MUHAMMAD RAFIQUE Alias FIQA vs THE DISTRICT MAGISTRATE, MANSEHRA

MAHBUB ALI KHAN, J.---By an order dated 1-10-1991, the District Magistrate, Mansehra (the respondent herein) passed orders for the preventive detention of petitioner Mohammad Rafique alias Fiqa under section 3 (1) of the West Pakistan Maintenance of Public Order Ordinance, 1960 (W.P. Ordinance XXXI of 1960) and committed him to the custody of the Superintendent District Jail, Haripur for a period of 30 days. He on the expiry of this period passed another order on 30-10-1991 and extended the detention period to further three months. The petitioner has taken exception to both these orders and impugned them before us in this petition moved under Article 199 of the Constitution of the Islamic Republic of Pakistan for a declaration that the same have been passed without lawful authority and are of no legal effects.

2. Mr. Ejaz Afzal Khan, Advocate appearing on behalf of the detenu vehemently contended, that the District Magistrate had no material before him when he passed the initial detention order on 1-10- 1991, that the petitioner had been acting in any manner prejudicial to public safety or the maintenance of public order on the consideration of which and after having satisfied himself he could pass an order directing the arrests and detention of the petitioner under section 3 (1) of the Ordinance and had also no reasons for the extension of the detention period to further three months by another order recorded on 30-10-1991. The second contention raised by the learned counsel was, that the detenue has not been communicated by the authority making the impugned order the grounds on which the order has been made so that he could make a representation to Government against the order.

3. On a perusal of the record we find two stereotyped orders dated 1-10-1991 and 30-10-1991. These do not disclose the material on the basis of which the District Magistrate after having been satisfied had reached the conclusion that preventive detention of the petitioner for a certain time was necessary so that he could be restrained from acting in a manner prejudicial to public safety or the maintenance of public order. It seems on the contrary that the learned District Magistrate has not applied his own mind to the situation. He has just filled in the blanks by writing the name of the petitioner in the cyclostyled forms where found necessary. He similarly never cared to communicate to the petitioner the grounds on which the order has been made and informed him that he was at liberty to make a representation to Government against the order in spite of the fact, that under section 3(6) of the Ordinance it has been made obligatory on the part of the District Magistrate to furnish to the detenu the grounds on which the order has been made and these grounds are to be communicated to him "as soon as possible", so that he may be able to make a representation.

4. In view of the importance of the matter it would be a requirement to reproduce the text of section 3 (1) and (6) of the Ordinance which read as under:-- 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 for 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 reasons it is necessary so to do, may, subject to the other provisions of this section, extend from time to time the period, of such detention.

Explanation:--For the purposes of this section.

(i)"dealing in the black-market" of "hoarding" as defined in the Hoarding and Black-market Act, 1948; or (ii)an act of smuggling punishable under the Sea Customs Act, 1978, or the Land Customs Act, 1924, or under any other law for the time being in force; shall be deemed to be an act prejudicial to the maintenance or public order.

(6)Where a detention order has been made under this section the authority making the order shall as soon as may be, but not later than fifteen days from the date of detention, communicate to such person the ground on which the order has been made, inform him that he is at liberty to make a representation to Government against the order and afford him the earliest opportunity of doing so: Provided that the authority making any such order may refuse to disclose facts which such authority considers it to be against public interest to disclose."

5.The words "as soon as possible" used in subsection (6) of section 3 of the Ordinance are of great significance. These have been looked into and discussed in the case of Maulvi Ghulam Ullah Khan v. District Magistrate, Campbellpur (PLD 1967 Pesh. 195) by Faizullah Khan, J. As under:-- "the grounds on which the District Magistrate makes the order must be known to him at least on the day when the order is made and can ordinarily be served on the petitioner along with the order almost in all cases. Cases, however, may be visualised which would be very exceptional and rare in which the detaining authority may not be able to serve the grounds along with the order and in order to meet such a contingency the detaining authority is permitted to serve the grounds after the order of detention; but the grounds must be served without the least possible delay and 24 hours may be considered to be deadline within which the grounds may be served."

6. In the instant case the position is bad to worse. No grounds of allegations as required under subsection (6) of section 3 of the Ordinance have been communicated to the detenu at all and the learned Assistant Advocate---General when confronted in Court with this situation. Replied, that he himself had been furnished with a copy thereof which when shown to the Court was found to have been signed by the District Magistrate on 4-11-1991. This fact has not been, however, brought to the notice of the Court as to whether even on or after 4-11-1991 these grounds of allegations had been sent to the detenu. On the contrary the signing of these grounds of allegations on 4-11-1991 by the District Magistrate would sufficiently indicate, that the respondent never prepared or communicated any grounds of allegations to the petitioner either on 1-10-1991 when the initial order was passed 8 or on 30-10-1991 when the original detention period was extended for an another three months so that he could exercise his right of making a representation to the Government against the order. The impugned orders of detention of the petitioner in the circumstances are found in flagrant disregard of the mandatory provisions of law under which these are said to have been recorded.

7. For all these foregoing reasons, we shall be constrained to accept this writ petition with costs and declare the impugned orders to be illegal and without lawful authority. The petitioner shall be forthwith C set at liberty from jail detention if not so required in any other case.