MAULVI ANWARUL HAQ, J.- The judgment shall decide Writ Petitions Nos. 66/2004, 168/2004, 181/2004, 185/2004 and 207/2004 as common questions are involved.
2. All these petitions have been filed to seek an order in terms of Article 199 (i) (b)(i) of the Constitution of Islamic Republic of Pakistan on the ground that the several persons mentioned in the Writ Petitions respectively are being held in custody without lawful authority and in an unlawful manner. The particulars of the detunes so alleged are as follows:-
(i) Muhammad Faruq stated to be a Director in Grade- 21 serving in KRL, Kahuta.
(ii) Major (R) Islam-ul-Haq stated to be the Principal Staff Officer of Dr. Abdul Qadeer Khan and holding office of Director at KRL, Kahuta.
(iii) Dr. Nazir Ahmad stated to be a Nuclear Scientist who had been holding the office of Director General (Science and Technology) in KRL, Kahuta.
(iv) Dr. Abdul Majeed, Director General, Health & Physics Department, KRL, Kahuta.
(v) Naseem-ud-Din stated to be the head of Missile Manufacturing, KRL, Kahuta.
(vi) Mansoor Ahmad stated to a former Director General, Health and Physics Department, KRL, Kahuta.
(vii) Brig.(R) Muhammad Iqbal Tajwar stated to be the former Director General (Security), KRL, Kahuta.
(viii) Brig (R) Sajawal Khan Malik stated to be a former Director General, Maintenance and General Services Division, KRL, Kahuta.
(ix) Shamim, Technician, KRL, Kahuta.
3. These petitions in the first instance, were put up before one of us (Maulvi Anwarul Haq, J). Later it was deemed appropriate that the matter be heard by a larger Bench and the Honourable Chief Justice constituted the present Division Bench.
4. The Federal Government took quite some the, and we may say so, some persuasion to come up with a reply, it was stated at the bar by the learned Attorney General and not controverted by the other side that Mansoor Ahmad detune has since been released while Dr. Abdul Majeed and the said Shamim, Technician, are not in custody. Regarding the remaining detunes, it has been stated they have been detained under the provisions of the Security of Pakistan Act, 1952. The orders for detention have been passed under the said Act. The grounds of detention have been served and the detunes can avail the remedy of a representation to the Federal Government, it has also been asserted that the respective detunes are equipped with sufficient information to make a meaningful and effective representation, it has then been stated that the detunes have been engaged in nuclear proliferation and are responsible for inter alia, directly and indirectly passing on to foreign countries and individuals secret codes, nuclear materials, substances, machinery, equipment, components, information, documents, sketches, plans, models, articles and notes entrusted to them in official capacity in relation to the work of defence and that these activities in relation to the work of defence and that these activities have seriously prejudiced the defence, external affairs and security of Pakistan, it has further been stated that the detention orders have been passed as the Federal Government is satisfied that the detention of the detunes is necessary in order to prevent them from continuing with and carrying on such activities and acting in a manner prejudicial to the defence or the external affairs or the security of Pakistan as any such act of the detunes will pose a serious threat to and place the Nuclear Project and programme of Pakistan in jeopardy thereby undermining the defence and security of the country. At the same the, the Federal Government has pleaded that it will not be in the public interest to make a full disclosure qua the material and grounds on which the said detention orders are based.
Accordingly, privilege has been claimed. Rejoinders have been filed in all these writ petitions except Writ Petition No. 207 of 2004.
5. M/s. Muhammad Ikram Chaudhry, Shah Khawar, Tariq Mahmood Khokhar, Advocates and Rao Zafar Iqbal petitioners have made submissions for the petitioners in these cases, it has been insisted that as per the terms of the said Article 199(1)(b)(i) of the Constitution, this Court has to first pass an order for the production of the detunes and thereafter proceed to satisfy itself as to whether or not they are being held in custody in accordance with law. Thereafter, conscious of the fact that the detention orders have been passed and served upon the detunes, learned counsel have urged that the orders are bad in law inasmuch as these do not at all disclosed the grounds for detention and certainly not in a sufficient detail so as to enable the detunes to exercise their vested right to make an effective representation to the Federal Government. With reference to the case-law, it has been argued that a compliance of the Constitutional provision vesting the detune a right to represent against detention is absolutely necessary and the mere intimation of the conclusion arrived at by the detaining Authority is not sufficient and the facts and material on which the conclusions are based have also to be furnished to the detunes, it has further been contended that the place of detention has neither been determined nor disclosed to the detunes and the close relative which, according to the learned counsel, is an essential ingredient of a valid detention order under the Security of Pakistan Act, 1952. in the matter of Dr. Faruq who was taken into custody on 23.11.2003, no explanation has been offered for the period of detention beyond 15 days before service of detention order, it has then been stated that the detention orders have been passed mala fide only to over reach the jurisdiction of this Court in view of the conduct of the Federal Government during these proceedings. Finally, it has been urged that the detunes are not being properly treated. The learned counsel for the petitioners rely upon the judgments in the cases of Ch. Manzoor Elahi vs. Federation of Pakistan, etc. (PLD 1975 SC 66), The Federation of Pakistan and 3 others vs. Malik Ghulam Jilani (PLD 1974 SC 402), Government of West Pakistan and another vs. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14), Mir Abdul Baqi Baluch vs. The Government of Pakistan through the Cabinet Secretary, Rawalpindi, etc. (PLD 1968 SC 313), Malik Ghulam Jilali vs. The Government of West Pakistan, through the Home Secretary, Lahore and another (PLD 1967 SC 373), Mian Muhammad Nawaz Sharif vs. President of Pakistan and others (PLD 1993 SC 473), Begum Nusrat Bhutto, vs. Chief of Army Staff and Chief Martial Law Administrator and another (PLD 1978 Karachi 286), Malik Ghulam Jilani vs. The Government of Pakistan through the Secretary, Ministry of Interior, Islamabad and 3 others (PLD 1976 Lahore 38), Muhammad Ibrahim vs. SHO, Police Station, Sheikhupura (1990 P.Cr.L.J. 1717), Saifuddin Saif Vs. Federation of Pakistan and 3 others (PLD 1977 Lahore 1174), Muhammad Akbar vs. Dr. Khan Sahib Chief Minister of West Pakistan (PLD 1957 Karachi 387), The Tribunal District Magistrate), Karachi vs. Hashim (PLD 1960 SC 260), Mst.
Aishya Begum Vs. The Crown (PLD 1955 Sind 375), Hassan Nasir vs. The Crown (PLD 1953 Sind 37), Muhammad Ahmad Vs. The Crown (PLD 1955 Sind 73), Mrs. Roshan Bijaya Shaukat Ali Khan vs. The Government of East Pakistan and others (PLD 1965 Dacca 241), Shah Din alias Shakia Vs. Government of Punjab through Home Secretary (1977 P.Cr.L.J. 795), Begum Zeb-un-Nisa Hamidullah, Editor and Publisher of "The Mirror, Karachi vs. Pakistan through the Secretary, Ministry of Interior Government of Pakistan (PLD 1958 SC 35), Dr. Ram Krishan Bhardwaj vs. The State of Delhi and others (AIR 1953 SC 318), Mangalbhai Mottram Patel Vs. State of Maharashtra and others (AIR 1981 SC 510, and A.K. Roy vs. Union of India and another (AIR 1982 SC 710).
6. Mr. Makhdoom Ali Khan, the learned Attorney General for Pakistan, on the other hand, raised objection to the locus standi of the petitioner in the matter of Writ Petition No. 207/2004. He also objects to the maintainability of the petitions on the ground that the representation to Federal Government provided for in the law is an efficacious and adequate remedy. According to the learned Attorney General, the detention orders are in accord with the legal as well as Constitutional provisions and have been served upon the detunes within the prescribed the, in response to the primary objection raised by the learned counsel for the petitioners as to the lack or insufficiency in the matter of information pertaining to the grounds of detention, learned Attorney General refers to Article (5) Proviso to urge that it would be against the public interest to disclose facts on which the grounds as intimated to the detunes are based. Learned Attorney General states that the national interest demands that the said facts be not disclosed as the same would endanger the security and defence of the country. He has, however, candidly expressed willingness on behalf of the Federal Government to present the relevant material for the inspection of this Court to satisfy itself qua the said plea being taken on behalf of the Federal Government and further as to the sufficiency of the grounds for detention. We may note here that upon orders passed by this Court, the said material was presented and examined by the Court in camera. Learned Attorney General further contends that the delay in filing of the report by the Federal Government was not actuated by any mala fides. On the other hand, the delay occurred because of the magnitude of the events as discovered. He argued that when in response to a notice by the Court under the said provision of Constitution, detention is pleaded under a law governing the detention then the matters would be dealt with by the Court as existing on the date of hearing and not upon the commencement of the learned Attorney General has referred us to some cases from English jurisdiction decided in somewhat similar circumstances, as the case in hand appears to be one of first impression vis-a- vis the status of the detunes and the reasons for detention. Refers to Article 150 of the Constitution as also Article 129 of the Qanun-e-Shahadat Order, 1984, to plead presumption of correctness and credibility in the matter of passing of the said detention orders. Learned Attorney General has cited judgments in the cases of Hardial Singh (AIR 1949 East Punjab 130), Juma Khan Baloch Vs. Government of Pakistan (PLD 1957 Karachi 939), Aziz-ul-Haq vs. Province of East Punjab (PLD 1968 Dacca 728), Saadullah vs. Secretary, Home Department (PLD 1986 Quetta 270), Rajab Ali vs. Superintendent District Jail (PLJ 1987 Quetta 43), Muhammad Siddiq Khan vs. District Magistrate (PLD 1992 Lahore 140), Fayyaz Haider Shah vs. District Magistrate (1995 P.Cr.L.J.1490), Syeda Shamim Akhtar vs. The Government of Pakistan (1996 P.Cr.L.J. 326), Muhammad Azam Tariq vs. District Magistrate (2001 P.Cr.L.J. 1727), Manzul Hassan Siddiqui vs. Federation of Pakistan (2000 PLC 189).
Asadullah Rashid vs. Haji Muhammad Maneer (1998 SCMR 2129), Naranjan Singh vs. State of Punjab (AIR 1952 SC 106), Talib Hussain vs. State of Jammu and Kashmir (AIR 1971 SC 62), Saadullah vs. Secretary, Home Department (PLD 1986 Quetta 270), Ahmed Zafar vs. District Magistrate (PLD 1960 Lahore 952), Abdul Hamid vs. District Magistrate (PLD 1973 Karachi 344), Chandler vs. D.P.P (1962) 3 ALL E.R. 142), R. Vs. Secretary of State exp. Hosenball (1977) 3 All E.R 452) and Council of Civil Service Union and others vs. Minister for the Civil Service (1984) 3 All E.R. 935).
7. We have duly considered the submissions made on behalf of the petitioners and the Federal Government. As noted by us above, whereas the Federal Government while explaining the detention of the several detunes has drawn up a picture which is rather starting and alarming and has further proceeded to claim privilege in the matter of full disclosure of the facts resulting in the passing of the detention orders, the petitioners are insisting upon the release of the detunes by invoking the age old maxim "FIAT JUSTITIA, RUAT COELUM i.e. Let right be done, though heaven should fall. As noted by us above, the learned Attorney General has presented the relevant material relied upon by the detaining Authority while passing the said detention orders and conveying the said grounds to the detunes. Only for the purpose of the said detention orders and not as a piece of evidence in a regular trial, if any. Upon an examination of the said material, we find that prima- facie, the Federal Government was justified in expressing its satisfaction in the matter of passing the said detention orders, on the basis of the said material and further that the privilege has been validly claimed by the Federal Government. Now we may note here that the judgments relied upon not only by the learned counsel for the petitioners but also by the learned Attorney General do insist that the detunes are to be provided all the facts and material leading to the passing of their detention orders and constituting grounds for the same but at the same the their Lordships have made the same subject to the privilege that may be claimed by the Federal Government or the detaining Attorney in the matter, it has further been observed that the detaining Authorities are not supposed or required to act in a judicial or even in a quasi-judicial manner in the process of passing the detention orders provided that the conditions provided in law are fulfilled and further that the judicial review is not to be in the nature of an appeal against the decision of the Executive Authority.
8. In the matter of the said infirmities being pointed out in the detention orders, we find that the same are relatable to the procedure and not to the substance and we find ourselves compelled to act on the observations of Mr. Justice Amal Mian (as his Lordship then was) in the said case Of Saadullah (PLD 1986 Quetta 270), to the effect that in a case where State Secretary is involved, the Court may be reluctant to exercise Constitutional jurisdiction even in case of detention if the order is bona fide and is supported by the material on record though there might be some infirmity in the order as to the procedure and not as to the substance.
9. The bulk of the judicial authorities referred to by the learned counsel for the petitioners and the learned Attorney General from our country as also from our neighbourhood pertain to cases primarily of political nature or crimes falling under general category. Present, of course, is a case of first impression arising in the judicial history of the country. We are, therefore, inclined to quote the following extracts from the speech of Lord Radcliff in the matter of Chandler and others vs. Director of Public Prosecutions (1962) 3 All E.R.142) appearing at page 151 of the report:- The disposition and equipment of the forces and the facilities afforded to allied forces for defence purposes constitute a given fact and it cannot be a matter of proof or finding that the decision of policy on which they rest are or are not in the country's best interests. I may add that I can think of few issues which present themselves in less triable form, it would be ingenuous to suppose that the kind of evidence that the appellants wanted to call could make more than small contribution to its final solution. The facts which they wished to establish might well be admitted even so, throughout history men have had to run great risk for themselves and others in the hope of attaining objectives which they prize for all. The more one looks at it, the plainer it becomes, I think, that the question whether it is in the true interests of this country to acquire, retain or house nuclear armaments depends on an infinity of considerations, military and diplomatic, technical, psychological and moral, and of decisions, tentative or final, which are themselves part assessm ents of fact and part expect and hopes. I do not think that there is anything amiss with a legal ruling that does not make this issue a matter for judge or jury."
Lord Denning MR. In the said case of R Vs. Secretary of State for the Home Department, exparte Hosenball after observing that it seem to his Lordship that when the national security is at stake even the rules of natural justice may have to be modified to meet the position, further proceeded to observe as follows at page 460 of the report:- "Confidential information.
The information supplied to the Home Secretary by the Security Service is, and must be, highly confidential. The public interest in the security of the realm is so great that the sources of the information must not be disclosed, nor should the nature of the information itself be disclosed, if there is any risk that it would lead to the sources being discovered. The reason is because, in this very secretive field our enemies might try to eliminate the source of information. So the sources must not be disclosed. Not even to the House of Commons. Not to any Tribunal or Court of inquiry or body of advisers, statutory or non-statutory, save to the extent that the Home Secretary thinks safe. Great as is the public interest in the freedom of the individual and the doing of justice to him, nevertheless in the last resort it must take second place to the security of the country itself. So much so that arrests have not been made, nor proceedings instituted, for fear that it may give away information which must be kept secret. This is in keeping with all our recent cases about confidential information. When the public interest requires that information be kept confidential, it may outweigh even the public interest in the administration of justice."
To our mind the said observation made in the said English cases do aptly apply to the facts and circumstances of the present cases. At the same the, we deem it our duty to reproduce here the conclusion from the said opinion of Lord Denning MR recorded at page 461 of the report to impress upon the Federal Government the impression entertained by the said learned Court regarding the conduct of the Home Secretary:- "There is a conflict here between the interest of national security on the one hand and the freedom of the individual on the other. The balance between these two is not for a Court of law. it is for the Home Secretary He is the person entrusted by Parliament with the task, in some parts of the world national security has on occasions been used as an excuse for all sorts of infringements of individual liberty. But not in English. Both during the wars and after them, successive Ministers have discharged their duties to the complete satisfaction of the people at large. They have set up advisory committees to help them, usually with a Chairman who has done everything he can to ensure that justice is done. They have never interfered with the liberty or the freedom of movement of any individual except where it is absolutely necessary for the safety of the State, in this case we are assured that the Home Secretary himself gave it his personal consideration, and I have no reason whatever to doubt the care with which he considered the whole matter. He is answerable to Parliament as to the way in which he did it and not to the Courts here. I would dismiss the appeal."
10. Now this leaves us with the said last contention of the learned counsel for the petitioners alleging that the detunes are not being treated well. The learned Attorney General has given us assurance at the bar that the detunes are being looked after properly, in this respect, we would like to quote the following opinion of Chief Justice Chandrachud rendered for the majority in the case of A. K. Roy Vs. Union of India and another's (AIR i982 SC 710) cited by Mr. Muhammad Ikram Chaudhry, Advocate) in para-108 of the judgment at page 752 of the report:- "It is difficult to run to frame a Code for the treatment of detunes while they are held in detention.
That will involve an exercise which calls for examination of minute details which we cannot undertake. We shall have to examine each case as it comes before us, in order to determine whether the restraints imposed upon the detune in any particular case are excessive and unrelated to the object of detention. If so, they shall have to be struck down. We would, however, like to say that the basic commitment of our Constitution is to foster human dignity and the well- being of our people, in recent times, we have had many an occasion to alert the authorities to the need to treat even the convicts in a manner consistent with human dignity. We must impress upon the Government that the detunes must be afforded all reasonable facilities for an existence consistent with human dignity. We see no reason why they should not be permitted to wear their own clothes, eat their own food , have interviews with the members of their families at least once a week and, last but not the least, have reading and writing material according to their reasonable requirements. Books are the best friends of man whether inside or outside the Jail."
11. We have assured that the detunes are being properly fed and the requisite reading material will also be provided to them, in the matter of the interviews with the members of the close family i.e. Parents, wives, sons and daughters, we are inclined to direct the Federal Government to arrange the same on a fortnightly basis for a reasonable period of the not less than two hours.
12. We would like to close our judgment with the following passage from the opinion rendered by Mr. Justice Shah in the case of Sampat Prakash vs. State of Jammu & Kashmir (AIR 1969 SC 1153):- " It must me emphasized that a detune is not a convict.. Our Constitution, notwithstanding the broad principles of the rule of law, equality and liberty of the individual enshrined therein, tolerates, on account of peculiar conditions prevailing, legislation which is a negation of the rule of law, equality and liberty. But it is implicit in the Constitutional scheme that the power to detain is not a power to punish for offences which an executive authority in his subjective satisfaction believes a citizen to have committed. Power to detain is primarily intended to be exercised in those rare cases when the larger interest of the State demand that restriction shall be placed upon the liberty of a citizen curbing his future activities. The restrictions so placed must consistently with the effectiveness of detention, be minimal."
13. So far as the objection raised by the learned Attorney General are concerned, the question of maintainability looses relevance as we have decided these matters for reasons recorded above.
However, on the question of locus standi, we do express our agreement with the views recorded by a learned Division Bench of the West Pakistan High Court in the case of Jumma Khan Baluch pertaining to the opinion rendered in the case of Hardial Singh VMR 1949 E.P. 130).
14. With the above observations, all these writ petitions are dismissed.