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Writ Petition No. 1080 of 1978, decided on 3rd May 1978.

Martial Law Order (C. M. L. A: s)

--- No. 12 [as amended by M. L. O. No. 33] read with Constitution of Pakistan (1973), Art. 199-Preventive detention-Judicial review Cases against petitioner either resulting in conviction before promulgation of Martial Law or pending adjudication or under investigation-Petitioner, as such, not found guilty in any case after promulgation Matrial Law-Cases registered against petitioner after promulgation of Martial Law not indicating his ever having acted in any manner prejudicial to purpose for which Martial Law was proclaimed or to security of Pakistan, etc.-Even otherwise such allegations could not be relied upon for detaining petitioner under C. M. L. A's. Order XII unless petitioner found guilty and sentenced-Finding against petitioner for offences allegedly committed by him being absent, petitioner, held, could not be deemed to have acted in violation of Order XII-Order of detention set aside in circumstances.--[Preventive detention-Criminal trial].

G. Farid Ahmad for Petitioner.

Asi,f Jan Assistant A.-G.

Date of hearing : 30th April 1978.

The petitioner who claims to be a businessman was arrested on 1st of March 1978 and detained under C. M. L. O. 12 read with C. M. L. O. No. 33 for a period of three months. The learned Assistant Advocate-General has produced the relevant record on the basis of which he has been detained in order to restrain him from acting in manner prejudicial to the purpose of which Martial Law has been proclaimed or to the security of Pakistan, the public safety or interests, the defence of Pakistan or any part thereof and the efficient conduct of Martial Law. According to the relevant record the petitioner at present is involved in as many as 28 cases, out of which he was convicted in three, detained in one for a period of one month, acquitted or discharged in twelve while ten of the above-mentioned cases are still pending against him and two are under investigation as yet. The first conviction according to the record was made on 31st of October 1960 under section 406/420, P. P. C. He was detained for a period of one month under Maintenance of Public Order Ordinance on 16th of August, 1968 and sentenced to undergo one year's rigorous imprisonment on 15th of October 1969 for violating Martial Law Order 16-A. Tha last sentence was awarded to him on 5th of July 1971 for a period of three months under sections 392/353, P. P. C. The aforesaid case was, however, registered against him on 4th of November 1970. In almost all the cases registered against him under sections 406/420, P. P. C. he was either acquitted or discharged though two or three of them are still pending against him. The nature of offences alleged to have been committed by him in the pending cases is invariably theft or cheating.

2. The Martial Law was proclaimed on 5th of July 1977 whereas the last

three cases registered against the petitioner on 9-5-1977, 15-8-1977 and

t-11-1977 are under sections 506, 379 and 457/380, respectively. The last two

cases are still under investigation while the third one is pending adjudication.

The cases in which he was found guilty and sentenced or otherwise detained

for a period of one month relate to the period ranging between 1950 and 1970

and the three cases in which he has been involved after the promulgation of

Martial Law are either pending adjudication or under investigation. It

means that the petitioner has not been found guilty in any of the cases after

March 1977. The cases registered against him after the promulgation of

martial Law do not indicate that he has ever acted in any manner prejudicial l

;o the purpose for which Martial Law has been proclaimed or to the

security of Pakistan, etc. Even otherwise if there is such allegation against

him it cannot be relied upon for detaining him under C. M. L. O. No. 12

emended by C. M. L. O. No. 33 unless he is found guilty and sentenced

In the absence of any finding against him for the offences alleged to

have been committed by him it is difficult to believe that he has acted in

violation of C. M. L. O. No. 1.

3. As mentioned above even before 5th of July 1977 when Martial Law was proclaimed the nature of offences alleged to have been committed by him was altogether different from the offence contemplated by C. M. L, O. 12.

4. In view of the above the order of detention passed against the petitioner under C. M. L. O. No. 12 as amended by C. M. L. O. 33 cannot be maintained and the same is hereby set aside. The petition is accepted and the petitioner will be released forthwith if not required in any other case.

s. A. H. Petition accepted.

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