MUHAMMAD ANWAR SHEIKH Versus DISTT. MAGISTRATE

1. Muhammad Afzal, hereinafter called the detenu, was detained by the learned District Magistrate, Rawalpindi, under an order passed by him on 28-5-1974, which reads as follows :-

2. "ORDER UNDER SECTION 3 OF THE WEST PAKISTAN MAINTENANCE OF

3. PUBLIC ORDER ORDINANCE, 1960

4. Whereas, I, Hassan Raza Pasha, District Magistrate, Rawalpindi, am satisfied that Muhammad Afzal son of Muhammad Sadiq, caste Sheikh, resident of Mohanpura, Proprietor, Sind Commission Shop, Ganj Mandi, Rawalpindi City is indulging in acts of smuggling which conduct of him is prejudicial to the maintenance of public order ;

5. And whereas, with a view to preventing the said Muhammad Afzal from acting in a manner prejudicial to the public safety and maintenance of public order, it is necessary to detain him ;

6. Now, therefore, in exercise of the powers conferred on me under section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960, read with Government of West Pakistan, Home Department's Notification No. 3-104-H-Spl-I/64, dated 24th of February 1965, I, Hassan Raza Pasha, District Magistrate, Rawalpindi, hereby direct that the said Muhammad Afzal be arrested and detained in the District Jail, Rawalpindi, for a period of 30 days (Thirty days) from the date of the execution of this order."

7. The grounds of detention which were at that time served on the detenu read as follows

"GROUNDS OF DETENTION

(1) You, Muhammad Afzal son of Muhammad Sadiq, Caste Sheikh, resident of Mobanpura, Proprietor, Sind Commission Shop, Ganj Mandi, Rawalpindi City have been detained by the undersigned under section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960, with a view to preventing you from acting in a manner prejudicial to the maintenance of public order in that, you have been indulging in smuggling of foodgrain and that you have further designs to act as such.

(2) That in view of your past activities and the designs you entertain, unless you are detained as aforesaid, there is a danger of your acting in a manner prejudicial to the public safety and maintenance of public order.

(3) That the above grounds for your detention are being communicated to you as required by subsection (6) of section 3 of West Pakistan Maintenance of Public Order Ordinance, 1960, and you are also informed that you are at liberty to make a representation to tae Government of the Punjab against the order of your detention.

(4) A copy of the order is enclosed.

8. (Sd.) (H. R. Pasha),

9. District Magistrate,

10. Rawalpindi."

11. Muhammad Anwar Sheikh brother of the detenu filed the present writ petition under Article 199 of the Islamic Republic of Pakistan contending that the arrest and detention of the detenu was without lawful authority and that the detenu should be directed to be released. The writ petition was admitted on the 3rd June 1974. On that date I passed the following order "1t is argued that neither order nor the grounds of detention provide any material as to why Muhammad Afzal, detenu was being detained and that there is only a general type of allegation which does not contain any specific details or particulars. The point whether in these circumstances, the detention of the detenu was lawful or not require some consideration.

12. Admit. Notice. To come up on the 10th of June 1974.

(2) A Departmental Representative should appear on that date alongwith the relevant record."

13. Probably realising the force of the contentions raised by the learned counsel for the detenu, as recited in the order above reproduced, the learned District Magistrate then served additional grounds of detention on the detenu on 5-6-1974. They read as follows :-

"ADDITIONAL GROUNDS OF DETENTION

(1) You, Muhammad Afzal son of Muhammad Sadiq have been detained by the undersigned under section 3 of the West Pakistan Main?tenance of Public Order Ordinance, 1960, with a view to preventing you from acting in a manner prejudicial to the maintenance of public order on the grounds that you are a hoarder, smuggler and black-marketier of rice, inasmuch as in July 1973, when there was scarcity of rice, in the country, during a special haul-up, 1531 bags of rice stored by you illegally were recovered from your godown, and a case F. I R. No 221, dated 3-7-1973 under section 3/6 Food Stuff Control Act and rule 49 of D. P. R. was registered against you at P. S. `A' Division, Rawalpindi. Further you have your agents in N.-W.-F P. and through them you smuggle foodgrains to Afghanistan at higher rates and you have designs to indulge in such activities in future which conduct of yours is prejudicial to the maintenance of public order.

(2) That in view of your past activities and the designs you entertain, unless you are detained as aforesaid, there is a danger of your acting in a manner prejudicial to the public safety and maintenance of public order.

(3) That the above grounds for your detention be read with the grounds already supplied to you with copy of the order of detention vide No. 349/FlQ. dated 28-5-74 and are be communicated to you as required by subsection (6) of section 3 of West Pakistan Maintenance of Public Order Ordinance, 1900, and you are again informed that you are at liberty to make a representation to the Government of the Punjab against the order of your detention.

14. (Sd.) (H. R. Pasha),

15. District Magistrate,

16. Rawalpindi."

2. It has been contended by the learned counsel for the detenu that neither the grounds originally furnished nor the additional grounds are legally sufficient to warrant the detention of Muhammad Afzal. I find force in this contention. The very action of the learned District Magistrate in issuing the additional grounds shows that the first grounds obviously were vague and indefinite inasmuch as they were not supported by any particulars or details. The additional grounds also, however, did not cure the defect because one of the grounds which is contained in the additional grounds read as follows

17. "Further you have your agents in N.-W. F. P. and through them you smuggle foodgrains to Afghanistan at higher rates and you have designs to indulge in such activities in future which conduct of yours is prejudicial to the maintenance of public order."

18. It is self-evident that this allegation is not supported by any particulars or details or any specific instance and is of a merely narratory character. I had the occasion to deal with a similar case in Malik Sohrab v. Government of Pakistan etc. (P L D 1973 Lah. 102) herein I had held that the true test for examining whether the grounds furnished are in order or not is to find out whether a person could, on those grounds, make an effective representation apart from a bare denial of the accusations conveyed to him. The relevant case-law in this context is quoted on page 103, column 2 of the report. I have no desire to repeat the summary of those cases here over again and since the present order which suffers from vagueness with regard to the particular ground hereinbefore mentioned obviously cannot be sustained. Learned counsel for the State argued that if the above reproduced ground was vague, that did not by itself constitute a fatal defect in the detention order inasmuch as at least one other ground had been conveyed to the detenu with more certainty, namely, the hoarding by him of a stock of 1531 bags of rice illegally inasmuch as it was not accounted for. The contention has no merit. It is well settled that if one of the grounds is unlawful the mere fact that some other ground is lawful cannot validate an otherwise invalid detention order. See The Government of West Pakistan v. Mrs. Rowshan Bijaya Shaukat Ali Khan (PLD1966SC286).

3. The result is that the present petition is accepted. The detention order passed in this case is hereby declared to be without lawful authority and of no legal effect against the detenu who, it is hereby directed, should be released forthwith. Let a telegraphic intimation of this order be sent to the authorities concerned at the petitioner's expenses. There shall be no order as to costs.

19. S. A. H. ?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? Petition accepted