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Constitutional Petition No. 919 of 1975, decided on 17th September 1975

‑ Ss. 14 & 8 (3) (b) ‑ Preventive detention ‑ Only apprehension expressed by prosecuti6n being petitioner's continuous indulgence in smuggling of charas in case of being allowed to remain at large and there being no way out to prevent him from carrying out such unlawful activity‑No other material available to substantiate such apprehension‑Detenu having been in Jail for more than two months no such genuine apprehension possible‑Order of detention, held, based on speculation without displaying objectivity required by S. 8(3)‑Operation of order, suspended, in circumstances.‑(Preventive detention].

The State v. Haider P L D 1963 Kar. 673 fol..

Muhammad Ishaque Chowdhry v. Noor Mahal Begum P L D 1961 S C 426 distinguished.

Ch. Iftikhar Ahmad for Petitioner.

Z. H. Mirza, A: G. for Respondents,

Date of hearing : 17th September 1975.

.‑‑The detenu was detained for a period of 30 days with effect from 14th June, 1975 vide order passed under section 3 of the Maintenance of Public Order Ordinance, 1960. His detention was challenged in this Curt and during the pendency of the petition another order was passed extending the period of his detention by another 30 days. The petition wag fixed for hearing on 6th August 1975, on which date it was adjourned to the 8th, but on the 6th the detenu was taken from here to the Court of the S. D. M. and an order under section 117(3), Cr. P. C. was passed pursuant to a complaint lodged before him under section 110, Cr. P. C. requiring him to furnish two solvent sureties of Rs. 20,000 each. The petitioner was unable to furnish security and he was remanded to custody. On 8th August, 1975 the order of detention was revoked, but the detenu continued to remain in Jail as he was unable to furnish security. On 23rd August 1975, a report was filed before the S. D. M., Nazimabad under section 14 of the Sind Crimes Control Act, 1975 and on the next date of hearing, that is 25th August 1975, an order was passed under section 8(3) (b) detaining him for a period of 2 months. The proceedings instituted as aforestated as well as this order have been assailed in this petition, but for the present we are concerned only with the order dated 25th August 1975.

2. Ex facie, the order is founded on the report submitted by the Prosecuting Sub‑Inspector, Nazimabad dated 25th August 1975. In that application, only apprehension is expressed that if he is allowed to remain at large he will indulge in smuggling of charas and there is no way out to prevent him from carrying on that unlawful activity. There is no other material to substantiate that apprehension and we fail to see how a genuine apprehension of the kind mentioned in the application could be entertained when the detenu had been in Jail for more than two months. At best, it was only a speculation, to which effect was given to by the S. D. M. without displaying any objectivity in' his order as is required by subsection (3) of section 8 of the Sind Crimes Control Act. In the absence, therefore, of any material to lead to a conclusion as to the immediate measure necessary we would follow respectfully a decision of the Division Bench, of which I was a member, in Writ Petition No. 683/75 and another D. B. case : The State v. Haider (P L D 1963 Kar. 673), in which the orders were set aside. The learned Advocate- General places reliance on another order of the D. B. in Petition No. 1150/73 A in which it was held that inquiry was not necessary but that case was under section 8(2) of the West Pakistan Control of Goondas Ordinance, 1959, in which the language is not the same. In any case, the necessity of inquiry is nothing but to furnish material for the formation of an opinion and it is only in that context that the holding of an inquiry is considered necessary.

3. The learned Advocate‑General next referred to the case of Muhammad Ishaq Chowdhry v. Noor Mahal Begum (P L D 1961 S C 426) and urged that failure to record reasons would not make the order without jurisdiction. This is not the issue before us, as in that case the material was there but the Magistrate had failed to record the order and it was held that it cannot be said that the proceedings were without jurisdiction when there was material to sustain them. This case is thus distinguishable. In the instant case, the S. D. M. has not applied his mind to the issue as to the existence of the immediate measure necessary independently and in this view of the matter it cannot be sustained as it is not in compliance with the provision.

4. For the foregoing reasons, we would suspend the operation of the order. We may, however, observe that this order will not come in the way of the S. D. M. for passing proper order if fresh material is brought before him under section 8(3) (b) of the Sind Crimes Control Act, 1975.

S. A. H. Order suspended.

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