P L D 1988 Karachi 18 (PLP)

SAJJAD ALI SHAH, J.‑‑ Petitioner Moula Bakhsh claiming to be friend of detenus has filed five petitions mentioned above challeging detention of Kadir Bux s/o Haji Mohammad, Ibrahim s/o Sher Mohammad. Shah Dost s/o Abdul Ghani, Rasool Bux s/o Issa and Mohammad s/o Haji Umer in the same serial order as numbers of the petitions are given above. According to the petitioner all the detenus are residents of village Bullo, Tehsil Mand, District Turbat in the Province of Baluchistan where they run grocery shops. They had come to Karachi to make purchases from wholesale market. On 14th August, 1987 all the five detenus were taken in custody by C.I.A. and were kept in Saddar Centre, Karachi of C.I.A. Subsequently detenus were shifted to Central Prison Karachi where they were served with orders of detention, dated 15th September, 1987 passed under section 3 (1) of Sind Maintenance of Public Order Ordinance, 1960 for a period of 30 days effective from 16‑9‑1987. Grounds of detention were also supplied which are as under:‑

1. Reported to be involved in bringing of Irani nationals to Pakistan through illegal routes, which has created a law and order situation in the Province of Sind;

2. Remaining at large is hazardous to the general public." These Constitutional Petitions were filed initially on 22‑9‑1987. Grounds of detention expired on 15‑10‑1987 and before that fresh extension orders were passed on 13‑10‑1987 effective from 16‑10‑1987 extending period of detention for another 30 days. Amended memorandum of petitions have been filed and also counter‑affidavit‑., on behalf of respondents against which affidavits‑in ‑rejoinder have been filed on behalf of petitioners. Stand has been taken on behalf of respondent in the counter affidavit filed by Mr. Faqir Mohammad Dahar, Additional Home Secretary, Government of Sind that detenus are residents of district Turbat in Baluchistan which is very near to Pak‑Iran Border and are further involved in bringing Irani nationals into Pakistan illegally and unlawfully for commission of acts of sabotage and terrorism etc. Further on behalf of respondent No.1, which is Government of Sind, privilege has been claimed in respect of material which is available with the Government. It was further claimed that material is of sensitive nature which is to be kept secret and the same was offered to be produced in the Court for inspection and satisfaction. It is stated in paragraph 4 of the counter‑ affidavit, mentioned above that the privilege is being claimed on account of the fact that we have very friendly relations with sister country Islamic Republic of Iran. In the affidavit s‑in‑ rejoinder in these petitions, stand has been taken that detenus have committed no offence and allegation of bringing Irani nationals inside Pakistan illegally has been denied and request is made that names of those Irani nationals who nave been brought inside Pakistan by the detenus may be mentioned.

1. Mr. Azizullah Shaikh has submitted that in paragraph 2 of the petition originally filed, categorical statement was made that detenus were arrested on 14th August, 1987 by CIA and were kept in CIA Saddar Centre unlawfully without obtaining any remand from any Court of law and in paragraph 3 it Is stated that subsequently detenus were shifted to Central Prison Karachi where they were served with orders of detention on 15‑9‑1987. Contents of these 2 and 3 paragraphs are not denied in counter‑affidavit filed by Mr. Faqir Mohammad Dahar with regard to the factual position of arrest of detenus by CIA. Claim has been made only to the extent that arrest was not unlawful. Since positive assertion is made that arrest by CIA was not unlawful, then it becomes obligatory duty to produce further proof in support of that assertion. In the circumstances, it has to be ascertained as to what was the nature and legal attributes of custody of the detenus starting from arrest by CIA on 14‑8‑1987 aria custody hereafter up to service of order of detention on 15‑9‑1987 in cental prison at Karachi. No material has been produced to show legality of the custody of the detenus till the service of orders of detention on them. Article 10 of the Constitution of the Islamic Republic of Pakistan provides that no person, who is arrested, could be detained in custody for more than 24 hours unless remand is obtained from, the Court of the Magistrate. No order of remand has been produced or any other explanation has been given to justify arrest and custody of detenus by CIA from 14‑8‑1987 to 15‑9‑1987 when order of detention where served upon them. In the absence of production of order of remand any explanation in this regard, we fell inclined to hold that arrest and custody of the detenus from 14-8-1987 to 15-9-187 to was illegal. Subsequent orders of detention cannot rectify illegality and it can be said that in such circumstances to orders of detention and it can be said that in such circumstances the order of detention which emanate from illegal custody can be labelled as tainted suffering from legal infirmity tending to show mala fides on the part of Detaining Authority particularly when there is no material or explanation as to why detenus remained in the custody for about one month without any remand or any other valid legal orders,

2. Mr. Azizullah Shaikh then submitted that grounds of detention which have been supplied are vague in nature and the only allegation made is that detenus are reported to be involved in bringing Irani nationals to Pakistan through illegal routes. It is submitted that even this allegation is vague because no instances are quoted and no material has been supplied in support of this allegation. ‑On the other hand, privilege has been claimed by the Government ‑on the material is sensitive in nature and the same could not be shown to the petitioner for the reason that it would affect friendly relation between Pakistan and one other country. Article ‑6 of Qannun‑e‑Shahdat (President's Order No. 10 of 1984) provides that no one shall be permitted to give any evidence derived from unpublished official records relating to any the permission of the officer at the head of the department Concerned who shall give or withhold such permission as he fit' Article 7 of the said Order further provides that no public officer shall be compelled to disclose communications made to him in official confidence, when he considers that public interest would suffer by the disclosure. There is no dispute about the fact that such privilege can be claimed under the provisions mentioned above and keeping in view the legal position privilege has been claimed in the B instant case and the material has been placed before the Court for perusal with the request that the same should not be shown to the petitioner or his counsel. Mr. Azizullah Shaikh has contended that it would be unfair for the respondent to produce material in the Court which is being used against the detenus and then claim privilege that the same should not be shown to the petitioner or his counsel particularly when that very material is being used against the detenus and orders of detention have been passed on the basis of that material. It is further submitted by him that law does not allow one party to take into confidence the Court behind the back of the other party. In support of his contention Mr. Shaikh has relied upon the case of Ajab Gul v. The Crown (PLD 1954 Peshawar 20). We have gone through the facts of this case and we say that this case is distinguish able for the reason that in the case claim of privilege was not allowed on the ground that Chief Secretary appeared in the Court and his evidence was recorded and he was cross‑examined by the Advocate General after which request was made that the evidence should be treated as not recorded. It was held that this could not be done and the Court could not shut its eyes to evidence which was recorded in open Court. Contention of Mr. Azizullah Shaikh on this point is untenable. Under the provisions of Qanun‑e‑Shahadat claim can be made for privilege and it is open to the Court to inspect the material and come to finding whether such claim should be allowed or not. On the subject of detention laws in our country in the case of Malik Ghulam Jilani v. Govt. of West Pakistan (PLD 1967 Supreme Court 373), it was held interpreting section 3 (2) (x) of Defence of Pakistan Ordinance, 1965 read with rules 32 and 204 of Defence of Pakistan Rules that existence of reasonable grounds is essential for recording satisfaction of the detaining authority and ascertainment of reasonable grounds is a "judicial or quasi‑judicial" function. Detaining authority is no longer judge of its own satisfaction and such Authority must be prepared to satisfy the Court. Subsequently in the case of Mir Abdul Baqi Baluch v. Govt. of Pakistan (PLD 1968 SC 313), it was held that what the Court is concerned with is to see that executive or administrative authority had before it sufficient material upon which a reasonable person could have come to the conclusion that the requirements of law were satisfied. In the case of Govt. of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14), it was held that reasonableness of action to the extent indicated in Abdul Baqi Baluch's case is necessary concomitant of the power given to the High Court under Article 98 of the Constitution (as applicable then). It was further held that onus is on the detaining authority to justify legality of the action and then burden would shift to detenu to show mala fides. In 1973 in the case of Liaquat Ali v. Govt. of Sind (PLD 1973 Karachi 78) Division Bench of our High Court considered in depth requirements of section 3 of West Pakistan Maintenance of Public Order Ordinance, 1960 for passing of an order of preventive detention giving guidelines enumerating grounds for interference in constitutional jurisdiction: (l) 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; (2) that 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; (3) that initial burden lies on the detaining authority to show the legality of the preventive detention and (4) that 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 claim shall be within the competence of the Court to decide. In addition to these requirements, the Court has further to be satisfied, in cases of preventive detention; that the order of detention was made by the authority prescribed in the law relating to preventive detention; that each of the requirements of the law relating to preventive detention should be strictly complied with; that 'satisfaction' in fact existed with regard to the necessity of preventive detention of the detenu; that the grounds of detention had been furnished within the period prescribed by law and if no such period is prescribed, then 'as soon as may be', that the grounds of detention should not be vague and indefinite and should be comprehensive enough to enable the detenu to make representation against his detention to the authority prescribed by law; that the grounds of detention are within the scope of the law relating to preventive detention, that is, they are not irrelevant to the aim and object of this law and that the detention should not be for extraneous considerations or for purposes which may be attacked on the ground of malice." that initial burden lies on the detaining authority to show the legality of the preventive detention and Same year Division Bench of the High Court with Noorul Arfeen,J. (as he then was) as author of the judgment in the case of Liaquat Ali Jatoi once again reconsidered the whole case law on the subject and reiterated the view already taken by him in the case of Liaquat Ali Jatoi with total reliance on three reported cases decided by the Supreme Court mentioned above and also the case of Government of Pakistan v. Haider Bux Jatoi (PLD 1969 SC 210). We have examined the material placed before us and we are of the considered view that this material is not sufficient upon which a reasonable person would pass orders of detention. Of course, privilege is claimed on the ground that if the material is exposed the same might prejudice relations with the sisterly foreign country. In the grounds which have been supplied to the detenus allegation is made in unequivocal terms that the detenus are involved in bringing Irani nationals to Pakistan through illegal routes. So, this fact is known that another sisterly country is Iran. During the arguments, learned A.‑G. Sind stated that Irani nationals who are in Karachi had indulged in the acts of shoot‑outs between them in the result whereof there was law and order situation and panic had been created. We have gone through the material minutely and find that allegation against detenus is that they reside near Pak‑Iran border in Baluchistan and indulge in bringing of Irani nationals to Pakistan through illegal routes. Further, they had come to Karachi and made attempts to get released six Iranis arrested by Manghopir Police on '13th July, 1.987. While there is some material that attempts were made to seek release of six Iranians but there is no material to show any connection between those six Iranians arrested and the shoot‑outs in Karachi and between those six Iranians and detenus. So, far their entry in Pakistan is concerned, these six Iranians claim to have been sent by one Khairullah from Zahidan who came alongwith them upto Karachi and then went back. They met some other Iranians at Karachi who had advised them to go back and while they were going back they were arrested by Manghopir Police Station. It also appears that those Iranians have been held up under the provisions of Foreigners Act and steps are being taken to repatriate them. There is no nexus between these Iranians and shoot‑outs at Karachi and also the material does not show that these detenus had helped six Iranians held up or for that matter any other Irani to cross the border illegally. This material does not stand in good stead to support the allegation levelled against the detenus that they are involved in bringing Irani nationals to Pakistan through illegal routes. In any case if there is any material or evidence available to show that detenus had indulged in substantive offences and they can be tried according to law for those offences.

3. Mr. Azizullah Shaikh contended that since detenus have not been booked for any substantive offence in particular and since it is an admitted fact that detenus are residents of Baluchistan then action as contemplated under section 5 of the Maintenance of Public Order Ordinance, 1960 (hereinafter to be referred as the said Ordinance) could have been taken and in consequence orders should have been passed banning their entry in the Province of Sind and their removal to the Province of Baluchistan. It appears from the perusal of relevant provisions of the said Ordinance that it is open to the detaining authority to take action either under section 3 or under section 5 D and in the instant case action has been taken under section 3 of the said Ordinance, hence on that ground impugned orders cannot be challenged.

4. It was urged on behalf of the petitioner that the Detaining Authority' has alleged against detenus smuggling of Iranians into Pakistan illegally, which fact is not covered by section 3 of the said Ordinance which provides in explanation 1 specific offences of smuggling punishable under the Sea Customs Act or Land Customs Act or under any other law for the time being in force. In section 2 of the Customs Act definition of smuggling is provided which does not contain smuggling of human beings. Order of detention cannot be assailed on this ground for the reasons firstly that it is not mentioned in the order of detention that the detenus are being detained because of illegal smuggling of Iranian nationals into Pakistan and even in E the grounds supplied it is stated that detenus are involved in bringing of Iranian nationals to Pakistan and word smuggling is not mentioned. Consequence of this act of bringing Irani nationals into Pakistan through illegal routes is that this act is prejudicial to public safety or maintenance of public order and on that ground order of detention has been passed. The upshot of the whole discussion made above is that material produced is not sufficient and incriminating in nature to connect the detenus directly with the allegation made in the grounds which have been supplied in support of orders of detention and further no material was produced to satisfy us that initial arrest of detenus was legal. We, therefore, quash the orders of detention and direct that they be released and set at liberty if they are not wanted in any other case. In the result petitions are allowed. M.Y.H./M‑293/K Petitions allowed.