SAEEDULLAH Versus GOVERNMENT OF SIND

1. MAMOON KAZI, J.‑‑ This petition calls in question the order passed by the Home Secretary, Government of Sind, dated 15‑12‑1987, under the Sind Maintenance of Public Order Ordinance, 1960, ordering the detention of detenu Mir Raja alias Mir Pervaiz Ali Ta1pur s/o Mir Murad Ali Talpur for a period of 30 days at the Central Prison, Karachi.

2. In the instant case, admittedly, the detenu was arrested in pursuance of the detention order on 16‑12‑1987 but the grounds of detention which were recorded on 30‑12‑1987, were not served on the detenu.

3. The contention of Mr.N.A.Farooqui, learned counsel for the petitioner is that, the detention order is liable to be declared unlawful as the grounds of detention were not served upon the detenu within the period contemplated by section 3(6) of the aforesaid Ordinance or Article 10(5) of the Constitution.

4. At the very outset it may be pointed out that Article 10(5) of the Constitution restricts the period within which the grounds of detention may be communicated to the detenu, to fifteen days. The same for the sake of convenience is reproduced as follows:

5. "(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, (within fifteen days) 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 .

6. Section 3(6) of the Maintenance of Public Order Ordinance also provides that where a detention order has been made under section 3, the authority making order shall, as soon as may be, communicate to such person the grounds on while the order has been made, informing him that he is at liberty to make ,: representation to the Government against. the order and afford him the earliest opportunity of doing so. The words as soon as may be employed in section 3(6) have been interpreted by various judgments of this Court and reference in this respect may be made to the following decisions:

(1) Liaquat Ali v. Government of Sind (P L D 1973 Kar. 78), (2) Hakim Khan v. Government of Sind (P L D 1976 Kar. 448), (3) Miss Bena Bhutto v. Government of Sind (P L D 1978 Kar. 42) and (4) Fatahya A.Aw Khan v. Province of Sind (1986 PCr. LJ 2938). In these cases the detention order was held to be unlawful on the ground of inordinate delay in the communication of the grounds of detention. In the case reported in P L J 1978 Kar. this Court went to the extent of holding that the expression "as soon as may be cannot be interpreted to mean more than twenty‑four hours. In the instant case, as pointed out above, the grounds of detention produced by the learned Additional Advocate General today show that the same were recorded by the detaining authority on 30‑12‑1987 which was after this petition had been filed. There is nothing to point out that the grounds have been served on the detenu till today. Even if it is assumed that the same were served on the detenu today, their service upon him would still be beyond the period as contemplated by Article 10(5) of the Constitution. This admitted failure on the part of the detaining authority to comply with the provisions of the Constitution completely renders the order of detention illegal and without lawful authority.

7. Consequently this petition is allowed and the impugned order of detention is declared to be without lawful authority and of no legal effect and the detenu shall be released if he is not required in any other case.

8. S.A/J‑48/K. Petition accepted.