2015 PLP 684 (MLD)

MUHAMMAD QASIM KHAN, J.

This single judgment is meant to decide the following matters i.e.:-- (1) W.P. No.2557/2013 "ISHAQ AHMAD v. DCO, etc. " (2) W.P.No.2558/2013 "MUHAMMAD MEHBOOB AHMAD v. DCO, etc." (3) W.P. No.2613/2013 "AMARIA ASLAM v. DCO, etc." (4) W.P. No.2614/2013 "GHULAM ZAINAB v. DCO, etc." (5) W.P. No.2616/2013 "HAQ NAWAZ v. DCO, etc." (6) W.P. No.2911/2013 "WILLAYAT ALI v. DCO, etc." (7) W.P. No.2538/2013 "MUSHTAQ AHMAD v. DCO, etc." (8) W.P. No.2463/2013 "MUZAMIL NAZIR v. DCO, etc." (9) W.P.No.2712/2013 "MUHAMMAD RIAZ v. DCO, etc." In all these writ petitions similar orders of different dates issued by respondents/District Coordination Officers, Multan, Sahiwal, Vehari and Khanewal, passed under Maintenance of Public Order, directing the arrest and detention of certain persons (relatives of the petitioners), have been assailed.

2. The contention of learned counsel for the petitioners is that impugned detention orders are illegal, unjust, without authority and based on no evidence. It is further argued that the persons put under arrest and detention by the impugned orders, never remained in-touch with any sectarian activities or in any affair which may be called prejudicial to the public safety detrimental for maintenance of public order. Lastly, it is argued that impugned detention orders being without any valid material are violative of Articles 4, 9 and 14 of the Constitution of Islamic Republic of Pakistan, 1973, as such, the writ petition may be allowed with costs and the impugned detention orders may be set aside after declaring the same as void ab initio. To argue on the question of maintainability of these writ petitions it has been argued that although an alternate remedy is available to the petitioners, but the same is neither adequate nor efficacious, whereas, illegal detention of human being even for a moment, cannot be allowed, as liberty of life is fundamentally guaranteed right of every citizen. Learned counsel for the petitioners placed reliance on the cases: PLD 2003 Supreme Court 442), "Hafiz Muhammad Saeed and 3 others v. Government of The Punjab, Home Department through Secretary, Lahore and 2 others" (2009 YLR 2475), "Mst. Misbah Tabassum and 2 others v. Government of Punjab through Secretary, Home Department, Lahore and 3 others" (2007 PCr.LJ 1776).

3. On the other hand, learned Assistant Advocate General representing respondents/DCOs, at the very outset came with the assertion that alternate remedy by way of appeal is available to the petitioners, therefore, these writ petitions are not maintainable. To lend support to his arguments learned Assistant Advocate General placed reliance on the case "Sheikh Rashid Ahmad v. D.M. Rawalpindi, and others" (PLJ 2004 Lahore 1221 (FB). The learned Law Officer, even on merits attacked the writ petitions by arguing that Saif-ur-Rehman and Ghulam Sarwar detenus in W.P. No.2557/2013 and 2558/2013 are knitted with proscribed organization and criminal cases have also been registered against him; Qasim Razzaq detenu in W.P. No.2613/2013 is President of defunct Sipah-e-Sahaba, Pakistan and is involved in creating hatred against shia sect; Qari Asghar detenu in W.P. No.2614/2013 is member of banned organization and carries links with terrorist; Zaheer Nawaz in W.P. No.2616/2003 is also active member of proscribed organization and is Ameer of Lashkar-Jhangvi; Muhammad Farooq Babar detenu in W.P. No.2538/2013 and Ghulam Murtaza detenu in W.P. No.2911/2013 are involved in sectarian activities, whereas, Intizar Ahmad detenu in W.P. No.2712/2013 is indulged in activities prejudicial to the public safety and Ghulam Muhammad detenu in W.P. No.2463/2013 is activist of defunct organization and involved in stirring relations hatred against certain community. The learned Law Officer further submits that material was collected and is available with the agencies, which is sufficient to connect the detenus with the allegations leveled against them, and said material was made basis for issuing the impugned detention orders, as such, according to the learned Assistant Advocate General the impugned orders have been validly passed and there is no element of bad faith, therefore, these writ petition are liable to be dismissed even on merits.

4. I have considered the respective contentions of learned counsel for the parties and perused the available record with their able assistance.

5. Before opening the case on merits, this court would like to deal with preliminary objection raised by learned Assistant Advocate General with regard to maintainability of these writ petitions in the presence of alternate and adequate remedy of filing a representation before the Home Secretary. The right of liberty, security, dignity and freedom of a person has been fully protected and safeguarded by provisions of Chapter-I, Part-II of Constitution of Islamic Republic of Pakistan, 1973. Under Charter of Human Rights, High Court had constitutional obligation to jealously safeguard such fundamental rights against any invasion. A learned Division Bench of Sindh High Court in the case "Dr. Muhammad Shoaib Suddle v. Province of Sindh, and others" 1999 PCr.LJ 747 held that even on failure of detenue to make a representation to the executive authorities, the jurisdiction of High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, would not be barred, as such remedy of representation is neither adequate nor alternate within the meaning of Article 199(1) of the Constitution. Above all the Hon'ble Supreme Court of Pakistan in the case "Federation of Pakistan through Secretary, Ministry of Interior, Islamabad v. Mrs. Amatul Jalil Khawaja and others" (PLD 2003 Supreme Court 442), in unequivocal terms held that "The right of a person to a petition for habeas corpus is a high prerogative right and is Constitutional remedy for all matters of illegal confinement. This is one of the most fundamental rights known to the Constitution. There being limitation placed on the exercise of this right, it cannot be imported on the actual or assumed restriction which may be imposed by any subordinate legislation. If the arrest of a person cannot be justified in law, there is no reason why that person should be able to invoke the jurisdiction of the high Court immediately for the restoration of his liberty which is his basic right. In all cases where a person is detained and he alleges that his detention is un-Constitutional and in violation of the safeguards provided in the Constitution, or that it does not fall within the statutory requirements of the law, under which the detention is ordered, he can invoke the jurisdiction of the High Court, under Article 199 and ask to be released forthwith." On the strength of above pronouncement by the apex Court, these writ petitions are held to be competent and maintainable.

6. On facts, the Hon'ble Supreme Court of Pakistan in the above judgment "Federation of Pakistan through Secretary, Ministry of Interior, Islamabad v. Mrs. Amatul Jalil Khawaja and others" (PLD 2003 Supreme Court 442), set a criteria that the preventive detention order has to satisfy the following requirements:-- (i) The Court must be satisfied that the material before the detaining authority was such that a reasonable person would be satisfied as to the necessity for making the order of preventive detention; (ii) Satisfaction should be established with regard to each of the grounds of detention, and, if one of the grounds is shown to be bad, non-existent or irrelevant, the whole order of detention would be rendered invalid; (iii) Initial burden lies on the detaining authority to show the legality of the preventive detention, and (iv) The detaining authority must place the whole material, upon which the order of detention is based, before the Court notwithstanding its claim of privilege with respect to any document, the validity of which claims shall be within the competent of the Court to decide. The legality and propriety of the detention orders impugned in these writ petitions shall be seen on the touchstone of above settled principles. The learned Assistant Advocate General also tried to refer to some material which according to him was secret record/reports of the agencies. No material whatsoever has either been collected or produced before the court as to how the detenus are most active members of banned sectarian organizations and similarly there is no material to establish close links of detenus with activists and terrorist of sectarian organizations. Although copies of some FIRs were cited by the learned Assistant Advocate General but admittedly in none of those cases any conviction has been recorded. Even otherwise, this Court in the case "Muhammad Mushtaq versus District Magistrate, Sheikhupura and another" (1997 MLD 1658) has already declared that "involvement of the detenue in number of criminal cases, per se, was not a valid ground for his preventive detention as he could not be vexed twice on the basis of the same criminal charge due to the pendency or disposal of the said criminal cases and his detention was nothing but punishment depriving him of his liberty." In these facts and circumstances, this Court has no hesitation in holding that impugned detention order could not satisfy the requirements of a valid detention order on the touchstone of guidelines settled by the apex Court in "Federation of Pakistan through Secretary, Ministry of Interior, Islamabad v. Mrs. Amatul Jalil Khawaja and others" (PLD 2003 Supreme Court 442), as not a single ground/ allegation mentioned in the said order could be established from the record/ material, shown to the court.

7. It is settled position that section 5 of the Maintenance of Public Order Ordinance, 1960 vests authority in the DCO in passing such orders, but this power is not absolute and as shall be seen from the language used in subsection (1) of section 3 of West Pakistan Maintenance of Public Order Ordinance, 1960, before passing such detention order the authority/D.C.O is to "satisfy" himself that with a view to preventing any person from acting in any manner prejudicial to public safety or the maintenance of public order, it is necessary so to do, he may issue an order in writing directing arrest and detention of such person for a period to be specified in the said order, but here in this case for the reasons as detailed above, the respondents/D.C.Os did not apply their independent judicious mind and passed the impugned detention orders merely on the basis of reports submitted by the concerned agencies without considering the worth of the material made available to them, whether this material could form basis for such detention orders and whether this material could even stand the test of admissibility in evidence or its evidentiary value. Liberty of a citizen is a divine right which is vested in a citizen duly safeguarded by the Constitution. Dignity of a common man does not differ from man to man, race to race and nation to nation and it is the supreme right of a citizen which should be explained for each hour, each day and each month if curtailed. Reliance is placed on the case "Iffat Razi v. Government of Punjab and others" (PLD 2002 Lahore 194). As a matter of fact a detention order amounts to curtailing the fundamentally guaranteed right of liberty of a person and it was for this reason that the legislators in their wisdom vested such powers with the D.C.Os, who are expected to be unbiased, as compared to the police agency and in this way the D.C.Os are not supposed to act on the reports of the police agency until and unless they satisfy themselves that such reports are correct and are also supported by tangible material. It may be reiterated here that the impugned detention orders have been passed by respondent DCOs without judicious application of mind about alleged activities of the detenus, therefore, they had in fact deviated from their one of the sacred duty by taking off the liberty of persons. All the grounds of detention enumerated in the detention orders passed by the Authorities in the present cases, are vague, based upon presumptions and speculations; it is, therefore, sufficient to infer that detaining Authorities had not applied its mind to satisfy themselves for issuance of detention order of detenus.

8. For what has been detailed above, all these writ petitions are allowed and the impugned detention orders are set aside and the detenus are directed to be released forthwith if not required in any other case. A copy of this judgment shall be sent to the respondent/District Coordination Officers, for future guidance. As regards the prayer of learned counsel for the petitioners seeking imposition of costs on the respondent authority, this is not considered to be a fit case for imposition of costs. If so advised, the petitioners may avail alternate remedies under the law. MH/I-23/L Petition allowed.