' ABDUL SHAKOOR PARACHA, J.---Abdul Rauf son of Mahboob Khan filed the present writ petition challenging the order of the Chief Commissioner, Islamabad Capital Territory dated 2-8-2005, whereby petitioner's brother Abdul Saboor, respondent No,5 has been arrested and detained for a period of 90 days under section 11-EEE of the Anti-Terrorism Act, 1997 (XXVII of 1997) read with Islamabad Capital Territory Administration Order (P.O. No,18 of 1980).
2. The learned counsel for the petitioner contends that petitioner's brother was arrested and detained by the local police on the order of the District Magistrate, Islamabad under section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960. Against that order Writ Petition No,2180 of 2005 was filed challenging the above said order of the District Magistrate in which comments were called and during the pendency of the said writ petition, with ulterior motive and mala fide intention the Chief Commissioner, Islamabad, respondent, has passed the impugned order dated 2-8-2005 and that the petitioner's brother has not been conveyed the grounds of detention. Further that before exercising the jurisdiction under section 11-EEE of the Anti-Terrorism Act, 1997 petitioner's brother's name was not notified/included in the list maintained under section 11-EE of the Act and the Fourth Schedule and that the petitioner's brother was not asked to execute the bonds or with more sureties to the satisfaction of the District Police Officer for his good behaviour and not to involve in any act of terrorism. Further contends that petitioner's brother is not a member of Sipah Sahaba and that there was no material with the respondent Authority on the basis of which the petitioner's brother could be detained.
3. In pursuance of the order dated 10-8-2005 the respondents Nos.1 and 2 have filed their reports and parawise comments, wherein it is stated that petitioner's brother namely Abdul Saboor is Khateeb in Jamia Masjid Al-Rasheed, G-8, Islamabad; he is an active member of proscribed organization i,e, SSP and Millat-e-Islamia; he was reportedly involved in activities which are associated .With a demeanor which is prejudicial to public peace and security, such a conduct may lead to alaw and order situation in Islamabad District. S.H.O. P.S. Margalla, Islamabad reported the matter for appropriate action against the delinquent; consequently respondent No,1 issued orders for his arrest and detention under section 11-EEE, ATA, 1997.
4. I have heard the arguments of the learned counsel for the parties and perused the record. The petitioner's brother Abdul Saboor has been detained under section 11-EEE ATA, 1997 which section reads as under:-- "11-EEE Power to arrest and detain suspected personas.--(1) Government if satisfied that with a view to prevent any person whose name is included in the list referred to in section 11-EE, it is necessary so to do, may, by order in writing direct to arrest and detain, in such custody as may be specified, such person for 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 extend from time to time the period of such detention for a total period not exceeding twelve months."
5. When the Federal or Provincial Government on an information received from any source that any person is an activist, office-bearer or an associate of an organization kept under observation under section 11-D or proscribed under section 11-E or in any way concerned or suspected to be concerned with such organization or affiliated with any group or organization suspected to be involved in terrorism or sectarian, such Government may notify the name of such person or persons in a list entered in the Fourth Schedule, and under subsection (2) of section 11-EE, the Government can proceed to pass any order under section 11(2)(a-t). Though the respondent has brought an order dated 2-8-2005, wherein the date bears the overwriting, which shows that the name of the petitioner's brother was included in the list entered in the Fourth Schedule, yet I fail to understand when the impugned order of detention under section 11-EEE ATA, 1997 was passed on 2- 8-2005 how the name of the petitioner's brother Abdul Saboor could have been notified in the list.
Secondly in the comments it has not been stated by the respondent that before proceeding to detain the petitioner's brother under section 11-EEE his name was included in the list entered in the Fourth Schedule and under subsection (2) (a-t) of the Act ibid. It has not been demonstrated that the petitioner was asked to execute the bonds or with sureties for his good behavior and not to involve in the act of terrorism as required by law.
6. The expression "Government if satisfied" appearing in section 11-EEE is synonymous to the word "satisfaction" appearing in section 3 of the West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960). In the case of Mrs. Majeeda Fatima v. DistrictMagistrate and Deputy Commissioner, District Central Karachi and 3 others PLD .1990 Karachi 470 while interpreting the word "satisfaction" appearing in the Ordinance (XXXI of 1960) ibid it was held that A "satisfaction is to be objective in nature and not subjective of such nature as to allow the Authorities to act on whims and caprices without there being material before them in support of grounds of detention." In case reported as Iffat Razi v. Government of Punjab and others PLD 2002 Lahore 194 no material had been produced by the authorities to show that the detenu was a member of a banned organization or had remained a member of the banned organization within seven days of its declaration being banned. Mere saying that the detenu was a member of such organization was not enough but in order to curb the liberty and freedom of an individual substantial material had to be placed for doing the same in a detention order. The detention order which did not carry reasonable substantial material to detain an individual on a report of an investigation agency without any material showing same being prejudicial to the interest of maintenance of public order and being in violation of section 3 Explanation II of the West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960) and the detention order was declared to be without lawful authority. The detenu was ordered to be released forthwith if not required in any other case. In the case reported as Umer Din alias Umroo v. S.H.O. Bhai Pheru and 3 others 1990 PCr.LJ 948 wherein the detention order of the detenu was passed on basis of criminal case registered against the detenu and also on some inquiry by the District Magistrate and inquiry through secret means was not borne out from the record. District Magistrate accepted mechanically recommendations of police without applying his own independent mind to the material placed before him. It was held that criminal charges for which the detenu was facing trial or was convicted/acquitted could not form basis for preventive detention and even if one of the grounds was found bad or non-existent the detention order would be rendered invalid. In the circumstances the detention order was declared to be without lawful authority and of no legal effect and the detenu was ordered to be set at liberty.
7. In the case reported as Mir Abdul Baqi Baluch v. The Government of Pakistan through the Cabinet Secretary, Rawalpindi and others PLD 1968 SC 313 while discussing the scope of judicial review of High Court of order of detention it was held that "High Court can insist on disclosure of materials on which executive authority had acted subject to right of State to claim privilege in respect of an appeal against decision of executive authority." It was further held that "mere production of order of detaining authority in proof of "satisfaction" not sufficient."
8. On the touchstone of the above said case-law, I have examine the material placed by the respondents in this case. It seems that the respondent Chief Commissioner, Islamabad has proceeded to pass the impugned order of detention on the basis of the list notified in the Fourth Schedule under the Anti-Terrorism Act, 1997, vide office Notification dated 2-8-2005 that the petitioner's brother Abdul Saboor is an activist of Sapah-e-Sahaba, Pakistan, and there was any material before him to pass the impugned order of detention dated 2-8-2005. The procedure as provided in section 11-EEE of the Act ibid has not been adopted in this case. Petitioner's brother was not asked to execute bonds with or with more sureties to the satisfaction of the District Police Officer for his good behavior and to not involve in any act of terrorism. The respondents have failed to demonstrate that petitioner's brother was conveyed the grounds of his arrest and detention. In the recent judgment of this Court reported as Abu Bakar Muhammad Reza v. Secretary to Government of Punjab, Home Department and 3 others PLD 2005 Lahore 370 while interpreting the provisions of section 11-EEE and Fourth Schedule to the Anti-Terrorism Act, 1997 it was ruled that, mere registration of a case is not sufficient to curtail liberty of the petitioner on spy information that he was terrorist. It amounts to punish the petitioner before proving the allegation against him.
Respondent No,1 has failed to justify how the petitioner's brother Abdul Saboor was acting in the manner prejudicial to the activity or security of Pakistan or any part thereof or extraordinary affairs of the Government or maintenance of supply of service. The liberty of citizen cannot be curtailed merely on presumptions. As such the order dated 2-8-2005 to the extent of petitioner's brother Abdul Saboor is not sustainable.
For the foregoing reasons, the petition is accepted, the impugned order passed by respondent No,1 to the extent of Abdul Saboor, petitioner's brother, is declared to have been passed without lawful authority. He shall be released forthwith if not required in any other case.