh v. Sind Province etc. (P L D 1975 Kar. 833) laid down three conditions for exercise of the power of detention. They are‑ (i) when there is reasonable and imminent apprehension that person complained against will not appear before the Tribunal ; or (ii) he will misbehave, during pendency of enquiry, or (iii) the purpose of section 8 could not be served by taking a bond with or without sureties. The Tribunals conclusion, it was further held, as to the existence of either of the conditions must be supported by material on record. I may also refer to a Full Bench ruling in Mehboob Ali v. Deputy Commissioner etc. (2) that the Ordinance was not a law meant for preventive detention.

11. It is, thus, clear that there was no reasonable basis for the police officers to have initiated nor for the Assistant Commissioner to have entertained the proceeding under the Ordinance against the detenus. The Assistant Commissioner had also no valid material to justify his ordering their detention.

12. For every prosecution, there has to a reasonable and probable cause. According to Halsbury, "reasonable and probable cause" has been said to be "An honest belief in the guilt of the accused based on a full conviction, founded upon reasonable grounds, of the existence of a sate of circumstances, which, assuming then to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of an accuser, to the conclusion that the person charged was probably guilty of the crime imputed. In Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (P L D 1969 S C 14) it was held: "The real question, to my mind, in every case of mala fides is: Did the authority or officer concerned reasonably believe that his duty as such officer required him to act as he did 7 A person acting in pursuance of a statute cannot be sad to be acting bona fide if he has no reasonable ground for believing that the statute justifies him in what he does. If the case, therefore. is one where there are no grounds or the grounds are such that no reasonable person would have acted on the supposition that he was acting under the authority of the statute then that is a case in which the Courts would in exercise of the power under Article 93 of the Constitution declare the act to have been done in an unlawful manner." In State v. Zia‑ur‑Rehman (P L D 1973 S C 49) the Supreme Court observed "A male fide act stands in the same position as an act done without jurisdiction, because no Legislature when granting a power to do an act can possibly contemplate the perpetration of injustice by permitting the doing of that act male fide." In yet another case i.e. Federation of Pakistan v. Screed Ahmad (P L D 1974 S C 151), it wee similarly held "Action taken in colorable exercise of powers, that is to say, for collateral purposes not authorized by law under which the action is taken or action taken is fraud of the law are also male fide."

13. Mr. Nemat Khan, Advocate, who appeared for the State, was frank enough to concede that he would not support the respondents under the Ordinance.

14. During the proceeding before us, we had, on 20.4‑1977 given notice to the two S. H. Os. concerned and the Assistant Commissioner to show cause, if any, against the imposition of personal costs in the event of the Writ Petition succeeding. The S. H. Os. did not furnish any explanation, but the Assistant Commissioner did by filing a written reply, in which he stated that he had taken cognizance and had proceeded in the matter "in good faith and strictly in accordance with the law." He had, by a reference to some case‑law, contested that irregularity, if any, committed by the police, had affected the legality or the propriety of the proceeding taken by him as a Tribunal. He had even justified his order of detention by a reference to P L J 1976 Rae.

298. In view of the facts already brought out by us, the reply is totally lacking in substance. He bad failed to apply his mind to the requirements of clause (a) (ii) of subsection (1) of section 5 of the Ordinance in regard to the taking of cognizance. He had relied on extraneous considerations for ordering the detention of the detenus. IC is to be noted that Sardar Sultan Ahmed was a Muslim League candidate for the Provincial Assembly while Rana Muhammad Ayyub had also been such candidate but had retired in favour of the political party. They were being kept under detention in the days closely following the elections and after they had moved this Court to challenge such detention, the recourse to the provision of the Ordinance could not but, in the circumstance, be intended to frustrate their remedy in dais Court.

15. For these reasons, we disposed of the petition in terms of the follow ing order, which we passed and announced on 7‑6‑1977: "For reasons to be recorded later, we find that the proceedings initiated under the Goondas Ordinance against Sardar Sultan Ahmad and Rana Muhammad Ayub by Mr. Ahmed Saeed S. H. O., City Okara, are malicious and illegal. The Assistant Commissioner has passed the order of detention in both the cases without applying his mind to section 5 (1) and section 13 of the Goondas Ordinance. It has been conceded by learned counsel for the State that it was impossible for him to support the action taken by these officers against the detenus. The petition succeeds and the orders of detention are quashed. Sardar Sultan Ahmed and Rana Muhammad Ayub shall be released forthwith, provided they are not required in any other case. (2) We have already issued notice to the two Station House Officers and the Assistant Commissioner for burdening them with personal costs to be paid as compensation to the detenus, under section 35‑A, C. P. C. The Assistant Commissioner shall deposit Rs. 1,000 while the two' S. H. Os. shall deposit Rs. 500 each with the Deputy Registrar (Judicial), within a week. The amount shall be paid to the two detenus in equal proportion. The Assistant Commissioner has also produced two copies of the explanation its reply to the notice, which are placed on the record. We are, however, not satisfied with the explanation furnished by him. The cognizance of the case by him was illegal, unjustified, without application of mind and as such improper exercise of jurisdiction. This order will, however not debar the detenus from taking such other legal action against these three public functionaries, which way be available to them under the law." Order accordingly.