P L D 1990 Karachi 470 (PLP)

SAJJAD ALI SHAH, C.J.‑‑Mrs. Majeeda Fatima has filed this Constitution petition challenging detention of her husband Mohammad Iqbal Memon who was taken in custody on 12‑8‑1990, in pursuance of order of detention of the same date passed by District Magistrate Karachi Central, under section 3(1) of Sindh Maintenance of Public Order Ordinance, 1960, authorising his detention for 30 days from that d‑ate. In the order of detention is also mentioned one ground for detention which is to the effect that the detenu is reported to be a man with nefarious designs to create unrest among people and he instigates people against the Government and works against unity, integrity of the country and peace in the area. It would be pertinent to mention at this stage that Government of Pakistan Peoples Party headed by Prime Minister Mohtrama Benazir Bhutto was dismissed and National and Provincial Assemblies were dissolved on 6‑8‑1990, which was six days earlier than passing of order of detention in this case. Care‑taker Governments have been appointed at Federal and Provincial level. District Magistrate Karachi Central has passed this order of detention acting on the report submitted to him by SDPO Liaquatabad endorsed by S.S.P., Central on the same day, i.e., 12th August 1990, in which the same ground is stated as mentioned above without any further elaboration or specification of instances in support thereof. Legal aspect of this matter is that under section 3 of Maintenance of Public Order Ordinance, Government is empowered to pass order of detention and take such person in custody if the Government is satisfied that it is necessary to do so with a view to preventing any person from acting in any manner prejudicial to public safety or maintenance of public order. From the very language used in the section as stated above particularly when "satisfaction" is qualified with eventuality of "it is necessary so to do" it becomes indisputably manifest that "satisfation" is to be objective in nature and not subjective of such nature to allow the authorities to act on whims and caprices without there being material before them in support of grounds of detention. Had it not been the intention of the legislature, words "it is necessary so to do" would not have been used to demonstrate without ambiguity that "satisfaction" is subjective in nature. In the case of Mir Abdul Baqi Baluch v. The Government of Pakistan and others reported in PLD 1908 SC 313, it is held that High Court in its power of judicial review can examine order of detention and can insist on disclosure of materials on which executive authority had acted, subject to the right of State to claim privilege in respect of secret information. It is further held that mere production of order of detaining authority in proof of "satisfaction" is not sufficient. What High Court is concerned with is to see that executive or administrative authority had before it sufficient materials upon which a reasonable person could have come to the conclusion that requirements of law have been satisfied. Observation of the Supreme Court goes further to say that it is not uncommon that even high executive authorities act upon the basis of information supplied to them by their subordinates. In the circumstances, it cannot be said that it would be unreasonable for the Court, in proper exercise of its Constitutional duty, to insist upon a disclosure of materials upon which the authority had so acted so that it should satisfy itself that the authority had not acted in an "unlawful manner". It is, therefore, mandatory requirement of law that there should be sufficient material before the executive authority to act upon it in order to justify passing of order of detention. Such material may contain specific instances of the past conduct. In support of the proposition further reference can be made to the cases of (1) Moula Bakhsh v. Government of Sindh and another, reported in PLD 1988 Karachi 18, and (2) Zafar lqbal Papu v. District Magistrate, Karachi East and 2 others, reported in PLD 1988 Karachi

275. Further, requirement is that order of detention will not be sustainable if it is passed with mala fides intention and without judicious application of mind on the basis of allegations which are vague in nature in support of which other no material is produced or material is produced which is inadequate. Reference be made to the case of Fakir lmdad Ali v. District Magistrate and 2 others reported in PLD 1987 Karachi

530. Coming back to the instant case, no counter‑affidavit is filed on behalf of the respondent in rebuttal of allegation. No material has been produced before us for scrutiny in support of the allegation which is used as ground in the order of detention which is very vague in nature and no instances have been quoted. On the other hand, it is stated in the memorandum of petition on that the detenu is a leading businessman as known Builder, Developer and real Estate Agent and is Managing Director of Tameer‑e‑Mashriq (Pvt.) Limited and pays regularly Income tax. It is further stated in the petition that the detenu is made target of victimization and is shown as business partner of Mr. Asif Ali Zardari, husband of deposed Prime Minister. Newspapers cuttings have been produced which are annexed with the petition. In the circumstances, since there is no counter‑affidavit or any material produced in support of vague allegations and also there is no denial of assertions made in the petition, we quash the order of detention as unsustainable in law and allow this petition. Detenu may be released at once if not wanted in any other case. On 21st August, 1990, we had allowed this petition by short order for reasons to be recorded later, which are given above. M.BA./M‑1224/K Petition allowed.