SHAHNAZ MAZHAR Versus PROVINCE OF SINDH
1. NASIR ASLAM ZAHID, J.‑‑‑ This petition has been I fled by the wife of the detenu challenging the order, dated 22nd September, 1990, passed by the District Magistrate, Dadu under section 3(1) of the Maintenance of Public Order Ordinance, 1960, detaining the detenu for a period of thirty days from the date of the order. We have heard Mr. G.H. Abbasi, learned counsel for the petitioner and Mr. Syed Sarfraz Ahmed Assistant Advocate‑General for the respondents. The learned AA.‑G. has also placed some material before us. Learned AA.‑G. states that the material that has been produced for perusal by the Court only relates to Crime No.48'/90 of Police Station Rukkan District Dadu in which the detenu Pir Mazharul Haq is an accused. According to the learned A.A.‑G., other material was available before the District Magistrate but on account of restraint of time the same could not be produced today. We may observe here that the detention order has been passed for a period of thirty days. Looking at the period of detention sufficient time was given to the Government to place the relevant material before this Court. In the circumstances, whatever material that has been placed before us has been perused by us and taken into consideration.
2. According to the learned A.A.‑G., the police diaries, dated 7‑6‑1990, 10‑8‑1990, 25‑8‑1990, 29‑8‑1990, 30‑8‑1990 and 3‑9‑1990, of Police Station Rukkan show the involvement of the detenu with a gang of dacoits and as such, according to the learned AA.‑G. a valid order under section 3(1) of Maintenance of Public Order Ordinance, 1960 has been passed by the District Magistrate.
3. The learned counsel for the petitioner, has drawn our attention to a later report of the same Police Station and it is dated 7‑9‑1990 addressed to the Mukhtiarkar & F.C.M. Dadu (page 29 of this Court file) which reads as follows:‑
4. It is requested to the Honourable Court that in case Crime No.48 of 1990 under sections 395, 452, 365‑A, 571, P.P.C. and 17(3) Hudood Ordinance on Police Station Rukkan Pir Mazhar s/o Pir Shah Nawaz was arrested on 30‑8‑1990 and his remand from 31‑8‑1990 to 7‑9‑1990 in Police custody, was obtained from Honourable Court. Since there is no such proof for challaning accused Pir Mazhar, accused Pir Mazhar has been released under section 497, Cr.P.C. on 7‑9‑1990. This report is submitted for information of the Honourable Court."
5. According to the learned AA.‑G. the detenu still remains an accused although he has been placed in column‑2 in the Challan and, at a later stage, if tangible evidence is available, the applicant can be placed in column‑3 and he can be proceeded against as accused in the case.
6. The material that has been placed before us is in the form of police diaries only in respect of Crime No.48 of 1990 of Police Station Rukkan. The report under section 169, Cr.P.C. of S.H.O. Police Station Rukkan to the District Magistrate shows that there was no proof for challenging the accused. This report is dated 7‑9‑1990 and is later in point of time than the police diaries relied upon by the learned A.A.‑G. In view of this report dated 7‑9‑1990 under section 169, Cr.P.C. of S.H.O. Police Station Rukkan, we are of the view that an order under section 3(1) of Maintenance of Public Order Ordinance, 1960 could not have been validly passed. We may again observe here that the only material that has been placed before us are the police diaries in respect of Crime No.48 of 1990 of Police Station Rukkan. Additionally it may be observed that in the impugned order of detention no reference has been made to Crime No.48 of 1990 of Police Station Rukkar.
7. At this stage, learned AA.‑G. states that there are two other F.I.Rs. namely F.I.R. No.112/90 of Police Station Khairpur Nathan Shah of District Dadu and F.I.R. No.65/90 of Police Station Bhan, Saeedabad District Dadu and copies of these F.I.Rs. have also been shown to us.
8. The learned counsel for the petitioner refers to page 41 of this Court's file which is a copy of a report under section 169 of Police Station Khairpur Nathan Shah to the effect that "No such proof is made out against him in this case to challan. Therefore, according to the directions of the superior Officers the suspected accused Pir Mazhar is released."
9. As regards F.I.R. No.65/90 of Police Station Bhan Saeedabad, District Dadu, it is submitted by the learned counsel for the petitioner that in this case also a similar report under section 169, Cr.P.C. has been made by the Police and this is not denied by the learned AA.‑G. Learned counsel for the petitioner further submits that in none of the F.I.Rs. namely F.I.R. No.48/90, F.1.R. No.112/90 and F.I.R. No.65/90, the name of the detenu is mentioned.
10. We are accordingly of the view that even additional material in the form of F.I.Rs. No.112/90 and 65/90 did not provide such material on the basis of A which an order under section 3(1) of the Maintenance of Public Order Ordinance, 1960 could have been passed in view of the reports under section 169, Cr.P.C. of the respective Police Stations.
11. As a result, Constitutional Petition No.D‑1038 of 1990 is allowed and the order, dated 22‑9‑1990 of the District Magistrate Dadu passed under section 3(1) of the Maintenance of Public Order Ordinance, 1960 directing 8 detention of Pir Mazharul 1‑Iaq son of Pir Shah Nawaz is declared to have been passed without lawful authority and to be of no legal effect. If the detenu is not required in any other case, he shall be released forthwith.
12. N.H.Q./S‑885/K Petition allowed.