' MUHAMMAD JEHANGIR ARSHAD, J.--- The petitioner through this constitutional petition has challenged the order, dated 21-10-2006 issued by Secretary to Government of Punjab, Home Department, Lahore-respondent No,1, in exercise of the powers conferred on him under section 11- EEE of the Anti-Terrorism Act, 1997 directing arrest and detention of Tanveer Khan real brother of the petitioner for ninety days.
2. On 13-11-2006 copy of this petition was handed over to the learned Law Officer for obtaining report and parawise comments from respondent No, 1 and with a further direction that respondent No,1 shall treat this petition as representation before him and decide the same within two weeks of its receipt. The respondent was also directed to append the material before him which led him to pass the impugned order. The report and parawise comments have been received. The respondent No,1 has also appended a copy of the order, dated 28-11-2006 passed by him on the representation of the detenu namely Tanveer Khan.
3. In the report it has been submitted that detention order against Tanveer Khan was passed on the basis of the material received through Regional Police Officer, Multan as well as District Police Officer, Khanewal and that his name has also been placed in 4th schedule to Anti-Terrorism Act, 1997. To support the detention order, the report submitted by D.P.O. Khanewal and a list of criminal case against Tanveer Khan detenu, has also been placed on record.
4. It has been argued by learned counsel for the petitioner that impugned order has been passed without conscious application of mind as well as on the basis of irrelevant material, inasmuch as, the list of cases appended with the report relate back to the years 1990 to 1998 and to each of these criminal cases the detenu has already been acquitted by Court of competent jurisdiction.
Further submits that detenu has already furnished a bond in terms of section 11-EEE of Anti- Terrorism Act, 1997 and there is not an iota of evidence on record that the detenu acted in violation of such bond and the material on the basis of which the impugned order has been passed is not only vague but also not based on any evidence except one sided report submitted by D.P.O., Khanewal unsupported by any material. Further contends that the impugned order could also not be passed as there is no material on the record to establish that the detenu was ever involved in sectarian activities after submission of bond under section 11-EEE of the Act, therefore, the impugned order having been passed without any material, is not sustainable. Lastly, it is argued that in terms of subsection (3) to section 11-EEE of Anti-Terrorism Act, 1997 an appeal against the impugned order has been provided but surprisingly the same is heard and decided by the same person who issued the impugned order of detention which is against the principles of natural justice.
5. On the other hand, learned Law Officer appearing on behalf of respondents has fully supported the impugned order by arguing that as name of the detenu is very much available in 4th schedule of the Act and further that the detenu despite submission of bond is still indulged in anti-social activities, therefore, the impugned order was validly and correctly passed against him.
6. I have considered the arguments of learned counsel for the parties and have also gone through the entire material available before me.
7. The only material produced by respondent in support of the impugned order is one sided report submitted by Shahid Hussain, P.S.P./D.P.O., Khanewal and list of criminal cases registered against the detenu from the years 1990 to 1998. The report of the D.P.O. Is based on another report by the S.H.O. Police Station City Kabirwala but there is not an iota of evidence in support of these reports, whereas, according to the list of criminal cases appended with the report, the last case was registered against the detenu on 1-10-1999 and according to the report of the D.P.O. Khanewal the detenu has already furnished two sureties of Rs,5,00,000 each under section 11-EEE of the Anti- Terrorism Act, 1997 and again there is no material available on record that either the detenu committed violation of the said bond or that any fresh casewas registered against him after submission of the bond. There is also no evidence on record to show that detenu was convicted even in any of the said criminal case. Further both the reports i.e. One by S.H.O. And the other by D.P.O. Khanewal are based on mere apprehensions and do not disclose even a single event of physical involvement or participation ofthe detenu in any anti-social activities in order to attract the provisions of section 11-EEE of the Ordinance. This Court in the case Abu Bakar Muhammad Reza v. Secretary to Government of Punjab, Home Department and 3 others PLD 2005 Lah. 370 has held that liberty of a citizen could not be curtailed merely on apprehensions and that mere registration of F.I.R. Would not be sufficient to curtail liberty of the petitioner merely by alleging that he was a terrorist, especially when according to learned counsel for the petitioner, the detenu was acquitted in all the criminal cases mentioned in the attached list. In Abdul Rauf v.Chief Commissioner, Islamabad and 5 others PLD 2006 Lah. 111 this Court did not accept the contention of the detaining authority that mere registration of criminal case would justify to curtail the liberty of a citizen. In the said case it was also held by this Court that satisfaction of the detaining authority be always objective in nature and not subjective in nature. So as to allow the authorities to act on whims and caprices without there being any material before them in support of grounds of detention.
8. Vide order, dated 13-11-2006, the detaining authority was directed to append the material available before it along with report and parawise comments and except the above mentioned two reports one by the S.H.O. To District Police Officer, Khanewal and second by District Police Officer, Khanewal to the detaining authority, no other material has been produced to substantiate the detention order. Since the respondent failed to substantiate the grounds on the basis of which the detaining 'authority had acted while passing the impugned order. This Court, therefore, has no option except to strike down the impugned order by declaring the same as without lawful authority, in the light of the dictum laid down by the Honourable Supreme Court of Pakistan in the case Mir Abdul Baqi Baluch v. The Government of Pakistan through the Cabinet Secretary, Rawalpindi and others PLD 1968 SC 323 and also by this Court in the case Mulazim Hussain Shah v. Province of Punjab through Secretary, Home Department, Government of Punjab, Lahore and 2 others PLD 2006 Lah.
108.
9. Before parting with this judgment, I would like to comment upon another order dated 28-11-2006 (copy whereof is attached with the report) passed by Home Secretary-respondent No,1 dismissing the representation filed by the detenu through the petitioner. The said order shows that petitioner Mst. Amiran Khanum failed to appear before the Home Secretary despite her alleged service. Again the Home Secretary while sending his report except appending the said order, has not attached any other notice showing that petitioner was in fact served. It is strange enough that the Home Secretary has again decided the representation merely on the report of D.S.P. (Legal), Khanewal and without taking into consideration any of the grounds pleaded in the representation and the order of rejection of representation is nothing but reproduction of the order of detention, hence, the order dated 28-11-2006 passed by the Home Secretary, Government of Punjab rejecting representation of the petitioner cannot be considered as an order passed with conscious application of independent mind.
10. Another important question of public importance in such-like matters is that, in sheer violation of the known principle "nobody can be a judge of his own cause" the representation against an order of detention is heard and decided by the same authority which originally passed the detention order. It is beyond one's comprehension that how a person can annul the order of detention passed by him while hearing representation against the said order by applying unbiased and independent mind. This Court is therefore, of the confirmed view that practice of passing order of detention and then decision of representation against the said order by the same authority is against the principle of natural justice and accumulation of such authorities in one person cannot be graced with any legal sanctity. I am, therefore, constrained to direct Secretary Law, Government of Punjab to place this matter before the competent authority and the said authority is expected to consider the question of delegating power of decision of representations against detention orders passed by Home Secretary, to some other public functionary preferably to Secretary Law, Government of Punjab who is usually a Judicial Officer not below the rank of Sessions Judge, is expected to decide such representations in a more judicious and prudential manner.
11. The net result of above discussion is that this writ petition is allowed, the impugned order of detention is declared as without lawful authority, hence, Tanveer Khan detenu is directed to be released forthwith if not required to be detained in any other matter.