P L D 2005 Lahore 370 (PLP)

M.R. Khalid Malik, Addl. A.‑G., for Respondents. Qaiser Jan, Inspector for D.P.O. Multan and Ata‑ullah S.I. with record. Date of hearing: 24th February, 2005. Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner has challenged order dated 10th January, 2005 issued by the Secretary to Government of the Punjab, Home Department, Lahore whereby along with others the petitioner has been detained under section 11‑EEE of the. Anti Terrorism Act, 1997 for 90 days on the ground that the same has been passed in violation of Article 10 of the Constitution.

2. Briefly the facts of the case are that earlier case F.I.R No.97 dated 5‑10‑2004 was registered at Police Station Pak Gate, Multan on the complaint of Ata Ullah S.‑I./S.H.O. that 16 persons allegedly belonging to the defunct Organization Hizb‑ul‑Tahrir were distributing pamphlets in the public for creating hatred against the Government. A raid was, conducted anti lour persons alter throwing packet containing pamphlets succeeded in fleeing and could not be arrested despite they were chased. The petitioner applied for post‑arrest bail which was dismissed by the learned Special Judge, Anti‑Terrorism Court, Multan vide order dated 20‑10‑2004 on the ground that the petitioner was detained under section.

16. MPO and no useful purpose would be served even if the bail is granted. Then he moved Criminal Miscellaneous No.147‑B‑2005 and post‑arrest bail was granted by the Division Bench of this Court vide Order dated 19‑1‑2005, but the impugned order has been passed on 10‑1‑2005.

3. Learned counsel for the petitioner contends that the petitioner belongs to a noble family of Bahawalnagar and Professor of Entomology as well as Coordinator at Agricultural University, Dera Ghazi Khan with no previous criminal history; that registration of the aforesaid criminal case was not sufficient to notify his name in the list maintained under section 11‑EE of 4th Schedule of ATA, 1997 and there to detain him for three months under section 11‑EEE of Anti‑Terrorism Act, 1997 while declaring him religious/sectarian/suspect/militant/terrorist as till today he has not been convicted anti sentenced under any offence by the Courts of law; that the impugned order has been issued, without any legal foundation and the allegations contained in the aforesaid F.I.R. have yet to be proved before the Court and that, the detention of the petitioner would amount to double jeopardy as he has already been granted bail by this Court from the criminal case involving the same allegations.

4. Report and parawise comments have been submitted by Respondent No.1/Home Secretary and he has given eight reasons in support of the impugned order alleging that they are die‑hard activists of defunct Hizb‑ul‑Tahrir and involved in highly objectionable activities, responsible for arranging protest rally, violating the restrictions imposed on banned organization, engaged in activities prejudicial to national security carried out open distribution of leaflets at public places collected funds involved in writing printing and publication of subversive propaganda and were interaction/collaboration with foreign‑based elements to wage sinister campaign against the Government policies.

5. The learned Additional A.‑G. has raised a preliminary objection that this writ petition is not maintainable as the petitioner has an alternate remedy by filing representation Wore the Government and relies upon a decision of Full Bench of this Court but copy of the said order is not available with him. It is also contended that the petitioner belongs to defunct Hizb‑ul‑Tahrir and the reasons given by respondent No.1 in the parawise comments are sufficient to justify his detention which has been ordered to maintain peace in the society.

6. I have heard the learned counsel for the parties and perused the contents of the writ petition as well as the parawise comments submitted by respondent No.

1. No doubt certain reasons have been advanced in the parawise comments by respondent No.1 for issuance of detention order, dated 10‑1‑2005, but he has failed to provide any material as to how the petitioner was connected with such activities. No previous record of the petitioner has been produced to show that he was ever convicted and sentenced by any Court, of competent jurisdiction for such offences. However, copies of three pamphlets have been annexed with the parawise comments at Annex‑C which were allegedly got published by defunct Hazb‑ul‑Tahrir. First is showing dissatisfaction with the policies, of the President and Prime Minister Shaukat Aziz that they could not A resolve economical problems of the country; second is that fraud is being played by India on the issue of Occupied Kashmir with the President and the Prime Minister, and the third is against the Government policies and against secular system. The perusal of those pamphlets shows that defunct Hizb‑ul‑Tahrir has shown dissatisfaction on the policies of the Government which is the right of each and every citizens. Article 19 of the Constitution provides that every citizen has the right to freedom of speech and expressions and also the freedom of the press subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan of any part thereof, friendly relations with foreign States, public, order decency, or morality or in relation to contempt of Court commission of or incitement of offence. I am unable to understand as to how distribution of these pamphlets in the general public was termed as terrorism or sectarianism.

7. Apart from above the allegation contained in case F.I.R. No.97 against the petitioner that he along with others was distributing such pamphlets in the general public has still to be proved before the Court of law and mere registration of said case is not sufficient to curtail liberty of the petitioner on spy, information that he was terrorist. It amounts to punish the petitioner before proving the allegations against him when he has been granted bail from the criminal case containing such allegations. Article‑9 of the Constitution provided that no person shall be deprived of life or liberty save in accordance with law and Article 14 lays down that the dignity of man shall be inviolable. Sub‑Article (4) to Article 10 of B the Constitution provides that no law providing for preventive detention shall be made except to deal with persons acting in a manner prejudicial to the integrity, security or defence of Pakistan or any part thereof, or external affairs of Pakistan or Public order or the maintenance of supplies or services. Respondent No.1 has failed to justify that how the petitioner was acting in a manner prejudicial to the integrity, security or defence of Pakistan or any part thereof, or external affairs of Pakistan, or public order or the maintenance of supplies or services. The liberty of the citizens cannot be curtailed merely on presumptions. As such the impugned order dated 5‑1‑2005 to the extent of the petitioner is not sustainable in the eyes of law.

8. So far as contention of the learned Additional A.G. that this writ petition is not maintainable as alternate remedy by filing representation is available to the petitioner which he has filed before the Home Secretary is concerned, suffice it to say that the Home Secretary has already expressed his views in the parawise comments to justify the impugned order and decision of the representation by him would be a futile exercise. The objection is overruled. The impugned detention order appears to have been passed illegally while transgressing the powers and as such it is hold that writ jurisdiction of this Court can be invoked.

9. For the foregoing reasons, this writ petition is accepted the impugned order dated 10‑1‑2005 passed by the respondent No. 1 to the extent of the petitioner is set aside and quashed. The petitioner shall be set at liberty forthwith if is not required in any other criminal case. S.A.K./A‑436/L Petition accepted.