NEK AMAL Versus POLITICAL AGENT, MALAKAND

1. GHULAM SAFDAR SHAH, C. J.--- In these two petitions, in which the facts are more or less the same challenge has been made to the two impugned orders of Political Agent/District Magistrate, Malakand, dated 26-10-74 passed by him against petitioners under section 5(1) of the West Pakistan Main tenance of Public Order Ordinance, 1960 (hereinafter called the Ordinance). Both these orders have been couched in the same language one of which may be reproduced:

2. Whereas I am satisfied that you . . . . . . on 28-8-73, made inflammatory speech inciting to violence and whereas I am satisfied that you are presently interested in using the landlord-tenant split in Malakand Agency to the detriment of law and order in this area.

3. So therefore, I, Ejaz Rahim, District Magistrate, Malakand Agency, in exercise of powers conferred upon me under section 5(1) of Main tenance of Public Order Ordinance with a view to preventing you from spreading dissatisfaction and public discontent, consider it necessary to direct you to the following:

(a) That you shall reside and remain within the limits of your village Sakhakot.

(b) That you shall conduct yourself in such manner as not to incite one class against another in the sensitive background of landlord-tenant relations in Malakand Agency.

(c) And that you shall enter into bond in the sum of Rs. 10,000 with two sureties to the satisfaction of Assistant Political Officer, Dargai for the due observance of aforesaid directions, or in default to remain in judicial lock-up."

4. The main grounds, upon which the orders in question have been challenged in these petitions, are:

(1) that these are in violation of Fundamental Right No. 10 which the Constitution of the Islamic Republic of Pakistan has guaranteed' to every citizen,

(2) that the orders are vague and indefinite, in that they neither specify the period for which the detenus were detained nor do they mention any facts of the speech of detenus on the basis of which the detaining authority was satisfied to detain them, and

(3) that the orders have been passed by the detaining authority in the colour-able exercise of his power only to keep the detenus in jail in continuation of their earlier detention.

5. In the para-wise comments submitted to this Court, the detaining authority has attempted to justify the impugned orders. The stand taken by him is that the orders in question were passed by him after full satisfaction with a view to preventing detenus from acting in a manner prejudicial to public order in view of their role in the landlord-tenant dispute in Malakand Agency, that the orders were served on detenus asking them to enter into required bonds for the observance of conditions contained therein, failing which they were to remain in judicial custody, that the orders in question need not specify the period for which the detenus were to remain in jail, as under section 5(2) of the Ordinance, they were to expire after three months and that the detenus are in judicial custody not because there exists any detention order against them but that they had failed to furnish the required bonds in terms of impugned orders.

6. The learned Advocate-General has, by way of explaining the background in which the detenus were taken in custody, stated at the Bar that initially the detenus were by orders passed against them in August 1974 under rule 30 of the Defence of Pakistan Rules, 1971, detained for a period of 30 days, that after the expiry of this period, they were, by orders dated 27-9-74 passed against them under section 3 of the Ordinance, detained for another period of 30 days, and that when this period expired they were served with impugned orders on 26-10-74 in which however the period of their detention has not been mentioned. The stand taken by him, however, is-and this is in accord with the stand taken by the detaining authority in his para-wise comments-that the object of these last mentioned orders was not to detain detenus but that they should furnish bonds in the sum of Rs. 10,000 each with two sureties each to the satisfaction of the authorities undertaking that they would observe the conditions specified therein.

7. We are afraid, there is no force in this contention. It is conceded that when the impugned orders were served on them, the detenus were in jail in view of the previous orders of 27-9-74 by which they had been detained for a period of 30 days. In this view, the impugned orders passed against them by the detaining authority do not appear to be covered by sub section (1) of section 5 of the Ordinance, which for the sake of facility may be reproduced:

8. "5. Power to control suspected persons.-(l) Government or the District Magistrate, if satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to public safety or public interest, or the maintenance of public order, it is necessary so to do, may, by order in writing, give any one or more of the following directions, namely, that such person-

(a) shall not enter, reside or remain in any area that may be specified in the order;

(b) shall reside or remain in any area that may be specified in the order;

(c) shall remove himself from, and shall not return to any area that may be specified in the order;

(d) shall conduct himself in such manner, abstain from such acts, as may be specified in the order; and

(e) shall enter into a bond, with or without sureties for the due obser vance of the directions specified in the order.

9. Now by a careful reading of this subsection it would be see that the object for which Government/District Magistrate has been empowered thereunder to pass an order against any person is to prevent him from acting in any manner prejudicial to public safety or public interest, or the maintenance of public order. It is true that by its clear language, the subsection empowers Government/District Magistrate to give to the 9oncerned person in the order passed by it/him one or more of directions contained in clauses (a) to (e). But even so, the exercise of that power must be shown to be reasonable, in line with the law laid down by Supreme Court of Pakistan in the leading case of Malik Ghulam Jilani v. The Government of West Pakistan (P L D 1967 S C 373). The admitted position in these cases, however, is that when the impugned orders were served on detenus, they were already confined to jail premises. In these circumstances, we do not see as to how the detaining authority could have possibly asked them to furnish bonds in the huge sum of Rs. 10,000 each with two sureties each for observing the specified conditions, especially when they had remained confined to jail premises since about 28th August 1974 and there was no complaint against them that they had, during the period of their incarceration, evinced any intention to espouse, on their release, their deleterious activities. The scheme of section 5(1) of the Ordinance would rather show that a person, against whom an order has been passed thereunder, can be asked to furnish bonds for his good behaviour only when he is not intended to be taken in custody. This, to our mind, could be the only sensible interpretation of this section in a given case in which a person is lodged in jail, although we agree that if the movements of a person are intended to be confined to a particular area, then he could as well be asked to furnish the required bonds. However, we might as well make ourselves clear that in such a case the restrictions placed upon the movements of a person perhaps might tantamount to his physical detention. But we are not concerned with that situation in these cases in which the detenus were, when they were served with impugned orders, already detained in prison. To say, therefore, that they could be validly asked to furnish the required bonds with a view to observing the conditions mentioned therein, would be wholly absurd for the obvious reason that being already confined to jail premises, they could not possibly indulge in any prejudicial activities within, the meaning of section 5(1) of the Ordinance.

10. The impugned orders are also bad for the reason that these are violative of clause 5 of Article 10 of the Constitution which reads as under:-

11. "(5) When any person is detained in pursuance of an order for preven tive detention, the authority making the order shall, as soon as may be, but not later than one week from such detention, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order."

12. The Scheme of the Ordinance would appear to be to make provision for preventive detention. And thus the detaining authority in these cases would have no option but to serve on the detenus, within one week of his impugned orders dated 26-10-1974, the grounds upon which they were detained. In support of this conclusion, we would refer to a Division Bench judgment from Karachi in the case of Muhammad Yonnas v. Province of Sind (P L D 1973 Kar. 694), in which the entire case-law on the subject, including the leading judgments of Supreme Court of Pakistan, were taken notice of. And the decision reached therein, with which we respectfully agree, is that by not supplying to detenu the grounds upon which he was detained, would vitiate the order passed against him.

13. The learned Advocate-General, however, argued that the required grounds had been mentioned by the detaining authority in the impugned orders. But we do not agree. A look at these orders, one of which we have reproduced, would rather show that in-there all that the detaining authority had done was to recall the previous speech of detenus delivered by them in August 1973 saying that it was inflammatory and tended to incite violence among the landlords-tenants of Malakand Agency. This being the nature of impugned orders, it is obvious that he had simply conveyed to detenus the conclusion, which he bad reached against them, without informing them of the necessary facts, such as the place where they had delivered the objectionable speech and the language used by them on that occasion. In the absence of these facts, can it be said that detenus could have made effective representation against their detention? And we have no hesitation to answer the question in negative. In this view, the impugned orders, having come in conflict with the requirement of clause (5) of Article 10 of the Constitution, must be held to have no validity whatever.

14. In view of this discussion, these petitions are allowed with costs. And we direct that petitioners would be released forthwith.

15. K.B. A Petition accepted,