ZAFFAR HUSSAIN MIRZA. J.---This petition calls in question an order dated 7th,. February, 1979 passed by the Government of Sind under section 5, subsection (1), clause (c) of the Sind Maintenance of Public Ordinance, 1960, whereby the detenu Omer Hayat Niazi was, directed "not to return to the Province of Sind till further orders."
2. The facts leading to the impugned order of externment briefly stated are, that the petitioner claims to be a prominent labour leader, who was a member of the Labour Organisation and an active participant in the labour union activities. On 12th March, 1978, the Government of Sind had passed an externment order against the petitioner under the Sind Maintenance of Public Order Ordinance, 1960, directing him to remove himself from the Province of Sind. The detenu challenged the legality of the said order before the High Court of Sind in Constitutional Petition No. 1085/ 1978, which was allowed by judgment dated 28th November, 1978. It is the case of the petitioner that during the pendency of the said Constitutional Petition, the detenu had removed himself from the province of Sind and had taken up temporary residence at Sub-Chowki in the 'Province of Baluchistan, Subsequently, however, the District Magistrate, Lasbella District of Baluchistan, on 10th March, 1979 passed an order of externment against the detenu from the District of Lasbella. The aforesaid order was also challenged before the High Court of Baluchistan, but it is not known, what disposal was made of that constitutional petition. In the events that happened, however, as a result of the aforesaid externment order, passed by the District Magistrate, Lasbella and the quashment of the externment order, passed by the Government of Sind in the Constitutional. Petition No. 1085 of 1978; the .Detenu returned to Karachi to his ordinary place of residence. The petitioner alleges that the detenu is a T. B. Patient and while he was admitted in Baqai Hospital, Nazimabad, Karachi for treatment, he was served with the impugned order on 8th May, 1979. The detenu is said to have submitted a representation under subsection (5) (a) of section 5 of the M. P. O. On 17th May, 1979 before the Government which according to the petitioner, is still lying undisposed and pending before the Government. It will be advantageous to set out the impugned order and the grounds in support of the order in extenso:- ANNEX "B"
"Karachi, dated the 7th February, 1979
No. XIII (43) S O J/74.-Whereas the Government of Sind are satisfied that to prevent Umar Hayat Niazi, a labour agitator from acting in a manner prejudicial to public safety and the maintenance of public order in the Province of Sind, it is necessary to order the said Umar Hayat Niazi to remove himself from the Province of Sind.
Now, therefore, in exercise of the powers conferred under clause (c) of subsection (1) of section 5 of the Sind Maintenance of. Public Order Ordinance, 1960, the Government of Sind are pleased to order that the said Umar Hayat Niazi shall not return to the said Province till further orders.
By order of the Governor of Sind."
ANNEX "C"
"Karachi, dated the 7th February, 1979.
Subject: Communication or grounds under subsection (5) of section 5 of the Sind Maintenance of Public Order Ordinance, 1980.
You, Mr. Umar Hayat Niazi resident of Niazi Dora, Dhabeji, District Thatta, and also temporarily living in the industrial areas of Districts Dadu and Karachi, (South) of the Province of Sind, have been ordered under this department order of even number, dated 7th February, 1979 to remove yourself from the Province of Sind, on the following grounds:-- That the reports received from various sources of Thatta, Dadu and Karachi reveal that you have been inciting the workers of Gharo-Dhabeji mill area in Thatta District, S. I. T. E. Area of Kotri (Dadu District) and in Karachi (South) District, to violence and thus trying to destroy the industrial peace and economic activities of the said industrial areas. You have not adhered to legal and meaningful healthy trade unionism. You always try to thrive on creating provincialism among the labourers."
2. You are hereby informed that you are at liberty to make a representation against the order referred to above to the Government of Sind,"
3. The learned counsel for the petitioner has assailed the legality of the impugned order on the following grounds:--
(1) That the petitioner, being an ordinary resident of Karachi and, therefore, of the Province of Sind cannot he removed from the Province as whole as directed to the impugned order, in violation of section 5(4) of the M. P. O,
(2) The impugned order is in violation of mandatory provisions of subsection (6) of section 5 of the M. P. U, inasmuch as no specific period of externment has been prescribed in the order.
(3) That the respondent has violated the mandatory provisions of subsection (5) (a) of section 5 in not providing art opportunity of hearing to the detenu in connection with his representation.
(4) That the grounds upon which the order is founded, do not justify the same and there exists no nexus between the specified grounds and the grounds provided in law.
We have heard Mr. Iqbal Haider, Advocate, for the petitioner and Mr. Abdul Sattar Shaikh, Addl. A.-G.
For the respondent. No counter --affidavit has been filed on behalf of the respondent and, therefore, the factual assertions made in the petition are taken to be correct. We, however, feel that same petition can be disposed of only on the first ground urged and it is, therefore, not necessary to enter into the remaining grounds urged in support of the petition.
4. As stated above, the impugned order purports to have been passed under section 5 (1), clause
(c) which reads as under:- "Government or the District Magistrate, if satisfied with respect to any particular person that with a view to preventing him from acting in any manner, prejudicial to public safety or public interest or the maintenance of public order, it is necessary so to do, may by order in writing give any one or more of the following directions, namely that such person:-
(c) "Shall remove himself from and shall not' return to any area that may be specified in the order."
The contention raised by the learned counsel for the petitioner is that the detenu, being an ordinary resident of the province of Sind, cannot be directed to remove himself from the entire Province or be prevented to return to the entire Province of Sind. Reliance in this behalf has been placed on the proviso following subsection (4) of section 5 which reads as under:-- "Provided that no such order made by the Government, shall direct the exclusion or removal from the Provinces of any person ordinarily resident in the Province and no such order made by the District Magistrate shall direct the exclusion or removal from the District of any person ordinarily resident in that district."
On a first reading of section 5 of the M. P. O., it would appear that the proviso relied upon by the learned counsel only qualifies subsection (4) which relates to clause (a) of subsection (t). However, the learned counsel has invited our attention to Hakim Ali v. District Magistrate, Lahore (PLD 1965 Lah. 418), where on taking into consideration the provisions of the M. P. O., it was held that the proviso, according to explained meaning, and in the context of other provisions of the Ordinance is capable of only one interpretation that it applies to orders passed both under sub-clauses (a) and
(c) of subsection (1) of section 5. Learned Addl. A.-G. Has not brought to our notice any judgment to the contrary and is in fact unable to meet this contention. We, therefore, agree with the construction of the proviso placed on subsection (1) of section 5 in the aforesaid judgment. It was pointed out to us by the learned counsel for the petitioner that the question of ordinary residence of the detenu in the Province of Sind is beyond controversy, as the grounds in support of the order, as reproduced above, clearly how the residence of the detenu at Dera Niazi, Dhabeji, District Thatta.
In the absence of any counter-affidavit controverting the assertions made by the petitioner and the facts disclosed in the memo of grounds as to the residence of the detenu, we are left with the only conclusion that the detenu is an ordinary resident of the Province of Sind. Clearly, therefore no order under section 5(1). Clause (c) could be passed for removal of the detenu and prohibiting his re-entry as to the entire area comprised in the Province of Sind. The order is, therefore, patently passed without lawful authority and is of no effect in law, We declare it so.
5. In the result the impugned order is quashed. There will, however, be no order as to costs.