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Petitioner: ZULFIQAR ALI VS Respondent: THE STATE AND 2 OTHERSAbdul Mujeeb Pirzada,A.A. Mohammad Ali, Addl. A.-G.
1988 P Cr
1988 P Cr. L J 295
[Karachi]
Before Ajmal Mian and Sajjad Ali Shah, JJ
ZULFIQAR ALI‑‑Petitioner
versus
THE STATE and 2 others‑‑Respondent
Constitutional Petition No. D‑755 of 1987, decided on 11th August, 1987.
(a) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)‑‑
‑‑‑S. 3‑‑Detention‑‑Detenu involved in a number of offences under substantive law, facing trial under custody and not enlarged on bail‑ No justification prima facie found existing for passing order under Maintenance of Public Order Ordinance‑‑Order of detention declared as being without lawful authority and of no legal effect.
(b) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)‑‑
‑‑‑S. 3‑‑West Pakistan Maintenance of Public Order Rules, 1962, R.2‑ Detenu‑‑Place of detention‑‑Detenu to be kept in jail and not at any police station.
Abdul Mujeeb Pirzada for Petitioner. A.A. Mohammad Ali, Addl. A.‑G. for the State.
Date of hearing: 11th August, 1987. '
JUDGMENT
AJMAL MIAN, J.‑‑By this petition the petitioner has impugned the detention order dated 11‑7‑1987 passed against Zaffar Ali Mirani son of Abdul Rashid by caste Mirani on the grounds mentioned in the order. It is an admitted position that the detenu is involved in a number of offences under the substantive law and is facing trial. According to Mr. A.A. Mohammadally learned Additional Advocate General he is involved in as many as 31 cases of which he has furnished a list today in the Court. It is also an admitted position that the detenu was not on bail in the said cases, and, therefore, prima facie, there seems to be no justification for passing the order under M.P.O. The order therefore cannot be sustained on this ground.
2. Another aspect which has been urged by the petitioner is that in pursuance of the impugned order the detenu was kept at a police station instead of keeping in a jail in terms of West Pakistan Public Order Detenu Rules, 1962, hereinafter referred to as the Rules, of which Rule 2 (e) defines 'jail' as under:‑‑
"2 (e) 'Jail' means any prison as defined is subsection (1) of Section 3 of the Prisons Act, 1894 and includes any place which has been declared by Government by general or special order to be a subsidiary jail;"
Whereas Rule 3 provides that detenus shall be kept in association wards, or, if that be not possible or convenient in cells, and shall be allowed to associate freely with one another, but as far as possible separate from ordinary prisoners. It further provides that the Superintendent may confine any particular detenu or any class of detenus separately if he considers it desirable on grounds of health or for any other sufficient reason.
3. The detenu in the present case, though originally lodged at the police station but after the filing of the present petition was shifted to jail. In this view of the matter factually the above relief in the form of declaration is not required.
However, we may observe that as per rules a detenu under the M.P.O. is to be kept to jail in terms of clause (e) of Rule 2 of the Rules and not at any police station. Mr.A.A. Mohammadally learned A . A .‑G . has not been able to show any Rule contrary to clause (e) of Rule 2 and Rule 3 of the Rules.
4. The impugned order for the aforesaid reasons namely, that the detenu was already in custody in relation to substantive offences and, therefore, there was no justification for passing the impugned order. The impugned order is declared as being without lawful authority and of no legal effect.
M.Y.H./Z‑32/K Petition allowed.