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Before Sajjad Ali Shah and Nasir Aslam Zahid, JJ
FAKIR IMDAD ALI--Petitioner
versus
DISTRICT MAGISTRATE and 2 others--Respondents
Constitutional Petition No. D-1193 of 1986, decided on 21st January, 1987.
(a) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)--
---S. 3(1)--Criminal Procedure Code (V of 1898), S. 110--Sind Crimes Control Act (IV of 1975), S. 14--Detention--Grounds of detention, mentioned in the order of detention, same as were mentioned in previous proceedings against accused--One order under S. 110, Cr.P.C. and other under S.14 of Sind Crime Control Act were passed and proceedings for quashment in respect of both cases were pending before High Court--Fresh detention order passed on political grounds of instigating public and trying to create ill-feelings and hatred against Government--Detenu asserting existence of animosity which was not denied by Government authorities--Fact that detenu was not a previous convict also not controverted in counter-affidavit filed on behalf of Government--Detenu alleged to be history-sheeter in last case but no particulars about said history-sheet as to time when it was opened supplied--Assertion by detenu that he was quite unaware of history -sheet also not controverted-- Held, order of detention was passed with mala fide intention and without judicious application of mind in which allegations made were vague in nature and "material relied upon inadequate and not enough on basis of which a reasonable person could be satisfied for passing order of detention--Order quashed and declared to have been passed without lawful authority in circumstances.
Liaquat Ali v. Government of Sind P L D 1973 Kar. 78 rel.
Masood Ahmed v. Government of Sind P L D 1976 Kar. 311 ref.
(b) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)--
---S. 3--Detention--Mala fide intention--Mala fide and malice, held, could be established on grounds that there was so much anxiety and persistence on part of Authorities concerned to detain detenu that same material was relied upon by them as was repeatedly relied in previous proceedings against him.
A . H . Lakho for Petitioner. A.A. Mohammad Ally, A.A.-G. for Respondents. Date of hearing: 21st January, 1987.
SAJJAD ALI SHAH, J.-- In this Constitutional Petition, petitioner Fakir Imdad Ali has called in question order of detention passed against him on 24th November, 1986, by Additional Chief Secretary, Government of Sind, Home Department providing detention for a period of 60 days effective from 25-11-1986. This order of detention has been passed under Section 3 (1) of the Sind Maintenance of Public Order Ordinance, 1960. On the back of this order of detention, grounds are specified showing 17 cases. It is further stated therein that since criminal and disorderly activities of the petitioner detenu are detrimental to public peace and he is declared history sheeter of Bundle "A" of P.S. Faiz Ganj, his remaining at large would be prejudicial to public peace and good order.
Section 3 (1) of Sind Maintenance of Public Order Ordinance, 1960, empowers the Government to direct arrest and detention of a person by an order in writing, if the Government is satisfied for doing so with a view to preventing that person from acting in any manner prejudicial to public safety or the maintenance of public order.
There is plethora of case law on this subject and in the case of Liaquat Ali v. Government of Sind (P.L.D. 1973 Karachi 78), a division bench of this High Court after discussing in great length relevant case law on the subject has laid down the following criteria to serve as guidelines:-
(1) 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;
(2) 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;
(3) that initial burden lies on the detaining authority to show the legality of the preventive detention; and
(4) 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. It was further held that in addition to these requirements, the Court has to be further satisfied that the order of detention was made by the authority prescribed in the law and each requirement is to be strictly complied with and the "satisfaction" in fact existed with regard to the necessity of preventive detention and that the grounds of detention are to be furnished within the prescribed time and further the grounds should not be vague and indefinite and should be comprehensive enough to enable the detenu to make representation against his detention. The detention should not be for extraneous consideration or for purposes which may be attacked on the ground of malice."
In the instant case, order of detention has been attacked on the grounds of mala fides and malice and further that grounds specified therein are vague and uncertain and the same do not justify a reasonable person to be satisfied to pass order of detention.
In order to appreciate this criticism, it would be necessary to recapitulate the facts which are detailed in the petition. According to the petitioner, he and his brother Fakir Oshaque All are Zamindars and prominent workers of P.P.P. Their nephew Fakir Iqbal Heesbani was murdered and in that connection efforts were made by them to register case of murder against Police Officers. In order to forestall such attempts by the petitioner and his brother, S.P. Khairpur and S.H.O., P.S. Faiz Ganj with the assistance of Police and Army raided the village of the petitioner on 6-10-1986 in which the houses were searched, looted and set on fire causing irreparable loss and villagers were harassed. Petitioner and his brother sent telegrams to the Governor of Sind, Chief Secretary, Home Department, Commissioner, Sukkur, D.I.G. and D.C. Khairpur against the high-handedness of the Police. Copies of telegrams to this effect have been produced, which are on the record.
On 11-10-1986, petitioner and his brother named above were sitting in the office of their Advocate Mr. Liaquat Ali Shar in Khairpur consulting him for filing cases against S.P. and S.H.O., P.S. Faiz Ganj when the office was raided by A.S.I. Sarfraz and the police party, who misbehaved with the Advocate and took away in custody the petitioner and his brother in spite of the protests by the Advocate. On the same day, on the complaint of Mr. Liaquat Ali Shar, Advocate, the Managing Committee of the District Bar Association, Khairpur passed a resolution condemning the high handedness of the Town Police and A . S . I . Sarfraz for illegally entering into his office and causing arrest of his clients. It is stated in the resolution that copies had been sent to District Magistrate and S.P., Khairpur and also to higher authorities for immediate action. Copy of this resolution is on the record of this petition. On 12-10-1986, petitioner and his brother were handed over by Town Police Khairpur, to Faiz Ganj Police Station and they were produced before the S.D.M. Mirwah on 13-10-1986. S.H.O., P.S. Faiz Ganj submitted reports against them under Section 110/55 Cr.P.C. before S.D.M. Mirwah, who passed order under Section 112 Cr.P.C. and remanded them to judicial custody. Petitioner and his brother filed Misc. Application No.987/86 and 988/86 in the High Court of Sind, Sukkur Bench under Section 561-A Cr. P. C . for quashment of proceedings.
Not only that but S . H . 0 . , P . S . Faiz Ganj on 16-10-1986, filed reports under Section 14 of the Sind Crimes Control Act before S. D. M., Mirwah repeating the same allegations which were levelled in proceedings under Section 110 Cr.P.C. S.D.M., Mirwah issued warrants which were served on petitioner and his brother while they were in Central Jail, Khairpur. Petitioner and his brother challenged proceedings under the Sind Crimes Control Act in the High Court at Sukkur by way of Misc. Applications No.1004 and 1005/86 for quashment under section 561-A Cr.P.C., which are pending.
On 25-10-1986, District Magistrate Khairpur passed orders under section 3 (1) of the Sind Maintenance of Public Order Ordinance, 1960 directing detention of petitioner and his brother for a period of 30 days on the same grounds as mentioned in the proceedings under section 110 Cr.P.C. and under section 14 of the Sind Crimes Control Act mentioned above.
It would be pertinent to mention here at this stage that grounds ' in the order of detention passed by District Magistrate are same as were mentioned in the previous two proceedings one under Section 110 Cr.P.C. and the other under Section 14 of the Sind Crimes Control Act in respect of both of which cases are pending in the High Court for quashment. Secondly order of detention which was passed by the District Magistrate Khairpur on 25-10-1986 mentions 17 cases and in the grounds, it is stated that activities of the detenu are prejudicial to public safety and maintenance of public order as he is instigating the public and trying to create ill feelings and hatred against the present Government as such his activities could not be controlled otherwise without detention in Jail. This clearly shows that since previous two orders were challenged in the High Court, a fresh detention order was passed on political grounds of instigating the public and trying to create ill feelings and hatred) against the Government. Against the order of detention passed by the District Magistrate the present writ petition was filed and while the petition was still pending the date of detention had expired and fresh order of detention was passed this time by the Additional Chief Secretary, Home Department, Government of Sind, which is order dated 24th November, 1986. Petitioner sought permission of the Court to impugn the fresh order and also filed amended memorandum of petition and he was allowed to do so. In the result now the order which is impugned is order of detention passed by the Additional Chief Secretary on the date mentioned above. In this order again reliance has been placed upon the same 17 cases and in the grounds emphasis is on the criminal activities and reliance is not placed on political grounds of instigating the public and creating hatred against the present Government.
Mala fides and malice can be established on the grounds firstly that there is so much anxiety and persistence on the part of the authorities concerned to detain the petitioner that the same material is relied upon repeatedly in proceedings under Section 110, Cr.P.C., B then under section 14 of the Sind Crimes Control Act and thereafter in the order of detention passed by the District Magistrate and lastly in the order of detention passed by the Additional Chief Secretary. Mr. Abdul Hafeez Lakho, Advocate, has stated at bar that in the quashment applications pending in the High Court interim relief has been obtained against the impugned orders. Subsequently at the time of passing of first order of detention by District Magistrate political ground was used and subsequently that was given up and another ground was used. All this is to be viewed in the light of background of animosity with police as is alleged by the petitioner in the memorandum of petition about attempts to file murder case against Police Officers and subsequently complaints against raid in the village. In the High Court in connection with hearing of this petition, only one counter-affidavit has been filed by Mr. Muhammad Ali Shah, Section Officer, Home Department, Government of Sind in which allegations made by the petitioner in the memorandum of petition are not challenged and so far the background of animosity is concerned, allegations are denied for the reasons of want of knowledge and that the proceedings are pending in the High Court. There is no clear cut denial of the existence of background as is alleged by the petitioner. In these circumstances, we are of the view that there ''does exist background of animosity as is asserted by the petitioner because the same is not specifically denied on behalf of the respondents.
Now we take up cases mentioned in the order of detention passed by Additional Chief Secretary which holds the field now. There are total 17 cases, out of which 16 are crimes and the last one is history sheet. These are all old cases which were filed in the years 1956, 64, 65, 66, 69, 70, 73, 77, 82 and the last case is of 1986. So far crime No. 5/86 at serial No. 16 is concerned, it is same case under section 110, Cr.P.C. in respect of which application under section 561-A Cr.P.C. is pending in the High Court in which bail has also been obtained. So far the other cases are concerned, no further particulars are supplied in the Order of detention or grounds in support thereof as to whether they are pending or whether petitioner had been convicted or acquitted. According to the Petitioner, he is not a previous convict and he has not been convicted in any one of I those cases. This fact is not controverted in the counter-affidavit filed on behalf of respondents. If we exclude from consideration case under section 110 Cr.P.C. then the last case on the list would be at Sl. No. 10, which was filed in the . year 1982 for offence under sections 430 and 3 9 P.P.C. In this context, contention was raised on behalf of the Petitioner that there was no material available with the detaining authority to show any close nexus between the crime which was registered in the year 1982 and order of detention was passed on 24-11-1986. In action of preventive detention was justified on the basis of case which was registered in the year 1982 and the cases registered earlier than that, then such order of detention could have been passed in 1982 or immediately after that. In the absence of any other material available on the record and available with the detaining authority, presumption would arise that order of detention was passed mala fidely in the background of animosity alleged by the Petitioner. In support of the proposition stated above, reliance has been placed on behalf of the petitioner on the case of Masood Ahmed v. Government of Sind (P.L.D. 1976 Karachi 311), in which it is held that executive authority. may, on the basis of the past conduct of a person resulting in the commission of offences passed order of detention indicating an apprehension that such conduct would be repeated in the future. But it would be the onus of the detaining authority to show that the past instances do really indicate alongwith, other materials a probability that the detenu would indulge in prejudicial activities if not detained. In the reported case, the last incident took place 16 months before the order of detention as passed, hence it was held that the previous substantive charges cannot be made basis or grounds for detention.
Now we come to the last case which is No. 17 on the list. This is history sheet No. 28 Basta 'Alaf' of P.S. Faiz Ganj. There are no further particulars about this history sheet as to when it was opened. No further details are given in the order of detention or grounds thereof about this history sheet. Petitioner has claimed complete ignorance about this history sheet and has stated that he is E quite unaware of it and has absolutely no knowledge of it. This point is not controverted in the counter-affidavit in which also no further particulars are supplied about this history sheet.,
In the circumstances, it would not be fair on the part of the concerned authorities to rely upon this history sheet about which the detenu has no information or knowledge.
For the facts and reasons stated above, we are of the view that in this case impugned order of detention has been passed without judicial application of mind in which allegations made are vague in nature and material relied upon is inadequate and is not enough, on 1 the basis of which a reasonable person could be satisfied for passing order of detention. We are also of the view that this order of detention has been passed with mala fide intention. We, therefore, quash the impugned order and declare that the same was passed without lawful authority, and is of no legal effect. In the result, this petition is allowed.
M.Y.H./I-10/K Petition accepted.
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