P L D 1990 Karachi 481 (PLP)

Date of hearing: 22nd August, 1990. SAYED SAJJAD ALI SHAH, C.J.‑‑‑This Constitutional petition has been filed by Abdul Haque alias Dost Muhammad challenging the detention of his maternal‑nephew Noor Muhammad alias Nooral s/o Haji Abdul Karim Bhurt, who was taken into custody on 13th August, 1990 pursuant to the order of detention of the same date, passed by the District Magistrate, Nowshero Feroz, under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960 authorising detention of Noor Muhammad for a period of 30 days with immediate effect and his commitment to custody of Superintendent of District Jail, Nawabshah. The grounds of detention as given in the said order are produced below verbatim:‑‑ "(1)????? That he is acting in a manner prejudicial to the public peace and safety. (2) That there are complaints against him that he provides shelter and supplies meals, arms and ammunition to the dacoits."

2. We have perused the record and proceedings which are available with the learned AA.‑G. It transpires therefrom that on 12th August, 1990, the S.H.O. Mithani Police Station submitted a report to the D.M. through S.P. Nowshero Feroz stating therein that the detenu is acting in a manner prejudicial to the public peace and safety and that there are complaints against him that he provides shelter and supplies meals, arms and ammunition to the dacoits. The Superintendent of Police, Nowshero Feroz, forwarded the original report to the District Magistrate, Nowshero Feroz, for issuance of warrant of detention under section 3/4 Maintenance of Public Order Ordinance, 1960 as recommended by the S.H.O. There is no other material available on record, as has been candidly admitted by the learned Addl. Advocate‑General before us. The learned AA.‑G. further submitted that it was because of the absence of any supporting material on record that no counter‑affidavit has been filed.

3. It is stated in the petition that the petitioner who is maternal‑nephew of detenu had contested Elections with Mr. Ghulam Murtaza Jatoi s/o Caretaker Prime Minister Mr. Ghulam Mustafa Jatoi, during the general elections held in 1988. The election petition filed by the petitioner against Mr. Ghulam Murtaza Jatoi was still pending before the Tribunal and that the detenu is a main witness in the above petition. The detenu had also worked for Mr. Rahmatullah Rehan, Ex‑M.NA. who had defeated Mr. Ghulam Mustafa Jatoi, Caretaker Prime Minister of Pakistan during the elections held in 1988.

4. In 1985 and 1988 General Elections, the petitioner and detenu had supported Syed Zafar Ali Shah, Ex‑Federal Minister. It was because of the political rivalry that immediately after Mr. Ghulam Mustafa Jatoi, Caretaker Prime Minister took the charge, his son Ghulam Murtaza Jatoi and his brother Ghulam Mujtaba Jatoi started issuing threats to the detenu and his family members. It was on 12‑8‑1990 at 3 a.m. that the S.H.O. Police Station Mithani with Police escort and people of Jatoi group raided the house of the detenu, misbehaved with him, arrested him and took him to police station. The petitioner inquired about the arrest of detenu, he was informed that it was pursuant to the oral instructions of Caretaker Prime Minister and the Chief Secretary Government of Sindh that the detenu was being arrested without any warrant of arrest or registration of any criminal case against him. Similar information was given to the petitioner when he approached the Dy. Commissioner Nowshero Feroz and Superintendent of Police, Nowshero Feroz. It was after keeping the detenu in wrongful confinement for more than 24 hours that the District Magistrate passed the impugned order on 13‑8‑1990.

5. It is further stated in the petition that since 1983 the detenu himself and his tribesmen have participated in various encounters with dacoits in jungles of district Nowshero Feroz and district Dadu, a fact which is personally known to respondents Nos.l and 2 (D.M. and S.P.) Nowshero Feroz, respectively. The respondent No.l had issued such certificate in favour of detenu and his other tribesmen on 14‑1‑1990, a copy of which is annexed with the petition.

6. We have heard Mr. Allah Baksh Panwar assisted by Mr. Mazhar Ali B. Chohan, Advocate on behalf of the petitioner and Mr. A.A. Muhammadally, AA.‑G. on behalf of the respondent. While deciding the Constitution Petition No.763 of 1990, we examined the legal aspect of such a detention order and held as under:‑‑ "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 "satisfaction" is A to be objective in nature and not subjective of such nature as 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 Baloch v. The Government of Pakistan and others, reported in P L D 1968 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 Baksh v. Government of Sindh and another, reported in P L D 1988 Karachi

275. Further requirement is that order of detention will not be sustainable if it is passed with mala fide intention and without judicious application of mind on the basis of allegations which are vague in nature in support of which either no material is produced or material is produced which is inadequate. Reference be made to the case of Fakir Imdad Ali v. District Magistrate and 2 others, reported in PLD 1987 Karachi 530."

7. Reverting to the facts of the case in hand, it may be observed, as already stated, that no counter‑affidavit is filed on behalf of the respondent controverting any of the allegations made in the petition. Besides the report of the S.H.O. Mithani, there is no other material available with the learned A.A.‑G. to support the allegations on the basis of which the impugned order of detention was passed. In short, we find that the order of detention is wholly vague in nature and no particulars or instances have even been quoted in letter of S.H.O. dated 12‑8?1990. Unless and until the details and particulars are stated in the grounds of B detention, it is not possible for any detenu to effectively meet with the bald allegations made against him.

8. Under the aforesaid facts and circumstances of the case and in the absence of any material on record in support of vague allegations and also because of there being no denial of assertions made in the petition, we are satisfied that the impugned order is unsustainable. It is, therefore, hereby quashed. Consequently the petition is allowed.

9. This order furnishes the grounds which prevailed with us in allowing the petition by a short order, dated 22‑8‑1990. M.B.A./A‑922/K ???????????????????????????????????????????????????????????????? Petition allowed.