GHULAM AHMAD Versus GOVT. OF SIND

1. SAJJAD ALI SHAH, J.‑‑In this Constitutional Petition and several other like Petitions common grievance made on behalf of the petitioners is that in each case either grounds of detention have not been supplied at all or have been supplied belatedly after the expiry of time, which is not commensurate with time "as soon as may bell contemplated under section 3(6) of Maintenance of Public Order Ordinance, 1960 (hereinafter to be referred as the said Ordinance). Now the question arises how much time is allowed to supply grounds of detention within the confines of "as soon as may bell as provided and permitted in the said Ordinance. In order to determine legislative intent behind this provision, it would be essential to study the background of this Ordinance keeping the same in juxtaposition with relevant provisions in the Constitution on the same subject.

2. Preventive detention is different from punitive detention and, from that point of view stands at lower level and its importance and significance is to detain a person as a precautionary measure to prevent him from acting in a manner prejudicial to public safety or the maintenance of Public order as is specifically provided in section 3 of the said Ordinance. Article 10 of Constitution of Islamic Republic of Pakistan provides safeguards as to arrest and detention. First basic principle contained therein is that no person shall be arrested and detained in custody, without being informed, as soon as may be, of the grounds of such arrest. Clause (2) of this Article covers the case of a person who is arrested for a substantive offence and the requirement is specified that he has to be produced before a Magistrate within twenty‑four hours for obtaining a remand. Clause (4) of thief Article relates to cases of preventive detention and clause (5) contemplates that grounds of detention shall be communicated within fifteen days from such detention. This shows that fifteen days time allowed by the Constitution is the maximum limit for supply of ground s of detention and it could be done even earlier than that. This requirement has to be kept in view at the time of making, sub‑constitutional laws on the subject.

3. In section 3(6) of the Maintenance of Public Order 1960 previously the requirement was that authority making the order shall "as soon as may be but not later than fifteen days" communicate to such personal grounds. Subsequently by Ordinance XVIII of 1964 amendment has been made in the relevant provision with the result that "but not later than fifteen days from the date of detention I stand deleted and consequently now after amendment requirement is that the grounds are to be communicated "as soon as may bell. It, I therefore, follows that Constitution contemplates communication off grounds within fifteen days as maximum limit but every detention law,, can have its own time limit subject to the maximum limit provided by the Constitution. Section 3(6) of the said Ordinance envisages communication of grounds as soon as may be is to be interpreted in! such a wacky that it becomes consistent with requirement of Constitution as stated above so far as the maximum limit is concerned.

4. Communication of grounds of detention is very essential ingredient of the said Ordinance for the reason that it is that material V upon which authority relies to pass order of detention so it can be presumed that grounds of detention must precede order of detention.

5. In other words, it can be said that first there should be grounds in the form of material, which is to be considered by the Authority to come to the conclusion whether order of detention can be passed or not, so existence of grounds is presupposed. In the circumstances, it is expected and rightly so, that along with order of detention, would be supplied grounds of detention simultaneously. If that is not possible, then it would be open to the authority to communicate the grounds as soon as may be, which is allowed specifically under the said Ordinance. No hard and fast rule can be laid down as to how much time or how many days would suffice the requirement of "as soon as may be" . It is left open to the Courts to answer this question separately in each case considering its peculiar circumstances. The Court has to consider whether there are valid reasons with the authority to justify delay in communication of grounds. The Court has to consider whether delay is proportionate with time of detention specified in the order of detention. Time of detention specified in the order varies in each case. Some time a person is detained for 30 days and some times for 20 days or 15 days, hence period of de y would also vary to conform to the total period of detention as stead in the order. In each case delay is to be explained by the detaining authority to the Court in the manner and to the extent that Court is fully satisfied that there is proper justification for the delay. Quantum of delay may vary from case to case and this question is to be decided in each case by the Court separately on its own merits and attending circumstances. There is plethora of case law on this point but for the sake of convenience reference can be made to the cases of Hakim Khan v. Government of Sind and another P L D 1976 Kar. 448, Haji Rajan Ali v . Superintendent District Jail Quetta and another 1986 P Cr. L J 2928.

6. In this petition the detune is Muhammad Siddiq s/o Fazal Muhammad and order of detention was passed by District Magistrate, East Karachi on 7‑9‑1987 for 30 days but the grounds of detention were supplied on the same date. Subsequently second order of detention was passed on 5th October, 1987 effective from 7‑10‑1987 for 30 days and this order was passed by another detaining authority i.e. Home Secretary Sind but no grounds of detention were supplied even after expiry of 15 days from the second order. This is so stated in the Miscellaneous Application No.2975 of 1987 filed by the petitioner supported by an affidavit and the detaining authority has not file any counter‑ affidavit or any other document to rebut the allegation. Since no grounds have been supplied in furtherance of second order of detention within 15 days, we quash the order of detention as illegal and allow this petition.

7. H.B.T./G‑52/K Petition allowed.