1999 P Cr (PLP)

Kasur. " He also issued the grounds of detention of the aforesaid detenu which are reproduced as under in toto:-- This order passed under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960 is based on the following grounds:-- (i) That you are involved and indulging in sectarian activities and creating hatred between different sects due to your nefarious activities. (ii) That you delivered a provocative speech at the time of Namaz-e-Jinaza of deceased Muhammad Arshad alias Faisal who was activist of Sipah -e-Sohaba and was involved in the incident of bomb blast which took place at Raiwind-Lahore Road recently. (iii) That in your speech, you declared the deceased accused as Shaheed and instigated the people against the Government. (iv) That your activities are prejudicial not only to public peace and tranquillity but also to integrity of the country. (v) That if you are allowed to retrain at large, you would act in a manner prejudicial to the public safety and maintenance of public order. In view of the above grounds, your detention is necessary in order to prevent you from acting as such. The above grounds and reasons for your detention are being communicated to you as required by law. You can, if you desire, make a representation against this order before the Government of the Punjab. (Sd. District Magistrate, Kasur)".

3. Feeling aggrieved Maulana Abdul Latif Shamshad Ahmad petitioner filed this Writ Petition No.2317 on 12-2-1999 wherein he challenged the vires of order, dated 3-2-1999 passed for the detention of Maulana Abdul Aziz Azizi. He contended that Maulana Abdul Aziz Azizi is Shaikhul Hadith and Mufti belonging to Maslic Ahle-Sunnat-wal-Jamat (Deobandi Hanfi) and is Mohtamim of Jamia Arabia Rehmania Allah Abad, Tehsil Chunian, District Kasur with effect from 6-10-1979. He added that by the dint of hard labour put in by the detenu the said Jamia was affiliated with the Federal Board of Madrasatul Arabia and the students who qualify from the said Jamia are granted the degree equivalent to M.A. Islamiyat. He asserted that the detenu politically belongs to Jamiatul Ulma-e-Islam (Maulana Samiul Haq Group) who fought election of the year 1997 against Maulana Moinud Din Lakhwi a nominee of Pakistan Muslim League (N) and there had been a constant threat to the detenu of being implicated in some matter. He asserted that the detenu was a member of the Peace Committee of the Ilaqa for over a period of 20 years and that there was absolutely no complaint against his conduct and behaviour. He added that Muhammad Arshad alias Faisal deceased belonged to the brotherhood of the detenu whose Namaz-e-Jinaza was led by the detenu on 31-1-1999 which has been made the cause of grievance against him. He challenged the detention order, dated 3-2-1999 with the assertions that the impugned order and the grounds attached therewith were absolutely vague, wild and mechanical which were false as the detenu did not instigate anyone against the Government who led the Namaz-e-Jinaza of the deceased who was from his brotherhood and did not make any provocative speech, that the detenu was never indulged or involved in sectarian activities between different sects of Muslims, that the impugned detention order is politically motivated at the instance and behest of Maulana Moinud Din Lakhvi sitting Member of the National Assembly and that the detention of Maulana Abdul Aziz Azizi is causing irreparable loss.

4. In the report and comments the District Magistrate, Kasur took up the stand that the Superintendent of Police, Kasur vide his letter, dated 3-2-1999 reported that Maulana Abdul Aziz-ul-Rehman Azizi, Nazim Madrassa Jamia Rehmania Allah Abad, Tehsil Chunian, District Kasur has indulged in sectarian activities and is creating hatred between different sects due to his nefarious activities who delivered a provocative speech on 31-1-1999 at the time of Namaz-e-Jinaza of deceased Muhammad Arshad alias Faisal who was an activist of Sipah-e-Sahaba and was involved in the incident of bomb blast which took place at Raiwind-Lahore Road and who was killed in police encounter in the jurisdiction of Police Station Qadirpur Raan, District Multan on 31-1-1999. He added that six cases of murder and seven cases of murderous assault, the particulars of which were mentioned, were pending against the deceased Muhammad Arshad alias Faisal who was a criminal but was declared as Shaheed by the detenu who also issued the threats of continuation of their mission and taking of revenge of his death. He maintained that by declaring a sectarian terrorist as Shaheed and by vowing to continue, his missing and absenting his death Maulana Abdul Aziz-ur-Rehman Azizi instigated the people against the Government and tried to create law and order problem in the District. He justified the detention holding the same to be essential in the circumstances mentioned above and. the material sent to him by the Superintendent of Police Kasur.

5. During the proceedings before this Court Maulana Abdul Aziz Azizi got scribed and attested his affidavit in District Jail, Kasur under the supervision of District Attorney, Kasur as this Court had passed the order thereof. In his affidavit Maulana Abdul Aziz Azizi son of Maulvi Abdul Rehman caste Mayo resident of Allah Abad, Tehsil Chunian, District Kasur mentioned his qualifications as well as religious beliefs. He claimed to be having the qualification of Master of Arts in Islamiyat. He expressed that he contested the election of National Assembly from Halqa No. 109 and that he was a member of the Peace Committee for the last 20 years. He added that as a Muslim and Alim he led the Namaz-e-Jinaza I of Muhammad Arshad on 31-1-1999 and did not make any provocative speech. According to him Muhammad Arshad deceased was not related to him and having no connection with him who was a member of his brotherhood. He expressed that he had no relations with Anjuman Sipah-e -Sahaba or Lashkar-e-Jhangvi.

6. In spite of the direction made in the matter the parties did not produce any other documentary evidence.

7. I have heard the learned counsel for the petitioner as well as the learned District Attorney and the learned Assistant Advocate-General.

8. Learned counsel for the petitioner referred to Diary, dated 1-2-1999 sent by Muhammad Masood S.-I./S.H.O. Police Station Allah Abad to the Superintendent of Police, Kasur wherein it is narrated that Maulana Abdul Aziz Azizi made a short address at the time of the Namaz-e-Jinaza that Muhammad Arshad alias Faisal had met with. Shahadat that his death would be avenged and that their mission would continue wherein it is also recorded that the deceased Muhammad Arshad alias Faisal was buried in a graveyard near Kanganpur Road when the situation remained normal and no untoward incident took place. He maintained that thereafter, Report No.2-D, dated 31-1-1999 was entered with mala fides wherein many utterances were attributed to the detenu. He continued that Report No.21, dated 1-2-1999 and Report No.26, dated 2-2-1999 are not based on the direct information of the concerned Police Officers and that the receipt of secret information in the matter cannot form the basis of the passing of the impugned order of detention of the detenu. He added that the death of Muhammad Arshad alias Faisal was the outcome of the extra-judicial killing when no Police Officer was injured while the effort is said to have been made to rescue the deceased and his two colleagues who all lost the lives. He maintained that in our social set up a person meeting an unnatural death is commonly said to be Shaheed. He took exception to the use of word "nefarious activities" against the detenu as according to him the leading of the Namaz-e-Jinaza and uttering some words when no untoward incident took place cannot constitute the "nefarious activities" of the detenu who is a staunch Muslim and a religious leader. Learned counsel for the petitioner referred to the affidavit of Maulana Abdul Aziz Azizi detenu wherein he called himself to be a peaceful citizen and member of Peace Committee who expressed therein that he has neither a member of Anjuman Sipah-e-Sahaba nor that of Laskhar-e-Jhangvi. On the contrary the learned District Attorney and the learned Assistant Advocate-General laid the emphasis that the diary about the Namaz-e-Jinaza as well as the remaining reports entered in the Daily Diary of Police Station Allah Abad have made out that Maulana Abdul Aziz Azizi detenu instigated the sectarian feelings of the persons who attended the Namaz-e-Janaza and his students and that during these days when the Government is adopting the measures to control law and order situation the detention order was passed in accordance with law which was justified in the circumstances. They continued that without filing of the representation before the Secretary, Home Department and its disposal the writ petition is not competent before this Court.

9. At the very outset' I would express that before, the filing of this writ petition the making of the representation or preference of appeal before the Secretary Home Department, Government of the Punjab is not necessary. It has been held in Maulana Shah Ahmad Noorani v. Government of the Punjab PLD 1984 Lah. 222 and Azad Papers (Jasarat) v. Province of Sindh and others PLD 1974 Kar. 81 that availability of alternate remedy of making representation to the Provincial Government against the impugned order does not oust and eclipse the jurisdiction of the Constitutional Court in exercise of its writ jurisdiction in a matter of the instant nature. This objection of the learned, Assistant Advocate -General is overruled.

10. With respect to the merits of the writ petition I have to express that the affidavit submitted by Maulana Abdul Aziz Azizi detenu has to steal the eminence as he has specifically expressed therein that neither he is a member of the Anjuman Sipah-e-Sahaba nor of Lashkar-e-Jhangvi. He is a religious leader and there is no occasion to disbelieve him especially when he is the Mohtamim of Madrasa Jamia Arabia Rehmania, Allah Abad, District Kasur. No case of any nature earlier stands registered or is pending against the detenu. He is a member of Peace Committee for the last 20 years which is a favourable material for him. The aforesaid perspective of the person of Maulana Abdul Aziz Azizi detenu shall have to be kept in mind while disposing of this writ petition.

11. A perusal of Diary, dated 1-2-1999 sent by Muhammad Masood, S.-I./S.H.O. Police Station Allah Abad to the Superintendent of Police, Kasur had made out that he gave the status of Shaheed to Muhammad Arshad alias Faisal, but no untoward incident took place and the Namaz-e-Jinaza as well as the, funeral procession remained peaceful. However, afterwards in Report No.2 D the same Sub-Inspector mentioned many sentences to make out that provocative speech was delivered by the detenu. It is pertinent to note that Report No.2-D was given to the report, dated 31-1-1999 mentioned in the daily diary. The aforesaid number has made me to opine that the report was entered afterwards and, was given the number as 2-D. Generally the serial number proceeds with regularity. It means that there is difference of reporting of Muhammad Masood, S.-I./S.H.O. with considerable contradictions. Even otherwise his report has not been corroborated by any other material. A perusal of Report No.21, dated 1-2-1999 has made out that Muhammad Ismail, S.-I. Police Station Allah Abad received the secret information. Same is the fact with respect to Report No.26, dated 2-2-1999 of Muhammad Masood S.-I./S.H.O. who also received the secret information. In these reports it has been mentioned that Maulana Abdul Aziz Azizi detenu uttered objectionable speeches. There is no direct evidence with the aforesaid both the Police Officers and they have relied on the secret information. It is pertinent to mention that according to Article 8 of the Qanoon-e-Shahdat Order, 1984, "No Magistrate or Police Officer shall be compelled to say whence he got any information as to the commission of my offence". However, in the instant matter the concerned Police Officer(s) did not get registered any criminal case against the detenu within the purview of Article 8 of the Qanoon-e-Shahadat Order, 1984. This being the position the secret information imparted to them would not be a corroborative piece of evidence to the initial diary about the Namaz-e-Jinaza of Muhammad Arshad alias Faisal. In short no evidence was collected by the District Magistrate, Kasur before issuance of the impugned order of detention which can be held to have been passed mechanically and without application of mind. No report of Special Branch of the Police was called and collected which shows that the matter has been dealt with in a perfunctory manner. This being the position the opinion of the Superintendent of Police, Kasur endorsed by the District Magistrate, Kasur would not play the legal role to make out that the detenu indulged in sectarian activities which would be dangerous to public peace and tranquillity and that he indulged in sectarian activities may be a reason for the detention but not a ground of detention of the detenu in absence of roof. Keeping in view the aforesaid aspect, the reports sent by the Police Officers cannot be considered as sufficient and enough to pass the impugned order of detention.

12. I am tempted to express that by the Grace of God Almighty ours is a democratic country being governed by the Constitution of the Islamic Republic of Pakistan, 1973. Anjuman Sipah-e-Sahaba at present is a political party having its representation in the Punjab Provincial Assembly and same has not been banned and rather no action/step has en taken by the Government in power. No material has been produced to make out that Maulana Abdul Aziz Azizi detenu is a member of Anjuman Sipah-e-Sahaba and consequently he belonged to the militant group of the same who rather through the submission of his own affidavit has refuted the aforesaid allegations.

13. There is nothing on record to make out that Muhammad Arshad alias Faisal who lost the life in extra judicial killing was a person for whom Nimaz-e -Jinaza was not to be offered. As ordained by the Almighty God in Verse 84 of Surah Al-Tauba (IX:84) in the Holy Qur'an the Namaz-e-Jinaza of Kafir has not to be offered. The Namaz-e-Jinaza of every Muslim has to be offered and due to this reason the Namaz-e-Jinaza of Muhammad Arshad alias Faisal, a Muslim, was offered which was led by Maulana Abdul Aziz Azizi detenu. The deceased was a resident of the same place and the leading of his Namaz-e-Jinaza cannot be held to be an objectionable act of the detenu as rightly pointed out by his learned counsel. Further only the Almighty God knows as to who is Shaheed and who is not a Shaheed. However, I would express that in our social set up any person who loses his life in an unnatural manner, accident and through extra judicial killing is called Shaheed by his nears and dears. This is the order of our social set up and use of word Shaheed for Muhammad Arshad alias Faisal by the detenu and leading his Namaz-e-Jinaza cannot be termed to be nefarious activities of sectarian type on the part of the detenu. The dictionary meanings of the word Nefarious are wicked, evil. The allegations against the detenu in the circumstances cannot be said to be nefarious. Rather the use of the aforesaid word cannot be taken in good taste with respect to the duty performed by the detenu to which his learned counsel has rightly taken the exception. It is pertinent to mention that the situation remained normal after the Namaz-e-Jinaza and no untoward incident took place till the burial of Muhammad Arshad alias Faisal and even after-words.

14. No evidence was collected before the issuance of the impugned order of detention which was passed in routine in a mechanical manner without application of mind. Rather the recommendation of the Superintendent of Police was mechanically accepted by the District Magistrate, Kasur. The upshot of the above discussion and findings is that there was no justification to pass the impugned order of detention of Maulana Abdul Aziz Azizi. Consequently, I accept the writ petition with costs, set aside the impugned order, dated 3-2-1999 and the detention of Maulana Abdul Aziz Azizi is declared to be without lawful authority and of no legal effect.

15. On 22-2-1999 through a short order Maulana Abdul Aziz Azizi was ordered to be released, if not required to be detained in any order case and in this judgment the detailed reasons are being recorded for arriving at the aforesaid conclusion. N.H.Q./A-63/L Petition accepted.