P L D 1984 Lahore 222 (PLP)

This judgment shall dispose of Writ Petitions Nos. 4975/83, 4976/83 and 4977/83, filed by Maulana Shah Ahmad Noorani, Maulana Abdus Sattar Khan Niazi and Malik Muhammad Akbar Saqi, challenging their respective extern ment arid detention orders dated 2nd November, 1983, passed separately, under section 5(l) of the West Pakistan Maintenance of Public Order Ordi nance (XXXI of 1960) (hereinafter referred to as the Ordinance), by the Under‑Secretary Special 111, Horle Department, Government of the Punjab, whereby Governor of the Punjab was pleased to direct Maulana Shah Ahmad Noorani to remove himself forthwith from the territorial limits of the Province of the Punjab and not to enter in any part of the said Province and the movements of Maulana Abdus Sattar Khan Niazi and Malik Muhammad Akbar Saqi were restricted within the territorial limits of Lahore Municipal Corporation, for a period of three mouths. The impugned orders are indenticnl except to the extent indicated above. The order impugned in the case of Maulana Shah Ahmad Noorani reads thus :‑ "No PA/AS (HOME)/83 GOVERNMENT OF THE PUNJAB HOME DEPARTMENT Dated Lahore, the 2nd November, 1983 ORDER Whereas the Governor of the Punjab is satisfied that you, Maulana Shah Ahmad Noorani, son of Shah Abdul Aleem Siddiqui, President, Jamiat i‑Ulema‑i‑Pakistan (defunct), resident of Saddar Karachi are acting in a manner prejudicial to public safety and maintenance of public order which tantamounts to indulging in political activity since banned under Martial Law Regulations 33 and 48; And whereas it is necessary to prevent you from acting in any manner prejudical to public safety and maintenance of public order; Now, therefore, in exercise of the powers conferred on him by subsec tion (1) of section 5 of the West Pakistan Maintenance of Public Order Ordi nance, 1960, the Governor of the Punjab is pleased to direct you, Maulana Shah Ahmad Noorani to remove yourself forthwith from the territorial limits of the Province of the Punjab and not to enter in any part of the said Provino for a period of three months. This order shall come into force at once and shall remain in force for a period of three months. You are at liberty to make a representation of Government against this order. BY ORDER OF THE GOVERNOR OF THE PUNJAB (Sd.) (ABDUR RAHMAN KHAN), Under‑Secretary Special III for Home Secretary, Punjab. (1) In Lahore and other Districts of the Province of the Punjab and presently at Gujrat you are holding political meetings for organising political agitation. (2) You have been constantly over the last week making political utter ances and holding Press Conferences wherein political issues were publicly discussed. (3) You are thus actively pursuing the anti‑Government political pro gramme of M. R. D.

2. The case of the petitioners is that SHUHADA‑I‑KARBALA Con ferences were held at various places in different parts of the Punjab in the last Muharram. They ware called upon to address those conferences which were purely religious functions. In this regard they addressed at Faisalabad, Gujranwala, Gujrat, Lahore and Sheikhupura with total responsibility, sobriety and sanctity demanded by such religious occasions. The impugned orders are sought to be quashed mainly‑on the ground of vagueness.

3. Mr. Rashad Aziz, learned Additional Advocate‑General, vehemently submitted that the grounds disclosed in the impugned orders do not suffer from vagueness, inasmuch as, the places of holding political meetings have been particularised in ground No. 1; time has been specified in ground No. 2 and the substance of the utterances i.e. "you are thus actively pursuing the anti‑Government political programme of M. R. D." is contained in ground No. 3 thereof. It is next submitted that assuming but not conceding that the grounds were vague, no prejudice has been caused to the petitioners, inasmuch as, the grounds have now been adequately particularised in the reply filed to the writ petitions on behalf of the Government. He also argued that the utterances, time and places of the political activities of the petitioners have been widely reported in the Press of which the Court can take judicial notice. Learned Additional Advocate‑General next submitted that the peti tioners have themselves admitted in paras. 4 and 5 of their respective petitions that they did address various meetings in the Province of the Punjab; viewed from this angle as well, no prejudice is caused to them for want of alleged particularity. The learned Additional Advocate‑General wanted the Court to peruse the record of the proceedings to show that the petitioners on the pretext of holding religious conferences indulged in political activities since banned under Martial 1aw Regulations 33 and 48.

4. Having considered the submissions of the learned counsel for the parties, I am of the opinion that it is not necessary for the purposes. of decision of this case to peruse the material which was the basis of the impugned orders as the petitioners have neither challenged the sufficiency or otherwise of the material which formed the basis of the impugned orders nor such a challenge can be made in these proceedings. The sole question which requires determination in this case is as to whether or not the grounds dis closed in the impugned orders. are vague. It has been consistently held by the superior Courts of this country that an order passed under section 5 of the Ordinance should be adequately particularised to enable a restrictee/detenu to make effective statutory representation .to the Government. The test to determine the vagueness or otherwise of a ground is whether an effective representation apart from bare denial of accusation can be made by the person against whom an order has been passed under the aforesaid provision. Earlier the Government of the Punjab passed similar orders on 24th Novem ber, 1981, against the petitioners on somewhat identical grounds. In case of Maulana Shah Ahmad Noorani, the order of externment was passed on the following grounds "(1) That you Maulana Shah Ahmad Noorani (JUP defunct) of Karachi, have addressed meetings at Sheikhupura on 14‑11‑1981, village Miana Gondal, District Gujrat on 16‑I1 1981, a Press Conference at D. G. Khan on 7‑1 t‑1981, and have therefore, indulged in illegal political activities, which is not conducive to public safety, maintenance of public order as well as public interest. (2) And that with a view to preventing you from taking part in further illegal activities, your stay' and entry in the Province of Punjab is deemed as prejudicial to public safety and maintenance of public order as well as public interest. (3) Hence this externment order." This order, as well as, orders against other petitioners therein were set aside by this Court on the short legal point that the grounds impugned therein were vague. Refer Qari Abdul Hamld Qadrf v. Government of the Punjab (P L D 1982 Lah. 255), wherein it was observed :‑ "I also find great force in the submission of the learned counsel for the petitioner that the impugned grounds suffer from vagueness and the restrictee has been denied to exercise his statutory right to make an effective representation to the Government in terms of section 5(a) of the Ordinance. The arguments of the learned Advocate‑General that the alleged vagueness of the impugned grounds should be examined in the context of Martial Law Regulation No. 48 which banned all political activities and therefore, it was sufficient if it was alleged against the restrictee that he indulged in political activities by uttering various speeches on various dates at specified places mentioned in the impugned grounds. The argument is devoid of any force. The question before the Court is not whether the restrictee contravened Martial Law Regulation No. 48 but whether the speeches allegedly made by him were prejudicial to public safety and maintenance of public order and whether the ground which led to the passing of the impugned order have been adequately particularised to enable the restrictee to make an effective statutory representation to the Government. The test to determine whether a particular ground is vague ‑ or otherwise is whether an effective representation apart from a bare denial of accusation can be made by the " person against whom an order has been passed under section 5 of the Ordi nance. Reference may be made to the judgment of the Division Bench of this Court in Muhammad Ajmal Khan v. The District Magistrate, Lyallpur and 4 others P L D 1977 Lah.

20. The relevant portion reads thus: ‑ "It has been argued that ground No. 2 is not vague inasmuch as the detenu has been accused of meeting labour leaders at his residence on 27th of September, 1975 when he came out of jail. According to the learned counsel for the respondents time and place being clearly given in the ground the same cannot be termed to be vague. We, however, do not find force in this contention. The names of the labour leaders whom the detenu is alleged to have met have not been given. The test for finding out whether a particular ground is vague or not is whether an effective representation apart from a bare denial of the accusation conveyed to the detenu can be made by him. In the present case, in the absence of particularization of any specific speech or substance thereof and the language used in the speech was not conveyed to the restrictee, therefore, the impugned grounds being vague are not sustainable in law." The Government challenged this judgment by means of I. C. A. No. 39/82, which was dismissed in limine by the Division Bench of this Court. The relevant observations read thus: ‑ "This leaves us with the last and most important point regarding vague ness of the grounds . The relevant ground is that the respondents addressed meetings at different places on different dates and had, therefore, indulged in political activities which was not conducive to public safety and public interest. A plain reading of this wording means that simply because a meeting was addressed by the respondents, therefore, the speakers would be deemed to have indulged in political activities. In other words, the haling of a meeting ipso facto amounts to indulgence in political activities. We are unable to accept this position. In the comments submitted by the Government, it is admitted that "it was true that the programme of the World Islamic Mission Punjab was for the advancement and upgradation of Islam throughout the World, but the respondents in their speeches under the garb of Islamic Mission had been making political speeches in order to bring disaffection of the masses against the present Government. The stand taken by the respondents in the Constitution petitions was that they did not indulge in political activities. 1n view of this, it became all the more necessary to have provided sufficient material in the memo randum of grounds. Subsection (5) of section 5 of the Ordinance makes it mandatory for the authority making an order under subsection (1) to communicate to such person the grounds on which the order has been made which means that the person concerned is entitled to know the precise allega tion against him. It is thus obvious that the matter cannot be left to assumptions and presumptions. The submission of the learned Advocate‑General that the respondents should have filed representations to the Government instead of coming to this Court is trot maintainable because if act order is ab initio void, then the person aggrieved cannot be deprived of the Constitutional jurisdiction of this Court. Before concluding, we would like to observe that we have not referred in our order any case‑law. The reason for that is that the relevant case‑law has been duly referred to and taken into consideration and discussed by the learned Single Judge. Therefore, we don't think it necessary to repeat the same." We have no difficulty in repelling the contentions of the Advocate General that M. L. R. No. 48 stood in the way of this Court to examine and declare the order to be without lawful authority. This Regulation has no relevancy and, therefore, the same cannot be pressed into service. The reason for that is that the order set aside by the order under appeal was the one passed under section 5(1) (b) of the Ordinance XXXI of 1960. We have not come across anything either in the office noting or otherwise to show that the Government made use of M. L. R. No. 48 while passing the order restraining the respon dents. In this sequence we would like to observe that the Advocate General read before us para. 6 of the Regulation. As already observed, we don't think this is applicable to these appeals because had the respondents in the appeals incurred any liability under para. 6, then the Government would not have hesitated in taking action under para. 7 of the Regulation which laid down more deterrent punishment or rigorous imprisonment for a term which may extend to 14 years and to fine, forfeiture of property and flogging." Applying the test laid down in the aforesaid judgments, I hold that in the absence of particularization of any specific speech or substance thereof and the language used therein, with reference to time and place, the grounds specified in the impugned orders are vague.

5. Let me now turn to the point raised by the learned Additional Advocate‑General that the grounds disclosed in reply to the writ petition coupled with the reportings in the Press can be looked into for the purposes of determining the vagueness or otherwise of the grounds specified in the impugned orders. Suffice it to say that in the exercise of its constitutional jurisdiction, this Court cannot substitute the grounds specified in the impugned) orders with the comments filed by .the Government or from the record of the impugned proceedings, for that would tantamount to making an encroach ment by this Court on the statutory powers vested in the Government or the District Magistrate, as the case may be, under section 5 of the Ordinance. Such a judicial invasion would also be contrary to the spirit of the Provisional Constitution Order, 1981. Furthermore, this Court is not examining the vires of the impugned grounds in its appellate jurisdiction so as to cure the defect of vagueness by perusing the material which formed the basis of the impugned orders. In these proceedings, this Court can merely direct a person performing, within the territorial jurisdiction of this Court, functions in con nection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do or to do anything 5e is required by law to do or declare that any act done or pro ceedings taken within the territorial jurisdiction of this Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect.

6. I am unable to sustain the plea of the learned. Additional Advocate General that the impugned orders are not liable to be quashed on the ground of vagueness simpliciter unless it has caused prejudice to the petitioners in the presentation of their case. It is true that in case of omission or error or violation of a procedural law unless it has occasioned a failure of justice or prejudiced a party, the omission or error by itself is not a sufficient ground for quashing the order. Clearly the impugned orders do not suffer from procedural violation but that of mandatory provisions of section 5 of the Ordinance, and therefore, any departure from it is, sufficient to vitiate the entire proceedings. I am, therefore, inclined to hold that the impugned orders are void ab initio. This being so, the petitioners are competent to invoke the constitutional jurisdiction of this Court notwithstanding the fact) that they failed to make statutory representations to the Government for the redress of their grievance. For the foregoing reasons, it is hereby declared that the impugned orders have been passed without lawful authority and are of no legal effect. The writ petitions are accepted with costs. M. Y. H. Petition accepted.