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Writ Petition No. 2702 of 1986, decided on 6th July, 1946.
--‑‑S. 5(1)(a)‑‑Detention‑‑Circumstances of case and perusal of detention order passed by District Magistrate clearly showing that he had not applied his mind‑‑Detenu lost sensation in his left arm as a result of beating given to him during investigation Medical Superintendent directed reference to specialist but nothing stated to have been done‑‑Detention of detenu declared without lawful authority in circumstances.
Muhammad Younas v. Province of Sind P L D 1873 Kar. 694 ref.
Ch. Muhammad Yamin for Petitioner.
Date of hearing: 6th July, 1986.
This constitutional petition has been filed by the father of one Azhar Nazir on the allegation that the latter got his house vacated from a relative of a police official in March, 1986. Within 30 days or so, eight cases were registered against him of the theft, etc. He Was arrested and during the course of investigation he was so mercilessly beaten that his left arm was made useless. On 10‑6‑1986, the District Magistrate, Gujrat passed an order under clause (a) of subsection (1) of section 5 of the West Pakistan Maintenance of Public Order Ordinance, 1460 directing the detention of the aforesaid Azhar Nazir for a period of two months. The detenu was aged 22 years and under the Additional Deputy Commissioner (G), Gujrat was referred to Medical Superintendent, Aziz Bhatti Shaheed Hospital, Gujrat who gave a report which is as follows:‑
"Patient gives H/O weekness (I) upper limb after suspension through both arms.
O/E CNS 1. Cranial nerves Intact.
2. Upper Limb
Right Left
(1) Power Normal No power
(2) Tone Normal Inconclusive
(3) Wasting ‑Ve ‑Ve
(4) Fasiculation ‑Ve ‑Ve
(5) Reflexes All depressed All depressed.
except ticeps.
Sensory System
Right Left.
Normal Patient cannot perceive any form of limb. Any sensation in whole of left upper arm. Findings are in conclusive, so Neuro Physician opinion is requested."
2. The aforementioned constitutional petition has been filed to challenge the order of the District Magistrate, dated 15‑6‑1986 whereby the petitioner's son Azhar Nazir had been ordered to be detained. Learned counsel for the petitioner has contended that the reference to clause (a) of subsection (1) of section 5 of the West Pakistan Maintenance of Public Order Ordinance, 1960 whereby the petitioner's son had been ordered to be detained has no relevance because that provision relates to control of movements of suspected persons. Learned counsel, however, admitted that there is section 3 of the aforesaid Ordinance which authorise detention. It has been pointed out on behalf of the respondent that the order was passed under section 3 of the aforesaid Ordinance. The original order was shown wherein clause (a) has been scored off and section 5 overwritten by the figure 3. The correction is obviously after the issuance of the order of detention, whose photostat copy is placed on record as Annexure 'A' wherein it is clear that the order was passed under section 5. However, reference to a section tray not be of importance. But, the contention of the learned counsel for the petitioner is that the detention order has been passed mala fide as the detenu had got his house vacated from a relative of a police official and within a period of one month or so, numerous cases were registered against him, on the basis of which the Police has got the order of detention passed from the District Magistrate. He submitted that the learned District Magistrate had not applied his mind properly to the facts of the case. It is further contended that a person cannot be ordered to be detained simply because of registration of a case or cases against him. Reliance is placed on Muhammad Younas v. Province of Sind P L D 1973 Kar. 694.
3. I have heard the learned counsel for the petitioner and perused the record. As regards the contention that the petitioners' son was ordered to be detained because the latter had got his house vacated from a relative of the police official, the reply is that "there is no relevancy with the detention order issued in favour of the detenu. There is no question of no relevancy with the detention order because that was the basis alleged of the male fide registration of the cases. The issue has not been denied and the reply is evasive. The registration of the cases is admitted but no explanation has been furnished as to why a peaceful citizen has all of a sudden become a criminal and many cases registered against him. No more need be said in this connection as the cases will be dealt with by the authorities or the Courts concerned in due course. Reliance of the learned counsel for the petitioner on the Division Bench judgment quoted above is apt too. The circumstances of the case and a perusal of the order of the learned District Magistrate dearly show that he had taken no pains to see as to whether the vast power conferred on him to detain a person should be exercised. The detenu has lost sensation in his left arm. The Medical Superintendent directed reference to Specialist. Nothing, it is stated has been done. In, all the circumstances of the case, I am quite clear that the detention of the detenu is without lawful authority. The impugned order is so declared. The detenu shall be released forthwith if not wanted in any other case. The writ petition is allowed, however, without costs.
M.Y.H. Petition allowed.
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