' MUHAMMAD AKHTAR SHABBIR, J.--- This habeas petition has been filed to call in question the legality/vires of the detention order passed by respondent No,2/Secretary to the Government of the Punjab, Home Department, dated 28-8-2006 detaining the husband of the petitioner Hafiz Muhammad Saeed, Ameer Jamat-ud-Dawa, Pakistan for 60 days. The grounds of detention on the basis of which the said order has been passed contemplates as under:--
(i) There is credible evidence that the activists. Of Jamat-ud-Dawa are collecting "Chanda" under instructions from its high command; headed by Hafiz Muhammad Saeed, Ameer of Jamatud- Dawa.
(ii) The activists of Jamat-ud-Dawa have placed Chanda boxes to collect Chanda for war affectees of Lebanon and Palestine; thus, indulging in activities which are otherwise banned/prohibited under the law.
(iii) Jamat-ud-Dawa, an organization under watch headed by Hafiz Muhammad Saeed is using the territory of Punjab for meeting their agenda and risking the security of Pakistan. This may have serious repercussions on the stance of Pakistan Government and may strain its relationship with the neighbouring countries. Besides, there are some other grounds disclosure of which is against the public interest.
(iv) Continuance of his activities is likely to create unrest in the public and poses threat to public safety, maintenance of public order and security of Pakistan.
(v) The detenu shall be at liberty to make a representation to the Government against the order of detention.
2. At the very outset the learned counsel for the petitioner contended that the detenu had been arrested on 28-8-2006 just after his release from his previous detention under the order of the High Court and at the time of detention up to the filing of this writ petition the detention order as well as the grounds of detention have not been supplied to the detenu and for non-supplying of the detention order and the grounds of detention is sufficient to declare the detention of the detenu Hafiz Muhammad Saeed as illegal and without lawful authority. Further contended that grounds Nos.4 and 5 have already been ruled out by this Court vide order, dated 28-8-2006 passed in the Writ Petition No,8613 of 2006 (PLD 2007 Lah. 128) filed by the present petitioner/wife of the detenu.
Further contended that like the previous detention order, no fresh material justifying the detention of the detenu is available on the record . Continued that the "Jamat-ud-Dawa" is an N.G.O. And the services rendered by the organization have been admitted by the President of Pakistan in his book "In the Line of Fire" as well as the other international personalities. Further contended that there is no basis for ground No,3 if there was some material before the detaining authority this ground was not disclosed by the detaining authority while passing the earlier detention order, dated 9-82006. The learned counsel for the petitioner has referred a clipping of press conference addressed by the Foreign Office of Pakistan Spokesman on 15-8-2006 whereby the terrorists activities against the detenu have absolutely been refuted.
3. On the other hand, learned Additional Advocate-General Punjab, vehemently opposed the arguments of the learned counsel for the petitioner contending that the copy of the order of detention as well as grounds of detention have been supplied to the detenu at the time of his detention. Further contended that the supply of the grounds of detention at the time of passing the detention order is not legal requirement of law. The grounds of detention can be communicated to the detenu even after some delay. Further contended that there is material before the detaining authority to justify the detention of the detenu and the authority has the privilege not to disclose the reasons of detention if it is not in the public interest. Further contended that the detention of the detenu is not a punitive detention, it is a preventive detention to safeguard the life of the detenu, which is essential in the opinion of the detaining authority and the reasons for the said detention could not be disclosed.
4. I have heard the learned counsel for the parties and perused the record
5. Article 10 of the Constitution of the Islamic Republic of Pakistan, 1973 provided safeguard as to the arrest and detention of a person which is reproduced as under:-- "(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before a Magistrate within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the nearest Magistrate, and no such person shall be detained in custody beyond the said period without the authority of a Magistrate.
(3) Nothing in clauses (1) and (2) shall apply to any person who is arrested or detained under any law providing for preventive detention.
(4) 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 authorise 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.
(5) 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 the authority making any such order may refuse to disclose facts which such authority considers it to be against the public interest to disclose.
(6)
(7)
(8)
(9) ......................................................................
' The detenu has been detained vide order, dated 28-8-2006 passed by the detaining authority/respondent No,2. It would not be out of place to mention here that the detenu was already under detention for 30 days before passing the detention order. He was detained by respondent No,2 vide order, dated 9-8-2006, which was set aside by this Court on 28-8-2006 and the order of detention was communicated to the authority at 4-30 p.m. Thereafter he was released and taken to his residence but as soon as he started his night dinner, his house was surrounded by the police force and further detained for a period of 60 days.
6. The objection of the learned counsel for the petitioner is that neither the detention order nor the grounds of detention were supplied to the detenu at the time of his arrest till 11-10-2006 while his habeas petition has been filed by the petitioner on 2-10-2006. The learned counsel for the petitioner explained that the delay in filing the writ petition was due to non-supply of the detention order as well as the grounds of detention. The detenu has filed his representation before the authority on 12-9-2006, which has not been decided as yet by the respondent, reasons best known to him. This writ petition came up for hearing before this Court on 10-10-2006 when the copy of the writ petition along with the Annexures was handed over to Mr. Muhammad Hanif Khatana, Additional Advocate-General and the case was adjourned to 11-10-2006 on his request but on the said date no detention order was produced by the Additional Advocate-General and he made a request for further adjournment to have fresh instructions from the concerned quarters and the case was further adjourned to 16-10-2006 and on the said date the detention order along with the grounds of detention have been filed in the Court. From the perusal of the fresh detention order it indicates that by endorsing the said order a copy of the same was forwarded for information and necessary action to the Provincial Police Officer, Punjab, Lahore for service upon the detenu and thereafter copy of the order duly received by the detainee and attested by the serving officer was to be sent back to this department for record.
7. Learned Additional Advocate-General when asked to show any record or document that the copy of the order was communicated to the detenu or it was received by him from the serving officer in compliance with the detention order of the Home Department, has miserably failed to produce any material to support the ,assertion of supplying the copy of the detention order or the grounds of detention. So much so no counter-affidavit has been filed by the respondents to contradict the contents of the writ petition and the objections raised by the learned counsel for the petitioner. Sub-Article (5) of Article 10 provided that for a 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. It has not been denied by the respondents or the Additional Advocate-General that the representation has been filed by the detenu on 12-9-2006 and till date the representation has not been decided. It is also mentioned in the representation that the copy of the detention order and grounds of detention have not been supplied to the detenu. This allegation has not been denied by the learned Additional Advocate-General rather stated that the delay in supplying the grounds of detention is not fatal to the case of the respondents because one of the grounds of detention is the privilege of the authority not to disclose the facts which have been considered while passing the order of detention.
8. Article 10 of the Constitution of the Islamic Republic of Pakistan, 1973 provides safeguard as to arrest and detention of a citizen of the country. First basic principle envisaged therein that no person shall be arrested and detained in custody, without being informed, as soon as may be, of the grounds for such arrest. Clause (2) of this Article covers the case of a person who is arrested for a substantive offence and the requirement is specified that he has to be produced before a Magistrate within 24 hours for obtaining a remand. Clause (4) of this Article relates to the cases of preventive detention as is the case of the detenu. Clause (5) of the Article contemplates that grounds of detention shall be communicate within 15 days from such detention, which means that 15 days time has been allowed by the Constitution. It is the maximum limit for supply of grounds of detention and it can be done even earlier than that period. This requirement of the Constitution has to be kept in view at the time of detaining a person or dealing with the cases of detention.
9. Section 3(6) of the Punjab Maintenance of Public Order Ordinance, 1960 further provided that where a detention order has been made under this section the authority making the order shall, as soon as may be communicated 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. In this context the provision of Article 10 of the Constitution of the Islamic Republic of Pakistan, 1973, will attract the case, which contemplates that communication of the grounds shall be made within 15 days and it is the maximum limit of delay and the words "as soon as" appearing in section 3(6) of the Ordinance shall be interpreted or read in such a way that it would be consistent with requirement of the Constitution.
10. Communication/supply of the grounds of detention is the essential requirement of the Ordinance for the reason that it is the material ingredient upon which the authority relies to pass order of detention so it can be presumed that grounds of detention must precede order of detention, which would indicate that first there should be grounds in the form of material which is to be considered by the authority to pass the order of detention so existence of grounds of detention is to be supposed presupposed.
11. In view of the above referred provision of the Constitution as well as the Ordinance, it is the legal duty of the detaining authority to supply the order of detention along with the grounds of detention simultaneously. But in the case in hand, neither the order of detention nor grounds of detention were supplied to the detenu. It was done so when this Court has taken note of the situation. The objection raised by the learned counsel for the petitioner that at the time of filing of the writ petition the respondents have neither supplied the detention order nor the grounds of detention and they have violated the mandatory provisions of the Constitution as well as the Ordinance. This allegation/objection has not been controverted by producing some oral or documentary evidence, so much so, no counter-affidavit rebutting the grounds and objections raised by the petitioner has been filed. Reference in this context can be made to the cases of Ghulam Ahmed v. Government of Sindh and another PLD 1988 Kar. 237 and Ahmed Fahim Mughal v. Muhammad Saleem Khan, District Magistrate and D.C. (South), Karachi and 2 others PLD 1990 Kar.
474.
12. This Court has already given its opinion with regard to grounds Nos.4 and 5 and the grounds of detention. So far as grounds Nos.1 and 2 are concerned, these are vague and it is settled proposition of law that if any of the ground of detention is vague the whole detention order would not be sustainable, in law. Reference in this context can be made to the cases of Gulzar Ahmad v.
District Magistrate and another 1988 PCr.LJ 1790 and Arbab Akbar Adil v. Government of Sindh through Home Secretary, Government of Sindh, Karachi PLD 2005 Kar.
538.
13. As argued by the learned Additional Advocate-General that the detention of the detenu was not a punitive, it was a preventive detention to safeguard the life of the detenu but it is essential that this reason or ground should have been disclosed to the detenu himself so that he should decide that whether he would like to stay in detention or he can manage himself for his own safety. So far as the question of creating law and order situation or the activities of the detenu prejudicial to the public interest, even this time the respondents have not been able to establish on the record their case for maintaining the detention of the detenu.
14. For the facts and reasons mentioned above, I am of the considered view that the detention order dated 28-8-2006 passed by respondent No,2 is illegal and not sustainable under the law, as such I hereby quash the same. In the result, petition is allowed. The detenu shall be set at liberty forthwith if not required in any other case.
15. On 17-10-2006 I had already allowed this writ petition by a short order for reasons to be recorded later, which are now given above.