' The validity of the order dated 16th of October 1974 of the Home Secretary restraining the petition from delivering speeches in mosques or anywhere outside mosques in the Province of the Punjab for a period of two months and directing him to execute a bond in the sum of Rs, 5,000 with one surety in the like amount to ensure compliance with the said order, has been challenged in this writ petition.
2. The order has been passed in exercise of the Government's authority under section 5 of the West Pakistan Maintenance of Public Order Ordinance, 1960.
' One of the objections is that the provisions of subsection (5) of section 5 of the Ordinance have not been fully complied with inasmu ch as the petitioner was not informed within 15 days of the passing of the order that he was at liberty to make a representation to the Government against the impugned order.
' The learned counsel for the petitioner relies in this behalf on Qazi Masood Gul v. Government of West Pakistan (1) wherein a Division Bench of the West Pakistan High Court at Peshwar held an order passed under section 3 of the same Ordinance to be invalid on the ground that the person affected by that order had not been informed that he was at liberty to make representation to the Government as was required by subsection 6 of section 3. The provisions contained in subsection
(6) of section 3 being para matetia with those contained in subsection (5) of section 5 of the order now in question before me will have to be held invalid on the basis of authority referred to above. {{FOOT NOTE}}
(1) PLD 1969 Pesh. 50 {{FOOT NOTE}} ' The learned Assistant Advocate-General has, however, pointed out that the matter now before this Court is not one of detention whereas in the Peshawar case the person concerned had been detained under section 3 of the Ordinance. Regardless of whether the matter is one of detention or of some other kind of restraint, the question before me is whether the non-compliance with the provisions of subsection (5) of section 5 invalidates the order passed under that section. I have no doubt in my mind that if non-compliance of subsection (6) of section 3 renders an order passed under that section invalid, the same principle will apply to an order passed under section 5 of the Ordinance. The learned Assistant Advocate-General has also referred me to Mrs. Habiba Jilani v.
The Federation of Pakistan ( N) in which a Division Bench of the Lahore High Court has held that the failure of the Review Board to fix a reasonable allowance for the family of the detenu under clause
(8) of Article 10 of the Constitution does not render the order of detention void. In my opinion the present case is distinguishable inasmuch as in the case referred to by the learned Assistant Advocate-General there was no default on the part of the detaining authority but only on the part of the Review Board and even that fault was such as could be rectified later.
Therefore, I hold that the impugned order is liable to be set aside though only on a technical ground.
3. Accordingly I allow the writ petition and declare the impugned order to be of no legal effect. {{FOOT NOTE}}
(1) PLD 1974 Lah. 153 {{FOOT NOTE}}