GULZAR AHMAD Versus DISTRICT MAGISTRATE

Gulzar Ahmad the petitioner has filed this constitutional petition for a declaration to the effect that the order of detention of his son Mohammad Ishaque pronounced by the District Magistrate, Bahawalnagar on 21-3‑1988 is illegal, ultra vires .and of no legal effect.

The brief facts of this case are that Mohammad Ishaque has been involved in two criminal cases under the Land Customs Act and his activities were found to be prejudicial to the public safety or maintenance of the public order. He was having a previous bad criminal record and being habitual offender, his detention has been ordered under section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960 (which shall hereinafter be referred to as Ordinance). The petition is grounded on the plea that ground (a) contained in the memorandum of grounds Annexure 'A/1' is vague whereas ground (c) is palpably wrong and Muhammad Ishaque cannot be detained under the Ordinance in two pending case's against him. It has also been argued that the District Magistrate, Bahawalnagar did not apply his mind and passed a mechanical order on the report of the S.P. Bahawalnagar. For the facility of reference the impugned order and the memorandum of grounds are reproduced:‑

"OFFICE OF THE DISTRICT MAGISTRATE, BAHAWALNAGAR

ORDER

Whereas, I, M. Munir A. Khan, District Magistrate Bahawal nagar, am satisfied from reliable source and information placed before me that Muhammad Ishaque son of Gulzar Ahmad Caste Sheikh, Resident of City/Chishtian is indulging in such like activities which are prejudicial to the 'public safety and the maintenance of public order and tranquillity.

(2) And whereas, it has been deemed necessary to cause the arrest and detention of aforesaid Muhammad Ishaque son of Gulzar Ahmad resident of Ghistian/City.

(3) Now, therefore, in exercise of the powers vested in me by subsection (1) of section 3 of West Pakistan Maintenance of Public Order Ordinance. 1960 read with notification No. 3‑1‑H- Spl‑1/74, dated 28‑1‑1976 from the Government of Punjab Home Department, Lahore, I, M. Munir A. Khan, District Magistrate, Bahawalnagar direct that the said Muhammad Ishaque son of Gulzar Ahmad be arrested and caused to be detained in District Jail Bahawalnagar for a period of 3 months reckoned from the date of his arrest under this section.

(4) A copy of this order shall be delivered to Muhammad Ishaque son of Gulzar Ahmad resident of Chishtian at the time of his arrest. The memorandum of grounds for his detention shall be delivered later on. He shall be at liberty to make a representa tion to the Provincial Government against this order.

(5) Given under my hand and seal of the Court this 21‑3‑1988.

(Sd.)

District Magistrate,

Bahawalnagar."

"OFFICE OF THE DISTRICT MAGISTRATE, BAHAWALNAGAR

Dated BWN the‑‑‑‑/1988

Memorandum of grounds

You Muhammad Ishaq son of Gulzar Ahmad caste Sheikh resident of City/ Chistian have been ordered to be detained for a period of 3 months by the undersigned under section 3 of the West Pakistan Maintenance of Public Order ordinance, 1960 vide order passed today with a view to preventing you from acting in a manner prejudicial to the maintenance of Public Order on the following grounds and reasons:‑

(a) That your activities are prejudicial to the public safety or maintenance of the Public order.

(b) That you are involved in the smuggling and trafficking of Narcotics and Land Customs Act. F.I.R. No. 303/86 under section 3/4 P.O. P.S. Haroonabad. (ii) F.I.R. No. 304/86 under section 3/4 P.O. P.S. Haroonabad, Opium 87 Kilo and 890 grams.

(c) That you have a previous bad criminal record and are a habitual offender.

(2) That above grounds and reasons for your detention are being communicated to you as required by the provision of section 3 of the West Pakistan Maintenance of Public Order 1960 to enable you to make, if you desire, a representation to the Government against the order of your detention and you are hereby informed that you are at liberty to make such a representation to Government against the said order.

(Sd.)

District Magistrate

Bahawalnagar."

3. As regard ground (a), it has not been reflected in the memorandum of grounds that Muhammad Ishaq's activities were pre judicial to the public safety or maintenance of the public order and this ground is really vague. Ground (b) contains involvement of Muhammad Ishaq in smuggling cases which are pending against him. In Liaqat Ali v. The Government of Sind and another P L D 1973 Kar. 78 it has been held that the fact of a person being liable to prosecution for commission of offences in ordinary criminal Courts cannot be a ground of preventive detention under the Ordinance. This principle has been repeated in Muhammad Ajmal Khan v. The District Magistrate, Lyallpur anal 4 others P L D 1977 Lah.

20. It has also been added in Muhammad Ajmal's case P L D 1977 Lah. 20 that when one of the grounds is vague, it proves fatal to the entire detention order and the mere fact that some other ground is lawful cannot validate otherwise invalid detention order. In the instant case, ground (a) is vague, whereas ground (c) is palpably wrong because the S.P., Bahwalnagar has intimated that no case was ever registered against Muhammad Ishaque except the two which are pending against him.

4. Section 3 paras. (1), (2) and (4) of the Ordinance are reproduced below for the facility of reference:‑

"3. Power to arrest and detain suspected persons .‑‑(1) Government, if satisfied that with a view to preventing any person from acting in any manner prejudicial to public safety or the maintenance of public order, it is necessary so to do, may, by an order in writing, direct the arrest and detention in such custody as may be prescribed under subsection (7), of such person for such period as may, subject to the other provisions of this section, be specified in the order, and Government, if satisfied that for the aforesaid persons it is necessary so to do, may, extend from time to time the period of such detention.

(2) If a District Magistrate or any other servant of Government authority in this behalf by a general or special order of Government, has reason to believe that any person within his territorial jurisdiction has acted, is acting or is about to act in a manner prejudicial to public safety or the maintenance of public order, he shall forthwith refer the matter to Government for orders.

(3)............................................................

(4) On receipt of a reference under subsection (2) Government may‑‑

(a) reject the reference; or

(b) make an order of arrest and detention in terms of subsection (1).

It appears that the Government has delegated the powers to the District Magistrates to act under para. 3(1) of the Ordinance by virtue of section 26 of the Ordinance. Para. 3(2) of the Ordinance makes it imperative for the District Magistrate to refer the matter to the Government for orders, but it appears that the District Magistrate did not refer the matter to the Government for order and the detention order is unlawful for want of the said reference. Had the District Magistrate sent a reference under para. 3(2) of the Ordinance, then under para. (4) of section 3 of the Ordinance, the Government could reject the reference or make an order of arrest and detention in terms of subsection (1). This is serious infirmity in the impugned detention order. Liaqat Ali v. Government of Sind and another PLD 1973 Kar. 78 embodies the observations made by their Lordships of the Supreme Court, for the satisfaction of the Court when an order of preventive detention is assailed‑‑

(i) that the Court must be satisfied that the material before the detaining authority was such that a reasonable person would be satisfied as to the necessity for making the order of preventive detention;

(ii) that satisfaction should be established with regard to each of the grounds of detention, and, if one of the grounds is shown to be bad, non‑existent or irrelevant, the whole order of detention would be rendered invalid;

(iii) that initial burden lies on the detaining authority to show the legality of the preventive detention;

(iv) that the detaining authority must place the whole material, upon which the order of detention is based, before the Court notwithstanding its claim of privilege with respect to any document, the validity of which claim shall be within the competence of the Court to decided; and

(v) that the order of detention was made by the authority prescribed in the law relating to preventive detention and the requirements of the law were strictly complied with.

5. In this case out of three grounds one of the grounds is vague and indefinite and the last ground is palpably wrong. Ground (b) pertains to the pending cases and as observed supra, the involvement of Muhammad Ishaque in cases which are subjudice before the criminal Courts cannot be made a ground for his arrest and detention under the Ordinance. The legal requirement of law has not been complied with and the case has not been referred to the Government under section 3(2) of the Ordinance.

6. It has been contended on behalf of the learned A.A.‑G. that the detenu did not make any representation to the Government when he was delivered the memorandum of grounds and he has an efficacious remedy before the Government. I do not subscribe to this view because, it is to be seen whether an effective representation could be made against the grounds of detention. In this case, the detenu was not equipped with sufficient material to make an effective representation.

7. It has been further represented with reference to section 23 of the Ordinance that no Court can take cognizance in such cases except as provided in this Ordinance. It may be noted that all the illegal orders of an authority can be subjected to the corrective process of a Court and in this manner section 23 is inapplicable in the instant case, whereas the detention order suffers from serious infirmities and is illegal and of no legal effect.

8. I, therefore, quash the impugned detention order. Muhammad Ishaque may be set at liberty forthwith if not required to be detained in any other case.

M.Y.H./G‑156/L Detention order quashed.