1995 PLP 1179 (MLD)

Whereas it has been made to appear to me by fresh police and intelligence reports that law and order of this District would be disturbed if Mr. Yousaf Ayub S.O. Mr. Shaukat Ayub Khan was not kept under detention and; Whereas after applying my mind to the various intelligence diaries and S.P., Haripur's latest report on the subject I consider it essential to detain Mr. Yousaf Ayub in order to prevent him from acting prejudicial to public safety. Now, therefore, I, Syed Mazhar Ali Shah, District Magistrate, Haripur do hereby invoke section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960 and direct police to detain him for a period of one month under it from the date of issuance of this Detention Order. Given under my hand and seal of this Court this day 20th November, 1994. (Sd.) District Magistrate, Haripur No. 1504/ST dated H.Pur the 20‑11‑1994. Copy to: The Superintendent of Police, Haripur for urgent execution of this detention ordeK (Four copies of Detention Order enclosed herewith). (Grounds of detention would be sent in due course.) (Sd.) District Magistrate, Haripur." "GROUNDS OF DETENTION You Mr. Yousaf Ayub Khan son of Mr. Shaukat Ayub Khan of Haripur: (1) Organized/convened public meetings/processions during September and October, 1994, at different places in District Haripur to demonstrate against the Government and delivered emotional/inciting speeches before the gatherings in order to create panic, fear/alarm among the public. You also tried to create ill‑feelings amongst the various groups of people. (2) Because of these activities of yours which were prejudicial to public safety/maintenance of public order and which also created feelings of hatred against each other amongst various groups the following criminal cases were registered against you: (a) F.I.R. No. 768 dated 12‑10‑1994 under section 16, MPO read with section 124‑A/147/148/188, P.P.C., Police Station City Haripur; (b) F.I.R. No. 792 dated 29‑10‑1994 under section 16, MPO read with section 153‑A, P.P.C., Police Station City Haripur; and (c) F.I.R. No. 811 dated 9‑11‑1994 under section 16, MPO read with section 505, P.P.C., Police Station City Haripur. (3) Your past actions/previous conduct and fresh reports /information received clearly indicate that you are likely to act in a manner prejudicial to public safety and that your actions/activities may cause fear/alarm amongst the public. (4) On the basis of above, I am fully satisfied that your designs/ activities may cause disturbance, fear/alarm to the public. And I have strong reasons to believe that if immediate preventive steps were not taken public peace and tranquillity of the area of District Haripur would be disturbed. (5) Therefore, in order to prevent you from acting in a manner prejudicial to public safety, I have invoked section 3 (i) of the West Pakistan Maintenance of Public Order/Ordinance 1960 against you by placing you under detention for a period of one month. (6) You are hereby informed of the above grounds/reasons of detention. You are at liberty to make a representation if you so wish to the Government against the aforesaid order of detention. (Sd.) District Magistrate, Haripur. Since the other detention order and the grounds of detention are similar to the above ones word by word with exception of name, therefore, they need not he reproduced.

7. In order to appreciate the legal position of the impugned orders, section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960 has to minutely read which reads as under:‑‑‑ (3) Power to arrest and detain suspected persons.‑‑‑(1) Government, if 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 to do, may, by an order in writing, direct the arrest and detention in such period as may be specified in the order, and Government, if satisfied that for the aforesaid reasons it is necessary so to do, may, subject to the other provisions of this section, extend from time to time the period of such detention for a period not exceeding six months at a time ................................................... (2) If a District Magistrate or any other servant of Government authority in this behalf by a general or special order of Government, has reasons to believe that any person within his territorial jurisdiction has acted, is acting or is about to act in a manner prejudicial to public safety or the maintenance of public order, he shall forthwith refer the matter to Government for order. (3) (a) An order of arrest under subsection (1) may be addressed to a police officer or any other person and such officer or person shall have the power to arrest the person mentioned in the order and in doing so he may use such force as may be necessary. The Police Officer or the other person as the case may be, shall commit arrested person to such custody as may be prescribed under subsection (7). (4) A police officer not below the rank of Sub‑Inspector, if satisfied on receipt of credible information that a person against whom an order of arrest or of arrest and detention has been made under this section is present within such officer's jurisdiction, may arrest him without a warrant in the same manner as he would have done if such order of arrest had been addressed to him, and thereupon commit the arrested person to such custody as may be prescribed under subsection (7); or if he receives any requisition in this behalf from the police officer or other person to whom the warrant, of arrest for the person arrested is addressed, make over the custody of the arrested person to such police officer or other person." The prerequisite condition for issuance of an order under the aforesaid section is that the Government has to satisfy itself that a person is likely to act in a manner prejudicial‑to public safety or maintenance of public order, and then to direct the arrest and detention of that person for a specified period. It implies that satisfaction of the Government with regard to the conduct of the person likely to act in a prejudicial manner, must be objective in nature and not subjective so to allow the executive authorities to act on their own fancies. There must be sufficient material before the authority to act upon it so as to justify passing an order of detention. In this case allegations are that somebody had displayed a fife‑size portrait of petitioner No. 1 in order to gain public sympathies and it was apprehended that if they are released from jail they would disturb law and order situation, which appear to be vague allegation for the reason that the petitioners could not be penalised for the acts of others and for the apprehensions of the executive authorities based on indistinct material. Petitioner No. 1 was taken into custody in pursuance to order of District Magistrate under section 3(1) of the MPO dated 8‑10‑1994 but the same was withdrawn on 16‑10‑1994. Thereafter, three cases were registered on different dates with regard to the past transactions. When the Government was of the opinion that petitioner No. 1 is likely to act in a manner prejudicial to public safety, we are at a loss to understand what necessitated the administration and as to why the order dated 8‑ 10‑1994 was withdrawn and the cases were got registered with a delay of 22 to 48 days with regard to the alleged offences committed at earlier dates. In F.I.R. No. 768 dated 12‑10‑1994, 25 persons, including the petitioners, were charged for taking out procession but strangely enough only petitioners were singled out who were already in Jail. Similarly in F.I.R. No. 811 dated 9‑11‑1994, 10 speakers were charged for delivering speeches in a meeting of 200/300 people, but except for the petitioners none was proceeded against, which not only reflect the discrimination but also mala fides on the part of the District Administration. The other significant aspect of the case is that the petitioners were never produced before any Magistrate after the registration of cases for obtaining judicial remand as required by sub- Article (2) of Article 10 of the Constitution and section 61 of Criminal Procedure Code, which rendered their confinement illegal. After the grant of bail to the petitioners in all the cases, they were not released but the impugned detention orders were passed basing the same on the letter of S.S.P. and the dairies reproduced above which at the most speak of the usual political activities of political workers,

8. Almost similar proposition of law like the one in hand came up for determination before the Supreme Court in the following cases: In the case of Malik Ghulam Jilani v. The Government of West Pakistan (PLD 1967 SC 373) the Supreme Court of Pakistan while dealing with section 3(2) (x) of the Defence of Pakistan Ordinance (XXII of 1965) read with Defence of Pakistan Rules 32 and 204, observed as follows:‑‑‑ "For the making of an order of detention of any person, it is necessary that the detaining authority should be satisfied in relation to such person, that it is necessary to make such an order for the purpose of preventing him from acting in a prejudicial manner, e.g, acting so as to disturb the public order. There must be in the mind of the detaining authority a belief that the person in question is either about to act or is likely to act in the aforesaid manner; only so can the word "satisfied" be construed preventive action is called for only by imminent and real necessity under this rule. Reading clause (x) according to the tenor of its language, and bearing in mind that it makes legal provision for restraint upon personal liberty which is fundamental right of citizens in Pakistan, the conclusion that appears unavoidable is that to gain protection for any action thereunder, the existence of reasonable grounds is essential and a mere declaration of satisfaction is not sufficient Public power is now exercised in Pakistan under the Constitution of 1962, of which Article 2 requires that every citizen shall be dealt with strictly in accordance with law. If then rule 32 owes its vires to section 3(2) (x), it must follow that by the use of the words `reasonable grounds' clause (x) has unmistakably imported into this rule, controlling the exercise of public power, the requirement that to gain the protection of the rule for its action thereunder, the authority should be prepared to satisfy the Courts, to which the subject is entitled to have resort for determination of the ,question whether , he has been treated in accordance with law, that it has acted on reasonable ground:' In the case of Mir Abdul Baqi Baloch v. The Government of Pakistan and others (PLD 1968 SC 313) the learned Supreme Court while reaffirming the rule laid down in the aforesaid case further observed that it is no longer regarded as sufficient for the executive authority, merely to produce its order, saying that it is satisfied. It must also place before a Court the material upon which it so claims to have satisfied so that the Court can, in discharge of its duty under Article 98 (2) (b) (i) be in turn satisfied that the detenu is not being held without lawful authority or in an unlawful manner. The wording of clause (b) (i) of Article 98(2) shows that not only the jurisdiction but also the manner of the exercise of that jurisdiction is subject to judicial review. If this function is to be discharged in a judicial manner, then it is necessary that the Court should have before it the material upon which the authorities have purported to act. If any such material is of a nature .for which privilege can be claimed, then that too would be a matter for the Court to decide as to whether the document concerned is really so privileged. In exercising this power the High Court does not sit as an appellate authority nor does it substitute its own opinion for the opinion of the authority concerned. It is clear, therefore, that after the decision in Ghulam Jillani's case the High Court should have examined the grounds of detention to test their reasonableness. On this ground alone, this appeal is liable to be allowed and the case sent back to the High Court for re‑hearing, after examining the materials produced before if." In a subsequent case captioned as Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14), the law laid down in the aforesaid cases was reiterated while elaborating the Constitutional provisions in the following words: "In my view the words `in an unlawful manner' in sub‑clause (b) of Article 98 (2) have been used deliberately to given meaning and content to the solemn declaration under Article 2 of the Constitution itself that it is the inalienable right of every citizen to be treated in accordance with law and only in accordance with law. To my mind, therefore, in determining as to how and in what circumstances a detention would be detention in an unlawful manner one would inevitably have first to see whether the action is in accordance with law, if not, then it is action in an unlawful manner. Law is here not confined to statute law alone but is used in its generic sense as connoting all that is treated as law in this country 'including even the judicial principles laid down from time to time by the superior Courts. It means according to the accepted forms of legal process and postulates a strict performance of all the functions and duties laid down by law. It may well be as has been suggested in some quarters, that in this sense it is an comprehensive as the American `due process' clause in a new grab. It is in this sense that an action which is mala fide or colourable is not regarded as action in accordance with law. Similarly action taken upon extraneous or irrelevant considerations is also not action in accordance with law. Action taken upon no ground at all or without proper application of the said of the detaining authority would also not qualify as action in accordance with law and would, therefore, have to be struck down as being action taken in an unlawful manner. It would seem, therefore, that by these words at any rate, so far as the deprivation of the liberty of a citizen was concerned, the Constitution- makers intended that this most cherished right should not be taken away in an arbitrary manner and hence by sub‑clause (b) of clause (2) of Article 98 they advisedly left it to the High Court to review the actions of the detaining authority, untrammelled by the formalities or technicalities of either section 491 of the Criminal Procedure Code or the old prerogative writ of habeas corpus not only with regard to the vires of the law or the officer concerned but also enjoined upon them to satisfy themselves that the detention is not in any manner contrary to law. The scope of the enquiry is therefore not in any way fettered by the procedure of writ of habeas corpus or the rules laid down under the various Habeas Corpus Acts. The Court must, nevertheless, in deciding this question necessarily have regard to the language of the statute under which the power is exercised, the purpose for which the detention is sought to be made and the circumstances in which it came to be ordered. The content of the power vested by the Constitution in the High Court, cannot be limited or taken away by a sub -Constitutional legislation but the reference to the statute and the other factors mentioned above is rather for determining its true mature scope and legality." As in the cases of Abdul Baqi Baluch and Begum Shorish Kashmiri Article 98 (2)(b)(i) of the Constitution of Pakistan of 1962 has been discussed and .interpreted, therefore, it would be in the fitness of things to reproduce and compare the similar provisions of the prevailing Constitution which is contained in Article 199 (1)(b)(i). Both are given below for comparative study: Constitution of Pakistan, 1962: Article 98(1).‑‑‑A High Court shall have such jurisdiction as is conferred on it by this Constitution or by law. (2) Subject to this Constitution, a High Court of Province may, if it is satisfied that no other adequate remedy is provided by law‑‑‑ (a) on the application of any aggrieved party make an order‑ (i) directing a person performing in the province functions in connection with the affairs of the Centre, the Province or a local authority to refrain from doing that which he is not permitted by law to do, or to do that which he is required by law to do; or (ii) declaring that any act done or proceedings taken in the Province by the person performing functions in connection with the affairs of the Centre, the Province or a local authority has been done or taken without lawful authority, and is of no legal effect; or (b) on the application of any person, make an order:‑‑‑ (i) direction that a person in custody in the Province be brought before the High Court so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or (iii) requiring a person in the Province holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or (c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government, exercising any power of performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the fundamental rights conferred by Chapter I, of Part II of this Constitution.' Constitution of Pakistan, 1973: Article 199.‑‑‑(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law‑‑‑ (a) on the application of any aggrieved party, make an order‑‑‑ (i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or (ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a Local authority has been done or taken without lawful authority and is of no legal effect; or (b) on the application of any person, make an order‑‑‑ (i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or (ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or (c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may he appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II. (2) Subject to the Constitution, the right to move a High Court for the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II shall not be abridged. (3) An order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law. (4) Where‑‑‑ (a) an application is made to a High Court for an order under paragraph (a) or paragraph (c) of clause and . (5) In this Article, unless the context otherwise requires, ‑‑‑‑ `person` includes anybody politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government and any Court or Tribunal, other than the Supreme Court a High Court or a Court or Tribunal established under a law relating to the Armed Forces of Pakistan; and `prescribed law officer' means‑‑‑ (a) in relation to an application affecting the Federal Government or an authority of or under the control of the Federal Government, the Attorney‑General and, (b) in any other case, the Advocate‑General for the Province in which the application is made:' The bare reading of the two in juxtaposition would show that the provisions of Article 98(2)(b)(i) of the Constitution of 1962 are synonymous and akin to that of the provisions of Article 199(1)(b)(i) of the Constitution of 1973, so that principles laid down in the said pronouncements can be applied to the provisions of the prevailing Constitution. Hence the High Court in its Constitutional jurisdiction can examine the reasonableness of the grounds of B detention so as to satisfy itself that the detenu is not being held in custody without lawful authority or in unlawful manner. The phrase `public order' was taken notice of in the case of Ms. Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 and in the recent judgment reported in 1994 SCMR 1532. The following passages are relevant for the present case: "The word `public order' is accordingly referable to public order of local significance as distinguished from national upheavals such as revolution, civil strife and war. Equally it is distinguishable from the popular concept of law and order and of security of State. Law and order represents the largest circle, within which is the next circle representing public order and the smallest circle represents security of the State. Hence an activity which affects law and order may not necessarily affect public order and an activity which may be prejudicial to public order may not necessarily affect security of the State (see Fam Manobar v. State of Bihar (1966 SCR 709). It has not been incorporated as a separate limitation apart from being h constituent of the expression `sovereignty or integrity of Pakistan in Article 17(2) of the Constitution. Therefore, it cannot be read into it as it would amount to re‑writing the limitation in the Constitution. Here I may point out that in the Madras Maintenance of Public Order Act, 1949, instead of the words `public order' the expression `security of the State' was mentioned although this Act had for its object the maintenance of public order and safety. The vires of this Act was challenged in Romesh Thappar v. State of Madras 1960 SCR

594. The Supreme Court of India declared it to be invalid as the expression `security of the State' was held to refer to those aggravated forms of prejudicial activities which endangered the very existence of the State but did not include ordinary breaches of the peace. As such the above expression was held to be outside the protection of clause (2) of Article

19. The Constitution was accordingly amended and the word `public order' was inserted in clause (2). This decision is an illustration of the fact that the limitation cannot be enlarged to admit other grounds on any theory of police power." From the above‑stated legal position it is quite clear that before an act is held to be prejudicial to public order, it must be shown that the act or activity is likely to affect the public‑at‑large. As a corollary, therefore, it follows that an act which concerns only to an individual and does not amount to an activity prejudicial to the public peace and tranquillity cannot fall within the ambit of section 3 of the Ordinance. .. .. "In the case before us, the petitioner has been charged with the activity of extending threats to the Consulate‑General of U.S. at Lahore. The police in this connection has already registered a case against him under sections 182/211/225/225‑B and 506, P.P.C. under F.I.R. No. 173, dated 28‑8‑1993. This clearly shows that the detenu was accused of substantive offences under the penal law, and therefore, preventive detention on the same allegation could not be justified in law." A look of the detention order would show that they were passed in a mechanical manner by the District Magistrate on the receipt of the letter from the S.S.P. and that there was no other substantial material except for the said letter to substantiate the grounds of detention. The only ground on which the police sought the preventive detention of the petitioners was that if they were released on bail they would create law and order situation in the district, clearly indicate its mind that it was not inclined to obey the Court orders and suggested a device as to how by escaping the same, the objective can be achieved. The District Magistrate, without application of independent judicious mind and comprehending the underlying designs that the detention orders have been asked for, to defeat Court orders, issued impugned detention orders. Moreso, after registration of the cases against the petitioners wherein definite charges had been brought for substantive offences, and wherein they had been allowed bail by the Court of competent jurisdiction, the, District Administration in disregard to the same could not pass preventive detention orders, which seem to be stained with mala fide and were unjustifiable in law.

9. The petitioners were taken into preventive custody in order to prevent them from participating in the Wheel‑Jam strike on 11‑10‑1994. After the eventful day had passed, there was no convincing and reasonable ground to detain them any further under the preventive law hence on this score too, there seems to be no justification for keeping them under the preventive detention, specially when the cases had been registered against them.

10. As far the objection of the learned Advocate‑General with regard to the competency of the writ petition is concerned that without filing the representation as provided under subsection (6) of section 3 of the Ordinance, the petitioners could not file this writ petition, suffice would be to say that it is now well‑settled that where the order is challenged being without lawful authority with the allegations of mala fide, the Constitutional jurisdiction can F be invoked straightaway. The question, whether a representation under subsection (6)(a) of section 3 of the Ordinance can be considered to be an adequate remedy within the meaning of Article 199 of the Constitution, so as to debar a person from filing a Constitutional petition straightaway without availing the said remedy, came up for consideration before a learned D.B. of Lahore High Court in case of Muhammad Siddique Khan v. District Magistrate PLD 1992 Lah. 140, wherein it was held that filing of representation in a given case would depend upon the facts of that case. In the facts and circumstances of the present case the writ is competent as the filing of the representation would have been a futile exercise.

11. In view of the above discussion, we accept this writ petition, set aside/quash the impugned orders to be without lawful authority. The petitioners were set at liberty vide our short order, dated 30‑11‑1994. and this judgment gives the reasons for the said order. N.H.Q./1737/P Petition accepted.