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Constitutional Petition No. 79 of 1974, decided on 12th April 1976.

S. 17-Preventive detention-Allegation against detenu : Helping and assisting a named proclaimed offender to save him from arrest and thereby causing danger to public tranquillity-Allegation, held, can by no stretch of imagination fall under S. 17(1), cl. (a) or (b) Contention that proclaimed offender supplying deadly weapons to persons engaged in subversive activities and being involved in offences of causing bomb explosions, detenu by helping such persons in avoiding arrest himself helped in murder of innocent persons and Magistrate could in circumstances require detenu to furnish security to prevent murder or culpable homicide not amounting to murder, held, far-fetched-Act taken note of by Magistrate being one of helping and assisting proclaimed offenders to avoid arrest, help in avoiding arrest could not amount to causing murder of innocent people Notice served on detenu not even alleging detenu to have intended either to commit murder or culpable homicide not amounting to murder or action being taken for preventing murder or culpable homi cide not amounting to murder, provisions of S. 17, held, not attracted and detention illegal.-[Preventive detention).

Hukam Khan v. The State P L D 1957 Pesh. 147 and Riaz Ahmad Khan v. The Deputy Settlement Commissioner/Additional Settlement Commissioner (Lands) and others P L J 1974 Lah. 407 rel.

Raja Haq Nawaz v. Muhammad Afzal and others P L D 1967 S C 354 and Mir Darya Khan v. Mehra a Khan and others P L D 1974 Kar. 209 distinguished.

Sind Employees' Social Security Institution v. Dr. Mumtaz Ali Taj and another P L D 1975 S C 450 ref.

I. H. B. Hanafi for Petitioner.

Advocate-General for Respondents.

Date of hearing : 18th March 1976.

This is a petition under Article 199 of the Constitution filed by Zikriya son of Agha Muhammad questioning the legality of detention of his brother Nasrullah. The petitioner's case is that on the 1st Octobar, 1974 the Assistant Commissioner, Pishin, issued a notice under section 17 of the Criminal Law (Special Provisions) Ordinance, 1969 (hereinafter called the Ordinance) to the detenu requiring him to attend the Court on the 11^th October 1974 to show cause as to why he should not be required to furnish security in the sum of Rs. 50,000 consisting of two sureties from Tehsil Pishin for three years for good behaviour. The detenu, it is alleged, appeared in Court and denied the allegations made against him and refused to furnish security as required, therefore, the Assistant Commissioner, Pishin, ordered his arrest and detention in sub-Jail, Pishin and the detenu was therefore, arrested and confined in Jail, and has been released on interim bail pursuant to orders of this Court, dated the 1st November 1974 and 2nd November 1974, on furnishing security in the amount of Rs. 50,000 through two sureties for Rs. 25,000 each.

2. Mr. Hanafi, the learned Advocate for the petitioner, contends that the allegations made in the notice on the basis of which the detenu was required to furnish security do not come within the purview of the provisions of section 17 of the Ordinance, and as such, even if the detenu failed to furnish security, as required by the Assistant Commissioner, Pishin, his detention was without lawful authority.

3. In order to appreciate the above contention of the learned Advocate for the petitioner, it is necessary to produce the contents of the notice and they read as follows :

"From the Court of Assistant Commissioner, Pishin.

Notice to respondent Nasrullah son of Agha Mohammad, caste Kakar, resident of Jerani, under section 19 of Ordinance II of 1968.

In the above cited case State v. Bismillah under section 124-A, P. P. C. Bismillah is involved in heinous offence of plotting against the Government, cutting telegraph wires and causing bomb explosions. The said Bismillah has been declared a proclaimed offender. It has been brought to my notice that in order to save him from arrest you are helping and assisting him in this behalf. This act of yours is likely to cause danger to the public tranquillity.

You are hereby called upon through this notice to appear before this Court on 11-10-74, and show cause why security for keeping good behaviour in the sum of Rs. 50,000 consisting of two sureties from Tehsil Pishin for a period of 3 years should not be taken from you.

Given under my hand and seal of this Court, this 1st day of October, 1974.

(Sd.) Assistant Commissioner,

Pishin. "

4. In order to appreciate the contention of the learned counsel for the petitioner that the allegations made against the detenu in the notice are not such as would bring the case within the purview of section 17 of the Ordinance, it will be useful to produce the relevant provisions of section 17 of the Ordinance and they are as follows :

"17. Security for keeping the peace.-(l) Where the Deputy Com missioner-

(a) is satisfied that any person within his District has either a blood feud, or occasioned cause of quarrel likely to blood-shed ; or

(b) is of opinion that it is necessary for purpose of preventing murder, or culpable homicide not amounting to murder, to require a person within his District to execute a bond under this section for keeping the peace, the Deputy Commissioner may order the person to execute a bond with or without sureties (not exceeding two in number), for his good behaviour or for keeping the peace, as the case may be during such period not exceeding three years, as the Deputy Commissioner may fix.

5. The argument of the learned Advocate for the petitioner in support of his above contention is that the security for keeping the peace could be required by the Assistant Commissioner, only if he was satisfied that the detenu has either a blood feud or occasioned cause of quarrel likely to blood shed, or was of the opinion that it is necessary for the purpose of preventing murder or culpable homicide not amounting to murder, and the contents of the notice do not make out such a cage against the petitioner and therefore, the notice is illegal and, in consequence of non-compliance of such a notice, the detenu could not be detained in prison.

6. However, the learned Advocate-General for Baluchistan, who is re presenting the respondents, has contended that the allegations made against the detenu in the notice do bring the case within the purview of section 17 of the Ordinance and his further contention is that the petition is premature as after the detenu had shown cause, an enquiry had to be conducted by the Assistant Commissioner, Pishin, in accordance with the provisions of section 19 of the Ordinance, and therefore, the Assistant Commissioner would have passed an order giving reasons for making such an order and if the detenu was aggrieved by such an order he could approach this Court. I shall therefore, examine the contents of the notice in order to find out whether the allegations made against the detenu in the notice served upon him attract the provisions of section 17 of the Ordinance or not.

7. The allegation against the detenu was that in order to save Bismillah from arrest he was helping and assisting him in that behalf and that this act of the detenu was likely to cause danger to public tranquillity. It is alleged against Bismillah that he is involved in heinous offences of plotting against the Government, cutting telegraph wires and causing bomb explosions and that he has been declared a proclaimed offender. Therefore, it will be seen that the only allegation made against the detenu was that he was helping and assisting Bismillah to save him from arrest and it is said that this act of his is likely to cause danger to public tranquillity. But these allegations by any stretch of imagination cannot be said to fall under clause (a) or (b) of subsection (1) of section 17 of the Ordinance.

8. The learned Advocate-General urged that, the case falls under clause (b) of section 17 (1) of the Ordinance as according to him Bismillah is supply ing deadly weapons to those who are engaged in subversive activities and he is also involved in offences of causing bomb explosions and therefore, the: detenu, by helping Bismillah in avoiding his arrest is himself helping in the murder of innocent people by causing bomb explosions and therefore, in order to prevent murder or culpable homicide not amounting to murder, the Assistant Commissioner could require the detenu to furnish security. The argument is far-fetched for the allegation against detenu to repeat it is that in order to save Bismillah from arrest he (the detenu) was helping and assisting him in that behalf and this allegation is further qualified in the notice with the words 'this act of yours' (detenu's) i9 likely to cause danger to the public tranquillity therefore, the act, which the Assistant Commissioner has taken note of, is of helping and assisting Bismillah to avoid his arrest. By helping Bismillah in avoiding his arrest, he could not be said to be causing murder o innocent people. Therefore none of these allegations could be said to fall under clause (a) or (b) of subsection (1) of section 17.

9. The learned Advocate for the petitioner has placed reliance upon the case of Hukam Khan v. The State (P L D 1957 Pesh. 147) in support of his contention that action under sections 17 and 19 of the ordinance could be taken against a person only if it is necessary for the purposes of preventing him from com mitting murder or culpable homicide not amounting to murder and not otherwise. Although the above cited case is on the application of the pro visions of section 40 of the Frontier Crimes Regulations, but the provisions therein are almost similar to those of section 17 of the Ordinance. In that case the allegations against the detenu were that he was an active worker of Premier Sugar Mills, Mardan and had been inciting the workers to destroy the property of the Mills and it was further alleged that his activities were likely to cause breach of the public peace, and the notice served on the detenu stated that there was imminent breach of peace at his hand which might cause damage to the public interest and administration. While con sidering these allegations it was held by Habibullah, C. J. as he was then (now the Chairman of the Senate of Pakistan) that:

"It will have been noticed that action under section 40 can be taken against a person only, if it is necessary for the purpose of preventing murder or culpable homicide not amounting to murder or the dis semination of sedition and not otherwise. In the present case, there is no allegation, much less any proof that the detenu intended either to commit murder, or culpable homicide not amounting to murder, or was guilty of dissemination of sedition."

In the present case the notice served upon the detenu does not even allege that he intended either to commit murder or culpable homicide not amounting to murder or that the action was being taken against him for preventing murder or culpable homicide not amounting to murder. I am, B therefore, of the opinion that the provisions of section i7 of the Ordinance are not attracted and therefore, tile detenu could not be required to furnish security and in consequence of his failure to furnish the same he could not be detained in prison and as such his detention was illegal.

So far as the second contention of the learned Advocate-General is concerned, it may be pointed out that the petition could not be said to be premature as the detenu was arrested and detained the same date the notice was issued in consequence of non-furnishing of the security. If he had not been so arrested and detained perhaps the argument might have bean one for consideration provided in the notice a case under section 17 was made out.

The learned Advocate-General, in support of his contention that the petition is premature has placed reliance upon two cases, namely, Raja Haq Nawaz v. Mohammad Afzal and others (P L D 1967 S C 354) and Mir Darya Khan v. Mehran Khan and others (P L D 1974 Kar. 209).

In the first case cited by the learned Advocate-General the quashment of proceedings was sought at complaint stage and in this context it was held by Cornelius, C. J. as follows

"Quashment of proceedings at so early a stage gives an unfortunate im pression of stifling of criminal prosecutions, by exercise of an extraordi nary power which is given for the dispensation of complete justice, in the forms provided by law. It is necessary that these cases should be examined further, to ensure that the course of even-handed justice has not been prejudiced."

But in the present case before me liberty of a citizen is involved and the notice served upon the detenu does not even make those allegations for the prevention of which security could be required from the detenu. The second case cited by the learned Advocate-General relates to a case arising out of proceedings before the Election Tribunal and in the context of this case it was held that since no final order was passed by the Tribunal, invoking of writ jurisdiction at interlocutory stage was not permissible. But, again, in the present case if the notice does not even allege those actions in respect where of enquiry could be held and the detenu detained in consequence of non. compliance of such a notice, the Court cannot allow illegal detention and continuance of unwarranted proceeding for which even no foundation is laid. Therefore, both the cases cited by the learned Advocate-General are dis tinguishable.

On the other hand, I may refer to the case of Riaz Ahmed Khan v. The Deputy Settlement Commissioner Additional Settlement Commissioner (Lands) and others (P L J 1974 Lah. 407) wherein Zakiuddin Pal, J. on a similar question raised before him, relying upon the judgment of the Supreme Court in the case of Murree Brewery Company Limited v. Pakistan, observed as follows:

"(4) The next question which requires consideration is as to whether the present writ petition is competent against the mere show-cause notice under section 11 of the Act, as it may be premature because the notice may or may not succeed. In this way the petitioners have remedy before them to raise all the pleas available to them before respondent and since they have got adequate remedy whether the writ petition can be found to be maintainable. According to law where the very jurisdiction of the authority has been challenged and it is established that impugned show-cause notice is ultra vires the provisions of the Act then the availing of adequate remedy by raising pleas before the authority concerned against show-cause notice may be an exercise in futility. It is correct that the High Court ordinarily will not entertain a writ petition when other appropriate remedy is available but this is not a rule of law barring the jurisdiction, but a rule by which the Court regulates its jurisdiction. If an order is attacked on the ground of lack of jurisdiction and it is established that the order or notice, as the case may be, was made without jurisdiction then the writ petition will be maintainable."

The view taken by the Supreme Court in the case of Murree Brewery Company Limited has been followed by it in the case of Sind Employees' Social Security Institution v. Dr. Mumtaz Ali Taj and another (P L D 1975 S C 450), which was under the present Constitution and wherein my Lord Muhammad Gul, J. at pages 456-457 of the report observed as follows :-

"Mr. Sami Ahmad next argued that section 64 of the 1965 Ordinance provides for further appeal to the High Court against the order of Social Security Court "on a substantial question of law". Therefore, even if the ultimate decision by respondent 2 is against the appellant, the latter will have a right of appeal to the High Court which was adequate alternative remedy to preclude interference by the High Court in its writ jurisdiction. On the above argument learned counsel can vassed against interference by this Court even if the proceedings before respondent 2 did not strictly fall within its jurisdiction, more so when the High Court has declined to interfere, in exercise of its discretionary jurisdiction.

On this aspect of the matter, the essential facts are these namely :-

(i) as explained already, respondent 2 having regard to the subject-matter of the "complaint' by respondent 1, had no jurisdiction to entertain it ; and

(ii)

These defects of jurisdiction are apparent on the face of the record which in my opinion would at once attract certiorari jurisdiction of the High Court. I have not the slightest doubt that if respondent 2 proceeds to hear the complaint of respondent I, the proceedings will be wholly without jurisdiction and therefore a nullity. In somewhat similar circumstances in the Murree Brewery Company Ltd. v. Pakistan this Court interfered in proceedings for acquisition of certain properties by the Capital Development Authority although there existed provisions for appeal and review in the statute under which proceedings for the acquisition were initiated."

10. I, therefore, do not find any force in both the contentions of the learned Advocate-General and in the result declare that the notice dated the 1st October 1974 issued to Nasrullah requiring him to furnish security is without lawful authority and of no legal effect. I also declare that the detention of Nasrullah on his failure to furnish security was also without lawful authority.

I may record that the notice served upon the detenu is in Urdu and a copy thereof in Urdu has been annexed to the petition. However, at my request the learned Advocate-General has supplied its English translation and this translation has been reproduced in this judgment.

S. A. H. Petition allowed

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