' ZAFFAR HUSSAIN MIRZA, J.-This is a petition challenging the validity of the detention of one Nisar Ahmed son of Murad Ali, who has been in detention under the authority of an order passed under section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960.
2. The petitioner is the son of the aforesaid detenu, who is said to be a businessman carrying on his business in the name and style of `Nisar Enterprises'. It is further alleged in the petition that the detenu is also a broker of precious stones and pays income-tax.
3. According to the petitioner, the detenu arrived in Pakistan from England on 7-10-1975 for a visit and was arrested on 16-10-1975 at about 2-00 a.m. By the C. I. A. Police from his house. The petitioner was informed on 17-10-1975 in the evening that the detenu has been arrested in pursuance of an order of detention passed by respondent No. 1 to be detained for a period of 90 days in the custody of respondent No.
2. It is further admitted in the petition that a F. I. R. No. 51 of 1974 dated 11-6-1974 was registered at Bahadurabad Police Station against the detenu for an offence of smuggling under rule 42(6)
(s)/49 of D. P. R., but it is contended that on that date he was out of Pakistan.
4. In response to the notice of this petition, respondent No. 2 has filed a counter-affidavit wherein he has admitted that the detenu was arrested on 16-10-1975 from his house but has contended that the arrest was made in connection with the case registered against the detenu mentioned above in which he was absconding. It is further submitted by the said respondent that a detention order was passed against the detenu on 17-10-1975 and that a statement of the grounds of detention was served on the detenu on 29-10-1975. The detention order is in the following terms :-
' No. 1/104-H (Judicial-D/75.-Whereas the Government of Sind is satisfied that with a view to preventing Nisar Ahmed son of Murad Ali, resident of 4-Memon Co-operative Housing Society, Karachi, from acting in a manner prejudicial to public safety in the province of Sind it is necessary to order and direct his arrest and detention for a period 90 days.
' Now, therefore, in exercise of the powers vested in it under subsection (3) of the West Pakistan Maintenance of Public Order Ordinance, 1960, the said Nisar Ahmed son of Murad Ali shall he arrested detained for a period of 90 days and given in custody (sic) of Deputy Superintendent of Police, C. I. A., Karachi.
' This order will come in force with immediate effect i.e. From 17-10-1975, the day of making this order."
' By Order of the Governor of Sind.
(Sd.) Mumtaz Muhammad Baig, ' Deputy Secretary of Government of Sind.
' Home Department."
' The grounds served on detenu in pursuance of the aforesaid order of detention are in the following terms :- "(I) You are a habitual smuggler of charas to foreign countries.
(2) A case (F. I. R. No. 406 of 1973) under section 156 of Customs Act read with Abkari Act was registered at Police Station Model Town, Lahore on 14-11-1973 and you were challaned in that case and the Court had taken action against you under section 87/88, Cr. P. C.
(3) A case (F. I. R. No. 51 of 1974) under section 42 (6) (sic) read with section 49, D. P. R. Was registered against you at Bahadurabad Police Station in which you were facing trial.
(4) If you are not detained you will restart your undesirable activities and give a bad name to the country."
5. Mr. Aftab Alvi, learned counsel appearing for the petitioner has assailed the validity of the order passed against the detenu and his consequent detention on several grounds. He submitted that the order of detention was passed on 17-10-1975 and was served on the detenu on the same day when he was already under custody. It is pointed out by the learned counsel that the detenu was admittedly arrested on 16-10-1975 at 2-00 a.m. And remained in custody until the evening of 17-10- 1975 when the detention order was served on him. It is stated that while the accused was in custody of the police for more than 24 hours, when obviously, on the morning of 17-10-1974, there was ample opportunity for the Police to obtain the judicial remand as required by section 60 of the Criminal Procedure Code. Accordingly, it is the contention of the learned counsel that the authorities committed breach of mandatory provision of section 60(1) of the Criminal Procedure Code and hence the order of detention of the detenu subsequently under the provisions of West Pakistan Maintenance of Public Order Ordinance was itself vitiated. We find no substance in this contention. In the case of Abdul Hamid v. District Magistrate, Larkana (1) the same contention was advanced and the late Chief Justice of this Court in repelling this contention made the following observation at page 349 of the report :- "In any case even if we were to agree with the contention of the learned counsel for the petitioner this could make little difference to the fate of this petition. He is now in custody by reason of the order later passed by the Government and in matters of this kind the Court is concerned with the question whether the detenu is at present illegally connned or not; the question that at some earlier time he was illegally confined is not relevant unless that illegality could be shown to affect the legality of the order under which he has presently been detained."
' We are in respectful agreement with the dictum laid down in the aforesaid case and we also do not find any reason to hold that the prior alleged illegal confinement in this case has any adverse effect on the order of detention on that account. In the case of Abdul Saboor v. District Magistrate, Peshawar and others (2) although that was a case under the West Pakistan Control of Goondas Ordinance, 1959, a similar question was raised. The detenus in that case was originally proceeded against under section 55/110. Cr. P. C. But such proceedings were dropped and instead proceedings under the West Pakistan Control of Goondas Ordinance, 1959 were commenced. It was argued that the proceedings were void as the District Magistrate could not take cognizance without first complying with the procedure with regard to securing the presence of the person proceeded against. The learned Judges repelled the contention by relying upon the case of Mirza Mehmaod Beg v. Commissioner, Multan Division and others (3) where the dictum was laid down in the following terms :- "If a tribunal is properly seized of a matter the order passed by it would not be vitiated by any antecedent irregularities, committed in procuring evidence or in securing the presence of the accused."
' We are of the opinion that the rule laid down in this case is fully attracted in the instant case, because we are concerned with the legality or otherwise of the detention of the detenu at the time of the return of the writ of this Court and if the respondent can show that the present detention of the detenu is covered by a valid order of detention, the previous illegal detention would be immaterial.
5. But Mr. Alvi was on a much firmer ground while attacking the grounds of detention. Relying upon the judgment in the case of Muhammad Younus v. Province of Sind (4) to which one of us was a party, he contended that where definite charges were brought against the detenu for substantive offence and the detenu was facing trial in the Criminal Court, it was not open to the administration in such case to use such charges also as a ground for a preventive detention. Now in the present case an analysis of the grounds of detention served on the detenu shows, that substantially the detention order was passed upon two grounds which pertained to the registering of two F. I. Rs.
Against the detenu in which he was facing trial. {{FOOT NOTE}}
(1) PLD 1973 Kay. 344 (2) PLD 1969 Pesh. 167
(3) PLD 1966 SC 701 (4) PLD 1973 Ka r. 694 {{FOOT NOTE}} ' The other two grounds namely ground No. t and No. 4 are a matter of inference and opinion respectively drawn or formed on the basis of these two mentioned F. I. Rs from other materials.
Learned Additional Advocate-General who appeared for the respondent, however, vehemently argued that there is no invariable rule laid down that where substantive charges have been made against the detenu in the Criminal Court no order of detention can be passed. His contention was that the object of the two types of action is entirely different. It is, therefore, his contention that if there is material available with the detaining authority which consists of substantive cases registered or under trial, there was no impediment in the way of passing of detention order on that basis to prevent the repetition of commission of such offence. At this stage the learned Additional Advocate-General produced before us a file of the Home Department of the Government of Sind, pertaining to the detenu which contains the material on the basis of which the detention order was passed. We pointedly asked the learned Additional Advocate-General whether he claims privilege with regard to the papers in this file, but his answer is that he does not do so. Learned Additional Advocate-General particularly relied upon a statement purporting to be the record of interrogation of the detenu and submitted that this constitutes an important part of the material which was considered by the detaining authority. A big controversy was raised about this document, as the counsel for the petitioner raised objection to the consideration of this document as no prior notice was given to the detenu to enable him to dispute its correctness. However, in or opinion, it is unnecessary to go into that controversy, for, even if this statement is correct, we are at a loss to find any thing incriminating or relevant to the grounds of detention. All that is mentioned in the statement in substance is that the detenu has been travelling abroad excessively and has trade connections with various individuals in foreign countries. In the concluding part of the statement there are some names disclosed who appear to be Pakistani citizens but there is nothing on the record to indicate whether these persons are or were engaged in the acts of smuggling or have any concern with the detenu. We are, therefore, of the opinion that the presence of this report does not in any way advance the case of the respondents. However, Mr. A. H. Lakho, learned Additional Advocate-General, relied upon the case of Mairaj Muhammad Khan v. Government of West Pakistan (1) in support of his argument that the preventive and punitive actions are not mutually exclusive and resort can be had to either or both depending on the choice of the executive authority. There is no doubt that in a given case the executive authority may, on the basis of the past conduct of a person resulting in the commission of offences indicating an apprehension that such conduct would be repeated in the future, pass an order of detention. But it would be the onus of the detaining authority to show that the past instances do really indicate alongwith other materials a probability that the detenu would indulge in prejudicial activities if not detained. In the case of Mairaj Muhammad Khan the facts were distinguishable, in so far as, the detenu in that case was charged in for separate cases for organising violent demonstrations of students which gave rise to the reasonable apprehension in the mind of the administration that if he obtained his release from arrest by bail, he would again organise student demonstrations. But in the present case there are only two instances; one on 14-11-1973; and the other in 11-6-1974, whereas the detention order has been passed on 17-10-1975. {{FOOT NOTE}}
(1) PLD 1966 Kar. 282 {{FOOT NOTE}} ' In the first case the name of the detenu does not transpire in the first report but it was stated at the bar that subsequent investigation revealed his name as an accomplice. However, nothing has been brought on or record to show what was the link of the detenu with that case. Be that as it may, the fact remains that after the last incident which occurred more than 16 months before the order of detention, no material has been placed either before the detaining authority or before us to show that the detenu committed further acts of smuggling or anything to indicate that there was apprehension of his doing so in the future. As stated above his own statement to the C police is of little help in this regard. Following the case of Muhammad Younus, therefore, we are of the opinion that in this case, the previous substantive charges cannot be made basis or ground for detention of the detenu. Mr. Alvi also challenged the validity of the detention order on the ground of inordinate and un-explained delay of 13 days in furnishing the grounds of detention to the detenu.
But since we have held that the two grounds of detention are not sustainable it is not necessary to decide that question as controversial issues regarding the interpretation of clause (5) of Article 10 of the Constitution were raised which it is not necessary to decide in this case.
7. For the foregoing reasons the order of detention impugned in the proceedings before us is quashed. The detenu shall be set at liberty forth with unless required in any other case.