MAMOON KAZI, J.-- The petitioner in this case is the son of detenu Muhammad Sarwar s/o Siraj Din who was detained for a period of thirty days under the order passed by the Secretary to the Government of Sind, Home Department, under section 3(1) of the Sind Maintenance of Public Order Ordinance, 1960.After passing of the aforesaid order on 3.11.1987, the detenu was detained at Juvenile Jail Landhi Karachi. The gounds of detention served on the detenu read as follows:- "The grounds on which Muhammad Sarwar s/o Sirajuddin has been detained are as under:- i) That he is worker of PPI and conspire with the others workers of PPI to spread violance against another ethnic group, in order to disrupt the law and order situation. ii) That he spread the discontentment in the public and private buildings property and destroy the public transport. iii) That he arranged the workers to attack the public and private buildings, property and destroy the public transport. iv) That for the foregoing reasons, his remaining at large is hazardous to the maintenance of public order. v) He is at liberty to make representation to the Government of Sind against this order."
2. On 8.12.1987 when this (petition came up for hearing before this bench, Mr. A.R.Kazi, the learned Additional Advocate General, Sind made a statement before us that the detenu had been set at liberty by the detaining authority and consequently this petition should be disposed of as infructuous.
However, Mr. Faridul Haq, the learned counsel appearing on behalf of the petitioner, contended that notwithstanding the release of the detenu, this Court should still examine the legality of the order of detention as the same had adversely affected the detenu. The question raised by the learned counsel for the petitioner, was considered by us along with another case, namely C.P.No.D-888/87, then pending before us, wherein also a similar question had been raised on behalf of the detenu.
We were addressed on the point by the learned Advocate General, Sind, who was appearing for the respondents in C.P.No.D-888/87. Many cases were cited at the bar and consequently, we would like to refer to them here.
3. In the Collector of Customs and two others v. . Yousaf (1969 S.C.M.R.595) the Supreme Court declined to examine the legality of the action taken by the customs authorities on the ground that the grievance of the petitioner had ceased to exist and consequently, the question before the Supreme Court was purely of an academic interest. Similar view was expressed by the Supreme Court in another case reported as Deeba Goods Forwarding Agencies Itd, v. Province of Punjab (1971 S.C.M.R. 527) under somewhat similar circumstances. In Zafar Iqbal v. The Province of Sind (P.L.D.1973 Kar. 316) during the pendency of the proceedings before a division bench of this Court, under section 491, Cr.P.C, the detenu was released and cosequently, the Court declined to record its decision in the case. However, the follwoing observations were made by the Court in its judgment: "17. Thus the trend of the authorities is clear, an application under section 491 of the Code of Criminal Procedure becomes infructuous, and the release of the detenu, but as the jurisdiction of the Court in a constitutional petition is wider, it can in such a petition proceed to pronounce judgment despite the release, if it considers it necessary in the interest of justice. However, the long established practice of our Courts, is to refrain from recording its decision as merely an academic exercise when no grievances were left, as is to be found from Deeba Forwarding Agency Itd.v.
Province of Punjab and others(1) and the Collector of Customs and others v. S.M. Yousuf
(2) ."
Reference may also be made to the following cases, reported as Keshave TaInade v. Emperor (A.I.R.1944 F.C. 24(1)), Homi Rustomii Pardivala v. Sub-Inspector Baig and others (A.I.R.1944 Lah. 196) and Amarendra Chandra Chakravotv v. Garrison Engineer and others (A.I.R.1945 Cal. 340). In each of the aforesaid cases the detenu had been released durnig the pendency of the proceedings before the Court and consequently, the Court declined to record its decision in the case. However, Mr. Faridul Haq placed reliance on Malik Ghulam Jilani v. The Government of West Pakistan (P.L.D.1967 S.C.373) and Ziaurrehman v. The State (P.L.D.1986 Lah. 428), wherein the Court recorded its decision, notwithstanding the fact that at the time of the hearing of those cases the detenus had been released from the custody. In the first case, the decision was recorded by the Supreme Court owing to the reason that the petitioners before it were politicians of standing and on account of their detention, they had incurred disqualifications in respect of their right to stand for elections to the representative offices. In the second case, the Lahore High Court under somewhat similar circumstances announced its judgmentes important questions of consitutional law had been raised by the petitioners which could also arise in a large number of other writ petitions.
4. Basing his contention on the cases of Malik Ghulam Jillani and Ziaurrehman, Mr. Faridul Haq, learned counsel for the ptitioner, argued that, the detenu wanted to claim damages from the respondents on account of his illegal detention which is not possible unless the legality of the detention order is first determined by this Court in the exercise of its constitutional jurisdiction.
5. In this respect, it may be pointed out that a similar argument advanced on behalf of the detenu in C.P. No.D-888/87 was accepted by us and the judgment, in that case was announced on 28.1.1988, but it is pertinent to point out that in that case, the judgment, after hearing of the arguments in the case, had already, been written by us and the same only remained to be announced when we were informed about the release of the detenu by the learned Advocate General a day prior to the date fixed for the announcement of the judgment, which is not the case here. No doubt, one of the grounds pleaded on behalf of the detenu in that case was that the detenu wanted to claim damages from the respondents on account of his illegal detention which according to him, was not possible without the order of the detention being declared as illegal, but the decision in that case was recorded by us mainly due to the reason that the judgment had been written by us. Under the circumstances, pleaded in the case of the detenu in CJP.No.D- 888/87, it would have been highly unjust, if the announcement of the judgment had been withheld by us. In the instant case, we are afraid, the question of legality of the impugned order cannot be gone into simply for facilitating the detenu to institute another proceeding against the respondents. The facts of the instant case are, therefore, clearly distinguishable. We also find that the two cases relied upon by Mr. Faridul Haq are not attrected to the facts of the two cases to announce its judgment, notwithstanding the release of the detenus, do not exist in the instant case. A reference may also be made here to another unreported judgment recently given by another Division Bench of this Court in C.P.No.D-43/87, whereby a similar request made by the petitioner/ counsel had been declined. We, therefore, find no reason to take a different view in this case.
6. In the resuIt, this petition is dismissed as infructuous, with no order as to costs.