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Constitutional Petition No. D‑986 of 1986, decided on 20th October, 1986.

‑‑‑ S. 3(1)‑‑Constitution of Pakistan (1973), Art. 199‑‑Preventive detention‑‑Detenu charged with criminal cases already granted bail by Court‑‑In one of cases registered against detenu while pending trial before Special Military Court, he was deported from Pakistan against his will and after his return to Pakistan till time of his arrest no material produced by prosecution to prove his activities as prejudicial to public order‑‑If detenue's activities were such as that his being at large was prejudicial to public order, authorities, held, would have acted promptly against him soon after his return to Pakistan‑‑Fact that authorities took more than a month to pass detention order would show that such order was passed without any justification, especially one day after grant of bail by Court‑‑ Detaining authority having failed to apply its mind properly before passing detention order, detenu was ordered to be released from detention.

Ghulam Jilani v. Government of Pakistan P L D 1967 SC 373; Liversidge v. Sir John Auderson LR. 1942 AC 206; P L D 1966 SC 286; Liaquat Ali v. Government of Sind P L D 1973 Kar. 78 and Muhammad Younus v. Province of Sind P L D 1973 Kar. 694 ref.

Abdul Hafeez Lakho for Petitioner.

Muhammad Ibrahim Memon, A.A.‑G. for Respondents.

Date of hearing: 13th October, 1986.

‑‑The petitioner is the sister‑in‑law of detenu Rashid Hussain Rabbani who is being detained at Central Prison, Karachi under the Order of the Additional Chief Secretary Government of Sind, Home Department, passed under section 3(1) of the Sind Maintenance of Public Order Ordinance, 1960.

According to the facts stated by the petitioner, on 8‑2‑1979 the detenu was arrested in a case registered under section 147/148/435/307/302/120‑B, P.P.C., the detenu alongwith other accused persons was tried before Special Military Court which reserved the judgment in the case on 1‑1‑1981. Thereafter the detenu was deported from Pakistan alongwith some other persons. According to the petitioner, the Special Military Court announced the judgment in the case and the detenu was acquitted, but the learned A.A.‑G. has disputed this statement as according to him, a challan has been submitted against the detenu in the Court of Sessions. It may be pointed out that the detenu returned to Pakistan on 10‑4‑1986 and was arrested on 19‑5‑1986. The detenu moved a bail application in the case and he was admitted to bail by this Court on 12‑ 8‑ 1973. He was also arrested in a case under the Passport Act and was released on bail by the Court concerned. In spite of the two orders of bail granted to the detenu in the case filed against him, he was not released and on 13‑8‑1986 a detention order was passed by the Additional Chief Secretary Government of Sind, under section 3 of the Sind Maintenance of Public Order Ordinance, 1960, detaining the detenu for a period of 90 days. The grounds of detention were mentioned as follows:‑

"Source report indicate that he being a swapped prisoner, is a member of terrorist organization namely AZO. In pursuance of this terrorist activities he alongwith his accomplices burnt a bus in Karachi killing 5 persons and injuring so many other passengers. A case F.I.R. 29/79 under section 147/148/149/435/307/302/120‑B, P.P.C. was registered at Aram Bagh Police Station, Karachi on 8‑ 2‑ 1979 and was challaned before the Special Military Court, Karachi. He is also involved in a case F.I.R. No. 534/86 under section 6‑1(a)(c) of the Passports Act at Police Station F.I.A. Passport Cell, Karachi, in view of his past terrorist and subversive activities there is a serious apprehension that if he come out of jail he would repeat the same subversive activities and as such his remaining at large would be prejudicial to public order.

He is at liberty to make a representation to the Government according to Rules:"

3. Counter‑affidavit was filed on behalf of the respondent No.1 wherein, except for the averments that the detenu was being illegally detained by the respondents or that the judgment in the case tried by the Special Military Court had been reserved, the rest of the averments made by the petitioner had not been denied. No counter‑affidavit was filed by the respondent No. 2.

4. The learned A.A.‑G. stated before us that the detenu was arrested in the case registered against him under section 302, P.P.C. but he was not convicted and this case is still pending against him. The other case pending against him is under the Passport Act. These two cases also figure in the grounds of detention on the basis of which it was apprehended that on his being released from jail, the detenu would once again indulge into subversive activities and consequently, his remaining at large would be prejudicial to the public order. However, the learned A.A.‑G. did not place before us the material on the basis of which the detention order was passed although the case was adjourned twice for the purpose. Be that as it may, but the detenu's learned counsel, Mr. Abdul Hafiz Lakho, has now argued that since no allegations were levelled that after the return of the detenu of Pakistan on 10‑4‑1986 and up to the date of his arrest, being 19‑5‑1986, the detenu had indulged in any act prejudicial to the public order, the order of detention was illegal as no reasonable person could have ordered the detention of the detenu under the abovementioned Ordinance of 1960.

5. We find that the contention of Mr. Lakho is not without force. The detenu has been charged with criminal cases in which he has been admitted to bail. In fact the first case was registered against him in 1979. During the pendency of his trial in that case before the Special Military Court, the detenu was deported from Pakistan against his will. However, after his return to Pakistan the detenu remained at large from 10‑4‑1986 to 19‑ 5‑ 1986, i.e. more than a month and thereafter he was detained. During this time, no such act has been alleged against the detenu which could have created apprehension in the mind of the detaining authority that his remaining at large would be prejudicial to public order. No doubt, a case under the Passport Act has been registered against the detenu in 1986, but in that case the detenu has already been enlarged on bail by the Court concerned and he will be standing his trial before such Court. In any case, if the detenu's activities were such that his being at large was prejudicial to public order, then there is no doubt in our minds that authorities concerned would have acted promptly against the detenu soon after his return to Pakistan on 10‑4‑1986. The very fact that it took the authorities more than a month to pass the detention order shows that such order was passed without any justification. Furthermore, we cannot be oblivious of the fact that the order was passed on 13‑8‑1986, that is, a day after the detenu was ordered to be released on bail. All these facts compel us to hold that the detaining authority has failed to apply its mind properly before passing the detention order. For depriving a person of his liberty without a trial, the material before the detaining authority must be such which to a prudent man appears to be reasonable. In Ghulam Jilani v. Government of Pakistan P L D 1967 SC 373, the Supreme Court of Pakistan while making a departure from the rule laid down by the House of Lords in Liversidge v. Sir John Auderson LR 1942 AC 206, that the detaining authority was the Judge of its own satisfaction in regard to detention of a person, held that such action of the detaining authority was not immune to judicial review. The learned counsel for the petitioner has also referred to P L D 1966 SC 286 and the relevant observations at page 313 of the report are as follows:‑

"The subsequent grounds sent by the Government related to the detention order passed by itself. The determination of grounds had to proceed the order of detention and ex hypothesi no such determination had taken place before the Government had applied its mind to the report of the Inspector. This would also be sufficient to invalidate the first arrest and detention in custody, in the circumstances of this case:"

Again at page 317 of the report, it has been observed:‑

"The nature of the prejudicial activities which the detenu is said to have indulged in, in the districts of Dacca, Mymensingh, Bogra, Jessore during the period of time extending from 1957 to 1964, is not at all particularized nor are the illegal activities or even objectives of the alleged secret association, with which the detenu is said to have been associated during that interval of time, specified. It is not possible to infer why the activities of that association were illegal from the material furnished in the grounds. As may have been noticed, a prejudicial act', as defined in the Ordinance, can assume a variety of forms and unless a person is informed as to which of the prejudicial activities out of the so many mentioned in the definition of that terms, he is supposed to have been guilty of, it is impossible for the person concerned to offer any comments in his defence:

In Liaquat Ali v. Government of Sind P L D 1973 Kar. 78, a Division Bench of this Court, on the basis of a number of decisions of the Supreme Court laid the following pre‑conditions before preventive detention of a person could be ordered:‑

"(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 the 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:"

Another decision of this Court which may also be cited on the point, is Muhammad Younus v. Province of Sind P L D 1973 Kar. 694 in which similar observations were made.

6. As earlier pointed out, the pith and substance of the grounds of detention in this case is, that in view of his past terrorist and subversive activities there is serious apprehension that if the detenu come out of jail, he would repeat the same subversive activities and as such his remaining at large would be prejudicial to public order. As already indicated above, only two cases have been mentioned as pending for trial against the detenu. Even if we accept the statement of the learned A.A.‑G. that the challan under section 302, P.P.C. has been filed and he has to face the trial, no material has been placed before us in support of the grounds of detention from which it can be inferred that the detention of the detenu is necessary, particularly when there is not a single instance to show that from 10‑4‑1986 to 19‑5‑1986 the detenu had indulged into any subversive activity.

In view of the aforesaid reasons, we accept this petition and declare the impugned order illegal. The detenu be released forthwith if not required in any other case.

A.A./A‑20/K Petition accepted.

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