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Constitutional Petition No. 83 of 1986, decided on 10th August, 1986.

‑‑‑S. 3‑‑Criminal Procedure Code (V. of 1898), S. 54‑‑Detention‑ Expression "as soon as may be"‑‑Construction and import‑‑To sustain detention grounds of detention to be furnished by detaining authority as soon as may be, and grounds should not be vague as to lack material particulars and should have nexus with material which was placed before detaining authority‑‑Expression 'as soon as may be' to be construed with reference to 'facts of each case‑‑No hard and fast rules as to period with reference to said expression could be prescribed or .fixed‑‑Expression as soon 'as may be' did not admit any delay on part of detaining authority in communicating grounds of detention to a detenu which it‑could avoid.‑‑[Interpretation of statutes].

Moulvi Ghulam Ullah Khan v. District Magistrate, Campbellpur, PLD 1967 Pesh. 195; Abrar Hussain Khan and 2 others v. The State 1981 P Cr. L J 738; Sikandar Hayat v. Azad Government PLD. 1978 S C (A J & K), 12; Raja Muhammad Hanif Khan Advocate v. Azad Government of J & K and another 1981 P Cr. L J 757; Miss Benazeer Bhutto v. District Magistrate, Karachi, 1979 P Cr. L J 62; The Government of East Pakistan v. Mrs. Rowshan Bijaya Shaukat Ali Khan P L D 1966 S C 286; Hakim Khan v. Government of Sind through the Home Secretary, Karachi and another P L D 1976 Kar. 448 and Muhammad Mueen v. The District Magistrate Sahiwal and 2 others P L D 1979 Lah. 363 ref.

----S. 3‑-Constitution of Pakistan (1973), Art. 10 (5), Detention‑‑A distinction is drawn between grounds and facts on which grounds based under Art.10 (cl.5), Constitution of Pakistan (1973)‑‑Detaining authority, held, was duty bound to convey grounds within fifteen days but might refuse to disclose those facts, disclosure of which it considered against public interest.

‑‑‑S. 3‑-Criminal Procedure Code (V of 1898), S.54‑‑Constitution of Pakistan (1973), Arts. 10(5) & 199‑‑Detention‑‑Detention of detenus ordered in pursuance of recommendations of Board constituted under Art. 10 of Constitution‑ ‑infirmity, if any, in respect of original detention, held, could not vitiate detention‑‑Provisions of Art.10 of Constitution, provided an alternate adequate remedy in form of Board, opinion of which could not be overlooked by High Court unless some compelling reasons existed.

‑‑‑--S. 3‑‑Criminal Procedure Code (V of 1898), S.54‑-Detention‑‑Provision of S.54, Criminal Procedure Code, though could not justify detention of a person yet it might justify initial arrest provided Police Officer acts bona fidely and anyone or more facts mentioned in S.54, Cr.P.C. were present.

Muhammad Shafi v. Muhammad Boota and another P L D 1975 Lah. 729 and Nazir Ahmed alias Jeera Guddi v. The State 1970 SCMR 7 ref.

Tahir Muhammad Khan for Appellant.

Advocate‑General for Respondents.

Date of hearing: 6th August, 1986.

The petitioner is a close relative of the two detenus Muhammad Ayub son of Ali Hussain and Abdullah son of Moosa, by caste Hazara and has filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as the 'Constitution') challenging the above detention. The brief facts leading to the filing, of the above petition are that the detenus alongwith a number of other Afghan nationals entered into Pakistan through Badini in District Zhob on or about 25th April, 1986. They were arrested according to the averment in the petition by the police whereas according to the secret report No.3205/55‑C/CI dated 15th April, 1986, eleven Afghan Askars i.e. belonging to Afghan Army including the two detenus were intercepted by the Inter‑Services Intelligence Field Detachment at Zhob while crossing into Pakistan through Qamar ud Din Karez from Afghanistan and they were suspected to be KHAD agents. The detenus applied bail before the Assistant Commissioner, Zhob which was declined. Thereafter, they made an application before the Sessions Judge, Loralai at Quetta (Criminal Bail No of 1986) and they were admitted to bail by an order, dated 19th June, 1986. However, when the warrants of release were sent to the Superintendent. District Jail, Quetta, they were not released on the plea that they were detained inter alia under the Maintenance of Public Order Ordinance. The petitioner has produced a copy of the warrant of release in respect of detenu Muhammad Ayub, which contains the following endorsement on the back of it (Annexure 'D' at page 21) of the Superintendent, District Jail, Quetta:‑

The petitioner has, therefore, filed the present petition.

2. In support of the above petition, Mr. Tahir Muhammad Khan, learned counsel for the detenus has urged as follows:‑

(i) That the detenus were neither served with the order of detention, nor the grounds within fifteen days and, therefore, the detention is illegal;

(ii) That under Article 10 Part II containing the Fundamental Rights and Principles of Policy of the Constitution, the detaining authority may refuse the disclosure of facts which such authority considers to be against the public interest, but is bound to serve the grounds and since no grounds were served, the detention is illegal; and

(iii) That the detenus could not have been detained under section 54 of the Code of Criminal Procedure referred to in the above‑quoted endorsement of the Superintendent, District Jail, Quetta, on the back side of the warrants of release.

On the other hand, Mr. Yaqub Khan, learned Advocate‑General has urged as follows:‑-

(i) That since the detenus belong to Afghan Army and were suspected as agents of KHAD, the detaining authority acted in good faith in detaining the said detenus; and

(ii) That even otherwise, the detenus were produced before the Board constituted under the aforesaid Article 10 of the Constitution comprising of three learned Judges of this Court and the said detenus have been detained on the basis of the opinion of the said Board, dated 3rd August, 1986 before which, the said detenus were produced and, therefore, their detention is lawful.

3. In furtherance of the above submissions, Mr. Tahir Muhammad Khan, learned counsel for the detenus has referred to the following judgments:--

(i) Moulvi Ghulam Ullah Khan v. District Magistrate, Cambellpur, reported in P L D 1967 Pesh. 195, in which, a Division Bench of the erstwhile High Court of West Pakistan, Peshawar Bench held that an order under section 5(l) directing the petitioner not to make any speech or issue statement to press without communicating the grounds, was illegal. It was further held that the expression "as soon as may be" occurring in section 5.(5) of the West Pakistan Maintenance of Public Order Ordinance 1960 can be construed as enjoining the Government to serve the grounds not later than 24 hours.

(ii) Abrar Hussain Khan and 2 others v. The State reported in 1981 P Cr. L J 738. In the above case, a Division Bench of the Azad Jammu and Kashmir High Court while‑ construing sections 3(2) and (6) of the Azad Jammu and Kashmir Maintenance of Public Order Ordinance 1980, held that if the grounds of detention are not communicated to the detenu within maximum period of fifteen days, the detention becomes illegal on account of violation of the above mandatory requirement. It was further held that if the grounds of detention are not consistent with the purpose of the Constitution and the Maintenance of Public Order Ordinance and are vague or indefinite or lack necessary particulars, they are not adequate grounds in the eye of law. it was also pointed out that unless the grounds are .conveyed to the detenu, he can not make an effective representation in terms of the above Ordinance. The case of Sikandar Hayat v. Azad Government, reported in P L D 1978 S C (A J & K) 12, was referred to point out that seven days period was considered reasonable time for conveying the grounds.

(iii) Raja Muhammad Hanif Khan, Advocate v. Azad Government of Jammu and Kashmir and' another, reported in 1981 P Cr. L J 757, in which, the learned Acting Chief Justice of the Azad Jammu and Kashmir High Court while construing Article‑4(2)(5) of the Azad Jammu and Kashmir Interim Constitution of 1974 and section 3 of the Azad Jammu and Kashmir Maintenance of Public Order Ordinance held that the period of fifteen days fixed in subsection (6) of section 3 ok the Ordinance, is ultra vires of the Constitution wherein under Article 4 of the Interim Constitution the phrase as soon as may be has been employed. It was also held that since the detenu was not conveyed tile grounds of detention, the detention was illegal.

(iv) Miss Benazeer Bhutto v. District Magistrate, Karachi, reported in 1979 P Cr. L J 62. In the above case, a Division Bench of the Sind High Court, to which one of us (Mr. Justice Ajmal Mian, Actg. C.J.) was a party, held that the expression 'as soon as may be used in subsection (5) of section .5 of the Sind Maintenance of Public Order Ordinance, 1960 does not justify an un‑explained delay of six days in furnishing the grounds of detention and, therefore the above delay renders the detention without lawful authority it was also held that since the grounds of detention v1pre vague and were not such on the basis of which an effective representation could be made by the detenu, the same, rendered the detention illegal and its further extension.

(v) The Government of East Pakistan v. Mrs. Rowsban Bijaya Shaukat Ali Khan, reported in P L. D 1966 S C 286 in which, the Honourable Supreme Court while construing section 41 of the East Pakistan Public Safety Ordinance, 1958 held that burden lies on an arresting officer to justify the arrest by revealing the grounds to satisfy judicial conscience". It was further held that since no grounds were revealed, the arrest was bad from the very inception. It was also held while construing Article 6 of the Constitution of Pakistan, 1962 read with Fundamental Right 2 (5) that the communication of grounds to detenu should be such as to afford reasonable opportunity to him to meet the allegations.

(vi) Hakim Khan v. Government of Sind through the Home Secretary, Karachi and another, reported in P L D 1876 Kar. 448. In the above case, a Division Bench of the erstwhile High Court of Sind and Baluchistan while construing section 3(6) of the West Pakistan Maintenance of Public Order Ordinance, 1960 held that the order of detention of the detaining authority becomes illegal and without lawful authority if the grounds are not furnished by the detaining authority as soon as possible in terms of the above section. It was further held that though no ground was taken in the Writ Petition that the grounds of detention were not furnished, but since the above point was so obvious, it can be allowed to he urged at the stage of hearing.

(vii) Muhammad Mueen v. The District Magistrate, Sahiwal and 2 others reported in P L D 1979 Lah. 363, in which, a learned Single Judge of the Lahore High Court held that the complaints on the basis of which the detention order was passed by the District Magistrate were not before him for perusal and consideration, therefore, the order of detention was illegal.

4. There cannot be any cavil to the propositions of law propounded in the above‑cited judgments that in order to sustain an order of detention under the West Pakistan Maintenance of Public Order Ordinance, 1960, the detaining authority should furnish the grounds of detention to the detenu "as soon as may be" which expression now stands substituted by the‑words "within fifteen days" in clause (5) of Article 10 of the Constitution by virtue of Constitution (Third Amendment), Act, 1975 (22 of 1975) and that the grounds should not be vague as to lack material particulars and they should have nexus with the material which was placed before the detaining authority. The expression "as soon as may be" has been construed by the various superior. Courts with reference to the facts of each case. In the above‑quoted Peshawar case of 1967, a period of 24 hours was considered as deadline for furnishing the grounds, whereas, in other cases, a longer period was considered as reasonable period. In our view, no hard and fast rules as to the period with reference to the above expression "as soon as g may be" can be prescribed or fixed. It will depend on the facts, and circumstances of each case. If the detention period is seven days, the detaining authority cannot take six days to furnish the grounds, but if the detaining period is three months, six days period may be a reasonable period, if it can be justified on the basis of the circumstances of the case. It. will suffice to observe that the above expression "as soon as may be" does not admit any delay on the part of the detaining authority in communicating the grounds of detention to a detenu, which it can avoid.

In the instant case, it is an admitted position that the detenus were not conveyed the grounds of detention. However, learned Advocate‑General has relied upon the proviso to subsection (6) of section 3 which entitles a detaining authority to refuse to disclose the grounds, if it was against the public interest. On the other hand, Mr. Tahir Muhammad Khan, learned counsel for the detenus has pointed out that under clause (5) of the Article 10 of Part If of the Constitution containing the Fundamental Rights and Principles of Policy, a distinction has been made between the grounds and the facts and that the detaining authority is bound to disclose the grounds, but may refuse the disclosure of the facts. It may be advantageous to reproduce the above clause (5) of the above Article, which reads as follows:‑

"(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall within fifteen days from such detention, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order;

'Provided that the authority making any such order may refuse to disclose facts which such authority considers it to be against the public interest to disclose."

A plain reading of the above clause indicates that if a person is detained in pursuance of an order made under any law providing for preventive detention, the detaining authority is obliged to communicate the detenu within fifteen days the grounds on which the order has been made and to provide the detenu an earliest opportunity of making a representation. Furthermore, the proviso to the above clause entitles the detaining authority to refuse to disclose the facts which such authority considers it to be against the public interest to disclose. We are inclined to hold that under the above clause (5) a distinction has been drawn between the grounds and the facts. on which, the grounds are based. A detaining authority is duty bound to convey the grounds within fifteen days, but may refuse to disclose such facts, the disclosure of which, it considers against the public interest. It may also be pointed out that the detaining authority is entitled to withhold the disclosure of only those facts and not all facts, the disclosure of which it considers to be against the public interest.

5. In the present case, the detenus are now detained in pursuance of the opinion given by the Board constituted under the above Article 10 of the Constitution, which comprises of as pointed out hereinabove, three learned Judges of this Court. It will suffice to quote the opinion dated 3rd August, 1986 pertaining to Abdullah son of Moosa, as the other opinion pertaining to other detenu Muhammad Ayub is identical. The above opinion reads as follows:‑-

The detenu is before us. He has been heard. He states that he was detained by the Afghan Government in Jail for 4 months and then he was let out where after he came over to Pakistan. He is a Afghan National. He is a young man. The Home Department state that his interrogation reveals that he is a KHAD agent which the detenu denies. However, a certificate under clause (6) of Article 10 of the Constitution has been furnished by the Home Department. We are, therefore, of the view that there are sufficient grounds for his further detention. He has no family in Pakistan, hence no order for subsistence allowance. He is detained at Quetta where he should continue to be detained.

Dated: 3‑8-1986. (Sd.)

Justice Nazir Ahmad Bhatti

Chairman.

(Sd.)

Justice Munawar Ahmed Mirza,

Member.

(Sd.)

Justice Mir Hazar Khan Khoso

Member.

In our view, since the present detention of the detenus in question is in pursuance of the recommendations of the Board, the infirmity if any, in respect of the original detention cannot vitiate the present detention. It may be stated that the learned Advocate‑General has placed the record of the case before us, which inter alia contains the above secret report, dated 15th April, 1986 of the Inter‑Services Intelligence Field Detachment, which indicates that, 'Inter alia the present detenus are Afghan Askars and were suspected to be KHAD agents. The detenus have not denied the fact‑ that they are Askars i.e. they belong to the Afghan Army. However, Mr. Tahir Muhammad Khan has urged that they belong to Reserve Afghan Army. This Court cannot be unmindful of the fact that a large number of saboteurs are entering into Pakistan in disguise of Afghan refugees and are indulging in sabotage activities. There seems to be no plausible motive on the part of the detaining authority to detain the present detenus and to allow lacs of Afghan refugees to enter into Pakistan and to live peacefully. The above Article 10 of the Constitution has provided an alternate adequate remedy in the form of Board, the opinion of which, cannot be overlooked by this Court, unless there are some compelling reasons. In this regard, it may be pertinent to quote a passage from an un‑reported judgment, dated 23rd April, 1986 given by this Division Bench in the case of Saadullah v. Secretary, Home Department, Government of Baluchistan and another (Constitutional Petition No.25 of 1986), which reads as follows:‑-

"The above‑quoted passage indicates that the proceedings before the Board are quasi‑judicial nature and amenable to judicial review by the superior Courts, but it does not necessarily follow that the High Court can easily overlook the opinion given by the Board. The object of constituting a Board comprising of three learned Judges of this Court in terms of above sub‑clause (ii) of Explanation I to clause (4) of Article 10 of the Constitution of Islamic Republic of Pakistan, 1973 is to provide an alternate adequate remedy to a detenu, in case detention is for a period of more than 3 months, the High Court, therefore, will be reluctant to entertain a constitutional writ petition for reviewing of an opinion of the Board in the absence of compelling reasons."

6. Adverting to Mr. Tahir Muhammad Khan's contention that the detenus cannot be detained under section 54 of the Code of Criminal Procedure, it may be observed that the above section empowers any Police Officer to arrest any person without an order from a Magistrate and without a warrant of arrest, for anyone or more reasons mentioned in paras. 1 to 9. In furtherance of the above submission, he has referred to the following cases: ‑

(i) Muhammad Shafi v. Muhammad Boots and another, reported in PLD 1975 Lah. 729, in which, the learned Chief Justice of the Lahore High Court while construing the expression "reasonable suspicion" held that the reasonable suspicion‑ must be bona fide belief and should not be a vague surmise and that the Police Officer cannot arrest at his own sweet choice and will.

(ii) Nazir Ahmed alias Jeera Guddi v. The State reported in 1970 SCMR 7. In the above case, the Honourable Supreme Court while refusing leave against the judgment of the Lahore High Court pointed out that under section 54 of the Code of Criminal Procedure a Police Officer may arrest any person without a warrant. who has been involved in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been so concerned.

7. It is true that the above section 54 of the Code of Criminal Procedure cannot justify the detention of a person, but it may justify the initial arrest provided the Police Officer acts bona fidely and anyone or more facts mentioned in the various paras of the above section are present. In our view, the above section though referred to in the above‑quoted endorsement on the back of warrant of release, has no relevancy for the purpose of examining the legality of the detention. Since we have held that the detention of the present detenus is in pursuance of the above‑quoted opinion of the Board, the above contention also loses any relevancy.

8. For the aforesaid reasons, we dismiss the above petition, but there shall be no order as to costs.

M.Y.H. Petition dismissed.

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