1995 PLP 1766 (MLD)

(i) That you are an active member of A.S.S. and used to provide Arms and Ammunition to the militants of this organization. (ii) That you arranged for the issuance of Arms licences from the Province of Balochistan to the criminals involved in anti‑social activities. (iii) You are reported involved in two firing cases i.e. F.I.Rs. Nos.111/95 and 112/95 under section 324, P.P.C. registered at Police Station City "B" Division, Rahimyar Khan on the Houses of Syed Majeed Hassan Zaidi, Advocate and Syed Maratab Ali Shah prominent Leaders of Shia Community as a result Syed Maratab Ali Shah received bullet injuries. The above grounds and reasons for your detention are communicated to you as required by the provisions of section 3, subsection (1) of the West Pakistan Maintenance of Public Order Ordinance, 1960. So as to enable you to make a representation to the Government against the order of your detention. If you so desire and you are hereby informed that you are at liberty to make such a representation to the Government against the order of your detention. (Sd.) (Syed Races Abbas Zaidi), District Magistrate, Rahimyarkhan."

2. Feeling aggrieved Nasir Mahmood real brother of Nasrullah detenu filed this writ petition under Article 199 of the Constitution of our beloved country for the release of his brother Nasrullah. According to Nasir Mahmood writ petitioner there was no material available against the detenu Nasrullah and that due to offing of the Muharram‑ul‑Haraam the impugned order has been passed to please certain sectarian groups and community to make sure that the administration was putting its best for the maintenance of public order and for safeguard of their lives. It is maintained that in a case of ineffective firing wherein no accused was named regarding which F.I.R. No.lll/95, dated 29‑5‑1995 was registered at Police Station "B" Division under section 324/109, P.P.C. Nasrullah detenu was arrested. Initially his physical remand was granted on 31‑5‑1995 till 4‑6‑1995 when the second request of the police was turned down by the Area Magistrate and , he was discharged.

3. The District Magistrate. Rahimyar Khan has submitted his comments wherein it is narrated that Nasrullah detenu is involved in two criminal cases, viz. F.I.Rs. Nos.111/95 and No.112/95 each under section 324, P.P.C. registered at Police Station "B" Division, Rahimyar Khan. It is narrated therein that due to the disclosure made by Nasrulfah detenu regarding active participation with militant group of Anjumane‑Sepah‑e‑Sahaba, the District Magistrate, Rrhimyar Khan was satisfied to pass order of detention of Nasrullah detenu, It is narrated therein that Nasrullah detenu provided/supplied arms and ammunition to the militants on the licences issued by the District Magistrate of Balochistan Province. It is added that Syed Javed Iqbal Bukhari, M.I.C. checked the stock available in the Arms Ammunition shop of the detenu when it was found that a considerable quantity of weapons/ammunitions was short as compared with stock register. It is reiterated that the material provided by the police to the respondent No.1 proved the involvement of Nasrullah detenu in the sectarian violence beyond shadow of doubt and thus the detention was justified. In the end, it is expressed that the detenu has been discharged by the Area Magistrate in F.I.Rs. No.111 and No.112 of 1995, yet during the investigation Nasrullah detenu provided tangible proof of his involvement in providing arms and ammunition to the militant group of Anjuman‑e‑Sipah‑e‑Sahaba. It was prayed that the writ petition may be dismissed.

4. I have heard learned counsel for the petitioner as well as Mr. Muhammad Afzal Cheema, Advocate for the respondents and gone through the record before me. Zaka Ullah, D.S.P. City Rahimyarkhan as well as Muhammad Yaqoob Sub‑Inspector/S.H.O. Police Station City "B" Division, Rahimyar Khan are also present who assisted the Court. At the very outset on the authority of Azad Paper (Jasarat) v. Province of Sindh etc. PLD 1974 Kar.

81. I hold that availability of alternate remedy of making representation to Government‑against the impugned order does not fetter this Court in exercise of its writ jurisdiction: The same view has been expressed by Mr. Justice Irshad A Hassan Khan, the present Chief Justice of the Lahore High Court, Lahore in a famous case published as Maulana Shah Ahmad Noorani v. Government of the Punjab PLD 1984 Lah. 222.

5. On merits the following grounds are to be gone into, dissected and analysed and I proceed in seriatim:‑‑‑ (i) The allegation against Nasrullah detenu is that he is an active member of A.S.S. of Pakistan and used to provide Arms and Ammunition to the militants of this Organization. By the grace of Almighty God ours is a democratic country being governed by Constitution of Islamic Republic of Pakistan. Anjuman‑e‑Sipah‑e‑Sahaba Pakistan at present is a political party and the same has not been banned and rather no action/step has been taken by the Government in power. This being the position to be a member of Anjuman‑e‑Sipah‑e‑Sahaba is not an offence and the opinion of the District Magistrate, Rahimyarkhan can easily be said to be whimsical having no force. Both the Police Officers have scrupulously conceded that no evidence was collected before the issuance of the impugned order and even till today that Nasrullah detenu provided Arms and Ammunition to the militants of Anjuman‑e‑Sipah‑e‑Sahaba. I am tempted to express that no militant of Anjuman‑e‑Sipah‑e‑Sahaba has been named in this regard and the general type of allegation in routine is nothing enough in the matter. The Superintendent of Police Rahimyarkhan sent the, report to the District Magistrate, Rahimyarkhan that Nasrullah (detenu in the instant matter), and Ammunition Dealer Rahimyarkhan has sold illegally a huge quantity of Arms and Ammunition to the workers of Anjuman‑e‑Sipah‑e‑Sahaba, Rahimyarkhan and that the same weapons were used in five criminal cases. A show‑cause notice was issued to Nasrullah regarding illegal sale of Arms and Ammunition who submitted the written reply. After hearing the District Magistrate expressed that there was no proof against Nasrullah in the matter and refused to penalize him. Consequently the show‑cause notice was withdrawn vide order, dated 3‑5‑1995 (Annexure "A"). Thereafter on the basis of the same allegation fresh proceedings in question could not be initiated within the short span of period. This ground has simply fizzled out which need not be given the weight. (ii) The second allegation against Nasrullah detenu to justify the order under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960 read with Notification No.3‑1‑H‑SPL‑1/74, dated 28‑1‑1976 is that ‑he arranged for issuance of Arms licences from the Province of C Balochistan to the criminals involved in anti‑social activities. This allegation has failed to touch my sense of appreciation. It is simply vague which can easily be expressed to be a matter of transgression of authority on the part of District Magistrate, Rahimyarkhan. The Arms Licences are issued by the District Magistrate. It cannot be expected that an ordinary citizen of Province of the Punjab is that much influential that he would get issued licences of Arms from the District Magistrates of another Province i.e. Province of Balochistan. As no irresponsible person can succeed in getting issued a licence for Arms from Syed Races Abbas Zaidi, District Magistrate Rahimyarkhan, I make bold in expressing that it is not possible that Nasrullah detenu was/is in a position to arrange for issuance of arms licences from District Magistrate(s) posted in the Province of Balochistan. No precedent has been mentioned and it is a clear‑cut allegation against the District Magistrate(s) of the Province of Balochistan by the District Magistrate, Rahimyarkhan. In the larger interest of the country and to avoid the provincialism it can safely be said that District Magistrates, Balochistan have been condemned unheard for whom we all must show due regards. There is no mention of the particulars of any of such licence issued by any of the District Magistrates of Balochistan Province. This allegation has no force which is the figment of the brain of the District Magistrate, Rahimyarkhan. Even the Police Officers present before me have shown their inability to justify this allegation through the production of any material. Legally mere production of order of detaining authority in proof of satisfaction is not sufficient in the matter. This is simply a vague allegation without any substance and is ignored.

6. Now I take up the last allegation which is to the effect that Nasrullah detenu is reportedly involved in two firing cases i.e. F.I.R. No.lll/95 under section 324, P.P.C. registered at Police Station City "B" Division, Rahimyarkhan on the house of Syed Majeed Hassan Zaidi, Advocate and F.I.R. No.112/95 under section 324, P.P.C. registered at Police Station City "B" Division, Rahimyarkhan on the house of Syed Maratab Ali Shah, Rahimyarkhan. The Police Officers present in the Court have intimated that Nasrullah detenu was joined in the aforesaid case F.I.R. No.111/95 whose physical remand was obtained on 31‑5‑1995. under section 167(1), Cr.P.C. from the Area Magistrate, Rahimyarkhan till 4‑6‑1995 on which date Nasrullah detenu (accused) was discharged. A certified copy of the said order, dated 4‑6 1995 forms part of this writ petition as Annexure "E". The admitted position is that Nasrullah detenu was not joined as accused in case F.I.R. No.112/95 registered at Police Station City "B" Division under section 324, P.P.C. and according to the Police Officers present before this Court he is not to be joined as accused in this case. It shows that this allegation has been formulated by the District Magistrate in a perfunctory manner. It is simply surprising that this detenu was not joined as accused in F.I.R. No.112/95 and it was narrated in the memorandum of grounds of detention. This allegation as such has no foundation.

7. I am tempted to express that initiation of such type of proceedings on the criminal side without material are breeding up hatred amongst the different groups/communities/sects of the country and it is one of the reasons that law and order situation is worsening as the human instinct to wreak the vengeance also plays the pivotal role. It is better to avoid such an autocratic working to promote cordial relations.

8. The only irresistible conclusion which can be drawn from the aforesaid, state of affairs, analysis of the material and discussion would be that the impugned order, dated 1‑6‑1995 is void ab initio and it is declared that the same has been passed without lawful authority which is not of any legal effect. Thus, this writ petition is accepted with costs in the sum of Rs.1,

000. The necessary consequence would be that Nasrullah detenu is entitled to be released forthwith, if not required in any other case. I pass an order accordingly which shall be executed immediately. N.H.Q./N‑338/L Petition accepted.