' SYED SHABBAR RAZA RIZVI, J.---The instant writ petition has been filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 on behalf of the petitioner who is a Chairman of Tehrek-e-insaf Pakistan. In the above capacity the petitioner claims struggling for rule of law in the country. According to the learned counsel, the petitioner, in view of his differences with the government is facing several hostile actions of the government to stop him from achieving his high objectives.
2. That on 27-5-2007 the petitioner was restrained from leaving for Karachi to the Allama Iqbal Airport, Lahore. The petitioner was handed over a photocopy of an order, dated 26-5-2007 issued by respondent No.2, Home Secretary, Government of Punjab, whereby the petitioner was directed to reside or remain within the revenue limits of Lahore. This order was to remain in force for three days. It was further written in the impugned order that grounds for restraint would' be conveyed in due course of time. The petitioner was allowed to make a representation to the government against the impugned order.
3. According to the learned counsel, there was no reasonable ground for respondent No.2 to pass the impugned order and the same was passed for mala fide reasons. According to the learned counsel, the challenged order was passed in violation of Articles 2-A, 4, 10, 15 & 19 of the Constitution.
4. In the prayer clause of this writ petition it is requested that since the order is violative of the fundamental rights, mala fide and nullity in the eyes of law, therefore, be quashed with special costs and it is further prayed that a writ petition of habeas corpus be issued in favour of the petitioner etc.
5. The case was fixed before this Court on 29-5-2007 and the following order was passed:- "The learned counsel seeks quashment etc of impugned order, dated 26-5-2007 being illegal and violative of the fundamental rights guaranteed under the constitution."
' Para.2 of the order reads as under:-- "Now, therefore, in exercise of the powers conferred upon me under section 5(1)(b) of the Punjab Maintenance of Public Order Ordinance, 1960, the Government of the Punjab is pleased to order that above mentioned, Imran Khan, Chief of Tehreek-eInsaaf, Pakistan r/o Lahore shall reside or remain within the revenue limits of Lahore. This order shall remain in force for 3 days with immediate effect."
' The impugned order clearly mentions that it shall remain in force for 3 days with immediate effect.
The order was signed on 26-5-2007. That means counting of 3 days started from 26-5-2007 and the period of three days expired on 28-5-2007. Resultantly, the impugned order is not in force anymore as this writ petition has come up before me today i.e. 29-5-2007".
6. Despite above the learned Addl. Advocate General, Punjab was directed to seek a report from respondent No.2. According to the report submitted by respondent No.2, the restraining order had already expired on 28-5-2007. The learned counsel for the petitioner also concedes that after 28- 5-2007, there was no restriction on movement of the petitioner of any kind, whatsoever. Therefore, legally when the instant writ petition came up for hearing before me on 29-5-2007 the petitioner had no grievance to maintain the instant writ petition or to proceed against the respondents.
However, learned counsel for the petitioner insisted that despite expiry of the impugned order the same may be declared unlawful and without any lawful authority. In this regard the learned counsel referred to several precedent cases i.e. PLD 1963 (W.P.) Lahore 109, PLD 1973 Karachi 78, PLD 1983 Lahore 244, PLD 2007 Lahore 128, 2004 PLC (C.S.) 604, PLD 1997 SC 334, PLD 2003 SC 442, and PLD 2007 Lahore 128.
7. I have examined the above case law and some other cases on the subject as well. It may be pointed out that some of the judgments referred to by the learned counsel for the petitioner do not relate to the detention matters and are not relevant to the subject matter of the instant writ petition. It may also be pointed out that in all these cases, impugned orders were challenged during the continuation/existence of impugned orders. However, there was one exception which has some similarity with facts and circumstances of the present case which I will allude to later on.
8. According to me when a person is directed to remain in a particular place or area and not allowed to move out from that area without permission of the authority, it amounts illegal confinement. In this regard, further guidance can be sought from a Full Bench judgment of this Court, Ch. Muhammad Anwar v. Government of West Pakistan (PLD 1963 (W.P.) Lahore 109).
9. We have at least four most celebrated judgments from our superior courts on the law relating to the preventive detention. These judgments are:-- ' Ghulam Jillani v. Government of West Pakistan (PLD 1967 SC 373), Abdul Baqi Baluch v.
Government of West Pakistan (PLD 1968 SC 313), Govt. Of West Pakistan v. Begum Shorish Kashmiri (PLD 1969 SC 14) and Govt. Of West Pakistan v. Haidar Bux Jatoi (PLD 1969 SC 210).
10. Prior to the above judgments, the courts both in India and Pakistan used to follow the rule laid down by the House of Lords in Liversidge v. Sir John Anderson (LR 1942 AC 206). According to the judgment the detaining authority was invested with the complete power to be the judge of its own "satisfaction" with regard to the detention of the detenu and that this "satisfaction" was subjective in nature and was therefore, immune to judicial examination. However, as noted above, in Ghulam Jillani's case, our Supreme Court departed from the said rule.
11. The majority of the Supreme Court in Ghulam Jillani's case held that the conclusion of the Privy Council in Liversidge's case with regard to the construction of Rule 26 of the Defence of India Rule may had been tenable under the Government of India Act, 1935, but that under the Constitution of Pakistan of 1962, a wholly different state of affairs prevailed. Article 2 of that Constitution required that every citizen should be dealt with strictly in accordance with law and Article 98 (1962 Constitution) empowered the superior courts to probe into the exercise of public power by executive authorities to determine whether they had acted with lawful authority. Accordingly, it was held that the "satisfaction" of the detaining authority must be induced by the existence of reasonable grounds, the question of "reasonableness" being justiciable in the courts. In Abdul Baqi's case, the Supreme Court reaffirmed the above view and held that the superior Court has to determine whether the executive or administrative authority had before it sufficient material upon which a reasonable person could had come to the conclusion that the requirements of law were satisfied and that it was not sufficient for the executive authority merely to produce the order of detention, saying that it was satisfied that the detenu should be detained. Similarly, it was also held in the same judgment that the Court could, in discharging its duty under constitutional jurisdiction, demand from the authority to place before the Court material upon which it claimed to have been satisfied to pass the detention orders and that detenue was not being held without lawful authority or in an unlawful manner. Even in the case of claim of privilege documents, it was the Court who would decide whether the document was privilege or not? In the Shorish Kashmiri's 'case, it was added that in an inquiry about the reasonableness of detention, the initial burden lay on the detaining authority to establish the legality of action i.e. Issuance of detention order. On the privileged document, it was held that it was the power of the Court to inspect any document with the detaining authority to determine the validity of the claim of privilege.
12. In Haider Bux Jatoi's case, it was reaffirmed by the Honourable Supreme, Court that "satisfaction" of the detaining authority was not subjective. The relevant passage from the judgment is reproduced hereinafter:-- "The position which emerges from a close study of the provisions of section 3 of the Ordinance reproduced above is: (i) the satisfaction of the Provincial Government is not subjective, but must be based on grounds set out in subsection (ii) of section 3 and supported by material which will satisfy the Board that there is sufficient cause for detention (ii) the person detained has a right to contend against the grounds of detention both before the Provincial Government and the Board;
(iii) the opinion of the Board must rest on the material produced before it to the grounds on which the order of detention is based and against which the person detained has been given an opportunity to represent; (iv) the proceedings before the Board are of .Quasi-judicial nature and amenable to judicial review by superior Courts; and (v) the authority of the Provincial Government to extend the period of detention is derived from a favourable opinion given by the Board and not under the preliminary power conferred by subsection (1) of section 3."
' The above findings of the Honourable Superior Courts are being followed almost by all Courts in their judgments with minor variations here and there. For example, a mention may be made of PLD 1983 Lahore 244, PLD 2003 SC 442, PLD 2007 Lahore 128. However, all these judgments are based upon the findings made in the above mentioned four cases.
13. Nevertheless, the above discussion on the subject is not relevant and attracted to the facts and circumstances of the instant case. As I pointed out at the very outset, the instant writ petition is not maintainable. The impugned order had expired on 28-5-2007, which fact is also conceded in the report submitted by respondent No.2, whereas, the instant writ petition came up before me for hearing on 29-5-2007. Hence, there was no live issue or cause before me to decide. To further strengthen my view, I seek guidance from a Division Bench judgment of the Karachi High Court reported in PLD 1973 Karachi 78, Liaqat Ali v. Government of Sindh etc. A Writ Petition No.203/1972 was filed under Article 201 of the Interim Constitution of 1972 to question the validity of an order passed under the West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960) whereby Mr. Abdul Hameed Khan Jatoi (MNA) was detained for a period of 30 days from the date of the service of the order. However, during the pendency of Writ Petition No. 203 of 1972, the Court was informed that the order of detention which was the subject matter of the constitutional petition No. 203 of 1972 had been withdrawn, and therefore, that petition had become infructuous. The interesting thing in the said case was that it was further stated by the learned Advocate General that a new order of detention had been passed by the Provincial Government on 20th May, 1972 and the detention still continued under this second order after withdrawal of the first. Order. The question arose before the High Court was, whether Petition No. 203of 1972 could continue or become infructuous? Both the Advocate General as well as the petitioner's advocate were of the view that constitutional petition No.203 of 1972 had become infructuous, as the order of detention impugned in that petition had been withdrawn and a new order of detention had been passed by the Provincial Government.
' Accordingly, that petition was dropped as having become infructuous and a new petition No.217 of 1972 was presented. In the present case, when the matter was placed before me on 29-5-2007, the impugned order had already run out, therefore, in this context, the instant writ petition has stronger reasons not to be entertained.
14. Thus, for the above reasons, this writ petition is dismissed and prayers mentioned in para. 4 are declined.