' By this writ petition the detenu, Muhammad Ashraf, has challenged the Detention Order of the District Magistrate, Kasur dated 21-6-1977 by which he has been detained in District Jail, Kasur for a period of three months.
2. According to the facts, the petitioner (detenu) claims to be the Senior Vice-President of Tehrik-e- Istiqlal, Kasur Tehsil and he also claims to be President of the Pakistan National Alliance, of village Sarhali Kalan, and was actually participating in the movement of the Pakistan National Alliance.
' On 12-6.1977, he organised a meeting of the District Councils of the Pakistan National Alliance.
Lahore and Kasur and hosted as Councillor for both the Districts. It is further stated that the District Magistrate and the Police Officers pressed him to join Pakistan People's Party and on his refusal he was made target of the impugned oppressive mala fide order.
3. The learned counsel for the petitioner has challenged this order on the following grounds :-
(i) That it was incumbent upon the District Magistrate, Kasur to refer the matter to the Provincial Government under section 3(2) of the West Pakistan maintenance of Public order Ordinance, 1960 because the power has been delegated to the District Magistrate under section 26 of the Ordinance but the discretion has to be exercised by the Government and he relies on Liaqat All v.
Government of Sind and another PLD 1973 Kar. 78 ; and ' On that the allegations are vague, not precise and on such allegations detention could not be ordered.
4. In order to appreciate the contentions of the learned counsel, the Detention Order dated 21-6- 1977 is reproduced below :-- "Whereas, I am satisfied with respect to Muhammad Ashraf son of Musa Khan caste Rajput resident of Sarhali Kalan, P. S. Lulliani District Kasur, that he has been indulging in smuggling and if not detained is likely to continue no indulging which amounts to acting in a manner prejudicial to the maintenance of public order, and I am satisfied that with a view to preventing him from acting in Bush a manner it is necessary to arrest and detain the said Muhammad Ashraf.
' Now, therefore, in exercise of the powers under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960, conferred on me vide Government of the Punjab, Home Department Notification No 3-1-E-Sp1-1/76 dated 28th January 1976, under section 26 of the said Ordinance. I, Mr. Hafeez Akhtar, District Magistrate, Kasur, do hereby direct that the said Muhammad Asbraf shall be arrested forthwith by the Rangers and be detained in the District Jail Kasur, for a period of three months.
' The detenu shall be treated as Class III detente'
5. The Grounds for detention annexed to the Detention Order are: "You Muhammad Ashraf son of Musa Khan caste Rajput resident of Sarhali K alan P. S. Lulliani Dictrict Kasur, have been ordered to be detained for a period of Three Months by the undersigned under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance 1960, vide order passed today, with a view to preventing you from acting in a manner prejudicial to the maintenance of public order, on and for the following grounds ' You were involved/challaned in the following cases :
(i) Case No, 25 dated 20-2-70 under section 156 Customs Act 307, P. P. C. 23 M. L. R. P. S. Lulliani in which smuggled Indian cloth and cardamom worth Rs, 32,000 along with 3 mare were recovered and you were convicted and sentenced to R. I. For one year and fine Rs, 20,000 and awarded 15 lashes.
(ii) Case 93/67 under section 167 Land Customs Act, 307, P. P. C., P. S. Lulliani. In that case encounter took place between naka party and your party, smuggled cardamom weighing 2 mds. 6 seers along with 2 mares were recovered by the Rangers. You were challaned bat discharged.
(iii) Challaned in Case F. I. R. Nos. 14/67 under section 167, Land Customs Act P. S. Model Town, regarding recovery of 3 bags of big cardamom, and 4 bags of small cardamom from your car.
(iv) Nos. 172/67 under section 307, P. P. C., 167, Land Customs Act, 9/1/78 Opium Act, P. S. Lulliani.
Encounter took place, opium was recovered from your possession, you were challaned but acquitted due to lack of evidence.
(v)Case No, 47/68 under section Land Customs Act, P. S. Lulliani. In this case Dal Chini weighing 10 mds. Were recovered. You were challaned but acquitted.
(vi) Challaned in case F. I. R. No, 323/69 under section 61/1/14 Excise Act, P. S. Yakki Gate.
(vii) Case No, 144/04 under section 167, Land Customs Act, P. S. Lulliani. In this case 12 bags of cardamom were recovered from your home. You along with your co-accused were challaned but acquitted.
(viii) Challaned in Case F. I. R./41/67 under section 167, Land Customs Act, 307, P. P. C. P. S. Lulliani regarding firing at Rangers party and recovery of 10 mds. Of cloves, but acquitted.
(ix) Challaned in Case F. I. R. No, 162/dated 12-4-73 under section 156, Land Customs Act, P. S. Lulliani for smuggling of cloves, to India worth Rs, 19,t25.
(x)Case F. I. R. No, 204 dated 8-5-73 under section 167, Land Customs Act, 307, P. P. C. P. S. Lulliani, 4 bags of Indian betel leaves were recovered in this case. Suspicion was laid against you.
(x1) You were again been involved in smuggling case F. I. R. No, 210/74 P. S. Lulliani and Sutlej Rangers Kasur Wing No, 5 dated 29-8-75 (P. S. Kahna Kachha).
(xii) You were detained by the D. M., Lahore ride Order No, RDM/77- C/77 Spl. Dated 10.12-75 for 30 days.
(2) The Headquarters Pakistan Rangers have reported that you are still continuing the smuggling activities and are likely to continue the said activities which are prejudicial to the maintenance of public order. Considering your past record I am satisfied that your detention is necessary in order to prevent you from acting as such.
6. It may be noticed that in most of the cases the detenu appears to have been acquitted in spite of the fact that smuggled property was recovered from him and it is agreed by both the learned counsel that the latest case registered against him is mentioned at Serial No, (xii) whereunder he was detained for 30 days, vide Order No, RDM/77-C/77-Sept dated 10-12-1975.
7. As far as the first ground is concerned, the learned counsel contends that section 3(2) read with section 26 of the Ordinance which reads as under :- "3. Power to arrest and detain suspected person.-(2) If a t istrict Magistrate or any other servant of Government authorised in this behalf by a general or special order of Government, has reason to believe that any person within his territorial jurisdiction has acted, is acting or is about to act in a manner prejudicial to public safety or the maintenance cf public order, he shall forthwith refer the matter to Government for orders.
26. Delegation of power to Deputy Cornmissioners.-Government may, by order in writing, direct that the power under subsection (1) of section 3 shall, subject to such restrictions as may be specified, be exerciseable by any District Magistrate within his jurisdiction."
' The collective effect, according to the contention of the learned counsel for the detenu-petitioner, is that the District Magistrate who has been delegated power under section 3(2) and section 26 of the West Pakistan Maintenance of Public Order Ordinance is required to refer the matter to the Provincial Government with regard to prejudicial activity of a person before a detention order could be passed against him. According to his contention, by virtue of section 26 of the West Pakistan Maintenance of Public Order Ordinance, the Provincial Government has delegated power to the District Magistrate only for arrest and detention of a person but the question of satisfaction could not be delegated to the District Magistrate because the power of delegation is not the same as that of satisfaction. The satisfaction is that of the Provincial Government and the matter should have been referred to the Government, but, in this case, it has not been referred so the entire proceedings are without jurisdiction. In this connection be has relied on Liaqat All v. Government of Sind (1). There appears to be no force in the contention of the learned counsel because if this contention is accepted then section 26 dealing with the delegation of power becomes redundant.
The question of satisfaction cannot be considered strictly separate from the power to arrest a person. Satisfaction of the District Magistrate is a condition precedent to make an order for detention. If the District Magistrate is not satisfied he is not supposed to make a detention order and should not put an impediment on the liberties of the individual. It may be pointed out that the authority reported as Liaqat All v. Government of Sind has been criticised by the learned counsel for the State in Muhammad Younus v. Province of Sind through the Secretary to the Government of Sind, Home Department, Sind Secretariat Karachi etc. (2) wherein the learned Additional Advocate- General suggested the learned Judge, the author of the previous judgment in Liaqat Ali v.
Government of Sind to reconsider the proposition of law which was laid down in than (1) PLD 1973 Kar. 78 (2) PLD 1973 Ker. 694 judgment, but it appears that even in that case the learned Judge was not properly assisted and the authority cited by the learned Judges, with great respect, does not lay down the correct law because in Malik Ghulam Jilani's case (1) a similar question came up for discussion before the Supreme Court and their Lordships were pleased to observe :- "Next, the question was raised before the High Court that the faculty of satisfaction under section 3(2)(x) of the Ordinance was not susceptible of delegation. The learned Judges rejected this argument on the basis that power given by law in conditional form carries also with it the power of determination of the specified conditions.
' The matter appears to be placed beyond doubt by the terms of subsection (4) of section 3 of the Ordinance which lays down that the Central Government may by order direct that "any power or duty which by rules under subsection (1) is conferred or imposed upon the Central Government" shall be exerciseable, inter diet, by a Provincial Government. The terms in which rule 32 is worded clearly imply the exercise of volition, an operation involving several mental faculties .
' To suggest that delegate of power under rule 32 is not charged with the duty of exercising such judgment is absurd."
8. Although the case referred to above was under the Defence of Pakistan Ordinance (XXIII of 1965) read with rule 32 yet on this analogy it can be interpreted that the District Magistrate has full power of arrest and the matter of satisfaction is exclusively within his jurisdiction and then is no legal obligation to refer the matter for the satisfaction of the Government. In this connection I rely on Noor Muhammad v. The District Magistrate, Multan (2) wherein it was held: ' West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)-Sections 3(1), (2) & 26 read with Government of West Pakistan Notification No, 3-104-H-Sp1.1/64 dated 27-2 1965-Preventive detention-Satisfaction as to necessity of arrest and detention-Delegation of powers-Interpretation of sections 3 and 26 that District Magistrate has to follow requirements of subsection (2) of section 3 in spite of delegation of powers under subsection (1)-Renders provision of section 26 redundant- Satisfaction being condition precedent to making order of detention, power of detention, if conferred on some officer, must carry power to be satisfied as to necessity of detention-District Magistrate empowered by Government to order arrest and detention, held, could order arrest and detention on his own satisfaction and not bound to refer matter to Government for according their satisfaction -Liaqat ALL v. Government of Sind PLD 1973 Kar. 78 dissented from)."
' I, therefore, hold that the view taken by the Division Bench in Liaqat All v. Government of Sind does not lay down the correct proposition of law and the contention of the learned counsel for the petitioner is devoid of force.
9. In view of the above discussion, there is absolutely no force in the (1) PLD 1967 SC 373 (2) PLD 1976 Lah. 233 contention of the learned counsel for the petitioner and the District Magistrate is competent to pass a detention order under section 3 by virtue of the delegated power under section 26 of the Ordinance of 1960.
10. In order to appreciate whether the allegations are vague or not it is to be ascertained if from the last detention order dated 10-12-1975 to 21-6-1977, during the IS months, there is any material before the District Magistrate to justify the detention. It may be stated that only respondents Nos. 1 and 2, that is the Provincial Government and the District Magistrate, Kasur, have submitted written statements wherein all the averments of the petitioner have been denied but respondent No, 3 (Superintendent of Police, Kasur) and respondent No, 4 (Deputy Superintendent of Police, Kasur) have not submitted any written statement despite C availing opportunity of adjournment. The test for examining whether the "grounds for detention" are vague or not is whether the detenu could make effective representation apart from a bare denial. Para. 2 of the "ground for detention" dated 21.6-1977 is in the following lines : "2. The Headquarters Pakistan Rangers have reported that you are still continuing the smuggling activities and are likely to continue the said activities which are prejudicial to the maintenance of public order. Considering your past record I am satisfied that your detention is necessary in order to prevent you from acting as such."
11. The report of the Headquarters Pakistan Rangers has not been placed before the District Magistrate, Kasur (the Detaining Authority) nor has it been placed before the High Court. Even two days adjournment was given to the learned State Counsel to produce the report of the Headquarters Pakistan Rangers in the High Court but it has not been produced. So it cannot be ascertained what the report of the Headquarters Pakistan Rangers was. That definite report should have been made the subject-matter of charge against the detente. The "ground for detention" appears to be shorn of detail, is indefinite and ambiguous and no precise action could be taken on the basis of such ground. Reliance is placed on Malik Sohrab Khan v. The District Magistrate, Rawalpindi etc. (1) wherein it was held :- "The true test for examining whether the grounds furnished to detenu held under preventive law, are proper or not is to find out whether he could on those grounds make effective representation apart from a bare denial of accusations conveyed to him. Where the maximum that a detenu could do on the grounds furnished to him was to make a bare denial, it was held that the grounds furnished to detenu were quite vague, indefinite and devoid of relevant particulars or precise activities and, therefore, the detention was unlawful."
12. The word "ground" used in section 3(6) of the West Pakistan Maintenance of Public Order Ordinance means the basis upon which the Detaining Authority claims to be satisfied and feels the necessity of taking action under section 3 in order to prevent the detenu from acting in a manner prejudicial to public safety. It has been admitted that during the 18 months from 10-12-1975 to 21-6- 1977 there is no material either before the District Magistrate or before the Headquarters Pakistan Rangers on the (1) PLD 1974 Lab. 214 basis of which the detention order could be made. In the instant case, the last incident occurred more than 18 months before and no material has been placed on record to show that the detenu indulged in the act of smuggling or anything to indicate that there was apprehension of his doing so in future. The previous substantive charges cannot be made the basis of grounds for detention of the detenu.
' The law of preventive detention cannot be used for the purpose of punishing a person for his past acts.
13. As far as the first twelve allegations in the grounds for detention are concerned, they cannot be considered again for detaining the detenu under the West Pakistan Maintenance of Public Order Ordinance because those offences are under the substantive charges and they have been finally decided and punishment, if any, has already been suffered by the petitioner. The present charges are not only vague but also do not give any particular or detail they cannot be made the basis of detention. Reliance can be placed on Muhammad Anwar Sheikh v. District Magistrate, Rawalpindi
(1) wherein it was held :- "It is self-evident that this allegation is not supported by any particulars or details or any specific instance and is of a merely narratory character. I had the occasion to deal with a similar case in Malik Sohrab v. Government of Pakistan etc. PLD 1974 Lah. 214 wherein I had held that the true test for examining whether the grounds furnished are in order or not is to find out whether a person could, on those grounds, make an effective representation apart from a bare denial of the accusations conveyed to him."
' Accordingly I hold that detention could not be ordered.
14. As a result of it I hold that as during the period of 18 months there is no material before the District Magistrate to order detention of the detenu nor the grounds for detention show any particulars or details of the allegations made, they are vague and not precise and as a result of it the detention is illegal.
15. I therefore quash the impugned order of the learned District Magistrate, Kasur dated 21.6-1977, declaring it without lawful authority and of no legal effect, and direct that the detenu-petitioner may be released forthwith if not required in any other case.
(1) PLD 1975 Lah. 414