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-----S. 3-Preventive detention, order of-Grounds, contained in order, vague, indefinite, ambiguous and containing no precise particulars or precise actions or activities which could form basis of detention order-Detention, held unlawful-Test whether grounds furnished are proper or not.

The true test for examining whether the grounds furnished to detenu held under

preventive law, are

proper or not is to find out whether he could on those

grounds make effective representation apart from a bare denial of accusa tions conveyed to him. Where the maximum that a detenu could do on the grounds furnished to him was to make a bare denial, it was held that the grounds furnished to detenu were quite vague, indefinite and devoid of relevant particulars or precise activities and, therefore, the detention was unlawful.

Mir Abdul Baqi Baluch v. Government of Pakistan and others P L D 1969 Kar. 87 - Muhammad Jamadar v. Government of East Pakistan and 3 others P L D 1910 Dacca 374 ; Muhammad Narullah v. The Municipal Corpora tion of the City of Karachi P L D 1953 Siad 41 ; Commander M. S. K. Ibrat v. The Commander-in-Chief, Royal Pakistan Navy and others P L D 1956 S C (Pak.) 264; Abdul Karim v. Sh. Muhammad Rafique and others P L D 1966, Lah. 33; Abuzar v. The Province of West Pakistan P L D 1966 Kar. 260 ;, Begum Sardar Muhammad Hayat Khan of Taman v. Government of West Pakistan and another P L D 1969 Lah. 985 ; Muhammad Ahmad v. The Crown P, L D 1955 Sind 73 and Muhammad Aslam Awan v. The Government of West Pakistan and another P L D 1968 Lah. 667 ref.

D. M. Awan for Petitioner.

Advocate-General assisted by Nusratullah Mian for the State.

Dates of hearing : 30th, 31st January; 1st and 2nd February 1973.

On 20-1-1973, as per F. I. R. No. 6/73 lodged with the Special Police Establishment, Rawalpindi, a case under section 420/467/468/471, P. P. C.,. section 3 of the Passport Ofences Act, section 156 of the Sea Customs Act and section 5(2) of Prevention of Corruption Act was registered against two, persons, namely, A. K. M. Hashim Section Officer, Ministry of Finance, Islamabad and (2) Malik Mahboob Khan R/o Gujjar Khan now at. Rawalpindi, the detenu in this case.

2. Learned counsel for the petitioner has stated that the detenu was arrested on 21-1-1973 at 1 p.m., in connection with the aforesaid F. I. R. at 4 p.m., on the said date, a bail application was moved on which the Magistrate called for a report. As the report was not submitted promptly and the matter was getting delayed, therefore, a second application for bail was moved on the same night in which the learned Magistrate granted bail till 22-1-1973. However, when the orders of release were shown to the authorities concerned, they refused to release the detenu on bail on the ground that another case under section 5(2) of the Prevention of Corruption Act, 1947, also stood registered against the detenu. There was then moved. a third application about the case hereinbefore mentioned and the detenu was consequently released on bail somewhere at midnight on 21-1-1973.

3. On 21-1-1973, however, a fresh F. 1. R. under Martial Law Regulations Nos. 104 and 105 was registered against the detenu and the bail, granted earlier was frustrated in this manner that the detenu was again taken into custody. A fourth application was then moved before the learned Sessions Judge submitting that Martial Law Regulations Nos. 104 and 105 applied only to Pakistani Nationals whereas the detenu was a British National and possessed a British Passport. The learned Sessions Judge issued notice and fixed the case for 24-1-1973. However, on 23-1-1973, at 8 p.m., the detenu was served with an order of detention purported to have been passed under section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960. The said Order reads as follows :---

"Whereas it has been brought to my notice that Malik Mahboob Khanu son of Malik Bagh Ali, caste Rajput, resident of 33/B-I, Satellite Town, Rawalpindi is indulging in smuggling and currency racketeering in collaboration with persons inside and outside Pakistan and is actively assisting the smuggling of Bengalis and their assets from Pakistan and whereas, such smuggling of currency and Bengalis is taking place at a large scale which act is prejudicial to the public safety.

And whereas, I am satisfied that with a view to preventing the said Malik Mahboob Khan from acting in a manner prejudicial to the public safety and maintenance of public order, it is necessary that he should be arrested and detained under the West Pakistan Maintenance of Public Order Ordinance, 1960.

Now therefore, in exercise of the powers conferred on me under section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960, I, Haji Muhammad Akram, C. S. P., District Magistrate, Rawalpindi, hereby order the Senior Superintendent of Police, Rawalpindi to arrest the said Malik Mahboob Khan and detain him in the District Jail, Rawalpindi for a period of thirty (30) days with immediate effect.

The grounds of detention are enclosed. The detenu is at liberty to make a representation to the Provincial Government against this order.

Given under my hand and the seal of the Court, this 23rd day of January 1973."

The grounds annexed with the said order read as follows :--------

"It has been reported that Malik Mahboob Khan son of Malik Bagh Ali R/o 33/B-1, Satellite Town, Rawalpindi is indulging in smuggling and currency racketeering in collaboration with persons inside and outside Pakistan and is actively assisting the smuggling of Bengalis and their assets from Pakistan. Such smuggling of currency and Bengalis is taking place at a large scale which act is prejudicial to the public safety."

The petitioner has come up against the aforesaid detention order.

4. It has been argued by the learned counsel for the petitioner that the grounds contained in the aforesaid order and its Annexure are vague, indefi nite, ambiguous and do not contain the precise particulars or the actual acts of the detenu which could have warranted the issuance of such an order. A good deal of case-law was cited before me for the purpose of showing that in cases where the grounds are indefinite and vague and lack the necessary particulars, then the Courts have quashed the detention orders. Reference was made to Mr. Abdul Baqi Baluch v. Government of Pakistan and others (P L D 1969 Kar. 87), Muhammad Jamadar v. Government of East Pakistan and 3 others (P L D 1970 Dacca 374), Muhammad Narullah v. The Municipal Corporation of the City of Karachi (P L D 1953 Sind 41), .Commander M. S. K. Ibrat v. The Commander-in-Chief, Royal Pakistan Navy and others (P L D 1956 S C (Pak.) 264), Abdul Karim v. Sh. Muhammad Rafique and others (P L D 1966 Lah. 33), .Abuzar v. The Province of West Pakistan (P L D 1966 Kar. 260), Begum Sardar Muhammad Hayat Khan of .Tamman v. Government of West Pakistan and another (1), Muhammad Ahmad v. The Crown (2) and Muhammad Aslam Awan v. The Government of West Pakistan (3). The cases cited support the contention of the learned counsel. Proceeding to examine the grounds reproduced above in the light of the principles enunciated in the case-law hereinbefore mentioned, I have no option but to hold that the grounds furnished to the detenu are quite vague, indefinite an do not contain the relevant particulars or the precise actions or activities which could have formed the basis of passing a detention order against him. Needless to say that the true test for examining whether the grounds furnished are in order or not, is to find out whether a person could on those grounds make an effective representation apart from a bare denial of the accusations conveyed to him. In the instant case, the maximum that the detenu could on the grounds furnished to him do was, to snake a bar denial. The present case, therefore, falls within the mischief of the rule hereinbefore enunciated and the order of detention based on these grounds cannot be upheld. Even otherwise the detention of the detenu in the circumstances, hereinbefore explained, seems to have been brought about in a hostile and hasty manner to frustrate the various bail orders in an unlawful manner and was without lawful authority and I declare it accordingly. The detenu should be released forthwith if not required to be .detained under any other law for the time being in force.

5. This case 'AA heard alongwith two bail applications being Criminal Miscellaneous No. 367/B of 1973 and Criminal Miscellaneous 387/B of 1913, in which it was prayed that the detenu should be released on bail. I have gone through the F. 1. R. No. 6 of 1973 dated 20-1-1973. The offences mentioned therein are not punishable with death or transportation for life.

The petitioner-detenu is released on bail in all the offences mentioned in the said F. I. R. in the sum of Rs. 5,000.00 (Rupees five thousand only) for each of the offences with two sureties of the like amount, to the satisfaction of the Illaqa Magistrate, Rawalpindi.

6. As regards F. I. R. No. 20 of 1973, pertaining to offences under Martial Law Regulations Nos. 104 and 105, since prima facie the petitioner -detenu is a British National and possesses a British Passport therefore, in my opinion, the privilege of bail in the peculiar circumstances of the case should not be denied to him. He is released on bail in those cases also in the same sum and with the same number of surety as mentioned in the above paragraph, to the satisfaction of the Illaqa Magistrate, Rawalpindi.

7. What has been written above with regard to the grant of bail should not be considered as expression of opinion on the merits of the case one way or the other, which will be examined, in case any challan is filed against the detenu, by the Court concerned in accordance with law after the relevant evidence has been produced before it. In that eventuality needless to mention that if any ingredients of offences under Martial Law Regulations Nos. 104 and 105 are brought on the record, the present order will not stand in the way of the Court concerned to cancel the bail of the detenu in those offences. This order disposes of the writ petition and the two bail applications mentioned above. Copy of this order may be given dasti today on payment of usual fee.

K.B. A. Petition accepted.

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