PROVINCE OF SINDH through Secretary, Home Department and others vs ROSHAN DEEN and others

' RANA BHAGWANDAS, J.---Petitioners seek leave to appeal against Sindh High Court judgment dated 20-4-2006 allowing writ petition filed by respondent Roshan Deen against the petitioners as well as other official respondents seeking direction for production of his brother Niaz Muhammad from custody before the Court and to direct release of the detenu forthwith.

2. Precisely stating facts are that detenu Niaz Muhammad son of Noor Ahmed was detained under the Security of Pakistan Act, 1952 for a period of three months vide order dated 29-10-2005 but was not released even after the expiry of said period or its extension under directions from the Federal Review Board.

3. Upon Court notice issued by the High Court Standing counsel for the Federation and Assistant Advocate General for the petitioner Government appeared before the High Court and expressed their ignorance about the unlawful detention of the petitioner. However, Deputy Superintendent Central Prison, Karachi produced before the High Court a copy of letter from Section Officer of the Provincial Home Department, addressed to a section Officer of the Ministry of Interior dated 18-3- 2006 seeking orders regarding further detention or otherwise in respect of the detenu. With reference to this letter Division Bench of the High Court observed that it was evident that without any further order of detention having been passed or the earlier order being extended or without the detenu being required in any other case, he was kept in custody for more than two months to the knowledge of Superintendent Central Prison who consciously chose to seek orders from the Government officials and defied the mandate of the Constitution.

4. Indeed the Constitution of Islamic Republic of Pakistan categorically and candidly guarantees that a citizen cannot be deprived of his liberty except in accordance with law. Taking into account the apathetic attitude of the Provincial Government as well as Federation patently acting contrary to the provisions of the Constitution and the law High Court directed the release of the detenu and awarded compensation at the rate of Rs,5,000 per day for violation of his fundamental right and human dignity. High Court directed that a sum of Rs,410,000.00 would be payable jointly and severally by the Superintendent Central Prison, Section Officer (Judicial II), Home Department, and the Province of Sindh with liberty to the Government to collect the same from the officers for causing loss to it under the relevant rules.

5: We have heard Mr. Akhlaq Ahmad Siddiqui, Advocate-onRecord for the petitioner at quite some length and perused the record.

6. Learned Counsel is unable to cite any provision of law or the Constitution authorizing the Provincial Government or Superintendent Central Jail to detain any detenu for a moment long than the authorized period of detention. In this case it may be observed that Superintendent Central Prison not only glaringly violated the law by confining the detenu in unlawful custody but also thought it proper to seek further instructions for his detention from the relevant quarters which was none of his business. On its part Home Department Government of Sindh acted ill-advisedly by approaching the Federal Government for extension C of time and seeking instructions for further detention or otherwise of the detenu whose period of detention had already expired. Since the authorities concerned clearly acted contrary to the mandate of the Constitution, unauthorized and illegal confinement of Niaz Muhammad cannot be overlooked or ignored by the superior Courts who are the custodians of the Constitution. Indeed the Courts are under a legal duty to defend and preserve the Constitutional guarantees as well as enforce the same. In our view no exception can be taken to the judgment of the High Court which does not suffer from any inherent defect or misconception of law.

7. In our considered opinion Sindh High Court rightly relied upon its earlier Division Bench judgment in Mazharuddin v. The State (1998 PCr.LJ 1035) which was a case of illegal detention by a police officer, relying upon earlier judgments i,e, Government of Sindh and others v. Raisa Farooq and others (1994 SCMR 1283) and Muhammad Siddique v. Province of Sindh (PLD 1992 Karachi 358).

8. For the aforesaid facts, circumstances and reasons we find no merit in this petition which must fail and is hereby dismissed.