M. S. Lir Quassau, 4.-A petition Le. Criminal Miscellaneous No. in2-14 977 was filed on 22-34977 by I.
Muhammad Salim atudies section 491, Cr. P. C. Seeking the production and release of The following persons who were aBegedly being dirtai a by the responderirs.:- (0 Mien Abdul Ariz son of Mien Sher Mu. Inman, :Member, Jainaat-ilsiann, raid P. N., A. Candidate for Provinal Assembly seat P. P. 707; ) Win Malik 4.4.m ,,:t1 Wan Sher Muhammad, Member ,Jr the taLcaaat.i-Islezai; (.3) Dir. Zakir Husatni. Aternber, Mita ticisenai Seereterv, (4): Sardac Sultan A hmitdson r5) Rana Muhammad Ayyrib spa of Hakim Muhammad Sadiq, candidate for Provincial A ssembly who retired in favour of P. N. A. Candidate, !s?Laulana Ghialarn Aw anal Seed Amir Hussain Gillian son of SAck Asastaltah Shah. Manager 04 Alidrisa ;arnia MadniJ. Vice, President of P. N. A, Mara The matter first came before ,mneof us in Single Bench i.e.. Sham Hatii*441 J. Who, finding that a question arose whether persons !Baking spoeche during election campaign i.Vuld be pro' seaded under section lb of the Maintenance a public s der Ordinance, which involved of Jaw and the constitution,. Referred the matter for placing it 'ore at larger Bench. The matter was accordingly referred se the present Division Bench, On 1114-1977, the learned Assistant Advecate- Cieneral, ted that tinn of the detenus, namely Mita Abdul Ariz, Minn Abdul Mehl, DT., Zakir Hussain and Syed Amir Hussain GRAM, were no longer in custody having :already been discharged . That the remaining two detains. Nativei Sarda Shan- Ahmad and Rana Muhammad Arita', were in caste & in connection with proceedings under the W. P. Control el Gooelits Ordnarice, whit.. Had beat Initiated against than co n.-3-1977, as the g the fib of the Weal ens? Petition. The meted of the prom&afo with the #TBS ton ) F. t, R. Nu, 176* de 6i973 P. S. Bhai Pb under vec, tion -14s, P., P C. #TBE #TBS P, P. C. #TBE #TBS (i) I. R. No. 32, dated 3.1t-1967 P. S. City Okara, wider sections2307/ 125/149 and 14S, P. P. (7, cii) I,I R. INe. dtcd 5-S4912 under iectieirs 135 353/l419 and #TBE #TBS ChallatittiaiLd pend-.
41g- #TBE #TBS Chalianed and discharged. #TBE #TBS pendin #TBE #TBS and #TBE #TBS Compel= , on in the trial Court as stated by S. H. O. Shall Meru_ #TBE #TBS Discharged, #TBE #TBS Quashed by High Cone as duly noted by the 'Fri, bilnat in its order 1.44.977. #TBE #TBS Perth as descrikvoci Actual petition as in the chailan. Tran ;1,t. Ired. #TBE #TBS S No. Particulan of the MSC #TBE relevant police We was Vint fat. Meanwhile, Dr. Slam. The eloitiones.w POfly arrested and an application was. Moved under AN:tiraff 561-A, Q. P. C.. For io tiers 1 Syed Anne Husain G. which was oH -44977. In viewt the -r.rcurristRact. tht, 11;,,,,t,:'-,ijO 44 for " criminal milzellanco application (Cr. Misc. No, 16.1.-H of OM to be a Wet Petition, which was aBowed, In the Writ Petition, wEich is before uk decktrations to the effect that the proceediv,- at Saidar Sultan Mid a Muhammad Ayntb cinder the . P. Cant !I of rcilw Ordinance was without lawful Z12 thotity and of no 'legal effect
3. The remit wu produced, and the Mowing officers were examined by us:- Ahmed Sate& S. 0.0., Sadair Masa, who ,';.41 initiated orreatkia 'soder the Otdinance again? SmearSA= Akmad deteru, A Hike, AiNcrusak P. L Olcark who fowarced the imickfmt., tion to the Trt*, Oft inartiallah, S. Hi ta, City, Oklea, who had inated information under the Ordinance against Muhammad Ayyub detain: (4); Ahmad S. H.. O.. Shalt Phan.: (5, Mt. Habib-itr-Rehman, Assistant Comnutooner, Okaink WhO need the Telt:nal; (6), affair Atimad, Magistrate Ohara; (1 Mr. Ishilan Ali agistraq. Section 30. Okara, and ay Mr, Muhammad Aslant. D. S. P, Mara,
4. According to the statement of Ahmad Sued, S. H.
0., the poi. 4gainst Sardar Sultan Abroad had been based 1V. 11,1 the f I, Tbe position of these eases as given by the S. H. 0, ' actually fen 0.' by this Court in the light of the statements of the official' vtarnined, is indicated aganist each caw. .
31 S. No- Particulars of the case. k F, R. No. 305, dated 3-74976. P. S. Depalpur under sections 148, 149 P. P. C. v) F.
1. R. No. 123, dated 3-5-1976 under M. L. R. No. US. P. S. Flujra. lst) F.
1. R. No. 108, dated 26-5-1976 under section 397, P. P. C. S. P., Sadar Okara.
Position as described in the challan. Challaned and pend- Under investigation. Suspection established.
Not- X Actual position as transpired. Not challaned. Not proceeded against on account of .Star eu q:se granted in Writ Petition No. 1142 of 1976.
Related to theft of an ox. Both detenus Sardar Sultan Ahmad and Mobs mad Ayyub though not named in F.
1. R. arrested on 14-34977. Sardar Sultan Abroad discharged on 29-3-1977 by Malik Bashir Ahniad; M. I. C., Okara. s. The challan against Rana Muhammad Ayyub under the Ordinance had been sent up on the basis of the following ten cases. The position of each case as described in the challan and as transpired from the itatements of the officials recorded by this Court is shown as per below: #TBS Actual position as transpired. Acquitted on 9-6-1956 by Resident Magistrate, Okara. #TBE #TBS Position as described in the challan. Acquitted on 9-61956. #TBE #TBS Challaned alter investigation. Acquitted 25-1-1963, on #TBE S. No: Particulars of the case.
(I) F.
1. R. No. 271, dated 27-94935 under sec- tion 170, P. P. C.
(ii) F. I. R. No. 255, dated 23-11-1962, P. S. Okara, under sections 342 and 347, P. P. C. #TBS Acquitted. #TBE F. I. R. No. 17, dated 10-1-1963, P. S. Anarkali, Lahore under sections 365, 354 and 342, P. P. C. #TBS Case sent up. No action taken by the Magistrate. #TBE
(iv) deport No. 23, dated 20-12-1962 P. S. Sadar, Okara under section 107/ 50, Cr. P. C.
S. No. Particulars of the Position as described Actual position as case. In the challan. Transpired.
(v) F. I. R. No. 106, Challaned. Acquitted by S.D.M. dated 2-5-1963, on 31-12-1963.
P.S. Sadar, Olcara, under section 342, P P. C. vi) Report No. 10, Case sent p. No action taken i)). dated 8-6-1963. Magistrate.
P.S. Sadar, Okara, under section 107, 150, Cr. P. C.
F. I. R. No. 147, Could not be dial- Not challaned. dated 12-3-1976, laned. P. S. City, Okara, under sections 380 and 454, P. P. C.
(will) F. I. R. No, 388, Challaned. Result not known, dated 30-6-1975, under section 13/ 20/65 of the Arms Ordinance.
(ix) F.I.R. No. 20, dated Still under investiga- Discharged by Malik 11-1-1971 under tion, Bashir Ahmad, section 380, M. I. C., Okara. {{BLURR PAGE}} P. P. C. Lodged by District Magistrate, Sahiwal, F. I. R. No. 525 of Cancelled. Cancelled.
1975, City Okara, under section 307/ 34, P. P. C.
As already stated, Rana Muhammad Ayyub, who had been a co-accused with Sardar Sultan Ahmad in F. I. R. No. 108 of 26-5-1976 and had been arrested on 14-3-1977, was discharged by Malik Bashir Ahmad, M. I. C., Okara, on 29-3-1977. S. H.
0. Inamullah, further stated that Muhammad Ayyub detenu was a history-sheeter but admitted that the history-sheet (No. 363/11) had been opened in 1963 without notice and had been placed in his personal file on 25-9-1966 and that he had never been under surveillance. In reply to a question, he further admitted that the record of the detenu after F. I. R. No. 10, dated 8-6-1963 till 30- 6-1975 was "clean".
6. It is apparent that the S. H. Os. Concerned had not given full information in respect of the cases which they had made the basis for initiating action against the two detenus. Prosecuting Inspector, Abdul Hafeez, who had forwarded the challan against Sardar Sultan Ahmad, admitted: "The present case does not fall within the purview of section 13, yet I forwarded the case to the Tribunal because I am serving in tbe Police Department."
He stated that it was his duty to consult the P. D. S. P. Before sending the case to Court, but he admitted: "I did not consult the P. D. S. P., Sahiwal and 1 told the S. H. 0, that this is not a fit MC."
7.. Mr. Linhib-ar-Rettniait Assittant Commissioner. (*aram who as the Tribunal had taloa oognizanot of the matter, admitted before as that he was notiresare of not dial be make eaquiry ittM12 the police as to the Me of the caves epos which the proceedags had mat bend. His atteatioa was draw to the pemmgesellee for takieg copy i'zame colitaieed in the provision of sobmaks (1) of seethes S of the W. P. Comma or Gocadts Oardirance, Nivilich ass follows 7- agidtortoe of mat by frit it --0) No Tnhanai shah mat aim of of a ease under this Ordinsax MOM-
(a) (0 the per complained against residua ; or
(ii) the acts meationed in dames (a) to (i) of sectime 13 are alleged to been comealeed, with the local Smits of itsjudedictioa; and (k) the dastria-oharge of the Police Station within the jatisdietioa whereof such place as aforesaid lies, or in alas which are act within the jai/Macao& of any poke Station, the Extra Moistest Cesmaisdoem eithin whose jneadechea such place hue or any other officer atehorked in this behalf by the Dile* Magistrate. Lays ialronsaties with the Mammal ardor sabsectios (2)."
' The ccovisioTha of seam 13 of the Oedema was oho read to hins, but he any be attracted to the mate placed es him at the deem. The Imisteat .Comas lone asserted that he had considesed the whole amierial mistimed in the chains for passim the cider of deteation, haluding the result of the cases but from his subeessm at tepthos, was dear that he had done procinas little to appease` Itiesdf of the fete tithe meet, not even is awe of the old me& which in all probability, meat have cosdaded by thee. Ins attitude can be summed up *ma his following tepee: "At the stage of cogideace it was not my duty to anow the result of tke old came, whale peen the order of detention ender the Ci000das Ortrussaca. ' my opiates we appbing rated for taloiog cogniaance and section 3 of the Goondas Ordinance it is moues that the perso coca-plaited sepias' t resides whhia my jurisdiction.- ' The estabraised law is against the course of action adopted by the Assistant Comegetioaar. In Arab ihat v. The J'an'e (1), a conviction in a case was held necessary for constituting bias foe proceeding under the Ordinance. It was observe' in Gal Muhammad alias Gabe v. The State etc. (2), that a proceeding cadet section 13 of the Ordinance initiated and based on certain cases which had failed totally in the Courts of law, lacked legal foundation because no adverse isferesce could be drawn it the snot Lion. The The pri laid down in Amain ikaa's ease was adopted by Sind Balachistan Court in Memo v. Sate (3) wherein it was held that involvement in a number of cases never codas in conviction could not form basis for action under the Ordinance. Siesdady, it was held by this Court in itfahanavkai Saha alias Cheesier v. The State (4). That "However, if it were be held that a person can be declared a Gocoda merely on the ground that a base number of of the type messioned {{FOOT NOTE}}
(1) 19611 P L /910 (2) 1972 P Li 374 (3)1974rOLLiNi4e1lestp.49 (4)P1 pt IT* Lah. t56 {{FOOT NOTE}} in clauses (a) to (z) of section 13 of the Ordinance were instituted against him, irrespective of the fact as to whether or not he was convicted, the situation would be fraught with great danger because in that case it would be quite simple for the police to get false cases instituted against any person for ulterior purposes; to hold a perfunctory inquiry and then to close the cases without sending up any challan on the ground that enough evidence was not available. After repeating this performance about 8 to 10 times, the police could easily secure an order declaring him to be a goonda under section 13 of the Ordinance."
' In a recently reported. Case i.e. Rehmat All v. The District Magistrate, Sahiwal and another (1), Sardar Muhammad Iqbal, C. J., as he then was, held that proceedings based on cases which had not succeeded in Court did not warrant action under the Ordinance. Recourse to provisions of the Ordinance in such a situation was then deprecated in the following words:- "The Ordinance was enacted with a view to controlling disorderly persons and taking action against the persons who were known to be Goondas. The object was not to harass the people and use it as an instrument of oppression against the persons for ulterior motives. To initiate action against the petitioner on facts, which could not militate against him is capricious, unjust and wanton."
9. Apart from the question of cognizance, the material before the Assistant Commissioner did not even justify the passing of an order of deten tion. In a proceeding under the Ordinance, the normal course for the Tribunal is -to summon the person complained against, though in certain circumstances, as specified in section 6, it can issue a warrant of arrest instead of a summons. It is provided in subsection (2) of section 8 that : "(2) The Tribunal may, for reasons to be recorded, instead of taking a bond for the appearance of the person complained against, order his detention till the conclusion of the inquiry of such person as it thinks suitable: Provided that such detention shall not exceed two months unless his case has been referred to the Commissioner and the latter has agreed to suchdetention."
' The Assistant Commissioner admitted that he had been remanding the detenus evcn before the institution of the proceeding under the Ordinance. Be, thus, knew, that they were already being ,.Kept in detention. They continued to remain under detention even after 21-3-1977 when the proceeding _under the Ordinance was initiated but a formal order for such detention was not passed by the Assistant Commissioner until 1-4-1977. His order of that date shows that he was aware that one of the cases had been quashed by the High Court and that it was not clear from the record as to what was the outcome of the remaining cases, yet he recorded in the case of Sardar Sultan Ahmad that he was habitually connected with crime. He went on to say: "These are turbulent days and it is undesirable that such persons should remain at large as can endanger the peace and tranquillity of the area, especially the Okara city, or can interfere with the peaceful lives of the people of the area." {{FOOT NOTE}}
(I) PLD 1077 Lab. 341 {{FOOT NOTE}} ' In the case of Muhammad Ayyub, he, without specifying the basis, recorded that he was: "as desperado and habitual mischief-monger who seems to have eluded conviction in a large number of cases registered against him."
' He went on to record: "The existing law and order situation in Okara Sub-division, especially in Okara City, requires that such persons are not allowed to play with the lives of the people."
' The satisfaction of the Assistant Commissioner from which the order of detention had proceeded, had, it is thus apparent, little relationship with the material before him.
10. Any law, as is known, affecting the liberty of the person of a citizen has to be strictly construed.
Interpreting the provision of subsection (2) o a section 8, a Division Bench of Sind & Baluchistan High Court, had, in Allah Bakhsh v. Sind Province etc. (1) laid down three conditions for exercise of the power of detention. They are- (0 when there is reasonable and imminent apprehension that person complained against will not appear before the Tribunal; or
(II) he will misbehave, during pendency of enquiry, or
(ill) the purpose of section 8 could not be served by taking a bond with or without sureties.
' The Tribunal's conclusion, it was further held, as to the existence of either of the conditions must be supported by material on record. I may also refer to a Full Bench ruling in Mehboob All v. Deputy Commissioner etc. (2), that the Ordinance was not a law meant for preventive detention.
11. It is, thus, clear that there was no reasonable basis for the poli officers to have initiated nor for the Assistant Commissioner to have entertained the proceeding under the Ordinance against the detenus. Th c Assistant Commissioner had also no valid material to justify his ordering the detention.
12. For every prosecution, there has to be a reasonable and probable cause. According to Halsbury, reasonable and probable cause has been said D to be: "An honest belief in the guilt of the accused based on a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of an accused, to the conclusion that the person charged was probably guilty of the crime imputed." (Third Edition, Vol. 25, page 358)
' In Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (3), it was held: "The real question, to my mind, in every case of mala fides is : Did the authority or officer concerned reasonably believe that his duty as such officer required him to act as he did? A person acting in pursuance of a statute cannot be said to be acting bona fide if he has no reasonable ground for believing that the statute justifies him in what he does. {{FOOT NOTE}}
(1) PLD 1975 Kar. 833 (2) PLD 1975 Kar. 391 (3)PLD 1969SC 14 {{FOOT NOTE}} If the case, therefore, is one where there are no grounds or the grounds are such that no reasonable person would have acted on the supposi. Tion that he was acting under the authority of the statute than that is a case in which the Courts would in exercise of the power under Article 98 of the Constitution declare the act to have been done in an unlawful manner."
' In State v. Zia-ur-Rehman (1), the Supreme Court observed: "a male fide act stands in the same position as an act done without jurisdiction, because no Legislature when granting a power to do an act can possibly complete the perpetration of injustice by permitting the doing of that act mala fide."
' .In yet another case i.e. Federation of Pakistan v. Saeed Ahmed (2), it was similarly held: "Action taken in colourable exercise of powers, that is to say, for collateral purposes not authorised by law under which the action is taken or action taken is fraud of the law are also male fide."
13. Mr. Nemat Khan, Advocate, who appeared for the State, was frank enough to concede that he would not support the action of the respondents under the Ordinance.
14. During the proceeding before us, we had, on 20-4-1977 given notice to the two S. H. Os.
Concerned and the Assistant Commissioner to show cause, if any, against the imposition of personal costs in the event of the Writ Petition succeeding. The S. H. Os. Did not furnish any explanation, but the Assistant Commissioner did by filing a written reply, in which he stated that he had taken cognizance and had proceeded in the matter "in good faith and strictly in accordance with the law." He had, by a reference to some case-law, contested that irregularity, if any, committed by the police, had affected the legality or the propriety of the proceeding taken by him as a Tribunal. He had even justified his order of detention by a reference to PLD 1976 Kar.
471. In view of the facts already brought out by us, the reply is totally lacking in substance. He had failed to apply his mind to the requirements of clause (a)(ii) of subsection (1) of section 5 of the Ordinance in regard to the taking of cognizance. He had relied on extraneous considerations for ordering the detention of the detenus. It is to be noted that Sardar Sultan Ahmad was a Muslim League candidate for the Provincial Assembly while Rana Muhammad Ayyub had also been such candidate but had retired in favour of the political party. They were being kept unde detention in the days closely following the elections and after they had moved this Court to challenge such detention, the recourse to the provision of th Ordinance could not, but, in the circumstance, be intended to frustrate the' remedy in this Court.
15. For these reasons, we disposed of the Petition in terms of the following order, which we passed and announced on 7-6-1977: "For reasons to be recorded later, we find that the proceedings initiated under the Goondas Ordinance against Sardar Sultan Ahmad and Rana Muhammad Ayub by Mr. Ahmad Saeed S. H.
0., City Okara, are malicious and illegal. The Assistant Commissioner has passed the order of detention in both the cases without applying his mind to {{FOOT NOTE}} (1)PLD 1973 SC 49 (2) PLD 1974 SC 151 {{FOOT NOTE}} section 5(1) and section 13 of the Goondas Ordinance. It has been conceded by learned counsel for the State that it was impossible for him to support the action taken by these officers against the detenus. The 'petition succeeds and the orders of detention are quashed. Sardar Sultan Ahmad and Rana Muhammad Ayub shall be released forthwith, provided they are not required in any other case.
(2) We have already issued notice to the two Station House Officers and the Assistant Commissioner for burdening them w'th personal costs to be paid as compensation to the detenus, under section 35-A, C. P. C. The Assistant Commissioner shall deposit Rs. 1,000 while the two S. H. Os.
Shall deposit Rs. 500 each with the Deputy Registrar (Judicial), within a week. The amount shall be paid to the two detenus in equal proportion. The Assistant Commissioner has also produced two copies of the explanation in reply to the notice which are placed on the record. We are, however, not satisfied with the explanation furnished by him. The cognizance of the case by him was illegal, unjustified, without application of mind and as such improper exercise of jurisdiction. This. Order will, however, not debar the detenus from taking such other legal action against these three public functionaries, which may be available to them under the law."