MUHAMMAD ABBAS Versus GOVERNMENT OF SINDH
NASIR ASLAM ZAHID, J .‑‑This petition has been filed by the petitioner, who is the brother of detenu Mohammad hlanif Kassu son of Mohammad Tayab, challenging his detention, first under an order dated 7‑7‑1971 of District Magistrate; Karachi South, for a period of 30 days and then under order dated 3‑8‑1991 of the Home Secretary, Government of Sindh, for a further period of 30 days w.e.f 5‑8‑1991 under section 3 of the Sindh Maintenance of Public Order Ordinance, 1960. This petition was admitted to regular hearing on f3‑8‑1991. The learned AA.‑G. has placed the file of the Home Secretary containing the entire material, on the basis of which the Home Secretary passed the impugned order dated 3‑8‑1991. The file also contains the material before the District Magistrate on which his order dated we have gone arguments of Mr. Mansoob Ali Qureshi, learned counsel for the petitioner and Mr. A.G. Mangi , learned A.A-G.
It was submitted by the learned AA.‑G. that the detenu has been detained under the detention law of 1960 on the ground that during Moharram and thereafter till Chehlum (falling on first or second September, 1991), detenu's remaining at large would be hazardous and prejudicial to public peace and tranquillity. In the order dated 7‑7‑1991, the grounds given by the District Magistrate for passing the detention order are that he had been arrested in 17 cases and that he was also involved in Rabiul Awwal firing case in the year 1989. For the same grounds, the Home Secretary passed his order dated 3‑8‑1991 extending the period of detention by 30 days.
3. From a perusal of the file of the Home Secretary, we find that there is no report of any police officer or other authority that the detenu was involved in any firing case in the year 1989. No details are available of what the said firing case was and what was the involvement, if any, of the detenu in that case.
4. As regards the 17 cases mentioned in the order dated 7‑7‑1991 of the District Magistrate, Karachi (South), we find that apart from giving the numbers of the FIRS, sections of the penal laws and the names of the police stations, no details at all are mentioned about the facts of the these cases, the stage of the cases and the involvement, if any, of the detenu in such cases. According to the learned counsel for the petitioner, out of these cases, the detenu has been acquitted in 10 cases and in other cases he is on bail. It is also informed by the learned counsel that in a case under section 13‑E of the Arms Ordinance, 1965, the detenu had been arrested as far back as 21‑11‑1989, and since then he has not been released. According to learned counsel, in the said case under section 13‑E of the Arms Ordinance, 1965, the Special Court 11 (Suppression of Terrorist Activities), Karachi, had convicted the detenu but the appeal filed by the detenu in this Court was allowed and he was acquitted by the judgment dated 2‑7‑1991 but, before he could be released by the Jail authorities, the impugned order dated 7‑7‑1991 was passed by the District Magistrate, Karachi (South) and then the other order dated 3‑8‑1991 by the Home Secretary. Accordingly the detenu has remained in continuous custody since 21‑11‑1989.
As observed, in the file of the Home Secretary there is no report of any police officer or other authority about the involvement of the detenu in any Rabiul Awwal firing case of 1989. As regards the list of cases, as observed, no details are given. The learned AA.‑G. has submitted that the impugned orders under the detention laws have been passed so that the detenu remains in custody during Moharram and thereafter till Chehlum. However, there is nothing on record showing that the detenu was involved in any Shia‑Sunni controversy or that he was involved in any incident during any Moharram period previously. As no details of the 17 cases are mentioned in any report, it is apparent that neither the District Magistrate nor the Home Secretary had any information or had any material before him on the basis of which he could have formed the opinion that the detenu was likely to get involved in agitation during Moharram and then till. Chehluin this year. Some nexus has to be shown between the incidents in which the detenu had been involved and the purpose for which the detention order was being passed under the Maintenance of Public Order Ordinance, 1960. There is nothing on record to show such nexus.
5. Learned counsel for the petitioner has also relied upon an earlier judgment of this Court dated 2‑10‑1990 in Constitutional Petition No.D 1065/1990 (Muhammad Mohsin v. Govt. of Sindh and others) which supports the contention of the learned counsel that a bare list of cases cannot be made the basis of a valid order of detention under the Maintenance of Public Order Ordinance, 1960.
6. As a result, we are of the view that the impugned orders are liable to be set aside. This petition is accordingly allowed and it is declared that the impugned order dated 7‑7‑1991 of the District Magistrate, Karachi (South) and the impugned order dated 3‑8‑1991 of the Home Secretary, Government of Sindh, have been passed without lawful authority and are of no legal effect. The detenu, namely, Mohammad Hanif Kassu s/o Mohammad Tayab be released forthwith, if not required in any other case.
SALAHUDDIN MIRZA, J .‑‑I agree with the judgment recorded by my learned brother but I would only add that it boggles the mind to comprehend a situation in which a person who is in continuous detention or custody since November, 1989 and against whom there is nothing on the record of the Home Department, showing his perverted sectarian outlook, to be a public menace likely to endanger public peace during the period ending on the day of Chehlum following on 2nd or 3rd September, 1991.
H.B.T./M‑1542/ Petition accepted.