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Writ Petition No. 1071 of 1975, decided on 8th January 1976.

-- S. 3(6) read with Constitution of Pakistan (1973), Art. 10(5) Grounds of detention not supplied by detaining authority "as soon as possible"-Order of detention becomes illegal and without lawful authority.-[Preventive detention].

Ghulamulluh Khan v. District Magistrate, Campbellpur P L D 1967 Pesh. 195; Muhammad Younus v. The Province of Sind P L D 1973 Kar. 694; Liaquat Ali v. Government of Sind P L D 1973 Kar. 78; Nawab Begum v. The Home Secretary, Government of Punjab, Lahore P L D 1974 Lah. 344 and Mohammad Hussain v. Government of Sind and another Cr. M. A. No. 1024 of 1975 ref.

-- Art. 199 read with West Pakistan Maintenance of Public Order Ordinance (XXXI of 19601. S. 3(6)-Ground that detaining authority failed to supply grounds of detention as soon as possible not taken in petition-Point not only obvious but illegality of detention patent on face of record-Held, such ground can be allowed to be urged at stage of hearing.

Mohammad Ali Sheikh for Petitioner.

A. H. Lakho, Addl. A: G. for Respondents.

Date of hearing; 6th January 1976.

This is a petition under Article 199 of the Constitution filed by one Hakim Khan son of Ghairat Khan impugning the order of detention dated 14th October 1975, passed by the Government of Sind whereby the brother of the petitioner namely Sher Ali Khan has been detained for a period of 90 days from the date of the order under section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960.

2. The petitioner has challenged the detention of the detenu on the ground that the order of detention was made on 14th October 1975 and the memo. containing the grounds of detention was supplied to the detenu on the 15th day, that is, on 28th October 1975, though the memo is dated the 27th October 1975. The learned Additional Advocate-General, Mr. A. H. Lakho, has disputed that the memo. containing the grounds of detention was supplied on 28th. He says the grounds were supplied on 27th October 1975. Be that as it may, the fact remains that the grounds of detention were supplied very late. Under section 3(6) of the West Pakistan Maintenance of Public Order Ordinance, 1960 the detaining authority making the order of detention is required to communicate to the detenu the grounds on which the order has been made as soon as may be. It will be useful to reproduce the said provisions ;

"3(6) Where a detention order has been made under this section the authority making the order shall, as soon as may be, 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 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 interests."

Article 10 clause (5) of the Constitution as amended by Constitution (Third Amendment) Act, 1975 (Act XXII of 1975) provides the maximum period of 15 days within which the grounds of detention on which the order has been made have to be communicated to the detenu. The relevant clause of the above-mentioned Article of the Constitution is as follows;

"(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, within fifteen days from such detention, 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."

However, the phrase "as soon as may be" which was omitted from this Article by the Third Amendment in the Constitution still finds place in section 3(6) of the West Pakistan Maintenance of Public Order Ordinance, 1960 and must be given effect to.

3. It is not the case of the respondents and it should not be, that the authority making the order refused to disclose the facts which such authority considered them to be against the public interest to disclose as the grounds of detention were in fact supplied to the detenu on the 14th day or the 15th day,

as the case may be. Therefore, it was incumbent upon the respondents to explain the reasons for communicating the grounds of detention to the detenu so late but no explanation, whatsoever, has been given by the respondents as to the reasons that prevented the detaining authority from complying with the requirements of law on any day earlier than 27th October 1975.

4. It is now settled that if the grounds of detention on which the order is based are not supplied by the detaining authority as soon as possible the order of detention becomes illegal and without lawful authority and such an JA order has to be declared of no legal effect. Reliance is placed upon the decision of a Division Bench of Peshawar. High Court in Ghulamullah Khan v. District Magistrate, Campbellpur (P L D 1967 Pesh. 195), wherein Faizullah Khan, J. observed;

"Under subsection (5) of section 5 of the Ordinance, it is rendered obligatory on the District Magistrate to communicate to the petitioner the grounds on which the order has been made and the grounds are to be communicated as soon as possible', so that he may be able to make a representation.

Whenever any of the directions enumerated in clauses (a) to (e) in subsection (1) of section 5 is initiated, the grounds on which the District Magistrate makes the order must be known to him at least on the day when the order is made and can ordinarily be served on the petitioner alongwith the order almost in all cases. Cases, however, may be visualised which could be very exceptional and rare' in which the detaining authority may not be able to serve the grounds alongwith the order and in order to meet such a contingency the detaining authority is permitted to serve the grounds after the order of detention, but the grounds must be served without the least possible delay and 24 hours may be considered to be dead-line within which the grounds may Le served. The period of 24 hours has been fixed regard being had (1) to the fact that section 5(5) of the Ordinance is an encroachment on the fundamental rights of the citizens which must be jealously guarded by the Courts against any encroachment, and (2) that the right of making representation by the aggrieved person to the Government would be rendered illusory, if the grounds were served later than 24 hours."

The above-noted decision was followed by a Division Bench of this Court in Muhammad Younus v. The Province of Sind (P L D 1973 Kar. 694), and reliance was also placed upon an earlier decision of a Division Bench of this Court in Liaquat Ali v. Government of Sind (P L D 1973 Kar. 78). The learned Advocate for the petitioner has placed reliance on a decision of a Single Bench of Lahore High Court in Nawab Begum v. The Home Secretary, Government of Punjab, Lahore (P L D 1974 Lah. 344), which is also to the same effect. Then there is a latest case of this Court, though un-reported, namely, Muhammad Hussain v. Government of Sind and another (Criminal Miscellaneous Application No. 1024/75) wherein an order of detention was declared to be without lawful authority on the ground that grounds of detention were supplied to the detenu on the 15th day.

6. However, we may mention the learned Additional Advocate-General contended that this ground has not been taken in the petition and should not be allowed to be urged at this stage. It is correct that this ground has not been taken in the petition but in our view not only the point is obvious but the illegality of the detention is patent on. the face of the record, and we cannot countenance it. However, if this point was taken in the petition it was possible for the respondents to give their explanation as to cause of delay, in supplying the grounds of the detention to the detenu so late. Therefore, in order .to obviate this possibility we did ask the learned Additional Advocate-General whether he could still explain the reasons for the delay in supplying the grounds, particularly when the detenu was detained in Central Prison Karachi where also the order of detention was passed. He frankly admitted that he had none and could find none. Therefore, we have no hesitation in overruling this contention.

7. In the result we allow this petition with costs and declare that the order of detention of Sher Ali Khan is without lawful authority and is of no legal effect and therefore the detenu shall be set at liberty forthwith unless required in some other connection.

S. Q. Petition allowed.

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