1. ' SYED ZAHID HUSSAIN, J.---Order dated 24-2-2006 whereby Qazi Hussain Ahmed, Ameer, Jamate- e-Islami, Pakistan/Member National Assembly/President Mutahida Majilis-e-Animal was ordered to be detained for a period of 30 days has been assailed through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, which petition has been filed by Muhammad Aslam Saleemi, Naib Ameer, Jamat-e-Islami Pakistan. The order passed by the Secretary to the Government of the Punjab; Home Department is sought to be assailed on several grounds highlighted in-the petition, primarily that the reasons which prevailed with the respondent to pass the detention order were vague, unsubstantiated, lacked sufficient material and that the action was mala fide.
2. ' Dr. Farooq Hassan, Advocate, the learned counsel contends that order dated 24-2-2006 is ditto copy of the previous order dated 18-2-2006, which was withdrawn on 20-2-2006 and the same grounds have been reiterated which show a complete lack of application of mind by the respondent. It is pointed out by him that even the reference number of the order is the same as was of order dated 18-2-2006. According to him the order proceeds on mere assumptions and there is no sound basis or material in support of the grounds of detention. It is contended that grounds (i), (iii) and (iv) are of identical nature which are vague and lacking particularity, whereas ground (ii) pertains to the electronic/print media over which the detenu has no control. It is contended that it is not only a colourable exercise of power but also an unwarranted exercise of jurisdiction. He terms the invocation of section 3 of Punjab Maintenance of Public Order Ordinance, 1960 as "fraud" on the Statute. In order to amplify his contention about the -inadequacy and insufficiency of the grounds of detention the learned counsel has made reference to the reply filed by the respondent to show that the only paragraph of the petition which has been replied is paragraph No,6. It is pointed out by him that paragraph No,6 of the writ petition related to the initial order dated 18-2-2006, which had been withdrawn by the respondent himself on 20-2-2006. It is thus contended that there was no fresh adequate material available with the respondent to pass impugned detention order dated 24-2-2006 and mere repetition of grounds of detention as were mentioned in order dated 18-2-2006 show by itself, the colorable exercise of power in passing the order. It is further pointed out by him that the affidavit filed by the respondent talks of "public interest" as the justification for detention order which does not find mention either in the statute or in the detention order. It is contended that once the detention order is assailed before the Court, it is the Court who is to satisfy itself about the sufficiency of the material and the legality or otherwise of the same. According to him the entire onus of proving the justification for detention order rests upon the Government/Detaining Authority. Reference in this context has been made to Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14), Mir Abdul Baqi Baluch v. The Government of Pakistan through the Cabinet Secretary, Rawalpindi and others (PLD 1968 SC 313), Malik Ghulam Jilani v. The Government of West Pakistan through the Home Secretary, Lahore and others (PLD 1967 SC 373), Muhammad Iqbal v. District Magistrate (1989 PCr.LJ 412) and Muhammad Abobakar v. Government of Sindh and others (NLR 1992 CLJ 18 ). It is further contended that if one ground of detention is found to be faulty the whole order stands vitiated and of no legal effect. Referring to Maulvi Farid Ahmed v. Government of West Pakistan (PLD 1965 (W.P) Lahore 135), Abdul Hamid Khan v. The District Magistrate, Larkana and 2 others (PLD 1973 Karachi 344) and Mrs. Amatul Jalil Khawaja v. Federation of Pakistan through Secretary Ministry of Interior, Islamabad and 3 others (PLD 2003 Lahore 310), it is contended that the detenu could approach the High Court straightaway without filing any representation.
3. ' The learned Additional Advocate-General Punjab has reiterated the preliminary objection taken in the reply filed by the respondent that the petition was not competent without exhausting the said statutory remedy as subsection (6) of section 3 of Punjab Maintenance of Public Order Ordinance, 1960 itself provides such a remedy which ought to have been availed before filing of this petition.
4. To contend that the petition for that reason was not competent he has relied upon Sheikh Rashid Ahmad v. D.M. Rawalpindi and others (PLJ 2004 Lahore 1221 (FB), Maulana Muhammad Azam Tariq v. District Magistrate, Jhang and 2 others (2001 PCr.LJ 1727), Muhammad Siddiq Khan v. District Magistrate (PLD 1992 Lahore 140) and Wealth Tax Officer and another v. Shaukat Afzal and 4 others (1993 SCMR 1810). The order of detention is sought to be supported by him on the basis of some speeches made by the detenu and published in the press and other material such as the report of the Capital City Police Officer, Lahore, that he had "become a potential danger to public peace and tranquility." He refers to the incidents of 14-2-2006, when some elements resorted to violence, resulting in colossal losses to persons and property. It is contended by him that the Government itself had serious concern about the publication of blasphemous caricatures of the Holy Prophet Muhammad (P.B.U.H.) and resolutions were passed by the Assemblies condemning the same and that even the Ambassador was recalled from that .Country. According to him the matter is being taken up by the Government at all national and international forums. It is stated by him that even the Chief Minister of the Province had led the rally to express resentment Over the issue of "Namoos-e-Rissalat" (S .A . A .W .) .
5. ' Since the learned Law Officer of the Province has laid great stress upon the non-maintainability of the petition due to non-availing of the statutory remedy as provided by subsection (6) of section 3 of the Punjab Maintenance of Public Order Ordinance, 1960, I am, therefore, inclined to advert to this aspect of the matter in the first instance. For this purpose section 3 of the Punjab Maintenance of Public Order Ordinance, 1960, which empowers the Government to pass a detention order for a specified period and also provides the remedy of representation in its essential parts is reproduced hereunder:-- "S.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, 1[...] extend from time to time theperiod of such detention 2[for a period not exceeding six months at a time].
(2) .
(3) .
(4) .
(5) .
(6) Where a detention order has been made under this section the authority making the order shall, as soon as may be, 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 the authority making any such order may refuse to disclose facts which such authority considers it to be against public interest to disclose.
6. [(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. ' Article 10 of the Constitution of Islamic Republic of Pakistan, 1973 provides for the safeguards as to arrest and detention. Clause (5) thereof envisages the opportunity to the detenu of making a representation against the detention order.
8. ' It appears from the precedents cited by the learned counsel from both sides that there had been some cleavage of opinion as to the adequacy of the remedy of representation and its necessity before filing of the petition before the High Court. In Maulvi Farid Ahmad v. Government of West Pakistan (PLD 1965 (W.P.) Lahore 135) the learned Full Bench of this Court dealt with a preliminary objection as to the maintainability of the petition being premature since the petition had been filed "before the case of the petitioner had been referred to the Advisory Board to report on the sufficiency of cause for his detention beyond two months" which was overruled. In Muhammad Siddiq Khan v. District Magistrate (PLD 1992 Lahore 140) a Special Division Bench to which the question as to "Whether a representation under section 3(6-a) of the West Pakistan Maintenance of Public Order Ordinance XXXI of 1960 can be considered to be an 'adequate remedy' within the meaning of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, so as to debar a person from filing a constitutional petition straightaway without availing of the said remedy", was referred, answered the question on consideration of the relevant provision of law, Article 10 of the Constitution of Islamic Republic of Pakistan, 1973 and precedents on the subject and it was observed that "From a reading of sub-Article (5) of Article 10 of the Constitution of Islamic Republic of Pakistan, 1973 it becomes obvious that the Constitution insists not only that the grounds for detention be communicated to the detenu but also that he shall be afforded the earliest opportunity of making a representation against the order. The right to make representation is thus not only statutory in nature but also finds recognition in the Constitution itself, and therefore, stands c.: much A higher pedestal. The importance of this right cannot be whittled down and it must be given effect to, subsection (6) of section 3 has been enacted to give effect to sub-Article
(5) of Article 10 of the Constitution and it must be viewed in that context. It is also to be noticed that subsection (6-a) requires the Government to hear the person concerned before deciding the representation." The learned Special Division Bench of this court had taken such a view different from the one taken in Abdul Hamid Khan v. The District Magistrate, Larkana and 2 others (PLD 1973 Karachi 344). In Mrs. Farzana Kamran v. District Magistrate, Gujrat and 2 others (1992 PCr.LJ 2336) the petition was dismissed giving effect to the preliminary objection as the detenu had not filed the representation. In Syed Shamim Akhtar v. The Government of Pakistan and 3 others (1996 PCr.LJ 326) it was observed "Admittedly, this writ petition has been filed without resorting to the filing of a representation against the impugned orders. Period of first two orders have since expired. The remedy of filing of representation as provided by section 3(6) of the West Pakistan Maintenance of Public Order Ordinance, 1960 read with Article 10 of the Constitution of Islamic Republic of Pakistan, 1973 is available to the detenu, but admittedly has not been availed of for cogent reasons.
9. Therefore, without availing of the said remedy, this constitutional petition is not entertain able unless and until the petitioner is in a position to make out a case of exceptional nature which has not been established as nothing has been brought on record, on the basis whereof it could be said that the case is of such a nature that a remedy of representation will an exercise in futility or that the said representation shall not be decided on merits and in accordance with law. Merely because the petitioner has been rendering social services; that he is of a foreign origin or that period of his detention has been short, alone are not sufficient grounds to entertain the writ without first resort to the statutory remedy of a representation, therefore, I hold that this writ petition is premature."
10. A Full Bench of this court comprising five Hon'ble Judges in Sheikh Rashid Ahmad v. D.M. Rawalpindi and others (PLJ 2004 Lahore 1221 (FB) reached the conclusion that "Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 provides an extraordinary remedy to the aggrieved person of invoking the constitutional jurisdiction of the High Court with the underlying purpose to keep the administrative andjudicial authorities within the bounds of their jurisdiction. When the law provides a' remedy to another authority fully competent to give relief, any indulgence to the contrary by the High Court is likely to produce a sense of distrust in those authorities and to cast an undeserved reflection on their integrity and competency and would defeat the legislative intent." The Full Bench view has since been followed in number of subsequent cases such as Maulana Muhammad Azam Tariq v. District Magistrate, Jhang and 2 others (2001 PCr.LJ 1727). The reliance of the learned counsel for the petitioner upon Mrs. Amatual Jalil Khawaja v. Federation of Pakistan through Secretary Ministry of Interior, Islamabad and 3 others (PLD 2003 Lahore 310), which judgment was upheld by the Hon'ble Supreme Court of Pakistan in Federation, of Pakistan through Secretary, Ministry of Interior, Islamabad v. Mrs. Amatual Jalil Khawaja and others PLD 2003 SC 442) is inapt inasmuch as in the precedent case a representation had indeed been filed but was not decided by the authority concerned. In view of the preponderance of authorities, particularly that of the learned Full Bench of this court there remains no doubt or obscurity that availing of the statutory remedy before filing of petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 in such a case is a rule. Suffice it to observe C that so long as the view taken by the learned Full Bench of this Court holds the field no other view is possible except to follow the same in view of the legal position stated in, The Province of East Pakistan and others v. Sirajul Haq Patwari and others (PLD 1966 SC 854). It was observed by their Lordships that "being charged with the high function of interpreting and pronouncing upon the validity of laws, and being thus itself a source of law, the High Court should avoid giving a decision directly inconsistent with that given by itself earlier." In view of the above I have no option but to uphold the preliminary objection as to the maintainability of this petition.
11. It has been stated by the learned Law Officer that as soon as the representation qua the detention order is filed, it will be processed and decided in accordance with law by the respondent after affording opportunity of hearing as contemplated by subsection (6-a) of the Punjab Maintenance of Public Order Ordinance, 1960. It is observed that the said provision of law empowers the respondent even to rescind the order. Let therefore, representation be filed which will be heard, considered and disposed of in accordance with law by the respondent within seven days of its filing.
12. ' For the above reasons this petition is dismissed as not maintainable and being premature. No order as to costs.