MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---The petitioner has assailed detention order in respect of detenu Arbab Murad Ali son of Wali Muhammad Nohri, who is stated to be a senior practicing lawyer aged about 70 years at Mithi and a respectable Zamindar.
2. It is contended in the memo. Of petition that the detenu Arbab Murad Ali, Advocate is a political rival of the present Provincial Government and, therefore, on the ground of political victimisation, his detention order has been issued. It is also alleged that in addition to being vague and violative of the provisions contained in section 3 (1) of the Sindh Maintenance of Public Order Ordinance, 1960, the detention order is bad in law, being violative of section 3 (6) of the said Ordinance, as copy of the detention order has not been supplied to the detenu.
3. We have heard Mr. Shahadat Awan, learned counsel for the petitioner and Mr. Ahmed Pirzada, learned Additional Advocate General.
4. For the sake, of convenience the detention order is reproduced below:--- No SO(JUDL. II) 6-9/2005.-- Whereas, the Government of Sindh are satisfied that with a view to prevent Murad Ali son of Wali Muhammad Nohri, resident of Village Bukhario Taluka Diplo District Tharparker, from acting in a manner prejudicial to public safety and maintenance of public order in the Province of Sindh, it is necessary to take action against him. And whereas, it has been made to appear to me through police reports that Murad Ali is a dangerous, hazardous, notorious and always indulges in anti-Government activities and is likely to disrupt peace of the area.
Now, therefore, I, Brig. (R.) Ghulam Muhammad Mohatarem, Secretary, Home Department, Government of Sindh, Karachi in exercise of the powers vested in me under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960, do hereby order for detention of said Murad Ali for thirty (30) days commencing from 4th June, 2005 to 3rd July, 2005 and he be remained in Central Prison, Hyderabad. The grounds for detention are as under:--
(i) That there are reasons to believe that he will indulge in activities prejudicial to public safety, and maintenance of good order in Sindh.
(ii) That he is a dangerous, hazardous, notorious and always indulges in anti-Government activities and is likely to disrupt peace of the area Secretary to Government of Sindh.
Home Department."
5. Mr. Shahadat Awan, learned counsel for he petitioner has submitted that the law relating to preventive detention already stands settled by various judgments of this Court and other superior Courts wherein the parameters have been laid down for a valid detention order and the circumstances in which the detention order shall not be held to be valid and shall be liable to be struck down.
6. He has taken us through the detention order in support of his contention that the detention order is totally vague, indefinite and in general terms in which the Home Secretary has merely reproduced the words used in section 3(1) of the Sindh Maintenance of Public Order Ordinance, 1960. He has contended that para-1 of the detention order states that the Government of Sindh is satisfied that it is necessary to prevent the detenu from acting in a manner prejudicial to public safety and maintenance of public order in the Province of Sindh.
7. In para-2 of the detention order it is stated that it appears to the Home Secretary through police reports that detenu is a dangerous, hazardous, notorious and always indulges in anti-Government activities and is likely to disrupt peace of the area.
8. In para-3 of the detention order it is stated that the Home Secretary is satisfied that the detenu should remain in Central Prison, Hyderabad from 4-6-2005 to 3-7-2005, on the grounds that (i) there are reasons to believe that he will indulge in activities prejudicial to public safety, and maintenance of good order in Sindh and (ii) that he is a dangerous, hazardous, notorious and always indulges in anti-Government activities and a is likely to disrupt peace of the area.
9. In support of his contention that the generalized statements are not sufficient, he has placed reliance on the law laid down by a Division Bench of this' Court in the case of Liaquat Ali v.
Government of Sindh through Secretary, Home Department and another, P.L.D 1973 Karachi 78, wherein, after a detailed survey of the law and the judgments passed by the Hon'ble Supreme Court, the dictum has been laid down as follows:-- "6. An order of preventive detention has to satisfy the requirements laid down by their Lordships of the Supreme Court in the aforesaid four judgments, that is to say, (i) the Court must be satisfied that the material before the Detaining Authority was such that a reasonable person would be satisfied as to the necessity for making the order of preventive detention; (ii) that satisfaction should be established with regard to each of the grounds of detention and, if one of the grounds is shown to be bad, non-existent or irrelevant, the whole order of detention would be rendered invalid;
(iii) that initial burden lies on the detaining authority to show the legality of the preventive A detention; and (iv) that the Detaining Authority must place the whole material, upon which the order, of detention is based, before the Court notwithstanding its claim of privilege with respect to any document, the validity of which claim shall be within the competence of the Court to decide. In addition to these requirements, the Court has further to be satisfied, in cases of preventive detention, that the order of detention was made by the Authority prescribed in the law relating to preventive detention; that each of the requirements of the law relating to preventive detention should be strictly complied with; that "satisfaction" in fact existed with regard to the necessity of preventive detention of the detenu; that the grounds of detention had been furnished within the period prescribed by law, and if no such period is prescribed, then "as soon as may be"; that the grounds of detention should not be vague and indefinite and should be comprehensive enough to enable the detenu to make representation against his detention to the Authority prescribed by law; that the grounds of detention are within the scope of the law relating to preventive detention, that is, they are not irrelevant to the aim and object of this law and that the detention should not be for extraneous considerations or for purposes which may be attacked on the ground of malice."
10. After considering the contentions raised in the cited case it was reiterated that, "there should be strict compliance of the provisions of any law which permits detention without trial of a citizen. It was observed that in the said case two essential requirements of the West Pakistan Maintenance of Public Order Ordinance, 1960 were not carried out, that is to say, (i) the grounds of detention were not served on the detenu "as soon as may be", as required by subsection (6) of section 3 of the Ordinance and (ii) there was no compliance of subsection (2) of section 3 of the Ordinance which requires the District Magistrate to refer the prejudicial activities of a person to the Provincial Government, which reference appears to be a condition precedent for the order of detention.-"
11. After examining the facts it was further observed that the grounds of detention .Were served on the detenu in compliance of the order of the Court, i,e,, after 15 days of the order of detention which was violative of the provisions contained in subsection (6) of section 3 of the Ordinance.
12. Dilating on the provisions contained in subsection (2) of he section 3 it was held that, "at first a reference has to be made by the District Magistrate to the Provincial Government with regard to the prejudicial activities of a person before an order of detention is made under subsection (1) of this section". It was further held that, "the procedure which should be adopted would be that firstly a reference is made by the District Magistrate to the Provincial Government 'with regard to the prejudicial activities of a person and then it is the Provincial Government which should be satisfied as to the necessity that such person should be detained under the Ordinance, and, upon such satisfaction being reached the necessary order is made directing the District Magistrate to arrest or detain such person". It was observed that, "the evidence of the Home Secretary establishes that no reference whatsoever was received by the Provincial Government from the District Magistrate of Dadu before he made the order of detention". After examining the facts of the case it was held that, "the grounds of detention were vague and indefinite and by reason of the vagueness and indefinite nature of grounds the detention order was bad".
13. Mr. Shahadat Awan has further placed reliance on a Division Bench judgment of this Court in the case of Muhammad Abdullah v. District Magistrate West Karachi, 1988 PCr.L.J.
1087. In this case reliance was placed on the judgment in the case of Liaquat Ali v. Government of Sindh through Secretary, Home Department and another (supra). In this case detention order was issued mainly on two grounds. First, that the detenu was facing trial in some cases and secondly, that his activities were prejudicial to the interest of the State. It was held that mere pendency of a case is not a sufficient ground for detention of a person and that the ground that the activities of the detenu were prejudicial to the interest of the State were vague and indefinite. The learned Division Bench of this Court agreed with the contention of counsel for the petitioner that since the specific instances in respect of the alleged activities of the detenu and particulars in regard to the places, dates and times thereof were not given, therefore, the grounds were vague. It was observed that it has been repeatedly held by this Court that the detention of a person cannot be based on vague and general grounds.
14. Mr. Ahmad Pirzada, learned Additional Advocate-General has contended that it is not necessary that all the grounds on basis whereof opinion is formed or the Provincial Government is satisfied that remaining of a person at large is prejudicial to the interest of State or Government, should be incorporated in the detention order. We partly agree with the contention that it is not necessary to give the entire details and all such material in the grounds contained in the detention order, but as held in the judgments cited earlier the necessary particulars and details are 'required to be given in the detention order so that the detenu is able to make the representation to the competent Authority while challenging the detention order. We are of the considered opinion that a detention order taking away the liberty of a citizen is not sustainable on subjective considerations. There should be objectivity in the detention order and the objectivity can be demonstrated by giving necessary details and particulars in the detention order. We will further add that the word "satisfied" used in section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960 is indicative of the fact that the Authority issuing the order should apply his mind to the facts forming basis of detention order. Until and unless there is something tangible in the detention order it cannot be said that the Authority issuing the detention order has applied his mind objectively and his opinion is based on reasons.
15. At this stage we would like to observe that we have made enquiry from Mr. Ahmed Pirzada, the learned Additional Advocate- General whether any material was placed before the Government or was called by it for satisfying that the circumstances do exist necessitating prevention of detenu Arbab Murad Ali from acting in any manner prejudicial to public safety or maintenance of public order. We further asked to show that the competent Authority issuing detention order, i,e,, Home Secretary had applied his mind to the grounds on the basis of which the order was to be made. In reply to the query the learned Additional Advocate-General has produced a letter dated 2-6-2005 written by District Police Officer Tharparkar at Mithi, to the Home Secretary, Government of Sindh stating therein that the detenu is a dangerous and hazardous person, he is desperate and is instigating public to come on road and protest against the Government and his remaining outside the jail is against public safety. There is an endorsement on this letter as follows:--- ."Pl. Pend till recommendation of P.P.O.
(Sd.)
SO (J-II)"
16. The endorsement indicates that no action was to be taken till the recommendation of Provincial Police Officer. The learned Additional Advocate-General has produced another letter from the Provincial Police Officer addressed to Home Secretary dated 10-6-2005 forwarding the letter written by R.P.O., Hyderabad to P.P.O., Sindh dated 3-6-2005 forwarding the letter of D.P.O. Dated 2- 6-2005. The letter dated 3-6-2005 written by a P.D.S.P. Namely, Mehfooz Ahmed Junejo on behalf of Regional Police Officer, Hyderabad states that the request be made to Secretary, Government of Sindh to issue warrant of arrest against Murad Ali son of Wali Muhammad Nohri for his detention under section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960 for a period of 30 days as reported by District Police Officer, Tharparkar. A perusal of letter addressed by R.P.O. To P.P.O. Shows that it was received in the office of P.P.O. On 6-6-2005. The letter written by P.P:O dated 10-6-2005 to the Secretary, Government of Sindh, Home Department was received in the office of Home Department on 13-6-2005. There are various endorsements on the letter dated 10-6-2005.
Muhammad Khalid. Khan, Section Officer, Home Department, who is present in Court has stated that there is initial of Additional Home Secretary on this letter which is dated 14-6-.2005 and there is an endorsement of Section Officer to the effect that the detention order has already been issued. A perusal of the material produced by the learned Additional Advocate-General shows that the detention order was issued on 4-6-2005 and the recommendation of P.P.O. As noted above was received in the office of Home Department on 13-6-2005, meaning thereby that the detention order was issued, nine days before the receiving of recommendation of the P.P.O. It further shows that the detention order is violative of the order appearing on the letter dated 2-6-2005 to the effect that the matter may be kept pending till receiving of recommendation from the P.P.O.
17. After the pronouncement of judgments referred to above, the law has been amended. In the case of Liaquat Ali (Supra), the provision contained in subsection (2) of section 3 was heavily relied upon which has been omitted by Sindh Ordinance No, XXXVI of 2001 dated 28-11-2001 and, therefore, it is imperative .To consider the effect of omissions and the requirements of law as it exists at present.
18. For the sake of convenience, section 3 of the Sindh Maintenance of Public Order Ordinance 1960, is reproduced below:- "3. (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 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 Provisions 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 I-For the purposes of this section- (i) dealing in black-market' or 'hoarding' as defined in the Hoarding and Black Market Order, 1958 (P.C.No,XIV of 1956); or
(ii) an act of smuggling punishable under the Customs Act, 1969 (IV of 1969), or under other law for the time being in force; shall be deemed to be an act prejudicial to the maintenance of public order.
(iii) an act punishable as an offence under the Passport Act, 1974; Explanation II Whoever is or was a 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 in the Province, at any time during the period of seven days immediately before it was so declared to be unlawful, or association 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 the public order for the purposes of this section.
(2)....... Omitted
(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 the arrested person to such custody as may be prescribed under subsection (7).
(b) 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.
(4).... Omitted
(5) Government shall constitute a Board consisting of a Judge of the High Court who shall be nominated by the Chief Justice of that Court, and a senior officer in the Service of Pakistan, who shall be nominated by the Government of Sindh.
(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.
(5-b) Where a person is to be detained for a period exceeding three months, Government shall, before the expiration of the said period of three months, refer his case to the Board.
(5-c) A person whose case has been referred to the Board under the provisions of subsection (5- b), shall not be entitled to appear by any legal practitioner in any matter connected with the case referred to the Board.
(5-d) The Board shall, after considering the material placed before it and the representation, if any, made by the person whose case has been referred to it, hearing such person, if he so desires, and calling for such further information as it may require from Government or may be placed before it by the person detained, submit its report before the expiration of the period of three months specified in subsection (5-b), to Government whether in its opinion there is sufficient cause for the detention of such person.
(5-e) The proceedings and the report of the Board excepting that part of the report in which the opinion of the Board is specified, shall be confidential.
(54) If in any case the Board reports that there is, in its opinion, no sufficient cause for the detention of the person whose case has been referred to it, for a period exceeding three months, Government shall rescind the detention order and direct such person to be released on the expiry of the said period of three months. In, case the Board reports that there is in its opinion, sufficient cause for the detention of such person, Government may, subject to the provisions of subsection (1), continue to detain him for such period as it may deem fit.
(6) Where a detention order has been made under this section Government shall as soon as may communicate to such person the grounds on which the order has been made, inform him that he is at liberty to make a representation to Government against the order and afford him the earliest opportunity of doing so: Provided that Government may refuse to disclose facts which such authority consider it to be against public interest to disclose."
(6-a) Where a representation is made to Government under subsection (6), Government may, on consideration of the representation and giving the person detained an opportunity of being heard, modify, confirm or rescind the order.
(7) So long as there is in force in respect of any person an order under this section directing that he be detained, he shall be liable to be detained in such custody and under such conditions as to maintenance, discipline and punishment for offences and breaches of discipline as Government may from time to time prescribe by general or special order.
(8) If Government has reason to believe that a person in respect of whom an order of arrest and detention, has been passed under this section has absconded or is concealing himself so that such order cannot be executed, Government may--
(a) forward a copy of the order, with a declaration that such person cannot be found, to a Magistrate of the First Class having jurisdiction in the place where the said person ordinarily resides and thereupon the provisions of sections, 87, 88 and 89 of the Code shall apply in respect of the said person and his property as if the order directing that he be arrested and detained where a warrant issued by the Magistrate;
(b) by order notified in the official Gazette direct the said person to appear before such officer at such place and within such period as may be specified in the order and if the said person fails to comply with such direction he shall, unless he proves that it was not possible for him to comply therewith and that he had within the period specified in the order, informed the officer concerned of the reasons which rendered compliance therewith impossible and of his whereabouts or taken all possible steps to give such information, be punishable with imprisonment for a term which may extend to three years or with fine, or with both.
(9) Government may at any time, subject to such conditions as it may think fit to impose, release a person detained under this section and may require him to enter into a bond, with or without sureties, for the due observance of the conditions.
(10) The Government or any person authorized by it in this behalf may summon and interrogate or cause the summoning and interrogation of any person, including a person arrested or detained under this section, if in his opinion such interrogation is likely to lead to the discovery of information which may enable the more effective exercise of powers under this Ordinance, whether in respect of the person interrogated or any other person, and the persons interrogated under this subsection shall be bound to answer truthfully all questions pertaining to the subject of the enquiry."
18. A perusal of the above, section in its present form shows that the procedure prescribed in subsection (2) has been omitted with the result that the situation has become very fluid. The effect of omission of subsection (2) of section 3 is that now the law laid down in Liaquat Ali's case (supra) pertaining to the procedure to be adopted, which envisaged a reference by District Magistrate, or any other servant of Government authorized in this behalf by a general or special order of the Government, is no more valid. However, it does have the effect of taking away the element of objectivity from the order to be made under section 3(1) of the said Ordinance.
19. As already observed earlier the word "satisfied" used in section 3(1) of the said Ordinance, is indicative of the fact that the Authority issuing order shall apply its mind to the material/grounds forming basis of the order and for that purpose it is always imperative that there should be necessary material before the competent Authority issuing the detention order under section 3(1).
On the basis of such material/grounds, the said authority shall satisfy itself that for preventing of any person from acting in any manner prejudicial to the public safety or maintenance of public order, it is necessary to arrest and detain such person in custody. It is cardinal principle of interpretation of laws, that entire scheme of law is to be read together and no provision of law is to be read in isolation. Adhering to this principle, when the provisions contained in subsection (1) of section 3 are read with subsection (6), we find that the grounds on which the detention order is made must precede the satisfaction of the competent Authority. For this purpose the existence of necessary material before the competent Authority is sine qua non. The necessary material may be brought to the notice of Government by subordinate functionaries under the Provincial Government or may be called by the Provincial Government itself, for satisfying that the situation do exists necessitating the issuance of detention order in respect of a person preventing him from acting in any manner prejudicial to public safety or maintenance of public order. In the absence of any such material the detention order would become subjective in nature. It is also necessary because the Constitution of Islamic Republic of Pakistan, has jealously guarded the fundamental rights of the citizens. It is provided in Article 8 of the Constitution that, any law, or any custom or usage having the force of law, insofar as it is inconsistent with the rights conferred by Chapter I, Part-II of the Constitution, shall, to the extent of such inconsistency, be void.
It is contained in Article 10(4) of the Constitution that, no law providing for preventive detention 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 authorize 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.
It is further provided in Article 10(5) that, when any person is detained in pursuance of an order made under any law providing for preventive detention, the Authority making the order shall, within fifteen days from such detention, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order. Provided that authority making any such order may refuse to disclose facts which such authority considers it to be against the public interest to disclose.
20. A perusal of the above provisions clearly indicates that the person detained is entitled to receive the grounds on which the detention order has been made. Until and unless the Authority making such order refuses to disclose the facts which such authority considers it to be against the public interest to disclose. In the ordinary course, the Authority making the order is also required to furnish all the particulars before the Review Board, all documents relevant to the case unless a certificate signed by the Secretary to the Government concerned, to the effect that it is not in the public interest to furnish a document, is produced. Thus, in the ordinary course there should be certain documents available with the authority issuing detention order on the basis whereof the said authority is satisfied on the grounds disclosed in the detention order that detention of a person in order to prevent him from acting in a manner prejudicial to public safety or the maintenance of public order is necessary.
21. In the light of law culled from the provisions contained in section 3 of the Sindh Maintenance of Public Order Ordinance, 1960 read which Article 10 (4), (5) and (6) of the Constitution of Islamic Republic of Pakistan, as well as the dicta laid down in the judgments relied upon by Mr. Shahadat Hussain Awan, for the reasons recorded above and after going through the material placed before us, we are of the considered opinion that the impugned detention order is not sustainable on the following grounds:-
(1) There is a specific plea raised in para-6 of the petition that the copy of the detention order has not been communicated to the detenu as required under section 3(6) of the Ordinance. In the comments filed on behalf of the Home Secretary, there is nothing in reply to the contention. As the comments are silent on this point, therefore, the averments made in the memo. Of petition to the effect that the copy of the detention order was not supplied shall be deemed to have been admitted.
(2) A perusal -of record produced before us shows that the recommendation of the Provincial Police Officer for issuance of detention order was received in the office of the Home Secretary on 13-6-2005 and the detention order was issued on 4-6-2005.
(3) The grounds of detention contained in the detention order are generalized, vague and indefinite and do not conform to the requirements of law as explained in the judgments cited above. On the basis of these vague, indefinite and generalized grounds it is not possible of the detenu to make any representation, to the competent Authority, against the detention order.
(4) The Home Secretary has, not applied his mind to the facts of the case and has acted in mechanical manner, probably under the directives of some administrative authority whose name does not transpire on the record. The allegations are against the Chief Executive of the Province namely, the Chief Minister but in the absence of sufficient material on record in this behalf we would not like to give any finding as to who directed the Home Secretary to issue the detention order and under what circumstances. It is sufficient to observe that the detention order is vioaltive of the safeguards and requirements provided in the Sindh Maintenance of Public Order Ordinance, 1960 and impinges upon the fundamental rights of the citizens enshrined in the Constitution of the Islamic Republic of Pakistan, (5)The learned Additional Advocate-General argued that there are several cases, F.I.Rs, and complaints against the detenu. We have examined the entire file produced before us which contains F.I.Rs, starting from the year 1972 but we have not found any such material on the basis whereof a detention order can validly be issued. It already stands decided that if any person is facing trial in a case in which he can be punished by the Court of competent jurisdiction, the pendency of such case shall not be sufficient basis for issuance of detention ,order against a person.
(6) It also stands decided that if out of several grounds even a single ground is not sustainable in facts and law, the entire detention order would be held to be invalid and not sustainable in law. The detention order contains that the detenu is dangerous, hazardous and notorious which is not supported by any material. We would like to reiterate that the detenu is a senior practicing lawyer and is aged about 70 years. This ground alone is sufficient to strike down the entire detention order.
22. For the foregoing reasons the detention order is held to be illegal, not in accordance with law, void and invalid. The detention order is hereby struck down accordingly. The Superintendent Central Prison, Hyderabad is directed to release the detenu Arbab Murad Ali-son of Wali Muhammad Nohri forthwith, if not required in any other case. The petition is allowed as above.