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Criminal Miscellaneous No. 303/H of 1977, decided on 10th June 1977.
Art. 10 read with Criminal Procedure Code (V of 1898), S. 491 Habeas corpus‑Detention order although passed more than 15 days back yet detenu not communicated grounds on which such order passed‑Detention beyond 15 days, held, violative of Art. 10 of Constitution and without lawful authority‑Detenu set at liberty, in circumstances. ‑‑[Habeas corpus].
Kh. Muhammad Sharif for Petitioner.
Altaf Muhammad Khan for the State.
The detenu Parvaiz alias Billu has been produced today by a bailiff of this Court. He is being detained under an order of preventive detention passed on the 28th of April 1977. It is an admitted fact in this case that the grounds of detention have not so far, been furnished to the detenu. The constitu tional requirement is (Article 10 of the Constitution) that a person detained in pursuance of an order made under any law providing for preventive detention should, within fifteen days from such detention, be communicated the grounds on which the order has been made. This constitutional requirement not having been complied with, the detention beyond fifteen days is without lawful authority, apart from other grounds if any, on which this detention could be challenged.
There was, however, some doubt as to whether the decenu had the right to invoke the jurisdiction of this Court for the enforcement of the fundamental right guaranteed under Article 10 of the Constitution. The doubt arose out of the fact that on the 21st of April 1977 a notification was issued by the President in exercise of the powers conferred upon him by clause (2) of Article 233 suspending such right. But this suspension was limited both in point of area and time. The notification applied only to the area where the Armed Forces of Pakistan were acting in aid of civil power and was valid only for the period during which the Armed Forces were so acting. But since the Armed Forces are no longer operating in the Province the right of the citizen and the proceedings in Court stand restored. No other notification suspending such rights and proceedings has been brought to my notice.
1, therefore, allow this petition under section 491, Cr. P. C. and direct the detenu Parvaiz alias Billu to set at liberty forthwith unless he is, required to be detained in connection with any criminal case or under the authority of any lawful order.
Petition allowed.
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