PLD 2008 Supreme Court 132

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

PROVINCE OF SINDH through Secretary,

Home Department and others--Petitioners

versus

ROSHAN DEEN and others---Respondents

Civil Petition No.246-K of 2006, decided on 16th October, 2006.

(On appeal from the judgment dated 20-4-2006 in C.P.No.D-421

06 passed by the High Court of Sindh, Karachi).

Security of Pakistan Act (XXXV of 1952)-

of 20

S.3-Constitution of Pakistan (1973), Arts. 199, 14, 15 & 185(3)-.

titutional petition---Detention of petitioner for three months vide

r dated 29-10-2005---Non-releasing of petitioner after expiry of said

period-Federal and Provincial Governments expressed ignorance about

unlawful detention of petitioner--Deputy Superintendent Central Prison

produced before High Court copy of letter dated 18-3-2006 from Section

Officer of Provincial Home Department addressed to Section Officer of

Ministry of Interior seeking orders regarding a further detention of

petitioner or otherwise---Effect--Such letter showed that without any

further order of detention having been passed or earlier order being

extended or without petitioner being required in any other case, he had

been kept in custody for more than two months to the knowledge of

Superintendent Jail, who had consciously chosen to seek orders from

government officials and defied mandate of the Constitution--According

to the Constitution, a citizen could not be deprived of his liberty except

in accordance with law-Superintendent Jails had not only violated law

by confining petitioner in unlawful custody, but also thought proper to

Seek further instructions for his detention from relevant quarters, which

was none of his business---Provincial Home Department had acted ill-

advisedly by approaching Federal Government for extension of time and

Seeking instructions for further detention of petitioner, whose period of

detention had already expired---Unauthorized and illegal confinement of

Petitioner could not be overlooked or ignored by superior courts for

Deing custodian of the Constitution--Legal duty of courts was to defend

preserve constitutional guarantees and enforce same-Authorities

oncerned had acted contrary to the mandate of the Constitution---High

ourt had directed release of petitioner and awarded him compensation

S.5,000 per day for violation of his fundamental right and human

ty-High Court had further directed that sum of Rs.4, 10,000 would

payable jointly and severally by Superintendent Jail, Section Officer

lal-) Home Department and Province of Sindh with Tiberty to

ent to collect same from such officers for causing loSs to it

c relevant rules--- Supreme Court, upheld the judgment of High

be

urt and refused to grant leave to appeal to the Provincial Governmént.

Cour

Pp. 134, 135) A, B, C & D

Government

Nemo for Respondents.

Date of hearing: 16th October, 2006.

JUDGMENT

RANA BHAGWANDAS, J.---Petitioners scek ieave to appeal

against Sindh High Court Judgment dated a0000 alloWing writ

petition filed by respondent Roshan Deen agalnst tne petltioners as well

as other official respondens seeking direction or production of his

brother Niaz Muhammad from custody betore tne court and to direct

release of the detenu lorthwitn.

2. Precisely stating facts are that detenu Niaz Muhammad son of

Noor Ahmed was detained under the Security ot PakIStan Act, 1952 tor a

period of three months vide order dated 29-10-2003 but was not released

even after the expiry of said period or its extension under directions from

the Federal Review Board.

3Upon Court notice issued by the High Court Standing counsel

for the Federation and Assistant Advocate General tor the petitione

Government appeared before the High Court and expressed their

gnorance about the untawtul detention or the petitioner. Howevet

Deputy Superintendent Central Prison, Karachi produced before the Hig

Ourt a copy ot letter trom Section Officer of the Provincial Home

Department, addressed to a section Officer of the Ministry of Interior A

dated 18-3-2006 seeking orders regarding further detention or otherwise

n respect of the detenu. With reference to this letter Division Bench of

he High Court observed that it was evident that without any furtne

order of detention having been passed or the earlier order being extendcu

or without the detenu being required in any other case, ne was kep

custody for more than two months to the knowledge of Superintende

entrall sow0 consciously chose to seek orders from the

Government otticlais and dericd the mandate of the Constitution.

4. Indeed the Constitution of lslamic Republic of Pakist

categorically and candidly guarantces that a citizen cannot be deprivecu

his liberty except accordance with law.

athetic attitude ot the Provincial Government

patently actng cotayu provis1Ons Ot the Constitution an nB

High Court directed tie retcase ot the detenu and awarded c

nsation

rate ot RS.,000 per day tor violation of his fundamental right and

Hign court dalrected that a Sum of Rs.410,000.00 wo uld

be payal

ay oy ne Superintendent Central P

Section officer (dudicial ), Home Department, and the Provi

Co

with liberty to the

officers tor causing loss to t under thne relevant rules

5. We have heard Mr. Akhlaq Ahmad Siddiqui, Advocate-on-

Record for the petitioner at quite some length and perused the record.

6. Learned Counsel is unable to cite any provision of law or the

Constitution authorizing the Provincial Government or Superintendent

Central Jail to detain any detenu for a moment long than the authorized

period of detention. In this case it may be observed that Superintendent

Central Prison not only glaringly violated the law by contining the

detenu in unlawful custody but also thought it proper to seek further

instructions for his detention from he relevant quarters which was none

ot his business. On its part Home Department Government ot Sindn

acted ill-advisedly by approaching the Federal Government for extension C

of time and seeking instructions for further detention or otherwise of the

detenu whose period of detention had already expired. Since the

authorities concerned clearly acted contrary to the mandate of the

Constitution, unauthorized and illegal confinement of Niaz Muhammad

Cannot be overlooked or 1gnored oy tne superior Courts who are the

Custodians of the Constitution. Indeed the Courts are under a legal duty

to defend and preserve the Consttutonai Euarantces s well as

nfor

Same. In our view no exception can be taken to the judgment of the

gh Court which does not suffer from any 1nherent defect or

misconception ot law.

In our considered opinion Sindh High Court rightly relied upon

s earlier Division Bench judgment in Mazharuddin v. The State (1998

Cr. 1035) which was a case or egal detention by a police officer,

relying upon earlier Juug

Raisa Farooq and others (l994 SCMR 1283) and Muhammad Siddique v.

TOvince of Sindh (PLD 1992 Karachi 358).

Government of Sindh and others V.

TECnghis petition which must Tatl and 1s hereby dismissed.

O POVA9IS

8. For the aforesaid racts, ircustances and reasons we find noD

etition dismissed.