2014 P Cr (PLP)

KH. IMTIAZ AHMAD, J.

Orders dated 8-4-2010 passed vide letters Nos.213 to 219 whereby the petitioner Dr. Niaz Ahmad, Amir, Shafiq-ur-Rehman, Mazhar-ul-Haq, Abdul Saboor, Abdul Majeed and Basit were ordered to be detained for a period of 30 days, have been assailed through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The orders passed by the District Co-Ordination Officer, Rawalpindi is sought to be assailed on several grounds highlighted in the petition primarily that the reasons which prevailed with the respondent to pass the detention orders were vague, substantiated, lacked sufficient material, mala fide and nullity in the eyes of law.

2. All the said detenus were in-fact behind the bars facing the trial in different cases bearing F.I.R. Nos. 786, 670, 384, 390 registered at Police Stations R.A. Bazar, Rawalpindi, New Town, Rawalpindi, New Town Rawalpindi and Banni, Rawalpindi under section 7, A.T.A. etc. They were acquitted from the said cases by the competent Court of law on 7-4-2010 and 8-4-2010 but on the same day, the detention order was passed and they were again detained for 30 days.

3. The learned counsel for the petitioner contended that the petitioner was behind the bars for about two and half years i.e. from 6-7-2009 and when the detenus were already under arrest, then how they can instigate the other persons nor they were workers of any banned organization and no action whatever was on their part justifying the detention. He further contended that there was no necessity to move the representation under section 3(6) of the West Pakistan Maintenance of Public Order Ordinance, 1960 and the writ petition was maintainable since the order on the face of it was nullity in the eyes of law. In this behalf, he placed reliance upon 2006 PCr.LJ 127, 2000 MLD 1494, 2002 SCMR 914, PLD 2005 Karachi 538, 2000 MLD 1252, PLD 2002 Lahore 194, PLD 2006 Lahore 111 and 1989 PCr.LJ 1569.

4. On the other hand, the parawise comments were also submitted on behalf of respondents along with some documents and a confidential envelope containing the report has also been handed over to the Court for perusal. The learned Additional Advocate General relying on the above-said documents contended that under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960; it is the Government which should he satisfied that with a view to preventing any person from acting in any manner prejudicial to public safety or the maintenance of public order, may by an order direct the arrest and detention. He emphasized the satisfaction of Court and the concerned reports collected in this behalf. He also contended that the present writ petition is not maintainable since it is an extraordinary jurisdiction and can only be exercised when there is no other efficacious or alternate remedy available. He contended that since the alternate remedy by filing the representation under section 3(6) of the West Pakistan Maintenance of Public Order Ordinance, 1960 is available to the petitioner which he can avail and that he undertakes that if any such representation is made, it would he decided immediately. He further contended that under subsection (6) of section 3 of the said Ordinance it is not necessary to disclose all the facts. He contended that since the present writ petition was not maintainable, so the petitioner be directed to file the representation. In this behalf, he has placed reliance upon PLD 2006 Lahore 272, PLD 1992 Lahore 140, PLD 1973 Karachi 344, 2001 PCr.LJ 1727, PLD 1965 (W.P) Lahore 135, PLJ 2004 Lahore 1221 and 1993 SCMR 1810.

5. I have also considered the arguments addressed by both the counsel for the parties with their kind assistance and the case-law has also been gone through. The documents attached with the comments and the confidential report produced before the Court have also been gone through. However, it is appropriate to determine the legal question as raised by the learned counsel for the respondent about the maintainability of the present writ petition. For convenience section 3(6) of the West Pakistan Maintenance of Public Order Ordinance, 1960 is reproduced as under:-- "3(6) Where a detention order has been made under this section the (authority making the order) shall, as soon as may be, communicate to such person the grounds on which the order has been made, inform him that he is at liberty to make a representation to Government against the order and afford him the earliest opportunity of doing so: Provided that the [authority making any such order] may refuse to disclose facts which such authority considers it to be against public interest"

6. The contention of the learned counsel for the petitioner is that the representation is not necessary since the order on the face of it is nullity in the eyes of law. In this behalf he has placed reliance on the case law as mentioned above. It is appropriate to examine the said case laws. In the case of Muhammad Ashraf v. District Magistrate, Gujranwala (2000 MLD 1252 (Lahore), the order of detention for a period of three months was set aside. However, in that case, this point was not agitated that the petitioner had alternate remedy of representation. Same is the case in other cases relied upon by the learned counsel for the petitioner. On the other hand, the case law cited by the learned counsel for the respondents show that the writ petition was not maintainable on the ground that alternate remedy of filing the representation was available. It may be mentioned here that the case law cited by the learned counsel for the petitioner consist of Single Bench or some cases of Division Bench. The matter in consideration was taken up by the Full Bench of this Court in the case of Sheikh Rashid Ahmad v. D.M. Rawalpindi etc. (PLJ 2004 Lahore 1221) (F.B.) consisting of five Judges of this Court. In the said case, maintainability of writ petition was also taken into consideration and the Hon'ble Full Bench of this Court reached to the conclusion that "Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 provides an extraordinary remedy to the aggrieved person of invoking the constitutional jurisdiction of the High Court with the underlying purpose to keep the administrative and judicial authority within the bounds of their jurisdiction. When the law provides a remedy to another authority fully competent to give relief, any indulgence to the contrary by the High Court is likely to produce a sense of distrust in those authorities and to cast an undeserved reflection on their integrity and competency and would defeat the legislative intent. The Full Bench view has since been followed in number of subsequent cases such as Maulana Muhammad Azam Tariq v. District Magistrate, Jhang and 2 others (2001 PCr.LJ 1727)". The same view was followed in the case of Muhammad Aslam Saleemi v. Secretary Home Punjab Government, Lahore (PLD 2006 Lahore 272). In view of preponderance of authority, particularly that of the learned Full Bench of this Court there remains no doubt or obscurity that availing of the statutory remedy before filing of petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 in such a case is a rule. Suffice it to observe that so long as the view taken by the learned Full Bench of this Court holds the field no other view is possible except to follow the same in view of the legal position stated in the case of The Province of East Pakistan and others v. Siraj-ul-Haq Patwari and others (PLD 1966 SC 854). It was observed by their Lordships that "being charged with the high function of interpreting and pronouncing upon the validity of laws, and being thus itself a source of law, the High Court should avoid giving a decision directly inconsistent with that given by itself earlier." In view of the above, I have no option but to uphold the preliminary objection as to the maintainability of this writ petition.

7. It has been stated by the learned Additional Advocate-General that if the representation qua the detention order is filed, it will be processed and decided in accordance with law by the respondents expeditiously after affording opportunity of hearing. It is observed that the said provision of subsection (6) of section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960 empowers the respondent even to rescind the order. Let therefore, representation be filed which will be heard, considered and disposed of in accordance with law by the respondent within seven days of filing.

8. For the above reasons, this petition is dismissed as not maintainable and being premature. No order as to costs. The confidential envelope/report submitted by the learned Additional Advocate-General be handed over to him accordingly. MH/N-30/L Order accordingly.