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Constitutional Petitions Nos. D-77 and B-79 of 1987, decided on 29th March, 1987.
---S. 3--Detention--Grounds--What is to be seen, is whether material before detaining Authority was such upon which a reasonable person would have come to conclusion that detenu should be detained under S.3 of Ordinance--Unless it was established from material placed before detaining Authority that a person was acting in a manner which was prejudicial to public safety or maintenance of public order and detaining Authority was satisfied that with a view to preventing such person from so acting, it was necessary to order his detention in jail, detaining Authority would not be justified in passing an order under section 3 of the Ordinance--One or two incidents could not bring detenus' case within purview of S.3, howsoever serious or objectionable incidents might be--Allegation against a person must be such as might furnish a ground for a reasonable person to believe that if such person was allowed to remain at large his activities would be prejudicial to good order.
---S.3--Detention--Grounds--Mere pendency of only one case against a person on whatever charges, held, could not by itself constitute a ground for his preventive detention under Ordinance, but if independent grounds existed for such action then mere fact that one of grounds related to charges in connection with which a case was pending against him in a Court of law, could not defeat such action- Such action depended upon facts of each case.
---S. 3--Detention--Order of detention based on confidential and secret police reports which contained allegations that detenu had raised objectionable and ante-State slogans thereby creating hatred and ill-will between various classes of public and same was likely to create law and order situation--Detaining Authority also taking into consideration a case pending against accused detenu in a Court of law but failing to apply its mind whether material placed before him was sufficient to bring detenu's case within purview of S.3 of Ordinance--Held, detaining authority was not justified in proceeding against detenu on secret police reports despite there being a case -:70.nst them pending in Court of law--Order of detention declared to be without lawful authority and detenu set at liberty in circumstances.
Liaquat Ali v. .Government of Sind P L D 1973 Kar. 78; Ghulam Jilani v. Government of West Pakistan P L D 1967 S C 373; Abdul Baqi Baluch v. Government of Pakistan P L D 1968 S C 313; Government of West Pakistan v. Begum Shorish I(ashmiri P L D 1969 S C 14 and Government of West Pakistan v. Haider Bux Jatoi P L D 1969 S C 210 rel.
Mairaj Muhammad Khan v. Government of West Pakistan P L D 1966 Kar.282 ref.
Rashid A. Rizvi and Sabihuddin Ahmed for Petitioner.
A.A. Mohammedally, A.A.-G for Respondents.
Date of hearing: 18th March, 1987.
, J.--These two petitions which have been filed by the same petitioner arise from detention orders separately passes' by the Government of Sind through Secretary, Home Department against detenus Sadham Chand and Hashmat Mal, detaining them for a period of sixty days with effect from 7-2-19 8 - under section 3 of the Sind Maintenance of Public Order Ordina6ce, 1960 (hereinafter referred to as "the Ordinance"). These petitions were allowed by us by short orders, reasons for which were to be recorded later. The reasons are as follows:-
According to the averments made in the petitions, an F.I.R. was registered on 13-12-1986 at police station Mirpur Mathelo against the two detenus, alleging that on 15-10-1986 when some T.V. Artists were giving performance at a function arranged in honour of a delegation from India the detenus alongwith some others raised objectionable and anti-Government slogans. A case under section 124-A, P.P.C. was registered against the detenus who were later arrested on 6-1-1987. Thereafter bail application were moved by the detenus in the Court of Sessions at Sukkur. A news item also appeared in the Press in connection with the same the next day. Thereafter, impugned orders were issued on 8-1-1987 against the detenus by the respondent No.l detaining the detenus in custody for a period of thirty days. The grounds of detention furnished to the petitioners, copies of which have been filed with these petitions, read as follows:-
"MEMO OF GROUNDS OF DETENTION.
1) That you Sadham Chand alias Shadmano Mal s/o Gokal Mal Hindu No Town Pano Akil District Sukkur have been detained for a period of (Thirty) days under the provisions of section,3(1) of Sind Maintenance of Public Order Ordinance 1960 under this office detention order No.JB/(AQ/-97 dated 8th January, 1987 on the following grounds:
(2) That you during agitation of 14th August, 1986 delivered objectionable speech in the Jalsa held at Pano Akil and that you were sent up by Pano Akil Police under section 188,
P. P. C.
(3) That it has been reported that you on 15-10-1986 during the course of Mela held at Shadani Darbar Village Hayat. Pitafi Taluka Mirpur Mathelo District Sukkur at the time of musical concert raised anti-State slogans and acted in a manner prejudicial to public safety and the maintenance of public order.
(4) That a case crime No.173/86 under section 124-A, P.P.C. has been registered at Police Station Mirpur Mathelo against you.
(5) That you are instigating the public and thereby creating ill feelings and hatred amongst the masses, resulting in the erruption of law and order situation which warrants for taking immediate action against you for your detention in custody to prevent you from indulging in such acts.
(6) That above grounds of your detention are being communicated to you as required under the provisions- of Sind Maintenance of Public Order Ordinance, 1960.
(7) You may make representations against this order in accordance with the provisions of the Sind Maintenance of Public Order Ordinance, 1960.
(Sd.)
(SHAUKAT USMAN)
DISTT. MAG SUKKUR.
Thereafter, the petitioner who is cousin of the detenus challenged the orders of the first respondent through the present petitions. However, during the pendency of the petitions the period of detention of the detenus expired, but fresh orders of their detention were issued on 5-2-1987, ordering their detention in jail for a further period of sixty days with effect from 7-2-1987. The fresh orders of detention read as follows:-
"GOVERNMENT OF SIND HOME DEPARTMENT.
Karachi, dated the 5th February, 1987..
No. VII (288) BOJ/86: WHEREAS the Government of Sind of the opinion with respect of Sadham Chand alias Shadmano Mal s/o Gokalmal Hindu No Pano Akil that for the purpose of preventing him from acting in a manner prejudicial to the public safety and maintenance of public order, it is necessary to take action against him.
NOW, THEREFORE, in exercise of the powers vested in it under subsection (1) of section 3 of the Sind Maintenanqe of Public Order Ordinance 1960 the Government of Sind are pleased to order that the said Sadham Chand alias Shadmano Mal be detained for a period of 60 days with effect from 7-2-1987 at Central Prison Karachi.
SECRETARY TO GOVT. OF SIND HOME DEPARTMENT"
Fresh grounds of detention were also supplied to the detenus which read as follows:-
"GROUNDS OF ORDER
(1) Confidential report indicates that on 15-10-1986 on the occasion of Mela held at Shadani Darbar Hayat Pitafi Taluka. Mirpur Mathelo, District Sukkur he raised objectionable and anti-State slogans, hoisted Jie Sind Flags and thereby created hatred and ill-will between various classes of the people which was likely to create law and order situation.
(2) He is involved in case crime do. 173/86 a/s 124-A, P.P.C., P.S.Mirpur Mathelo.
(3) If he is allowed to come out of Jail he would continue his nefarious and detrimental activities. His activities are prejudicial to, public peace and good order.
(4) He is at liberty to make representation to Government against this order according to law."
Consequently the petitioner was allowed to amend the petitions on his request in view of the fresh orders of detention being passed against the detenus.
The respondents who were represented in these proceedings by Mr. A.A. Mohammedally, A.A.-G., did not file any counter affidavits.
The contention of Mr. Sabihuddin Ahmad, 1Parned counsel for the petitioner, firstly was that the detaining authority had failed to apply its mind properly so as to satisfy itself as to the necessary of passing the detention orders since there was no such material before it on the basis of which the impugned orders could be passed. Hits second contention was that the main ground of detention related to charges of offences under section 124, P.P.C., against the detenus in respect of which a case was already pending against the detenus in a Court of law and consequently, their prosecution in connection with the incident could not be made a ground for detention.
Section 3(1) and (2) of the Ordinance read as under:-
"3.- (1) Government, if satisfied that with a view to preventing any person from acting in any manner prejudicial to public safety or the maintenance of public order, it is necessary so to do, may, by an order in writing, direct the arrest and detention in :such custody as may be prescribed under subsection (7), of such person for such period as may, subject to the other provisions of this section, be specified in the order, and Government, if satisfied that for the aforesaid reasons it is necessary so to do, may extend, from time to time the period of such detention for a period not exceeding six months at a time.
Explanation . . . . . .
(2) If a District Magistrate or any other servant of, Government authorised in this behalf by a general or special order of Government, has reason to believe that any person within his territorial jurisdiction has acted, is acting or is about to act in a manner prejudicial to public safety or the maintenance of public order, he shall forthwith refer the matter to Government for orders."
In Liaquat Ali v. Government of Sind P L D 1973 Kar.78, a D.B. of this Court after following various judgments of the Supreme Court on the point found the following requirements necessary to be satisfied before an order for preventive detention of a person could be passed against him. It. was held therein:
"6. An order of preventive detention has to satisfy the requirements laid down by their Lordships of the Supreme Court in the aforesaid four judgments, that is to say, (i) the Court must be satisfied that the material before the detaining authority was such that a reasonable person would be satisfied as to the necessity for making the order of preventive detention;
(ii) that satisfaction should be established with regard to each of the grounds of detention, and, if one of the grounds is shown to be bad, non-existent or irrelevant, the whole order of detention would be rendered invalid; (iii) that initial burden lies on the detaining authority to show the legality of the preventive detention, and (iv) that the detaining authority must place the whole material, upon which the order of detention is based, before the Court notwithstanding its claim of privilege with respect to any document, the validity of which claim shall be within the competence of the Court to decide. In addition to these requirements, the Court has further to be satisfied, in cases of preventive detention, that the order of detention was made by the authority prescribed in the law relating to preventive detention; that each of the requirements of the law relating to preventive detention should be strictly complied with; that "satisfaction" in fact existed with regard to the necessity of preventive detention of the detenu that the grounds of detention had been furnished within the period prescribed by law, and if no such period is prescribed, then "as soon as may bell, that the grounds of detention should not vague and indefinite and should be comprehensive enough to enable the detenu to make representation against his detention to the authority prescribed by law; that the grounds of detention are within the scope of the law relating to preventive detention, that is, they are not irrelevant to the aim and object of this law and that the detention should not be for extraneous consideration or for purposes which may be attacked on the ground of malice."
Reference was, made by the D.B. to the following cases:
(1) Ghulam Jilani v. Government of West Pakistan P L D 1967 S C 373;
(2) Abdul Baqi Baluch v. Government of Pakistan P L D 1968. S C 313;
(3) Government of West Pakistan v Begum Shorish Kashmiri PLD 1969 S C 14;
(4) Government of West Pakistan v Haider Bux Jatoi P L D 196 S C 210;
Turning to the grounds of detention, what is to be seen is, whether the material before the Home Secretary was such upon which a reasonable person would have come to the conclusion that the two ' detenus should be detained under section 3 of the Ordinance. The first ground shows that there was a confidential report indicating that on 15-10-1986 on the occasion of Mela held at Shadani Darbar Hayat Pitafi, Taluka Mirpur Matholo the detenus raised objectionable and anti-State slogans and hoisted Jie Sind Flag and thereby created hatred and ill-wilt between various clauses of the public and the a same, was likely to 'create law and order situation. In this respect the learned A.A.-G. also produced before us material consisting of secret police reports against the detenus which fully corroborated the allegations made in the grounds of detention given to the detenus. Although this material did indicate that the detenus raised objectionable and anti-State slogans at the Mela held at Shadani Darbar, Hayat Pitaf on 15-10-1986 and hoisted Jie Sind Flags, but even if such allegations against the detenus are assumed to be correct, they still fail to bring their case within the ambit of section 3 of the Ordinance. Unless it is established from the material placed before the detaining authority that a person is acting in a manner which is prejudicial to the public safety or maintenance of public order and the detaining authority is satisfied that with a view to preventing such person from so acting, it is necessary to order his detention in jail, the C detaining authority would not be justified in passing an order under section 3 of the Ordinance. No doubt, if there were reports that such acts had repeatedly been committed by the detenus their case might have fallen within the purview of section 3 of the Ordinance but one or two such incidents could not bring the detenus' case within the purview of section 3 of the Ordinance howsoever serious or objectionable the incidents may be. It is clear from the impugned orders; that this aspect of the case was not considered by the detaining authority. We are consequently of the opinion that the Home Secretary D did not apply his mind to the question whether it was necessary to detain the detenus under the Ordinance.
The next ground relates to the charges of offence under section 124-A, P.P.C. alleged to be committed by the detenus. In this connection -an F.I.R. was lodged at the concerned police station and a case against the detenus has been registered. The argument of Mr. Sabihuddin in this respect, was that since the authorities had already made a choice by proceeding against the detenus in respect of the substantive offence, it was not open to the authorities to use the same charge also as one of the grounds of preventive detention against the detenus. Reference in this respect may once again be made to the case of Liaquat Ali v. Government of Sind, to which we have already referred wherein it was observed as follows: -
"Having made the choice that a person should be prosecuted ' in Court for commission of an offence, it would ordinarily not be open to the authorities to also use this charge as ground of preventive detention under the Ordinance."
However, in the case of Mairaj Muhammad Khan v. Government of West Pakistan P L D 1966 Kar. 282 another D.B. of this Court upheld the preventive detention of Mairaj Muhammad Khan on the basis of charges which were subject-matter of prosecution against him in a Court of law. But in that case there was a reasonable apprehension against the detenu that his remaining at large would create law and order situation. Needless to say that in the present case, -no such material exists against any of the two detenus. The case of Mairaj Muhammad Khan was, however, found to be distinguishable by the D.B. in Liaquat Ali v. Government of Sind. Similar reasons we may, however, make it clear that mere pendency of only one case against a person on whatever charges cannot by itself constitute a ground for his preventive detention under the Ordinance. But if independent grounds exist for such action then the mere fart that one of the grounds relates to charges in connection with which a case is pending against him in a Court of law cannot defeat such action. It, therefore, depends upon the facts of each case. We are nevertheless of the opinion, that the detaining authority; was not justified in proceeding against the detenus in the present'; case despite there being a case against them pending in a Court of law.
The third ground in the detention order shows that if the detenus were allowed to come out of Jail they would continue their nefarious and detrimental activities which would be prejudicial to Public peace and good order. This is an opinion expressed by the detaining authority. However, as we have already pointed out the authority has failed to apply its mind properly in the matter as no such view, can reasonably be taken on the secret reports sent by the, Police which appear to have been placed before the detaining authority. As we have clearly explained above the allegations against a person must be such as may furnish a ground for a reasonable person to believe that if such person is allowed to remain at large his activities would be prejudicial to good order. Since no such ground has been made out from the material either furnished by the authorities to the detenus or placed before the detaining authority, we have no doubt in our minds that the impugned orders are not justified. The respondent in fact, have even failed to meet the petitioner's case by filing a counter-affidavit.
We are consequently of the view that there is no justification in keeping the detenus under preventive detention and the entire action taken against them by the respondents is without lawfully authority. For the aforesaid reasons, these petitions were allowed by us by a short order dated 18-3-1987 and the detenus were set at liberty.
M.Y.H:/D-13/K Petitions allowed.
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