MUHAMMAD ABDULLAH Versus DISTRICT MAGISTRATE WEST, KARACHI

MAMOON KAZI, J .‑‑These two petitions, which have been filed by petitioners Muhammad Yousuf and Muhammad Abdullah respectively, arise out of the two separate orders of detention, both dated 1‑9‑1987, passed by the District Magistrate Karachi, West against Anwar s/o Muhammad Khan and Ghulam Hussain alias Gullo s/o Abdullah, detaining them for a period of thirty days. The orders have been passed under section 3 (1) of the Sind Maintenance of Public Order Ordinance 916 read with Notification No. II (14) SOP 78, dated 15‑6‑1978. These petitions were allowed by us today by short orders, the reasons for which are now being recorded.

2. Detenu Anwar was arrested from his house on 31st August, 1987 after the recent riots in Karachi and the next day the order of his detention in judicial custody was served upon him. The other detenu was arrested on 30th August, 1987 and was later served with an order of detention. A case under F.I.R. No. 25/87, was also registered against the detenu on 30‑1‑1987, alleging commission of offences under sections 147, 149, 436, 436, 336, 427 and 323 of the Pakistan Penal Code. The grounds of detention served on the detenus were also identical and we reproduce one of them which was served on detenu Anwar reading as follows:

GROUNDS OF ORDER

"The detailed report of Senior Superintendent of Police Karachi West District received vide Letter No. SSP/W/DIB/994, dated 31‑8‑1987 indicates that he has been found indulging in subversive activities in pursuit of the communal objectives. His movements have been detrimental to the public peace and tranquility as well as dangerous for the national integrity.

His criminal record is catalogued as under: ‑--

Case, F.I.R. No.25/87, under section 147/148/435/336/427/323, P.P.C. Police Station Baldia Karachi."

3. We have heard Mr. Mian Raza Rabbani, learned counsel for the petitioners and Mr. A.R. Kazi, Additional Advocate‑General on behalf of the respondents. No material has been placed before us by the learned Additional Advocate‑General on which the respective detention orders have been based except the F. I. R. , a photo copy of which has already been filed alongwith the counter‑affidavit of the respondent No.1.

4. Only two grounds have been urged before us by Mr. Mian Raza Rabbani in support of the petitions, firstly, that the second ground in the detention order cannot be made the basis of the detenus' detention as a case has been registered against them at P.S. Baldia Town and the concerned authorities have already made a choice to prosecute the detenus for offences allegedly committed by them. The second contention of Mr. Mian Raza Rabbani is that the grounds mentioned in the detention order are vague and consequently the same cannot form the basis of the detention. Reliance has been placed by the counsel on the following cases: ‑

(1) Liaquat Ali v. Government of Sind P L D 1973 Kar. 78.

(2) Chandar Bhan v. Government of Sind P L D 1973 Kar. 241.

(3) Muhammad Younus v. Province of Sind P L D 1973 Khr. 694.

(4) Darshan LAI v. District Magistrate Sukkur C.P. No. D‑77 of 1987 and

(5) Khadija Bi v. The District Magistrate, Hyderabad C.P. No. D‑889 of 1987.

5. These cases clearly support the contentions of Mr. Rabbani. In Khadija Bi v. The District Magistrate, Hyderabad which has been recently decided by this bench, it was held that if the concerned authority makes a choice of prosecuting the detenu for an offence, the same cannot be made a ground for his detention. It was also held that if one of the grounds in the detention order cannot be sustained the whole order would be vitiated. The case of Mairaj Muhammad Khan v. Government of West Pakistan P L D 1966 (W.P.) Kar. 282, wherein a Division Bench of the erstwhile High Court of West Pakistan had upheld the preventive detention on the basis of charges which were subject‑matter of prosecution of the detenu, was also considered in this case, but found to be distinguishable. The reason was that from circumstances of the case it could not be reasonably inferred that the detenu's remaining at large could be detrimental to the maintenance of public order as in Mairaj Muhammad Khan's case. We find that the case of Mairaj Muhammad Khan is also not attracted to the facts of the present case as according to the detaining authority only a single case is pending against the detenus and we are of the view that the same cannot provide any justification for the detaining authority to detain the detenus in custody. Reference in this respect may also be made to the case of Darshan Lal, just referred to above, which was decided by a Division Bench of this Court to which one of us, namely, Mamoon Kazi, J. was a party. One of the grounds of detention in this case was based on similar allegations of charges pending against the detenu in the Court of law, but the same was struck down as unsustainable. The following passage may be quoted from this judgment with great advantage:

"We may, however, make it clear that mere pendency of only one case against a person on whatever charges cannot by itself constitute a ground for his preventive detention under the Ordinance. But if independent grounds exist for such action then the mere fact that one of the grounds relates to charges in connection with which a case is pending against him in a Court of law cannot defeat such action. It, therefore, depends upon the facts of each case."

We are, therefore, of the view that the detenus cannot be detained in custody on the basis that they are facing prosecution in a case.

6. So far as the second argument of the learned counsel for the petitioner is concerned, we agree with him that the other ground of detention is vague as the same fails to give any specific instances in respect of the alleged activities of the detenus or the particulars in regard to the places, dates or time thereof. It has been repeatedly held by this Court that detention of a person cannot be based on such vague and general grounds. Reference once again may be mad to the above authorities, the latest being the case of Khadija Bi.

7. As a result, we are satisfied that the detaining authority failed to apply its mind properly to the question, whether it was necessary to detain the detenus in custody under the aforesaid circumstances. For these reasons these petitions were accepted by us and the detenus were ordered to be released, unless required in any other case.

H. B. T./M‑369/ K ?????? ?????????????????????????????????????????????????????????? Petition accepted.