1. ' MALIK MUHAMMAD AQIL AWAN, J.---This petition was filed by the petitioners against the order dated 20-5-2005 under section 3 of West Pakistan Maintenance of Public Order Ordinance, 1960.
2. ' Amongst five prayers, at present, the petitioners are emphasizing and pressing this petition to the extent of grant of monetary compensation at the rate of Rs,5,000 per day for each detenu.
3. ' Our order dated 7-5-2009, shows that since the detention order, passed under section 3 of the Ordinance, 1960, dated 20-5-2005, was withdrawn on 6-6-2005 and in view of that, the detenus having been released, to press the application in 2009, is merely an academic exercise. However, the learned counsel for the petitioners sought time to give case-laws on the point that the compensation can be granted in such type of cases even when there is no live issue and point involved viz. Determination of legality of detention, is only for an academic exercise.
4. ' Such time was granted and ultimately on 15-5-2009 the judgment was reserved with the direction to file list of case-law within a period of 3 days.
5. ' In view of. The afore-mentioned position of law, we would deal with the case-laws relied upon by the learned counsel for the petitioners.
6. ' First case cited on behalf of the petitioners is that of Irshad Ali v. Abdul Hameed Khakhrani, reported in 2000 PCr.LJ Karachi 599. This is a case of habeas corpus petition in which the detenus were recovered in a raid, conducted by the Deputy Registrar of High Court, who were found to be in unauthorized confinement for the last 4 days. The detenus had alleged maltreatment and torture at the hands of S.H.O. And also alleged forcible removal of valuables from their house by the said S.H.O. The S.H.O. Had denied the detention but gave a frivolous explanation that they were living at police station on their own accord which explanation was discarded. The Division Bench of Sindh High Court held that the S.H.O. Has exceeded his authority in depriving of three innocent citizens of their property by impounding their buffaloes on account of mere suspicion when no case of cattle theft was pending investigation against them in the police station.
7. ' In this view of the matter the S.S.P., concerned was directed to lodge the F.I.R. Against the S.H.O. And his other accomplices under sections 220 and 334 read with section 34, P.P.C. With further direction to pay monetary compensation of Rs,3000 each detenu within a period of 15 days.
8. ' For the obvious reason, this case has no application on the proposition, framed by us in our order dated 7-5-2009, as in that case, the compensation was ordered on alive issue and not on a dead issue.
9. ' Second case is that of Syed Hassan Ali Shah v. S.H2O., Police Station Dadu and others, reported in PLD 2006 Kar.
425. This is again a habeas corpus matter, which was very much alive issue as the prayer of the petitioner was for the release of detenu who was constantly being tortured at the police station.
10. The Magistrate duly appointed, conducted raid at the concerned police station and found the detenu confined in lock-up without any entry in Roznamcha regarding arrest of detenu. The Magistrate in his report, had stated that the detenu was in a very serious condition and marks of violence were visible on his body. Such report of the Magistrate was denied by the S.H.O. And consequently, the same was got verified by the Additional District and Sessions Judge who after conducting the enquiry endorsed the report of the learned Magistrate as correct. In this background the detenu was held to be kept in illegal confinement and it was further held that the S.H.O. Was liable for committing purgery before the Court by making false statements on Oath and also attempted to obstruct the course of justice. The S.H.O. Was directed to pay to the detenu a sum of Rs,40,000 as compensation for illegally detaining the detenu in the police station for 8 days, with further direction to the authorities to take disciplinary action against the said S.H.O. This case again is of no help to the petitioners on the proposition involved in this case.
11. ' Third case is that of Government of Sindh and others v. Mst. Najma, reported in 2001 SCM R 8. In this case, Mst. Najma had challenged the detention of her husband under the order of District Magistrate, Naushahro Feroze, for a period of 30 days under section 3(1) of Maintenance of Public Order Ordinance, 1960, for the reasons recorded in para 4 of the judgment. The High Court quashed the detention order with the direction to pay Rs,5000 as costs imposed on District Magistrate and SSP Naushahro Feroze, to be paid by them personally and it was to go to the respondent. Against such order of the High Court, the crux of which is mentioned in paras.4 and 5 of the judgment, the appeal was dismissed. This case does not render any support to the case of the petitioners.
12. ' Next case cited at the Bar is that of Mazharuddin v. The State, reported in 1998 PCr.LJ 1035. In this case, the guidelines were provided for a police officer as to under which circumstances, a citizen can be arrested while a petition under section 491, Cr.P.C., was filed for the release of detenu, so arrested by the police. High Court has held that the question as to whether High Court could direct that a person within the territorial jurisdiction of the Court could be dealt with in accordance with law, was wide enough to embrace a direction requiring payment of compensation if a law had provided for such payment, was left open by the Court.
13. ' In this case, the question was formulated as to whether apart from remedy, which the detenu may have to collect damages through a civil suit or a direction that could be given for registration of a.
14. Criminal case against the "police officer responsible for his unlawful detention, whether any monetary compensation could be granted, under the powers available to High Court under section 491, Cr.P.C., or under Article 199 of the Constitution. Distinguishing feature of this case is that neither the detention was under the West Pakistan Maintenance of Public Order Ordinance, 1960, nor adjudication was only for academic purpose as in that case one Mazharuddin was arrested by A.S.I. Of Police Station B-Latifabad and the telegram sent by his relations to the Honourable Judges, holding Circuit Bench of this Court at Hyderabad, was converted into constitutional petition and the Deputy Registrar was directed to raid the police station who found the said Mazharuddin present in police lock-up, therefore, this case is equally of no help to the point involved in this case.
15. ' The case of Muhammad Azim Malik v. A.C. And S.D.M. Preedy (South) Karachi and others, reported in PLD 1989 SC 266, is absolutely irrelevant for the reasons that in the said case Muhammad Azim Malik was detained under section 3 of the Ordinance, 1960, for .a period of 30 days and High Court of Sindh directed the Superintendent Jail Karachi to produce the detenu before the Court. This petition was disposed of on 14-12-1988 with the following order:-- "Mr. A.A. Muhammadally,Additional Advocate-General, Sindh, ptoduces an original letter dated 13th December, 1988, addressed by the Section Officer (Judicial) Home Department, to him, stating therein that non-bailable warrant has been served on the petitioner in the Central Prison, Karachi and that enquiry into the extradition case is being conducted by the Magistrate.
16. ' In view of the above factual position the above petition becomes infructuous and it is dismissed as such."
17. ' Such extradition proceedings were challenged before the Honourable Supreme Court and same were struck down on the ground that they were without lawful authority because the proceedings could only be conducted by the Magistrate First Class, designated by the Federal Government in exercise of the powers possessed under section 7 of the Act.
18. ' The last case is that of Ali Ahmed v. Muhammad Yakoob Almani, reported in PLD 1999 Kar.
134. It is again a case of habeas corpus petition where a detenu was set at liberty in pursuance of the proceedings of such petition wheieunder it was held that award of monetary compensation in favour of the detenu is only a tentative assessment and may not be treated final amount of damages which may be granted to the detenu on filing of a regular suit. This case is equally of no help to the petitioners.
19. ' We can only express our disappointment on the assistance rendered by the learned counsel for the petitioners on B the proposition which was formulated by us in our order dated 7-5-2009. Out of the judgments cited at Bar, not single one is relevant to the said proposition.
20. ' On the contrary, in the case of Sarfaraz Ahmed v. Government of Sindh, reported in 1988 PCr.LJ 1302, the Division C Bench of this Court has held that if detenus who is detained under section 3(1) of Maintenance of Public Order Ordinance, 1960, is released during pendency of constitutional petition under Article 199 of the Constitution, whereunder legality of the detention order is challenged, renders the constitutional petition as infructuous, liable to dismissal, as such. This case directly covers the proposition involved in our afore-mentioned order as a plea was raised on behalf of the released detenu that not-withstanding his release, High Court should still examine legality of detention order as he wanted to claim damages from detaining authority on account of his illegal detention, which would not be possible unless legality of detention order was first determined by High Court in exercise of its constitutional jurisdiction. The plea was repelled with the observation that the question of legality of impugned detention order cannot be gone into after release of the detenus simply for facilitating him to institute another proceeding against the detaining authority.
21. ' In another case of Lever Brothers Pakistan Ltd. v. Senior Member, National Industrial Relations Commission, reported in PLD 1986 Lah.90 it has been held by the Division Bench of Lahore High Court that:-- "The question raised in peculiar circumstances of the case, was thus a purely academic interest which exercise the superior Courts on the principle and precedent, avoid to undertake."
22. ' In this view of the matter, relying upon the dictum laid down by this Court in the case of Sarfaraz Ahmed, we hold that after release of the petitioners during pendency of this petition, the petition has become infructuous and question of illegality of detention order becomes only of the academic interest, which cannot be adjudicated upon and with these reasons, we dismiss the petition with no order as to cost.