' SABIHUDDIN AHMED, CJ. - This is a petition calling in question the detention of one Robin Piradita, who was arrested on 25-9-2002. Apparently he was the only survivor of the group of eight persons, seven of whom were shot dead in an office in Rimpa Plaza.
2. When this petition came up for hearing on 8-10-2002 after notice to the respondents, learned A.- G. Stated that there was difficulty in complying with the earlier order of the Court dated 4-10-2002 directing production of the detenu as the detenu's own security was in danger. The Court thereafter adjourned the matter to today directing the Nazir of the Court to submit a report as to the state of his health of the detenu and whether he had been subjected to torture and allowing the petitioner (his wife) and her Advocates to meet him.
3. The Nazir, in his report filed on 21-10-2002, has stated that he visited the detenu on 9-10-2002 who wanted to speak to him in the absence of police officers. The detenu complained of maltreatment by the police and the Nazir found some marks Of torture on his hands, legs and ears.
His eyes and cheeks were blue.
4. Prima facie, the report indicates that the detenu was subjected to torture and these allegations if found true require extremely serious action against person responsible for inflicting such injuries.
Learned A.-G. Attempted to refer to a statement alleged to have been made by the detenu but we are of the view that any such statement in the kind of circumstances referred above would hardly be required to be considered. In any event, it seems to have no nexus with the present controversy.
5. Learned A.-G. Attempted to assail the report of the Nazir by pointing out that though he visited the detenu on 9-10-2002, the report was submitted as late as on 21-10-2002. We agree that it would have been appropriate if the report had been submitted immediately after.The inspection.
Nevertheless, keeping into consideration the fact that the Nazir appeared aware that his report would only be taken up for consideration today he did not act promptly. This by itself should not persuade us to ignore the statement of facts made by a responsible officer of the Court, who has several duties to perform and is normally entrusted to make a large number of inspections/enquiries.
6. It is well-settled as held by the Honourable Supreme Court in Government of West Pakistan v.
Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14) that in every case of detention without trial the initial onus is bn the detaining authority to justify the detention by establishing the legality of his action and only after it has been done the burden shifts on the detenu to show mala fides. In this context photocopies of two orders purportedly passed by the respondent No, 2 on 25-9-2002 were placed before us today by Mr. Sulleman Habibullah Additional Advocate-General. The first order purported to be passed under section 3(1) of the Prisons Act declaring the Investigation Branch Building Saddar, Karachi as temporary Sub-Jail for detention of the detenu and under section 3 of the Maintenance of Public Order Ordinance purporting to detain the detenu for a period of 60 days. As regards the first order though the report of the Nazir, regarding the treatment of the detenu could lead to the inference of absence of mala fides, we would without going into this question examine the Notification which reads as under:- "NO. GOVERNMENT OF SINDH HOME DEPARTMENT Karachi dated 25th Sept. 2002 NOTIFICATION ' "No, PRS-II.HD/8-54/2002.-In exercise of powers conferred under subsection (1) of section 3 of Prisons Act, 1894. Government of Sindh is pleased to declare Investigation Branch Building, Saddar Karachi, as Prison temporarily 'Sub Jail' for the , detention of Robin Peeran Ditta son of Sharif and the said place shall be in the charge of Superintendent Central Prison, Karachi.
SECRETARY TO GOVT OF SINDH HOME DEPARTMENT."
7. We are of the view that the aforesaid Notification is ex facie ultra vires the powers conferred under section 3(1) of the Prisons Act. It may be appropriate to reproduce these provisions as under:- "
3. Definitions: In this Act:--
(i) "Prison" means any jail or place used permanently or temporarily under the general or special orders of a provincial Government for the detention of prisoners, and includes all lands and buildings appurtenant thereto, but does not include-
(a) any place for the confinement of prisoners who are exclusively in the custody of the police;"
8. It is evident that while subsection (1) of section 3 enables the Provincial Government to declare a place as Sub-Jail for temporary or permanent detention of prisoners, clause "a" thereof is an exception to the Act, which explicitly provides that any place for conferment of prisoners, who are exclusively in police custody, cannot be declared as prison. Evidently the Investigation Branch Building could not be declared a temporary sub jail. Learned A.-G. Attempted to argue that the detenu could not be classified as a prisoner in the strict sense but the short answer is that in that event the main section 3(1) enabling the Government to declare a Sub- Jail could itself be inapplicable. We are, therefore, clearly of the opinion that the detention of the detenu at the Investigation Branch was in an unlawful manner.
9. As regards the authority for detention, a copy of an order purported to be dated 25th September, 2002 has been placed before us which reads as under:- "GOVERNMENT OF SINDH HOME DEPARTMENT Karachi dated 25th September 2002.
' No, II(36)SOJ/2002. WHEREAS, the Government of Sindh is of the view "that group of terrorists has planned to eliminate Robin Peeran Ditta son of Sharif, a prime witness of case vide F.I.R. No,205 of 2002 of Police Station Garden, Saddar Town, Karachi in which seven Christian workers of NGO were killed on 25th September, 2002.
' AND WHEREAS, it has been made to appear to me through source/secret reports that there is potential threat to the life of Robin Peeran Ditta, as he is witness of incident.
' AND WHEREAS, it is necessary to protect the life of the said Robin Peeran Ditta, and to avoid any mishap.
' NOW THEREFORE, I Brig. (R,) Mukhtar Ahmed, Secretary Home, Government of Sindh, Karachi in exercise of the powers vested in me under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960 do hereby Order for detention of said Robin Peeran Ditta for 60 days commencing from 25th September, 2002 to 23rd November, 2002 and remain in Investigation Branch Building Saddar Karachi, already declared as Prison temporarily as Sub-Jail.
SECRETARY TO GOVT. OF SINDH HOME DEPARTMENT. "
10. In the first instance we are extremely doubtful about the authenticity of this document because even after service of notice on the respondents including the Home Secretary, no such order was made available to the learned A.-G. When the matter came up before the Court on 8-10-2002. In the circumstances, we have strong reasons to infer that such a back dated order was manipulated and we are constrained to express our deep regret over the manner in which responsible and senior officers of the Government act, which could possibly erode their credibility. It may be added that no separate grounds of detention were placed before us and it was apparent that only so- called ground seems to be contained in the order itself.
11. In any event on merits, it is evident that section 3 of the Maintenance of Public Order Ordinance, only empowers passing of a detention order, if the Government or any other officer authorized by it is satisfied that such detention is necessary to prevent any person from acting in any manner prejudicial to public safety or maintenance of public order. The above detention order is ex facie not related to any of the above conditions and is therefore, liable to be declared invalid. Evidently section 3 of the Ordinance does not confer any power upon the respondent No,2 to order detention for the purposes specified in the order.
12. Learned A.-G. Brought to our notice section 21 of the Anti-Terrorism Act which empowers a Court to make necessary order within availability of resources for protection of Judges, witnesses, counsel and other persons concerned in proceedings. Nevertheless, he candidly conceded that the order dated 8-10-2002 could not be treated as one under the abovementioned section 21 and it is evident that even if the detenu is witness in a serious offence under the Anti-Terrorism Act, an order for his protection could only be passed by a Court in accordance with section 21 and proceedings under the Maintenance of Public Order Ordinance were altogether unwarranted.
13. For the foregoing reasons, we are of the view that the detenu was kept in custody without lawful authority and in an unlawful manner. We would accordingly allow this petition and direct that he be set at liberty forthwith. The parties may take any appropriate steps that they desire but strictly in accordance with law. Learned A.-G. States that appropriate application would be made under section 21 of the Anti-Terrorism Act but it is unnecessary to comment as directions could be given by a competent Court' in accordance with section 21 and their validity could be examined in an appropriate proceedings. The petitioner and the detenu are also free to sue for compensation in accordance with law.