LATIF AKBAR Versus AZAD GOVERNMENT

ORDER

1. This is an application under section 491, Cr. P. C. for release of the applicants from detention made under section 3 (2) of the Azad Jammu and Kashmir Maintenance--‑of Public Order Ordinance, 1979 read with Notification No. H & P/1416/79 dated 25th March, 1979 issued under section 27 of the said Ordinance, by the District Magistrate Rawalakote (Poonch) in the first instance and then by the Government in case of three detenus namely Major Muhammad Ayub Khan, Imtiaz Shaheen and Muhammad Khalil, Advocates while extending their detentions and in case of Kamal‑ud‑Din and Muhammad Hayat Khan, District Magistrate him self has been extending the period of their detentions. Some of the appli cants namely Khan Bahader Khan, Abdullah Khan, Muhammad Yaqoob and Mullan Ghulam have been released by the Government itself.

2. Now there are five persons who are before me for consideration of their case. The orders of detentions of all the applicants contain the same directions which are to the following effect

3. Whereas from the information laid before me, I am satisfied that there are reasonable grounds to believe that Mr. so and so have acted or about to act in a manner prejudicial to the public safety or the maintenance of public order and whereas it is necessary to prevent them from acting in such a manner. Therefore, I, Muhammad Naeem Khan, District Magistrate Poonch in exercise of the powers vested in me under section 3 (2) read with section 27 of the Azad Jammu and Kashmir Maintenance of Public Order Ordi nance, 1979 and Notification No. H&P/ 1416/79 dated 25th March, 1979, do hereby order

4. The orders pertaining to the extension of the period of detention b the Government do not disclose the satisfaction of the detaining authority as required by law to be made. Even the orders of extension made by the District Magistrate himself do not say anything regarding the requisite satisfaction.

5. The grounds according to the detaining authority which were supplied to the detenus, have the same phraseology couched in the very words for each of the detenus. It was not made known to the detenus as to what were the acts committed by them attracting the preventive detentions thereof.

6. The grounds must be specific and precise disclosing the subversive acts committed by the detenus, to them so that they could be able to make representation to the Government whether those acts were committed by them or not. The so‑called grounds, as a matter of fact, do not reveal the facts constituting the subversive activities of the detenus prejudicial to the public safety or the maintenance of public order. Legally speaking the reasons for which the detenus were imprisoned do not constitute the grounds. This being the case, it will be deemed that no grounds as required by law and Constitution were supplied to the detenus to enable them to make representation to the Government. Thus, they were deprived of valuable right thereby rendering the impugned orders of their detention illegal.

7. In view of the judgments of this Court reported as 1981 P Cr. L J 757 and 853, no grounds were provided to the applicants for which flaw the impugned orders of detention warrant their rescission. Not only this, but we also find that orders of detention were made by the detaining authority under a repealed law viz. the Azad Jammu & Kashmir Maintenance of Public Order Ordinance, 1979 which stands repealed after the expiration of four months from its date of promulgation vide section 41 of the Interim Constitution Act, 1974. This Ordinance could not have had the chance of going to the Assembly as the Assembly stood dissolved long before the promulgation of this Ordinance and it still stands dissolved. After the repeal of the Ordinance, a new Ordinance is to be made to meet the situation. No action can be taken under a repealed Ordinance and it was all done wrongly in the instant cases. That being so, this application is accepted and the immediate release of the aforementioned detenus is hereby ordered. The Superintendent Jail, Pallandri is to be informed of this order for immediate compliance.

8. Application accepted.