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Writ Petition No. 2105 of 1974, decided on 18th November 1974.
‑‑‑ S. 5(5)‑Petitioner not informed about cider passed debarring him from delivering speech in or outside mosque for a period of 2 months, within statutory period of 15 days, as laid down in subsection (5) of S. 5‑Order, held, of no legal effect and set aside in circumstance.
Qazi Masood Gul v. Government of West Pakistan P L D 1969 Pesh. 50 rel.
Mrs. Habiba Jilani v. The Federation of Pakistan P L D 1974 Lah. 153 distinguished.
Khan Muhammad Yunus Khan for Petitioner.
Mian Abdus Sattar Najjam assisted by Ch. M. Sarwar for the State.
Date of hearing: 18th November 1974.
The validity of the order dated 16th of October 1974 of the Horne Secretary restraining the petition from delivering speeches in mosques or any where outside mosques in the Province of the Punjab for a period of two months and directing him to execute a bond in the sum of Rs. 5,000 with one surety in the like amount to ensure compliance with the said order, has been chal lenged in this writ petition.
2. The order has been passed in exercise of the Government's authority under section 5 of the West Pakistan Maintenance of Public Order Ordinance, 1960.
One of the objections is that the provisions of subsection (5) of section 5 of the Ordinance have not teen fully complied with inasmuch as the petitioner was not informed within 15 days of the passing of the order that he was at liberty to make a representation to the Government against the impugned order.
The learned counsel for the petitioner relies in this behalf on Qazi Masood Gul v. Government of West Pakistan (P L D 1969 Pesh. 50) wherein a Division Bench of the West Pakistan High Court at Peshawar held an order passed under section 3 of the same Ordinance to be invalid on the ground that the person affected by that order bad not been informed that he was at liberty to make representation to the Government as was required by subsection (6) of section 3. The provisions contained in subsection (6) of section 3 being para materia with those contained in subsection (5) of section 5 of the order now in question before me will have to be held invalid on the basis of authority referred to above.
The learned Assistant Advocate‑General however, pointed out that the matter now before this Court is not one of detention whereas in the Peshawar case the person concerned had been detained under section 3 of the Ordinance. Regardless of whether the matter is one of detention or of some other kind of restraint, the question before me is whether the non‑com pliance with the provisions of subsection (5) of section 5 invalidates the order passed under that section. I have no doubt in my mind that if non‑com pliance of subsection (6) of section 3 renders an order passed under that section invalid, the same principle will apply to an order passed under section 5 of the Ordinance. The learned Assistant Advocate‑General has also referred me to Mrs. Habiba Jilani v. The Federation of Pakistan (P L D 1974 Lah. 153) in which a Division Bench of the Lahore High Court has held that the failure of the Review Board to fix a reasonable, allowance for the family of the detenu under clause (8) of Article 10 of the Constitution does not render the order of detention void. In my opinion the present case is distinguishable inasmuch as in the case referred to by the learned Assistant Advocate‑General there was no default on the part of the detaining authority but only on the part of the Review Board and even that fault was such as could be rectified later.
Therefore, I hold that the impugned order is liable to be set aside though only on a technical ground.
3. Accordingly I allow the writ petition and declare the impugned order to be of no legal effect.
Petition allowed.
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