' MUHAMMAD AKHTAR SHABBIR, J.---This writ petition has been filed to call in question the vires of the detention order passed by the Secretary to the Government of the Punjab, Home Department, dated 9-8-2006 detaining the husband of the petitioner Haifz Muhammad Saeed, Ameer Jamat- ud-Dawa, Pakistan for 30 days. The grounds of detention on the basis of which the order has been passed enumerated as under:--
(i) That you have been inviting and holding meetings with different elements of society and instigating them to defy the lawful order of the Government which will result in disruption of peace and may result in serious law and order situation.
(ii) You are a fire brand speaker and there is credible information that you will deliver inflammatory speeches for instigating the general public in violation of restriction order under section 144, Cr.P.C.
(iii) That your activities have been found prejudicial to the public safety and maintenance of public order;
(iv) That continuance of your above mentioned activities are likely to create unrest in the public and threat to the law and order situation, thus giving rise to. a situation prejudicial to the public safety and maintenance of public order.
2. The learned counsel for the petitioner contended that there is no substantial material or evidence before the detaining Authority to substantiate the grounds of detention of the detenu and that the order is based on vague grounds, speculations, and presumptions only. Further contended that the detention order supplied to the detenu is not signed by the competent Authority. The liberty of the respectable citizen of the country has been curtailed by the respondents on the basis of mere report of the C.C.P.O. Lahore and the Authority has not applied its minds while passing the impugned order. Further contended that the petitioner's organization has applied to the district administration for holding of procession/meeting in respect of the Independence Day celebration, which was accepted by the District Coordination Officer, Lahore on 8-8-2006 and thereafter on the said date the No Objection Certificate issued by the D.C.O. Was recalled without any reasons which establish the mala fide of the respondents. Further contended that the police report is not sufficient to detain a free person of a free country. Further contended that the detention order was passed by the respondents to restrain the detenu from holding the public meeting with regard to the Independence Day/14th August and that event has passed, now no reason exists for detention of the detenu. Further contended that the detenu has preferred a representation, which has not been decided as yet. Further contended that the petitioner has no option but to knock the constitutional jurisdiction of this Court for redressal of his grievance in respect of infringement of his fundamental rights. Learned counsel for the petitioner based his arguments on the judgments passed by this Court as well as by the apex Court.
3. On the other hand, learned Addl. Advocate General Punjab at the very outset objected to the maintainability of the writ petition on the ground that the petitioner has filed this petition without exhausting the alternate remedy available under the law. He relied on the case of Wealth Tax Officer and another v. Shaukat Afzal and 4 others 1993 SCMR 1810, Muhammad Siddiq Khan v.
District Magistrate PLD 1992 Lahore 140, Maulana Muhammad Azam Tariq v. The District Magistrate, Jhang and 2 others 2001 PCrLJ 1727 and Sheikh Rashid Ahmad v. D.M. Rawalpindi and others 2004 PLJ (Lahore) 1221. Further contended that the impugned order has been passed by the respondents on the basis of the information and material referred by the C.C.P.O. Lahore and if the detention has not been passed, the activities of the detenu would have prejudiced the public safety and maintenance of public order and that the detenu who is a firy speaker could instigate the general public in violation of the restriction order under section 144, Cr.P.C.
4. I have heard the learned counsel for the parties and perused the record.
5. The detenu has been detained in exercise of the powers conferred upon the government under section 5 of the Punjab Maintenance of Public Order Ordinance, 1960 which is reproduced as under for further guidance and ready reference:-- "(1) Government or the District Magistrate, if satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to public safety [or public interest] or the maintenance of public order, it is necessary so to do, may be order in writing, give any one or more of the following directions, namely, that such person---
(a) shall not enter, reside or remain in any area that may be specified in the order;
(b) shall reside or remain in any area that may be specified in the order;
(c) shall remove himself from, and shall not return to, any area that may be specified in the order;
(d) shall conduct himself in such manner or abstain from such acts, as may be specified in the order; and
(e) shall enter into a bond, with or without sureties for the due observance of the directions specified in the order.
(2) An order under subsection(1) made by the District Magistrate shall not, unless Government by special order otherwise directs, remain in force for more than three months from the making thereof.
(3) Government may at any time cancel or vary any order made by the District Magistrate under subsection (1).
(4) An order under clause (a) of subsection (1) made by government may specify as the area to which the order relates, the whole province or any part thereof, and on order made by the District Magistrate may specify as such area they whole district or any part thereof: ' Provided that no such order made by Government shall direct the exclusion or removal from the province of any person ordinarily resident in the province and no such order made by the District Magistrate shall direct the exclusion or removal from the district of any person ordinarily resident in that district.
(2) Where an order has been made under subsection (1), 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.
(5-a) Where a representation is made to Government against an order passed under subsection (1), Government may, on consideration of the representation and after giving the person affected an opportunity of being heard, modify, confirm or rescind the order.
(5-b) No order under clause (b) of subsection (1) shall have effect for a period exceeding three months unless the Board constituted under subsection (5) of section 3 has reported, before the expiration of the said period, that there is, in its opinion, sufficient cause for the making of such order; and the provisions of subsections (5-b), (5-c), (5-d), (5-e) and (5-f) of section 3 shall, mutates mutandis, apply to the reference made to the Board in regard to any such order.
(6) An order made under subsection (1) shall remain in for a for such period not exceeding two years as may be specified in the order."
6. Article 9 of the Constitution provided that "No person shall be deprived of life or liberty save in accordance with law". Article 10 of the Constitution enshrines that "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 be denied the right to consult and be defended by a legal practitioner of his choice."
Where a person detained is aggrieved of his act of detention that it was not justified in law, that person has the right to invoke the jurisdiction of the High Court immediately for restoration of his liberty, which is basic fundamental and birth right and where an order passed by an executive Authority detaining a particular person is challenged before the High Court in exercise of it extraordinary constitutional jurisdiction, it would be by means of judicial review and it is not an appeal or revision. The right of a person to a petition for "habeas corpus" is a high prerogative right and is a constitutional remedy for all matters of illegal confinement. The impugned order detaining the detenu is a preventing order to prevent or restrain the detenu from the activities, which could prejudicial to the public safety and maintenance of public order in the province of Punjab (District Lahore).
7. The superior Courts have laid down requirements for passing of a preventing detention order, which has to satisfy the following requirements:
(i) The Court must be satisfied that the material before the detaining Authority was such that a reasonable person would be satisfied as to the necessity for making the order of preventive detention;
(ii) that satisfaction should be established with regard to each of the grounds of detention, and, if one of the grounds is shown to be bad, non-existent or irrelevant, the whole order of detention would be rendered invalid;
(iii) that initial burden lies on the detaining Authority to show the legality of the preventive detention; and
(iv) that the detaining Authority must place the whole material, upon which the order of detention is based, before the Court "notwithstanding" its claim of privilege with respect to any document, the validity of which claim shall be within the competence of the Court to decide.
8. In addition to these requirements, the Court has further to be satisfied, in cases of preventive detention, that the order of detention was made by the Authority prescribed in the law relating to preventive detention; that each of the requirements of the law relating to preventive detention had, been strictly complied with; that "satisfaction" in fact existed with regard to the necessity of preventive detention of the detenu; that the grounds of detention had been furnished within the period prescribed by law, and if no such period is prescribed, then "as soon as may be"; that the grounds of detention should not be , vague and indefinite and should be comprehensive enough to enable the detenu to make representation against his detention to the Authority prescribed by law; that the grounds of detention are not irrelevant to the aim and object of this law and that the detention should not be for extraneous consideration or for purposes which may be attacked on the ground of malice. The above mentioned criteria has been laid down by the Honourable Supreme Court of Pakistan in the case of Federation of Pakistan through Secretary, Ministry of Interior, Islamabad v. Mrs. Amatul Jalil Khawaja and others (PLD 2003 S.C. 442).
9. Two grounds of detention of the detenu are that:
(i) You are a fire brand speaker and there is credible information that you will deliver inflammatory speeches for instigating the general public in violation of restriction order under section 144 Cr. P.C.
(ii) That your activities have been found prejudicial to public safety and maintenance of public order.
' That Jamat-ud-Dawa had applied to the D.C.O. For holding a public meeting/procession, which was granted on 8-8-2006. It would be appropriate to mention here that this permission and No Objection Certification granted by the D.C.O. On 8-8-2006 in favour of Jamat-udDawa for holding of a procession and public meeting has been recalled on 8-8-2006 on the same day by the said Authority. The meeting or procession was not held by the detenu's organization and that period has already passed. It is not an allegation or ground that the detenu is a fire brand speaker. It is a qualification of a person and not a disqualification There is no material available before the detaining Authority nor any such material /evidence was produced before this Court how the activities of the detenu were found prejudicial to the public safety and maintenance of public order. These are the vague grounds and it is established law by the superior Courts that when one of the grounds of detention was vague. It would prove fatal for the entire detention order and mere fact that some other grounds was lawful could not validate an invalid detention order. Reference is this context can be made to the cases of Gulzar Ahmad v. District Magistrate and another (1988 PCr.LJ 1790), Arbab Akbar Adil v. Government of Sindh through Home Secretary, Government of Sindh, Karachi (PLD 2005 Karachi 538) wherein it has been held by the Division Bench of the Karachi High Court that if out of several grounds even a single ground is not sustainable in facts and law the entire detention order would be held to be invalid and not sustainable in law.
10. The order of detention has been passed by the respondent Secretary, Government of the Punjab Home Department only on the receipt of a letter from the C.C.P.O. Lahore in a mechanical manner only on the ground that the detenu if not arrested or detained would create law and order situation in the District. The detention order of the detenu has been passed on the general terminology of acting "in a manner prejudicial to the public safety and maintenance of public order" without specifying the actual guilt or crime would be a vague order and limiting the liberties of a human beings on vague allegations is not only unconstitutional, but also offended against the basic principles of a the teachings of Islam and such order could not be sustainable in law. Reference in this context can be made to the case of Haji Muhammad Ishaq Shah v. District Magistrate, Lakki Marwat and 2 others (1999 PCr.LJ 1558). The word power of arrest and detention and control have been conferred on the government. Section 3 subsection (1) of the Punjab Maintenance of Public Order Ordinance, 1960 is reproduced as under:-- "Government, if satisfied that with a view to preventing any person from acting in any manner prejudicial to public safety and 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, extend from time to time the period of such detention, [for a period not exceeding six months at a time.] And the same word used in section 5 subsection (1) that the Government or the District Magistrate, if satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to public safety [or public interest] or the maintenance of public order, may issue direction for his detention or to reside or remain in an area that may be specified in the order."
11. Satisfaction of the detaining Authority can be reviewed and examined by the Court to the effect that whether the "satisfaction" about the existence of the requisite condition is a "satisfaction really and truly" existing in the mind of the detaining Authority or one "merely professed by the detaining Authority." A duty has been cast upon the High Court, whenever a person detained in custody in the Provinces is brought before that Court, to "satisfy itself that he is not being held in custody without lawful Authority or in an unlawful manner". It has been held by the Honourable Supreme Court of Pakistan that this constitutional duty cannot be discharged merely by saying that there is an order which says that he is being so detained. If the mere production of an order of detaining Authority, declaring that he was so dissatisfied, was to be held to be sufficient also to "satisfy" the Court then what would be the function that the Court was expected to perform in the discharge of this duty. So in such circumstances, it would not be unreasonable for the Court, in the proper exercise of its constitutional duty, toinsist upon a disclosure of the material upon which the Authority had acted so that it should satisfy itself that the Authority had not acted in an "unlawful manner". Reference in this context can be made to the cases of Mir Abdul Baqi Baluch v. The Government of Pakistan through the Cabinet Secretary (PLD 1968 SC 313) and Ashutosh Lahiry v. The State of Delhi and another (AIR. 1953 SC 451).
12. The reasonableness of the grounds of detention can also be examined while exercising constitutional jurisdiction. Order of detention must show on the face of it that the detaining Authority is satisfied to the effect specified under the relevant detention law and if there is no record of satisfaction of the detaining Authority the order of detention can be declared to have been passed without lawful Authority and ab initio void and to satisfy itself the High Court while exercising its constitutional jurisdiction, can examine the material on which the satisfaction of the detaining Authority is based to determine whether the same was sufficient for the satisfaction of the detaining Authority. So much so where a privilege is claimed by the detaining Authority with regard to some material or document even then the High Court would be competent to examine the document or material regarding which privilege is sought in order to determine as to whether such privilege is being claimed in advisedly, lightly or as a matter of routine. Reference in this context can be made to the cases of National Bank v. Farid sons Limited (20 DLR (S.C. 249), Liaqat Ali v. Government of Sind through Secretary, Home Department and another (PLD 1973 Karachi 78) and Government of Sindh through .The Chief Secretary, Karachi and 4 others v. Raeesa Farooq and 5 others (1994 SCMR 1283).
13. One of the ground for detention of the detenu is that "You have been inviting and holding meetings with different elements of society and instigating them to defy the lawful order of the government which will result in disruption of peace and may result in serious law and order situation". In support of this ground of detention that how many meetings were held with the different elements of society and in what and in which manner he has instigated them to create law and order situation and it was prejudicial to the public safety and maintenance, of public order. This opinion can only be formed on the basis of some evidence or record. To satisfy the detention order and such material is badly lacking in the present case. Learned Addl. Advocate General appearing to defend the detention order has miserably failed to produce or refer any piece of evidence or material before this Court to justify this ground of detention of the detenu.
Ground No,4 of the detention order "that continuance of your above mentioned activities are likely to create unrest in the public and threat to the law and order situation, thus giving rise to a situation prejudicial to the public safety and maintenance of public order" is also linked with the above mentioned ground. All the four grounds of detention appearing on the detention order issued by the Home Secretary of the Government of the Punjab are without any substance, evidence and record.
14. So much so, learned Addl. Advocate-General was asked to point out any public meeting or procession held by the detenu in the near past from the date of detention order which created unrest, law and order situation among the masses, could not respond. No such material was available in the record except the report of the C.C.P.O. Lahore, which is only the mere opinion of the Police Officer and not supported by any other material or the evidence. All the grounds of the detention enumerated in the detention order passed by the respondents are vague, based upon presumptions and speculations. It is sufficient to infer that the detaining authority has not applied its mind to satisfy itself for issuance of detention order of the detenu.
15. In the case of Khan Ghulam Muhammad Khan Loondkhawat and others v. The State PLD 1957 (W.P.) Lahore 497 a Division Bench of this Court had declared that where there is no record of satisfaction of the detaining authority, the order of detention is ab initio void. This principle laid down has been upheld and maintained by the High Court of this country as well as the Honourable Supreme Court of Pakistan in cases where the Court is satisfied that a person is being held in custody without lawful authority, the only course open to the Court is to set him at liberty and to hold otherwise would not only be against the spirit underlying Article 199(1)(b)(i) but would also "sin" against the fundamental rights enshrined in Articles 9 and 10 of the Constitution. Reference in this context can be made to the case of Noor Hussian v. Superintendent, Darul Aman, Multan and 2 others PLD 1988 Lahore 333).
16. The instant petition has been filed by the petitioner rebutting the allegations of detention of the detenu and supported by the affidavit of the petitioner. No counter-affidavit has been filed on behalf of the respondents controverting the allegations made in the petition besides the report of the C.C.P.O. Lahore, there is no material available with the Addl. A.-G. To support the allegations on the basis of which the impugned order of detention has been passed, which is wholly vague in nature and no particulars or instances have been quoted in the letter of the C.C.P.O. Unless and until details are stated in the grounds of detention, it is not possible for any detenu to effectively meet bald allegations made against him. In the absence of any material on record in support of vague allegation and also because of there being no denial of any assertion made in the petition, the impugned order would be unsustainable in law. Reference in this context can be made to the case of Abdul Hague alias Dost Muhammad v. District Magistrate and Deputy Commissioner, Naushahro Feroze and 3 others PLD 1990 Kar.
481.
17. As to the objection of the learned Addl. Advocate General that the alternate remedy has not been exhausted by the petitioner or the detenu by filing a representation to the Government, it would be suffice to observe that the representation to the Government against the detention order passed by the Government itself is not an adequate remedy. There is no cavil with the fact that subsection (6-a) of section 3 of the Maintenance of Public Order Ordinance, 1960 provided a remedy but certainly in the absence of any requirement that the government shall consider the representation this cannot be considered to be an 'adequate' remedy in matters which concern the liberty of subject/citizen of the country. Reference in this context can be made to the case of Abdul Hamid Khan v. The District Magistrate Larkana and 2 others (PLD 1973 Kar. 344) wherein it has been observed that "it is true that the provision authorizes the detenu to make a representation to Government and also require the Government to afford him the earliest opportunity of being heard, before deciding to modify, confirm or rescind the order" but no time for decision of the representation has been provided under the law, therefore, the representation would not be an adequate remedy. Reference in this context can be made to the cases of Masai Khan v. District Magistrate, Peshawar and 3 others PLD 1997 Peshawar 148 and Rao Shahid Ali Khan v. Secretary Home Department, Government of Punjab, Lahore and 4 others 2005 MLD 1771.
18. The most important aspect of the case is that the Provincial Home Secretary has filed the para wise comments and has expressed his views to justify the impugned order and the decision of the representation by him, thus filing of the representation would be a futile efforts, therefore, the petitioner can invoke the constitutional jurisdiction of this Court. Reference in this context can be made to the cases of Mulazim Hussian Shah v. Province of Punjab through Secretary Home Department, Government of Punjab, Lahore and 2 others PLD 2006 Lahore 108 and Abu Bakar Muhammad Reza v. Secretary to Government of Punjab, Home Department and 3 others PLD 2005 Lahore 370.
19. This petition was filed by the wife of the detenu and she cannot file a representation. However, the detenu himself has filed a representation on 10-8-2006. During the arguments the learned Addl. Advocate-General sought adjournment to have instructions from the concerned quarters with regard to the decision of the representation and today he has placed on record a copy of the order dated 26-8-2006 passed by the Secretary, Government of the Punjab, Home Department wherein he has rejected the representation being devoid of merits. From perusal of this order, it reveals that the same stand taken in the reply has been repeated in the said order. It is further stated that the petitioner's organization "Jamat-ud-Dawa" has again applied for a public meeting to be held on 6-9-2006, which will disturb the public peace and tranquility. This was not the reasonable ground for rejection of the representation of the detenu. The D.C.O. Or the Government is empowered to refuse to grant the permission to the petitioner's organization for holding the public meeting but it does not appeal to a prudent mind that the detenu is holding a meeting just to instigate the public at large and to create the law and order situation. The other aspect is that if the petitioner holds the meeting without the permission and in violation of section 144, Cr.P.C. He is liable to be prosecuted under section 188, P.P.C. Defying the enforcement of section 144, Cr.P.C.
There is no fresh material or evidence placed before the Home Secretary on the basis of which he has rejected the representation tiled by the detenu. In this order same old grounds for detention have been narrated by respondent No,2.
20. In view of the above discussion, it is held that the detaining Authority has failed to "satisfy" itself for passing the preventive detention order of the detenu keeping in view the criteria laid down by the superior Courts of the country on the basis of the evidence in support of the grounds of detention mentioned in the detention order.
21. The detenu has been deprived of his fundamental rights as enshrined in Articles 9 and 10 of the Constitution and if such type of case is placed before the High Court, the High Court will take the notice of the same and exercise its powers to issue the writ when the violation of fundamental rights of a citizen of the country is involved. The detenu is a free citizen of a free country and he has a right to move freely according to his own wishes. If an allegation qua a detained person is leveled that his acts would be prejudicial to the public order then it must be shown that the act or activity is likely to effect the public-at-large, therefore, it follows that where an act is concerned with an individual and does not amount to be prejudicial to the public peace and cannot fall within the ambit of section 3 of the Ordinance. In the present case, only the acts of detenu have been said prejudicial to the public order but not the activities of his organization. If the detenu has held a meeting with different people of the society, the concerned authorities must have collected some evidence to connect the detenu with such type of activities, therefore, when an act which concern only to an individual, it does not amount to an activity prejudicial to the public peace and tranquility and cannot fall within the ambit of section 3 of the Maintenance of 'Public Order.
Reference in this context can be made to the case of Mrs. Arshad Ali Khan v. Government of the Punjab through Secretary, Home 1994 SCMR 1532.
22. For the foregoing reasons, I find that the order of detention of the detenu does not fulfil the requirements of law and criteria laid down by the superior courts to keep a citizen of the country under detention for a certain or indefinite period. Therefore, this writ petition is accepted. The impugned order of detention dated 9-8-2006 passed by respondent No,2 detaining the detenu Hafiz Muhammad Saeed is declared to have been passed illegally and not sustainable in law, hence set aside, the detenu shall be set at liberty forthwith if not required in any other case.