' MUHAMMAD JEHANGIR ARSHAD, J.--- The writ petition in hand was allowed through the following short order dated 9-2-2007:- "For the reasons to be recorded later on, this writ petition is allowed, the impugned order of the Home Secretary dated 10-1-2007 is set aside being without lawful authority and without jurisdiction and Ghulam Shabir alias Fauji is directed to be released forthwith if not required in any other case."
' This judgment shall form part/reasons of the above short order.
2. The petitioner through this constitutional petition has challenged the order dated 10-1-2007 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 Ghulam Shabir alias Fauji husband of the petitioner.
3. On 25-1-2007 copy of this petition was handed over to the learned Law Officer for obtaining report and parawise comments from respondent No,1. 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 but no material whatsoever except some report of the D.P.O. Khanewal and list of cases in which the detenu had been involved, has been appended with this report.
4. When questioned the learned Law Officer replied that the impugned order was passed on the basis of secret report of the agencies which could not be produced in Court being privilege documents and if time is granted the same would be shown to the Court in chamber.
5. It has been argued by learned counsel for the petitioner that impugned order has been passed without conscious application of mind and with regard to the list of cases attached with the report it is argued by learned counsel for the petitioner that none of the said case is from the recent past but were registered against Ghulam Shabir between 1992 to 1997 and in all these cases the detenu was acquitted and thus mere registration of those cases could not be made basis for passing the impugned. Further that as detenu has already submitted a bond in terms of section 11-EEE of the Anti-Terrorism Act, 1997 and in case the detenu has acted in violation of such bond he could be prosecuted in terms of subsection (4) of the same but no step has been taken to prosecute the detenu in terms thereof. It is next contended that even the report of the D.P.O. Dated 6-1-2007 shows that on 26-8-2006 the detenu was released from Anti-Terrorism Court in case F.I.R. No,32 dated 20-2-1997 but very order of acquittal has been made ground by the D.P.O. In his report to support the impugned of detention and even otherwise, the report of the D.P.O. Is also not supported by any material and is nothing but the wish of the D.P.O. For passing the order of detention, whereas, no detention order could be passed on the basis of such report.
6. 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
7. I have considered the arguments of learned counsel for the parties and have also gone through the entire material available before me.
8. The question as to whether certain documents are privilege one, can only be determined by the Court and not by the authority relying upon those documents while passing the impugned order.
Reliance is placed on Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others 1994 SCMR 2142 and Government of Punjab through Secretary, Services and General Administration Department, Government of Punjab, Lahore v. Ch. Muhammad Mahmood Advocate and 22 others PLD 1988 SC 376. Since despite direction by the Court the respondent failed to produce any material justifying the order of detention, and has only opted to place on record some report of the District Police Officer, Khanewal and also list of some case in which the detenu had been involved in past and was also acquitted, therefore, it can be safely presumed that there was no sufficient material available before the detaining authority at the time of passing of the impugned order except the report of the D.P.O. And the list of cases in which the detenu had been involved in past but was acquitted in all the cases. In the report it has been submitted that:-- "Ghulam Shabir alias Shabbira Fauji is a sectarian activist of category "A". He is activist of defunct organization "Sipah Sahaba Pakistan/Lashkr-e-Jhangvi" and is involved in numerous sectarian cases. He has links with sectarian terrorist who are visiting him frequently. He is instigating the sectarian activist to commit violence. He is in the habit of disappearing from the home without informing the police. He is planning to disturb the peace and tranquillity of the area. He is secretly continuing his activities to reorganize the workers the workers of "Sipah Sahaba Pakistan/Lashkr-e- Jhangavi" and his activities are likely to disturb Law and Order situation at any time."
' But as pointed out above, no material showing detenu's involvement in any of the said activities, has been produced. The only material produced by respondent in support of the impugned order is one sided report submitted by Shahid Hanif, P.S.P./D.P.O., Khanewal and list of criminal cases registered against the detenu from the year 1992 to 1997. Admittedly the detenu has already furnished bond in terms of section 1I-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 case was 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 cases. Further report of D.P.O. Khanewal is based on mere apprehensions and do not disclose even a single event of physical involvement or participation of the detenu in any anti-social activities in order to attract the provisions of section 11-EEE of the Act. 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 a citizen 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. In the absence of any material in support of the detention order, in the light of law declared by 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, this Court has no option except to strike down the impugned order by declaring the same as without lawful authority.
9. Before parting with this judgment, I would like to point out that earlier this Court in similar circumstances (Writ Petition No,5933 of 2006 Amir Khanum v. Government of Punjab) set aside the detention order passed by the Home Secretary, Government of Punjab -against one Tanvir Khan, holding that unless the detention order is supported by some material the same could neither be based nor could subsist in the eyes of law. In the present case also the same Home Secretary (Khasroo Pervaiz Khan) has passed the detention order in a sweeping manner and blindly relying upon the report of the D.P.O. As well as list of criminal cases registered against the detenu in past and after his acquittal in all those cases. Therefore, a strong note of warning is issued to respondent No,1 that in case in future any detention order passed in such-like manner, which otherwise, amounts to depriving a citizen of his right of liberty and protected by Article 10 of the Constitution of Islamic Republic of Pakistan, 1973, this Court while setting aside the said order would not be slow in imposing heavy penalty/costs and also burdening him with heavy compensation for acting against the Constitution as well as law, because it is fundamental duty of this Court to interfere in suchlike cases and stop the hands of the concerned authorities from usurping the fundamental rights of the citizen provided and guaranteed by the Constitution; and in case if such-like acts are allowed to remain unchecked this Court would be failing in its duty conferred on it under Article 199(1)(b)(i) of the Constitution, as obedience to the Constitution and law is the fundamental duty and every body is bound to obey the command of the Constitution. In this respect this Court being Constitutional Court is always required to ensure that every public functionary is to act in accordance with law and the Constitution and no person should act its violation. The case Ch. Manzoor Elahi v. Federation of Pakistan and others PLD 1975 SC 66 is an authority on the subject.
10. 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, Ghulam Shabir alias Shabbira Fauji detenu is directed to be released forthwith if not required to be detained in any other matter. Copy of this order be sent to respondent No,1 for his perusal and strict compliance in future.