This judgment will also dispose of Cr. Misc. 836/H-78, as similar points of law and facts are involved in both the cases and further the competence of the detaining authority to pass the detention order against the detenus in both the cases is also in question.
2. The first order of detention against the detenu in the writ petition and the detenus in the Criminal Miscellaneous was passed by respondent No. 1 on 18-10-78, for a period of 30 days under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960. However, before the expiry of that period, a fresh order was passed on 7-11-1978 detaining the detenus for a period of two months.
3. Sh. Nasim Hassan, learned counsel for the petitioner in the writ petition, has raised preliminary objection during the arguments to the effect that since respondent No. 1 Ch. Ghulam Ahmad is not the District Magistrate nor has been conferred the said powers, therefore, he is not competent to pass any order under subsection (2) of section 3 of the Ordinance. According to him, the District Magistrate, being persona designate, has been specifically authorised under this provision of law to detain a person if he feels that his activities are Prejudicial to law and order. He has relied upon a notification issued by the Government on 9-9-1978, Annex. III, showing that Mr. Ghulam Ahmad, Additional Deputy Commissioner, has been authorised to hold additional charge of Deputy Commissioner, Mianwali and not that of the District Magistrate. It is contended that since Mr. Ghulam Ahmad had not been conferred the power to act as District Magistrate, therefore, he was not competent to pass the aforesaid order of detention.
It is admitted that Lt.-Col. Nisar Ahmad, District Magistrate, Mianwali has gone for further training for a period of three months with effect from 9-9-1978. Mr. Ghulam Ahmad is working as Additional Deputy Commissioner in that District.
4. The learned Assistant Advocate-General has relied upon section 11, Cr. P. C. To justify the detention order. According to that, whenever office of a District Magistrate in a District becomes vacant, any officer succeeding ,*in temporarily, shall, pending the orders of the Government, exercise all the powers and perform all the duties, respectively, conferred and imposed by the Code on the District Magistrate. It is contended that since Mr. Ghulam Ahmad has succeeded the District Magistrate temporarily, therefore, under the said provision of law he can exercise all the powers and perform all the duties conferred and imposed upon him by law.
I am afraid, this contention has no force in the given circumstances. The Provincial Government has issued necessary orders vide Notification No. SO(S-XII) I1I-7/78, dated 9-9-1978, copy .Filed Annex: III to the writ petition, conferring powers on Mr. Ghulam Ahmad to hold acting charge of the Deputy Commissioner and not that of the District Magistrate. As mentioned above, subsection (2) of section 3 of the Ordinance authorises a District Magistrate, persona designate, to pass such order and there being no person having been specifically authorised to enjoy the powers of District Magistrate necessary order under the Ordinance cannot be passed by him.
5. Even otherwise, as discussed in detail in Muhammad Aslam v. D. M. Lahore and another (PLD 1975 Lah. 4), subsection (2) of section 10, Cr. P. C. Confers powers of the District Magistrate only on Additional District Magistrate. The Provincial Government is authorised to appoint any Magistrate of the First Class to be an Additional District Magistrate and such Additional District Magistrate shall have the powers of a District Magistrate under the Code or any law for the time being in force. This power cannot be conferred upon a person who is not appointed as Additional District Magistrate.
No notification or any Statute has been placed on the record showing that Mr. Ghulam Ahmad, Additional Deputy Commissioner, Mianwali has been conferred the powers of Additional District Magistrate. As such, in the absence of the powers of Additional District Magistrate having been conferred upon him, being Additional Deputy Commissioner, he could not be invested with the powers of District Magistrate as envisaged by subsection (2) of section 10, Cr. P. C.
6. The orders of detention passed by Mr. Ghulam Ahmad being without jurisdiction cannot be sustained in law and the same are hereby set aside. The detenus, vide short order dated 6-12-1978, have already been released. As such, no order for their release is necessary.