P L D 2002 Lahore 194 (PLP)

(b) Continuance of your activities is likely to create unrest and ill-will being the members of the said organizations giving rise t6 a situation prejudicial to the maintenance of public safety, hence this order. The petitioner filed a representation before the Home Secretary His representation was rejected vide the impugned order dated 20-2-2002.

3. Learned counsel for the petitioner submits that the Eid Festival is ahead and he be allowed to amend this petition so as to include the letter dated 20-2-2002 whereby the representation filed by the petitioner was rejected after giving hearing' to the writ petitioner. Reasons assigned in the impugned letter rejecting the representation filed by the petitioner is that the Deputy Superintendent of Police, Muzaffargarh on behalf of the S.P., Muzaffargarh stated that Maulvi Naseer Hussain Shah son of Bhag Ali, resident of District Muzaffargarh is a stauch worker of T.J.P. and Sarparaste Alla and found involved in activity of sectarian nature. He arranged protest procession and tried to create law and order situation. He instigated the people to create disturbances and caused great harassment to the apposite sect as well as the public at large. The continuance of the above is a serious fact to public safety and maintenance of public order, therefore, he may not be released. On this statement the Home Secretary rejected the representation.

4. Now, the detention order as well as the letter rejecting the representation by the Home Secretary are impugned before this Court.

5. Learned counsel for the petitioner submits that the constitution of T.J.P. has got no provision of Sarparaste Alla. There is no material available with the respondent that the petitioner is the member of any sectarian organization, and this fact that the petitioner is a regular employee of Auqaf Department also strengthens the earlier submission and the detenu has been performing his duties of Pesh Nemaz which are part of his service. There is not a single instance of any criminal case of sectarian issues or any other criminal case of any nature against the detenu. The recommendations of the District Administration show that the petitioner is a law-abiding citizen. The certificates of the S.P., Muzaffargarh, the Deputy Commissioner show that they have recognized in full spirit the meritorious services of the detenu while cooperating and coordinating with the peace and its stability in the District. The impugned detention order is based on a report given by the Police Officer S.H.O., Police Station City, Muzaffargarh dated 14-1-2002 without any substance and the impugned order also negates the commendable services rendered by the detenu.

6. Learned counsel for the petitioner has relied on 1997 PCr. LJ 1748. The mere registration of bulk of criminal cases could not justify the detention of the detenu. Liberty and freedom of citizen being very precious, order curtailing the same must be reasonable and based on material showing his activities being prejudicial to public order and safety. Further relied on 1997 PCrLJ 1288 where it was held that the detention order against detenu was passed on extraneous consideration and were not legal and valid. Further relied on 1998 PCr.LJ 89 where it was held that no incident has been particularized so as to furnish a legal justification for passing the detention order. Merely belonging to either of sect of religious parties was in consequential so as to warrant passing of detention order. He further submitted that as relied in 1994 SCMR 1283 (Full Bench Judgment) the prosecution was not able to satisfy the High Court by producing authentic and relevant document, particularly statement of witnesses on the basis of which the detenus were involved in a case under section 302, P.P.C. and when the High Court came to the conclusion that the action was mala fide and merely to harass the detenu, it was justified in granting relief to the detenu as not only that the grounds for bail were available but the High Court was cognizant of the fact that the question of liberty of the citizen was involved and also to protect such persons from highhandedness and illegal action perpetrated with mala fide intention. Mir Abdul Baqi Baloch v. Government of Pakistan PLD 1968 SC 313; Shahnaz Begum v. Hon'ble Judges of the High Court of Sindh and Balochistan PLD 1971 SC 677; Zahoor Ellahi v. State PLD 1977 SC 273 and Ch. Abdul Malik v. The State PLD 1968 SC 349 and 2001 SCMR 8 (Full Bench Judgment) where the civil petition was refused in respect of remission of fine.

7. Hence, in view of the aforesaid arguments he submitted that the detention order is passed with the mala fides and the same may kindly be set aside.

8. Learned A.A.-G. on the other hand submits that the petitioner is a Sarparaste Alla of T.J.P. Pakistan, as per report of the Investigating Agencies. The petitioner was a member of.an organization which was banned by the Government and the organization is banned for its terrorist activity under section 11-A of Anti-Terrorism Act, 1997 and under section 3, Explanation II of Maintenance of Public Order Ordinance, 1960 strikes the petitioner and the detention order can be passed. The citations produced-by the petitioner do not attract the case of the petitioner. The present case is relating to terrorism activity, therefore, the present detention order is justified. The detailed factual enquiry cannot be resolved in the writ petition. The presumption of truth is always attached to the report of the agencies.

9. I have heard the learned counsel for the petitioner and also the learned A.A.-G. and have perused the impugned detention order and the

10. As far as the provision of section 3 of the Maintenance of Public Order Ordinance, 1-960 is reproduced below:-- (i) Government is satisfied that with a view to preventing any person from acting in any manner prejudicial to public safety or the maintenance of public order, it is necessary so to do, may, by an order in writing, direct the arrest and detention in such custody as -may be prescribed under subsection (7), of such person for such period as may, subject to the other provision of this section, be specified in the order, and Government, if satisfied that for the aforesaid reasons it is necessary so to do, may, extend from time to time the period of such detention for a period not exceeding six months at a time. Explanation of this section is referred below:-- Whoever is or was a member of an association of its Executive Committee, which association is or has been declared to be unlawful under any law for the time being in force in the province, at any time during the period of seven days immediately before it was declared to be unlawful; or remains or becomes a member of such an association or is on the Executive Committee thereof after it has been so declared to be unlawful shall be deemed to be acting in a manner prejudicial to public safety and-the maintenance of public order for the purpose of this section. Liberty of a citizen is a divine right which is vested in a citizen of a country duly safeguarded by the Constitution of this country. Dignity of a common man does not differ from man to man, race to race and nation to nation and it is the supreme right of a citizen of this country which should be explained for each hour, each day and each month if curtailed.

11. In order to curb liberty and freedom, of individual substantial material should be placed for doing the same in a detention order. In the present case I have seen the impugned detention order which does not carry reasonable substantial material to detain an individual and curb his liberty and freedom of movement merely on a report of an Investigating Agency without any material showing prejudicial to the interest of public maintenance and order. There is heavy duty and heavy burden on the detaining authority showing reasonable and substantial ground while passing detention order. The High Court being a Court of equity and natural justice has all the jurisdiction to go into and scrutinize the material which is furnished by the detaining authority for the detention of any individual. Just saying that the petitioner is a member of an organization or Sarparaste Alla without any substantial material showing that undoubtedly he is the Sarparaste Alla of the banned organization and is involved in certain nefarious activities which are prejudicial to the interest and safety of the public at large is not enough. Even the provision under section 3 of the Maintenance of Public Order Ordinance, 1960 provides that the member of an association or its executive committee which association is or has been declared to be unlawful under any law for the time being in force that membership shall be deemed to have been prejudicial in the manner to the public safety and maintenance.

12. The interpretation of this provision of section 3 of the Maintenance of Public Order Ordinance, 1960 shows that after an organization has been banned if a person remains on the roll of its membership or in the executive C body of that organization within seven days of its declaration of being banned his activities will tantamount to be prejudicial to the activities of the State.

13. No material has been produced by the respondents to show that the detenu is a member of that organization and has remained as a member of the banned organization within 7 days of its declaration being banned. This Court has reached to a conclusion that the detention order is passed in D violation of section 3, Explanation 11 of Maintenance of Public Order Ordinance, 1960. Hence the detention order and the order on representation being passed on mere report of an agency is declared to be without lawful authority and jurisdiction: The Idetenu is directed to‑be released forthwith if not required in any other case. M.B.A./I‑106/L Petition accepted