1997 P Cr (PLP)

(i) That there are reports of Intelligence Agencies that on the eve of Eid Congregation and afterwards in District Rahimyar Khan you will join hands with violent terrorists who are present somewhere in this District and are in possession of sophisticated weapons and will commit acts of terrorism. (ii) A pamphlet has been distributed in which threats were advanced to the District Administration and Shia Community for which a case F.I.R. No.55 of 1996, dated 17-2-1996 under section 16, M.P.O. has been registered at Police Station City "A" Division, Rahimyar Khan. You are, therefore, expected to commit violence with your party members. (iii) You have the following previous record of your involvement in sectarian activities. F.I.R. 229 of 1989 under section 16, M.P.O. Police Station City Sadiqabad. F.I.R. No. 217 of 1991 under section 13/20/65, A.R.O., Police Station City Sadiqabad. F.I.R. No.181 of 1992 under section 16, M.P.O., Police Station City Sadiqabad. (iv) Your activities have also been found suspicious. It is pertinent to mention here that in some of the impugned detention orders the detaining authority has also given reference to the certain F.I.Rs. showing the alleged involvement of the petitioners. The second detention orders impugned in the Constitutional petitions passed on 20-2-1996 have been issued without referring the cases of the petitioners to the Review Board as required under Article 10 of the Constitution of Islamic Republic of Pakistan read with sections 3, 5 and 5-A of the M.P.O. Article 10 as well as sections 5 and 5-A of M.P.O. are in the following terms:-- "

4. No law providing for preventive dentention 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, and no such law shall auhtorise the detention of a person for a period exceeding three months unless the appropriate Review Board has, after affording him an opportunity of being heard in person, reviewed his case and reported, before the expiration of the said period, that there is, in its opinion, sufficient cause for such detention, and, if the detention is, continued after the said period of three months, unless the appropriate Review Board has reviewed his case and reported, before the expiration of each period of three months, that there is, in its opinion, sufficient cause for such detention. 5-A. No person shall be detained for a period exceeding three months unless the Board has reported, before the expiration of the said period of three months, that there is, in its opinion, sufficient cause for such detention." The argument of the learned A.A.-G. that the second orders of detention, dated 20-2-1996 are fresh as the same were issued soon after the release of the petitioners does not inspire confidence. These orders were certainly issued during the currency of earlier orders without releasing the petitioners. As such the detaining authority has not only violated the statutory provisions but also have violated the Constitutional mandate. The other ground that the petitioners have got other adequate remedy of representation before the Government, as such the writ petitions would not be maintainable is also without force. The grounds advanced by the respondents are vague in nature as such the petitioners cannot effectively make the proper representation to the higher authority. The bald allegation that there was an intelligent report from various sources respecting the involvement of the petitioners in sectarian activities detrimental to the State tranquillity does not inspire any confidence because no material whatsoever has been brought to my~ notice supporting the apprehension entertained by the respondents. Reliance in this respect is placed upon Moulana Shah Ahmad Noorani v. Government of Pakistan PLD 1984 Lah. 222 where it was held that it has been consistently held by superior Courts of this country that an order passed under section 5 of the Ordinance should be adequately particularised to enable the restrictee/detenu to make effective statutory representation to the Government. The test to determine the vagueness or otherwise of a ground is whether an effective representation apart from bare denial of accusation can be made by person against whom the order has been passed. Further, the registration of criminal case against the petitioners would not warrant their detention. Petitioners learned counsel has totally denied their involvement. Further, he has stated in categorical terms that no conviction whatsoever has been recorded against the petitioners for their alleged involvement in cases mentioned in the detention orders. Reliance in this respect is placed upon Bashiran Bibi v. The District Magistrate, Kasur 1990 PCr.LJ 913 where it was held as under:-- "There is considerable force in his contention that mere fact that the detenu has been involved in a number of criminal cases is per se, not a valid ground for preventive detention. Law is well-established that when a person has been prosecuted on a criminal charge, the same material should not in fairness, be taken as a reasonable basis for ordering his detention. Refer Shahidul Haque v. Government of East Pakistan 1969 PCr.LJ

449. Reference may also usefully be made to Liaquat Ali v. Government of Sindh PLD 1973 Kar. 78 and Muhammad Younus v. Province of Sindh PLD 1973 Kar. 694 wherein it was held that where definite charges are brought against the detenu for substantive offences and the detenu is undergoing prosecution there for, the Administration has made up its mind and the choice that the detenu should be prosecuted for these offences, and, having made this choice, it would ordinarily not be open to the Administration to also use such charge as ground of preventive detention under the West Pakistan Maintenance of Public Order Ordinance, 1960. " Again the alleged affiliation of the petitioner with Anjuman Sepahe Sahaba by itself would not be sufficient to deprive them of their liberty. Reliance in this I respect is placed upon Ahmad Ali v. The State 1995 MLD 1748 where a learned Judge of this Court set aside the impugned order by this very District Magistrate and held as under:-- "

12. In my view in spite of the fact that there are notable differences between the Anjuman Sipah-e-Sahabah comprising persons of Sunni Millat of Muslims and persons of Shia Millat of Muslims the holding of membership of Anjuman Sipah-e-Sahabah is not an offence. At present Anjuman Sipah-e-Sahabah is a political party, which has been recognized as such by the Government as well, which has its representation in the National Assembly of Pakistan as well as in the Punjab Provincial Assembly as rightly pointed out by the learned counsel for the petitioner. As expressed above the last criminal case registered against Muhammad Ali detenu was during the year 1991. No material has been produced to make out that Muhammad Ali detenu is a member of Anjuman Sipah-e-Sahabah and secondly that he belonged to the militant group of the same. Thus, this part of the impugned order is not only whimsical the same is arbitrary as well." All these fore mentioned resume demonstrate that the District Magistrate in a mechanical manner has passed the impugned orders without there being any material on record for sustaining the same. These determinations are also supported from the comments and reports submitted by the respondents in all these writ petitions. They are stereotype in nature and do not substantiate stances of the respondents that if the petitioners remained out they would have extended material help for the nefarious planning which disturb the peace and tranquillity of District Rahimyar Khan. This apprehension as already mentioned is too vague in nature. A citizen cannot be deprived of his liberty on such-like unfounded apprehension. Resultantly these writ petitions are accepted and the impugned orders, dated 20-2-1996 passed by the District Magistrate, Rahimyar Khan detaining the petitioners are declared to have been passed without lawful authority and of no legal effect. There shall be no order as to costs. N.H.Q./A-73/L Petitions accepted.