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Constitutional Petition No. D‑587 of 1981, decided on 8th July, 1981.

‑‑ S. 3(6)‑Delay in communicating grounds of detention to detenu---- No explanation given for delay in serving grounds of detention on detenu 12 days after passing order of detention‑No explanation put forward even for. delay of 5 days before District Magistrate signed grounds of detention ‑ Order of detention, in circumstances, held, without lawful authority and of no legal consequence.‑[Preventive detention‑Delay].

Hakim Khan v. Government of Sind P L D 1976 Kar. 448 and Miss Benazir Bhutto v. District Magistrate, Karachi 1979 P Cr. L J 62 ref.

Muhammad Ali Shaikh for Petitioner.

Muhammad Ibrahim Memon for Respondents.

Date of hearing: 8th July, 1981.

SAJJAD ALI SHAH, J.‑Petitioner Mst. Maqbool Begum has filed this Constitutional Petition calling in question detention of her husband Muhammad Hanif under the provisions of West Pakistan Maintenance of Public Order Ordinance, 1960. After hearing both the learned counsel on 8‑7‑1981 we have allowed this petition by a short order for reasons to be recorded later which follow now.

It is stated in the petition that the detenu has incurred enmity of Police. He has differences over landed property with a woman who is his neighbour and is running a prostitution den and has influence with police. On that account detenu was arrested in a case under sections 504, 506 P. P. C. and he approached the learned Sessions Judge for bail before arrest. On 10‑6‑1981 after the detenu furnished surety in the Court of Sessions, he was taken away in custody by Latifabad Police and produced before Superintendent of Police who directed that the detenu be kept in custody under order of detention. The petitioner, therefore, filed habeas corpus application under section 491, Cr. P. C. in the High Court in which on 14‑6‑1981 the Court directed issuance of notice to the Advocate‑General. On 14‑6‑1981 the detenu was shifted to Central Prison Hyderabad and was served with order of detention passed by the District Magistrate, Hyderabad under section 3 of West Pakistan Maintenance of Public Order Ordinance, 1960 (hereinafter to be referred as the said Ordinance). By this order the detenu is detained for a period of 30 days, which is issued on 10th June, 1981. When this petition was filed on 15‑6‑1981, about 5 days after the order of detention, the grounds of which had not been communicated to the detenu.

After the admission of the petition subsequently the grounds‑for detention were communicated to the detenu after delay of 12 days. The contention of Mr. Muhammad Ali Shaikh is that the order of detention is not passed in accordance with law‑ and suffers from inherent infirmities. It is further submitted by him that impugned action amounts to colourable exercise of jurisdiction and has been passed with mala fide intention on account of enmity between police and the detenu. It was further submitted that the grounds of detention have been communicated after 12 days which is inordinate delay particularly when the detenu has been detained for a period of 30 days only. The learned counsel has referred us to section 3(6) of the said Ordinance which contemplates that where a detention order has been made the authority making the order shall as soon as may be but not later than 15 days from the date of detention, communicate to such person the grounds on which the order has been made and inform him that he is at liberty to make a representation to the Government against the order and afford him the earliest opportunity of doing so. In this context reliance is placed by the learned counsel on the authorities reported as P L D 1976 Kar. 448 and 1979 P Cr, L J 62. In the first cited case the grounds of detention were communicated on 14tb or 15th day and in the second case the grounds of detention were communicated after delay of 6 days. In both these rulings the orders of detention have been struck down inter alia on the ground that delay in communication of grounds of detention has not been explained by the authorities.

In the instant case Mr. Muhammad Ali Shaikh has submitted that the detenu was detained on 10‑6‑1981 and lodged in Central Prison, Hyderabad and the grounds of detention have been communicated to him in the prison on 22‑6‑1981. Mr. Muhammad Ibrahim Memon, A. A: G., has explained that the grounds of detention appear to have been typed on 14‑6‑1981 and signed by District Magistrate, Hyderabad on 15‑6‑1981 but he could not A further give any explanation as to why the grounds of detention having been signed by the District Magistrate on 15‑6‑1981 were served upon the detenu in prison by the Superintendent of Jail on 22‑6‑1981. The learned A. A: G. very frankly conceded that he has not been able to find any explanation for the delay from 15‑6‑1981 to 22‑6‑1981 in the communication of the orders of detention to the detenu particularly when the District Magistrate sits at Hyderabad and the Central Prison is also situate in Hyderabad. In these circumstances we also find that no explanation has been put forward by the learned A. A.‑G. even for delay before 15‑6‑1981 when the grounds of detention were signed by the District Magistrate which were also after delay of 5 days. No explanation appears from the record. In such c circumstances we declare that the impugned order passed by respondent No. 1 on 10‑6‑1981 under section 3 of the said Ordinance is without lawful authority and of no legal consequence. The detenu shall be released forthwith if not wanted in any other case. The petition is allowed.

R. M. A. Petition allowed.