' NAZIM HUSSAIN SIDDIQUI, J.---This appeal, with leave of the Court, is directed against the judgment dated 12-10-1993 of a learned D.B., High. Court of Sindh, Karachi, whereby Constitutional Petition No,D-2827 of 1993 was allowed and the order dated 28-9-1993 passed by the then District Magistrate, Naushahro Feroze, under section 3(1) of the Maintenance of Public Order Ordinance, 1960, was declared to have been passed without lawful authority and of no legal effect.
2. Respondent Mst. Najma wife of Dr. Abdul Hameed Memon had challenged the aforesaid order of the District Magistrate, Naushahro Feroze, whereby her husband was detained for a period of 30 days.
3. Aforesaid order was challenged before the High Court on the ground that it was vague and there was no material to justify it. A plea was also taken that it was feared by the administration that said detenu could create law and order situation on 1-10-1993 and that said date had passed peacefully yet, detention order was passed for a period of 30 days and its purpose was nothing than to restrain the detenu on flimsy ground from contesting the elections.
4. Having heard the arguments of the appellants' counsel and of the State Counsel, the High Court reached the conclusion that no material was available to the District Magistrate on the basis of which detention order could be passed under said Ordinance, that the grounds shown for such action were vague in nature and no reference was made to any specific act on the part of the detenu or report made about his activities, that reliance was placed by the District Magistrate on the report of S.P. Which report by itself was not based on any incriminating material and that detention order even if otherwise valid, should have restricted the period of detention up to one or two days after 1st October, 1993. It was further observed that the detenu was a candidate in the elections of the National and Provincial Assemblies scheduled for 6th and 9th October, 1993, respectively.
5. Under above circumstances, the petition was allowed and since the impugned order was found ex facie illegal and mala fide, cost of Rs,5,000 each upon Rashid Siddique Kokab, the then District Magistrate and Shabbir Ahmed, the then S.P., Naushahro Feroze, was imposed to be paid by them personally and it was to go to the respondent. Memo. Of appeal indicates that above cost was deposited by abovenamed two officers.
6. In this appeal the judgment of the High Court has not been challenged in its entirety but only to the extent of cost mentioned earlier. Vide order dated 16-12-1993, leave to appeal was granted to consider the-following questions:--
(i) Whether any notice was required to be issued to the District Magistrate, Naushahro Feroze, before awarding costs of Rs,5,000 against him though he was already a party to the above petition?
(ii) Whether the High Court should have issued a show-cause notice to the Superintendent of Police, Naushahro Feroze, before imposing the above costs?
7. It is contended on behalf of the appellants that great responsibility rests on the shoulders of the Government functionaries like District Magistrate and S.P. And they being responsible for maintaining law and order some latitude is to be allowed to them while examining their acts of commission and omission. Also, it is urged that both the abovenamed officers had done in good faith and there was no mala fide on their part.
8. Qazi Faez Isa, learned amicus curiae, has cited the following case-law in support of the impugned judgment of the High Court:--
(i) Muhammad Ibrahim v. S.H.O., Police Station, Sheikhupura (1990 PCr.LJ 1717),
(ii) Arz Muhammad Umrani, Assistant Political Agent, Dera Bugti v. Atta Muhamamd and another 0993 SCMR 633),
(iii) Khurshid Ahmad Naz Faridi v. Bashir Ahmad and 3 others (1993 SCM R 639),
(iv) Saheli, A Women's Resource Centre. v. Commissioner of Police, Delhi and others (AIR 1990 SC 513),
(v) Sebastian M. Hongray y. Union of India (AIR 1984 SC 1026),
(vi) Bhim Singh Mla v. State of Jammu and Kashmir (AIR 1986 SC 494) and
(vii) Arvinder Singh Bagga v. State of U.P. And others (AIR 1995 SC 117).
' In case of Muhammad Ibrahim (supra), the S.H.O. Was ordered to pay a sum of Rs,2,000 to the petitioner as his action was found improper, illegal and without any authority and contrary to Article 9 of the Constitution.
' In case of Arz Muhammad Umrani it was observed by the Court that the High Court under Article 203 of the Constitution being responsible for the entire administration of justice in the Province and being charged with the responsibility of supervising all Courts subordinate to it was competent to take all appropriate measures for preventing flagrant maladministration of justice.
' In Khurshid Ahmad Naz Faridi case the appellant and an Inspector of F.I.A. Were directed to pay Rs,1,000 out of their own pockets. It was observed that where a person acting in his official capacity in complete disregard of the clear records and documents and having no authority to pass order of a particular nature, passes such an order, then while setting aside such order the Court may award cost to be paid by him personally and such order if passed, would be proper exercise of discretion.
' In case of Saheli, A Women's Resource Centre, the Court had directed Delhi Administration, respondent No,2, to pay compensation of Rs,75,000. This was done under Article 32 of the Indian Constitution, which empowers the Supreme Court to issue any prerogative writ for enforcement of fundamental rights. The administration was directed to pay the amount as State was responsible for tortuous acts of its employees.
' In case Sebastian M. Hongray, writ of habeas corpus was issued to Government of India to produce certain persons. It was contended that said persons were not in their custody. The Supreme Court did not accept distorted version of facts placed before it and held that Government had committed civil contempt and directed it to pay exemplary costs of Rs,1,00,000 each to the wives of the disappeared persons.
' In Bhim Singh Mla's case the arrest of the concerned person was found mischievous and malicious. Compensation of Rs,50,000 was awarded. It was held that police officers, who were custodians of law and order should have the greatest respect for the personal liberty of citizens and should not flout the law by stooping to such bizarre acts of lawlessness.
' In the case of Arvinder Singh Bagga the State was ordered to pay compensation of Rs,10,000 to the concerned persons, who were illegally detained.
9. Ratio of above cases is that order granting cost shall be based on valid recognized principles of justice and equity and not on fanciful arbitrary or capricious grounds. Since it is the duty of the superior Courts to protect the fundamental rights of the people, as such, for achieving above object, the superior Courts can exercise all incidental and ancillary power and also can adopt new strategies to enforce the fundamental rights.
10. Adverting to the facts of the case, it is noted that the judgment of the High Court in its entirety, on merits, has not been challenged and it is assailed only to the extent of imposing cost. Impugned portion of the judgment, in fact is its operative part and inseparable. Its exclusion would render the remaining part of the judgment meaningless. Thus, it is evident that the order of the District Magistrate was illegal, ab initio and mala fide. It was motivated to deprive the detenu from taking part in the election compaign.
11. It is urged that before passing said judgment show-cause notices should have been issued to both the officers to explain their point of view. It is significant to note that order dated 28-9-1993 was impugned before the High Court and its propriety, correctness and validity was judicially examined under Article 199 of the Constitution. In such a situation, it was not at all necessary to hear any one of them. Besides, the abovenamed officers before the High Court were represented by the Additional Advocate-General. The material, on the basis of which said order was passed, was thoroughly scrutinized by the High Court. Show-cause notice is issued when there is ambiguity and further clarification is essential for reaching to a final conclusion. If the facts are clear, definite and irrefutable, such notice will not be necessary, unless it is mandatory and a legal requirement.
In this case show-cause notice was not necessary.
12. It is significant to note that the present appeal has not been preferred by abovenamed officers in their private capacity, but the appellant No,2, the District Magistrate has filed this appeal in his official capacity. The appellant No,1, Government of Sindh has no locus standi to file this appeal.
Instead of protecting them, it would have been appropriate if the Government would have taken strict action against them for their ex facie, mala fide and illegal act.
13. In consequence, the appeal is dismissed.