AIZAZ NAZIR Versus DEPUTY COMMISSIONER AND A. D. M.

DORAB PATEL, J .‑The detenu is a Member of the Provincial Assembly of Baluchistan and is also the Member of a political party, which is now banned, and was known as the National Awami Party (hereinafter called N. A. P.). By an order dated 9th February 1975, the Deputy Commissioner,. Karachi East, one Mr. Siddiqui, directed that the detenu should be confined to his house in Karachi. This order was passed under rule 32 (d) and (f) of the Defence of Pakistan Rules, 1971, and was to remain in force for a period of one month from the date of its service on the detenu. The order was extended by the said Mr. Siddiqui for another two months by his order dated 8th March 1975. Two days after the expiry of this order, the said. Mr. Siddiqui passed a similar order against the detenu, but, unlike the two earlier orders, this order was passed under section 5 (1) of the West Pakistan Maintenance of Public Order Ordinance, 1960 (hereinafter called the said Ordinance). This order was to be in force for a period of three months and was signed by Mr. Siddiqui as "Deputy Commissioner and A. D. M., Karachi East". Aggrieved by this order, the detenu had filed a constitutional petition to challenge them, which we had admitted on the 20th of May 1975. The detenu had also sought a suspension of the order, pending the hearing: of the petition, and we had ordered notice on this application. Meanwhile, there was a change in the Karachi Administration, and Mr. Siddiqui, whoa had passed the three orders referred to by us, was replaced by one:

Mr. Memon. By an order dated 29th May 1975, the said Mr. Memon, cancelled the order of detention passed by his predecessor under the said Ordinance on 10th May 1975. Then, having cancelled that order, he passed a fresh order under the said Ordinance, which is, except for some grammatical errors, a verbatim re‑production of the order of Mr. Siddiqui dated 10th May 1975. In view of this fresh order, passed after the petition had been admitted, we bad permitted the detenu to amend his petition, and now the petition is pressed only in order to challenge the legality of this order of 29th May 1975, to which we will refer as the impugned order.

2. Mr. Muhammad Ibrahim Memon (Advocate) advanced several submissions in support of the petition, the first being that the impugned order was void, because its author was not competent to pass it. Now, as we pointed out earlier, the impugned order was passed under section 5 of the said Ordinance, and an order under this section can only be passed by a District Magistrate. But the impugned order has been signed by its author, Mr. Memon, as "Deputy Commissioner and A. D. M., Karachi East". Similarly, the order of the same date, cancelling the earlier order passed by Mr. Siddiqui, has been signed in the same manner. Therefore, prima facie the impugned order has been passed by a person who has usurped jurisdiction under section 5 of the said Ordinance.

3. Mr. Muhammad Ibrahim Memon (Advocate) also drew our attention to the counter‑affidavit by Mr. Memon, and, even in this counter‑affidavit,. the author of the impugned order has described himself only as a Deputy Commissioner and A. D. M., Karachi and has further stated that "the District of Karachi has been divided into three sub‑districts, each sub‑district being, under a Deputy Commissioner, who is also designated as Additional District Magistrate, who exercise the powers of a District Magistrate under Cr. P. C. as well as under all other laws for the time being in force. A true copy of the initial notification dated 1st August 1974, is filed herewith and marked. as Annexure 'A'. The subsequent notification investing me the said powers is annexed hereto and marked as Annexure 'B'." Mr. Muhammad Ibrahim Memon naturally relies on these admissions, and we may explain here that,. for long years, Karachi had a Commissioner as well as a Deputy Commis sioner, but it was the Deputy Commissioner, who was the District Magistrate of Karachi. Then, for short while, the post of Commissioner, Karachi was. abolished, but it was restored some time back, and now there are three Deputy Commissioners under the Commissioner, as explained in the said counter affidavit.

4. Here we may refer to a document supplied to us yesterday by the learned Additional Advocate‑General. It is an undated order of the Sind, Government with regard to the re‑organisation of District Administration of Karachi. The order states that, as from 1st August 1974, "the district of' Karachi will be divided in three sub‑units each of which will be headed by a Deputy Commissioner". The order then states that the Deputy Commis sioners would be acting as Additional District Magistrates for the area under this charge, and, on our enquiries, the learned Additional Advocate‑General informed us that, from 1‑8‑1974, the Commissioner of Karachi had been appointed as the District Magistrate. In these circumstances, we are unable to understand how the author of the impugned order can be said to be a District Magistrate. The learned Additional Advocate‑General attempted first to defend the impugned order on the basis of sections 10 and 40 of the Criminal Procedure Code.

5. Section 10 of the Criminal Procedure (hereinafter called the Code) :reads as follows :‑

"10.‑(1) In every District the Provincial Government shall appoint a Magistrate of the First Class, who shall be called the District Magis trate.

(2) The Provincial Government may appoint any Magistrate of the first class to be an Additional District Magistrate and such Additional District Magistrate shall have all or any of the powers of a District Magistrate under this Code, or under any other law for the time being in force, as the Provincial Government may direct.

(3) For the purposes of sections 192, subsection (1), 407, subsection (2) and 528, subsections (2) and (3), such Additional .District Magistrate shall be deemed to be subordinate to the District Magistrate."

Subsection (1) of the section prescribes that a District Magistrate shall be appointed for each district. Subsection (2) then empowers the Provincial Government to confer the powers of a District Magistrate on Additional ;District Magistrate, and because of this provision, the submission was that Mr. Memon, the author of the impugned order, was a District Magistrate, because he had b.‑en invested under subsection (2) with the ‑powers of a District Magistrate. But the section 10 draws a distinction .between the District Magistrate and other Magistrates on whom identical <powers may be conferred. This is very clear from subsection (3), which expressly states that the `Additional District Magistrates on whom .such additional powers are conferred "shall be deemed to be subordinate C ,to the District Magistrate' for the purpose of the three provisions specified in the subsection. But, from the nature of these three pro‑visions, .it is very clear that an Additional District Magistrate, so empowered, is not .a District Magistrate. A District Magistrate means only the person appointed under section 109 (1), and this was also the view taken in Kabra v. .Emperor (A I R 1944 Nag. 84), and in Ajaib Singh v. Gurbachan Singh (A I R 1965 S C 1619). The later case 'is interesting. An order under the Defence of India Rules had been passed by a person who was acting as the District Magistrate, whilst the power to pass an order under those Rules was limited to District Magistrate only. The State relied on section 11 of the Code, according to which an officer, who succeeds temporarily "to the chief executive administration . of the Districts" shall exercise "all the powers and perform all the duties respectively conferred .and imposed by this Code on the District Magistrate." Despite this express provision, the Indian Supreme Court held that a Magistrate exercising powers :under this provision was not a District Magistrate under section 10(1) of the Code. We agree with this view, and, by parity of reasoning, it fully ‑supports the contention of learned counsel for the petitioner that the impugned order was passed by a person who lacked the authority to pass it.

6. The learned Additional Advocate‑General then referred us to sec tion 40 of the Code. This section reads :‑

"40. Whenever any person holding an office in the service of the Government who has been invested with any powers under this Code throughout any local area is appointed to an equal or higher office of the same nature, within a like local area under the same Provincial Government, he shall, unless the Provincial Government otherwise directs, or has otherwise directed, exercise the same powers in the local area in which he is so appointed."

Now, because, Mr. Memon, the author of the impugned order had earlier been a District Magistrate in some other district of the Province, the conten tion of the learned additional Advocate‑General was that he was entitled to exercise the same powers under the section quoted. That is so, but that a person may exercise the powers of a District Magistrate would not make hi g a District Magistrate. The provision is somewhat analogous to section I1, and, following the view taken in the decision of the Indian Supreme Court, we do not think section 40 helps to save the impugned order.

7. As this is Special Bench, this is the third day of arguments before us, and today the learned Additional Advocate‑General produced a copy of a notification of the Home Department, by which Mr. Memon, the author of the impugned order, had expressly been appointed a District Magistrate for what is now called the East District of Karachi. But, as we pointed out earlier, even the author of the impugned order has not said in his counter -affidavit that he was a District Magistrate. On the contrary, he has expressly stated that he was only an Additional District Magistrate. The learned Additional Advocate‑General's explanation of this discrepancy was that the notification produced today, by he must have been passed after the counter -affidavit was filed in this Court. But, if that was so, Mr. Memon, the author of the impugned order, should have filed a supplementary counter‑affidavit or, at least we should have been informed of the position on the day the hearing of the petition began. However, for the purpose of this petition we will assume that this notification is valid. Now, the order ought to be saved by this notification is an order affecting the liberty of the subject; therefore, the obvious question is, whether the notification can be given retrospective effect as assumed by the learned Additional Advocate‑General. Assuming, without conceding, that the notification can be given such retros pective effect, the Government of Sind bad divided Karachi into three districts which were to be handed on the Magisterial side by persons designated as Additional District Magistrates. If the author of the impugned order has been made a District Magistrate, this assumes that the Sind Government had cancelled its earlier order dividing Karachi into three sub‑districts. But no such order has been produced before us, despite our enquiries ; therefore to assume that the notification now produced before us is valid is, to say the least, somewhat difficult, but even if we accept all the assumptions on which the case of the respondents is based, the learned Additional Advocate General was compelled to admit, in answer to our enquiries, that the Commis sioner of Karachi was still the District Magistrate of Karachi. But if that be so, can this notification of 6th June 1975, appointing the author of the impugned order as a District Magistrate, be valid? We quoted section 10 of the Criminal Procedure Code, and it is clear from subsection (1) of this h section that there can only be one District Magistrate in a district. We are fortified in our opinion by a judgment of Anwarul Haq, C. J. (as he then was) in Abdul Samad alias Dadda v. Khan Iqbal Ahmad Khan Lodhi, P. C. S., District Tribunal, Lahore (P L D 1972 Lah. 41), and further the same view bas been taken in a Full Bench judgment of the Madras High Court reported as Arumgma Solagan v. Emperor (A I R 1931 Mad. 697). Again in Legal Affairs, Bengal v. Ijjatullah Paikar (A I R 1931 Cal. 190), the question was, whether there could be more than one Sessions Judge in a Division, and the answer was that there could not be more than one Sessions Judge in a Division in view of section 9 of the Code. As the provisions of this section are in par! materia with those of section 10, this judgment also, by parity of reasoning, supports us in our view, that there cannot be more than one District Magistrate in a district ; therefore, as the notification of 6th June 1975, appointing Mr. Memon, the author of the F. impugned order, as a District Magistrate was issued without revoking the appointment of the Commissioner of Karachi as District Magistrate, this notification is illegal.

8. As we accept the submission of Mr. Muhammad Ibrahim Memon (Advocate), that the impugned order was passed by a person who was not competent to pass it, it is not necessary to consider the other submissions of learned counsel, nor the reply by the learned Additional Advocate‑General to these submissions. We may, however, point out that the learned Additional Advocate‑General had also placed before us the material on the record for which he claimed privilege. As we have held that the impugned order suffers from a patent defect, it is not necessary to consider the other submissions of the learned counsel. As the impugned order has been passed by a person who was not competent to pass it, we set it aside. The petition is allowed, but we leave the parties to bear their own costs.

9. As we have refrained from referring to the, material produced by the learned Additional Advocate‑General, at his request, we are returning it to him.

10. Mr. Muhammad Ibrabim Memon requests that the detenu should be directed to be released. He was only in house confinement, and, as that order has been set aside, he is free to go wherever he wishes.

S. A. H. Petition allowed.