SHAHNAWAZ Versus GOVERNMENT OF SIND

AJMAL MIAN, J.‑‑ This petition is directed against the order dated 19 10‑1987 passed by respondent No. 2 under section 3(1) of Maintenance of Public Order Ordinance, 1960 (hereinafter referred to as the Ordinance) for detaining the detenue Sarwar Khan son of Sikandar Khan for a period of 30 days. The above 11 petition was admitted on 26‑10‑1987 and was fixed for regular hearing on 2‑11‑1987. The learned Additional Advocate‑General, Mr. Abdur Rahim Kazi, had obtained adjournment on the above date, namely, 2‑11‑1987 and thereafter on 10‑11‑1987 for filing counter‑affidavit, if any, after obtaining instructions. However, he submits that in spite of his best efforts and in spite of repeated demands issued by him nobody has contacted him for giving instructions.

2. The main point urged by Mr. Mohammad Ali Shaikh, the learned; counsel for the petitioner, in support of the petition is that the detention order was passed on 19‑10‑1987 as mentioned above, whereas the grounds were furnished on 24‑10‑1987 and that there is no explanation of the above delay which is fatal to the case. In furtherance of the above submission he has referred to the following cases.

(i) Hakim Khan v. Government of Sind through the Home Secretary, Karachi and another (PLD 1976 Karachi 448).

In this case a Division Bench of this Court while construing Article 10(4) of the Constitution of 1973 and subsection (ii) of section 3 of the Ordinance has held that though by Constitution (Third Amendment) Act, 1975 maximum period of 15 days has been provided for furnishing grounds but the phrase "as soon as may be" which was omitted from above Article 10 is still part of the subsection (6) of section 3 of the Ordinance and, therefore, the effect to the same is to be given. In the above case, the detention order was held illegal for the reason that the grounds were furnished on 14th or 15th day of the passing of the detention order.

(ii) Miss Benazir Bhutto v. Government of Sind and others) P L D 1978 Karachi 342.

In the above case the period of detention was 90 days whereas there was delay in furnishing of the grounds by 6 days. A Division Bench of the Court held that inter alia on account of the above delay the detention order was not sustainable.

(iii) A Division Bench of this Court in a recent judgment in the case of Ghulam Ahmed v. Government of Sind in C.P.No. D‑1146/87 decided on 3‑11‑1987 has held that "No hard and fast rule can be laid down as to how much time or how many days would suffice the requirement of the "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."

3. The ratio of the above Karachi case of 1976, the judgment of which was delivered by Naimuddin, J. (as he then was), seems to be that in spite of the fact that a period of 15 days has been provided for in sub‑clause (5) of Article 10 of the Constitution but since the expression "as soon as may be" is stilt part of the subsection (6) of section 3 of the Ordinance, the detaining authority is to furnish the grounds without any unexplained delay. In the present case, Mr. A.R. Kazi, learned Additional Advocate‑General has candidly submitted that he does not have any material with him to explain the delay in furnishing the grounds.

4. In this view of the matter, the detention order cannot be sustained. The petition is, therefore, allowed and the detention order is declared as being without lawful authority. The deteu will be released forthwith unless is required in some other case.

SA./S‑219/K Detenu released.