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Before Nasir Aslam Zahid and Ally Madad Shah, JJ
BAHEEDULLAH--Petitioner
versus
GOVERNMENT OF SIND AND ANOTHER-Respondents
Constitutional Petition No. D-546 of 1986, decided on 9th October, 1986.
(a) Constitution of Pakistan (1973)----
--- Art. 10(7)-Preventive detention for acting in a manner pre judicial to public order-Period of eight months and not of twelve months would apply to case of detenu.-[Preventive detention].
(b) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)----
---- S. 3-Constitution of Pakistan (1973), Art. 10(7)-Preventive detention for acting in a manner prejudicial to public order-- Detenu having completed more than eight months in detention when last order was passed under S. 3, such order, held, could not be sustained and was liable to be set aside being in violation of Art. 10(7), Constitution of Pakistan (1973).-[Preventive detention].
Muhammad Ali Shaikh for Petitioner.
Muhammad Ibrahim Memon, Addl. A.-G. for Respondents.
Dates of hearing : 6th and 9th October, 1986.
NASIR ASLAM ZAHID, J.-This petition has been filed by Baheedullah, cousin of detenu Saifullah Khan son of Nobat Khan, who is at present in detention under an order passed by the Home Secretary, Government of Sind, under section 3 of the Maintenance of Public Order Ordinance, 1960. The detention of the detenu has been challenged in this petition. We have heard at length the arguments of Mr. Muhammad Ali Shaikh, learned counsel for the petitioner, and Mr. M. 1. Memon, learned Add]. A.-G. appearing on behalf of the respondents.
2. According to the learned counsel for the petitioner, the detenu was first detained for 90 days under order dated 18-9-1985 passed by D.M.L.A. under M.L.O. 78 for a period of 90 days. The second order of detention was passed under M.L.O. 78 on 17-12-1985 and this second order also directed detention of the detenu for 90 days. On 30-12-1985 Martial Law was lifted from the country by the Proclamation of Withdrawal of Martial Law issued on that date. Constitutional Petition No. D-130 of 1986 was filed in this Court against the continued detention of the detenu under order dated 17-12-1985 passed under M.L.O. 78. This petition was later on withdrawn on 20-3-1986 as having become infructuous, as the period of 90 days, for which detention had been ordered oy order dated 17-12-1985, had expired. On 16-3-1986, an order was passed by the Home Secretary under section 3 of the Maintenance of Public Order Ordinance, 1960, directing detention of the detenu for 90 days. This order dated 16-3-1986 was also challenged by a previous Petition No. CP-D-313 of 1986, which was admitted but later on it was dismissed as infructuous, the period of detention having expired. Thereafter a second order under the Maintenance of the Public Order Ordinance, 1960, was passed by the Home Secretary on 16-6-1986 providing for detention of the detenu for a further period of 90 days. This second order of detention was passed after referring the matter to the Review Board as required under Article 10(4) of the Constitution. The Review Board had reported that according to its opinion there was cause for detention of the detenu for further 90 days. The present petition was then filed challenging the detention of the petitioner. During the pendency of the present constitutional petition, a third order of detention was passed by the Home Secretary and it is dated 14-9-1986 and it provides for detention of the detenu for a further period of 60 days. This third order was also passed after another report by the Review Board. An oral request was made on 30-9-1986 for amend ment of this petition to include a challenge to the fresh orders of detention. In the circumstances of this case, this oral request was granted and an amended memo of petition was filed.
3. The only ground, which is pressed in this petition by Mr. Muhammad Ali Shaikh, learned counsel for petitioner, is that the detehu has been detained under the detention laws for a period exceeding eight months and this is in violation of Article 10(7) of the Constitution. Article 10(7) of the Constitution is as follows :-
"Within a period of twenty-four months commencing on the day of his first detention in pursuance of an order made under a law providing for preventive detention, no person shall be detained in pursuance of any such order for more titan a total period of eight months in the case of a person detained for acting in a manner prejudicial to public order and twelve months in any other case;
Provided that this clause shall not apply to any person who is employed by, or works for, or acts on instructions received from, the enemy, or who is acting or attempting to act in a manner pre judicial to the integrity; security or defence of Pakistan or any part thereof or who commits or attempts to commit any act which amounts to an anti-national activity as defined in a Federal lair or is a member of any association which has for its objects, or which indulges in, any such anti-national activity.
It is contended by Mr. Muhammad Ali Shaikh, learned counsel for the petitioner, that since the restoration of Constitution, the petitioner has been in custody for over nine months arid when the last order dated 14-9-1986 was passed under section 3 of the Maintenance of Public Order Ordinance, 1960, the detenu had already been in continuous detention for ever eight months. According to the learned counsel, the third order of detention could not have been passed being in violation of Article 10(7) of Constitution.
4. The petition is opposed by Mr. M. I. Memon, learned Additional Advocate-General. According to his contention, for the purposes of calculating the period of eight months under Article 10(7) of the Constitu tion, the period upto 16-3-1986 is to be excluded, as that was covered by the order dated 17-12-1985 passed under M.L.O. 78 and for the purposes of attracting Article 10(7) the period of eight months has to commence from 16-3-1986 when the first order under Maintenance of Public Order Ordinance, 1960, was passed and such period of eight months has not yet expired and will expire on 15-11-1986.
5. The decision of this petition, therefore, depends on whether the period covered by the order dated 17-12-1985 passed under MLO 78 is to be excluded or included in the period of eight months provided in Article 10(7) of the Constitution. It may be observed here that the detenu has been detained for acting in a manner prejudicial to public order and as such the period of eight months will apply to his case and not the period of twelve months provided in Article 10(7).
On 29-12-1985, MLO 107 was issued by the Chief Martial Law Administrator, which provided for cancellation of all Martial Law Regulations and Orders on the appointed date, except those mentioned in the Schedule to MLO 107. MLO 78 is not a protected order, as it is not specified in the Schedule to MLO 107. Article 4 of MLO 107, how ever, provided that the cancellation of the Martial Law Regulations and Martial Law Orders did not affect the previous operations. thereof and anything done, action taken, obligation, liability, penalty or punishment incurred, or proceedings commenced would be deemed to have been properly and validly done, taken, incurred or commenced as the case may be. Then Article 270-A(3) of the Constitution provides as follows :---
"All orders made, proceedings taken and acts done by any authority, or by any person, which were made, taken or done, or purported to have been made, taken or done, between the fifth day of July, 1977, and the date on which this Article comes into force, in exercise of the powers derived from any Proclamation President's Orders, Martial Law Regulations, Martial Law Orders, enactments, noti fications, rules, orders or bye-laws, or in execution of or in compliance with any order made or sentence passed by any authority in the exercise or purported exercise of powers as afore said, shall, notwithstanding any judgment of any Court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any Court on any ground what soever."
In view of the provisions of Article 4 of ML.O 107 and Article 270-A(2 of the Constitution, Mr. Muhammad Ali Shaikh submitted that the order dated 17-12-1985 passed under MLO 78 remained in force even after the lifting of Martial Law and cancellation of M.L.O. 78. However, it was submitted that the detenu can take advantage of the period from b 30-12-1985 till 16-3-1986 during which the detenu remained under detention for the purposes of calculating the period of eight month under Article 10(7) of the Constitution. In our view the submission of the learned counsel for the petitioner is correct. The order dated 17-12-1985' was no doubt passed under MLO 78 but Article 10 of the Constitution was revived on 30-12-1985. Article 10(7) refers to detention in pursuance of an order made under a law providing for preventive detention and a perusal of provisions of MLO 78 shows that MLO 78 was a law providing for preventive detention. The entire period from 30-12-1985 upto 16-3-1986 spent in custody by the detenu, was, therefore, spent in detention pursuant to an order made under a law providing for preventive detention. This period will, therefore, also be included for the purposes of computing the period of eight months referred to in Article 10(7) of the Constitution. The learned Additional Advocate-General could not advance any accept able reason for his contention that this period should not be counted for the purposes of computing the period of eight months under Article 10(7). As observed earlier, the contention of the learned Addi tional Advocate-General was that this period was covered by an order passed on 17-12-1985 under MLO 78 and, therefore, it is to be excluded from such computation. There is no force in this submission.
The detenu having completed more than eight months in detention when the last order dated 14-9-1986 was passed under section 3 of the Maintenance of Public Order Ordinance, 1960, the said order dated] 14-9-1986 cannot be sustained and is liable to be set aside being in violation of the specific provisions of Article 10(7) of the Constitution.
6. Constitutional Petition No. D-546 of 1986 is allowed to the extent that the order dated 14-9-1986 passed under section 3 of the Maintenance of Public Order Ordinance, 1960, by the Government of Sind, is declared to have been passed without lawful authority and to be of no legal effect. The detenu Saifullah Khan son of Nobat Khan is ordered to be released forthwith, if not required in any other case.
M.B.A Order accordingly.
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