Through this single order I propose to decide the following three writ petitions as all carry similar questions of law and facts:--
(i) Mst. Misbah Tabassum, etc. vs. Government of Punjab, etc." (W.P. No .3064/2007); and
(ii) "Rao Abdul Ghaffar vs. Government of Punjab, etc." (W.P. No, 2974/2007) and In W.P. No, 3064/2007 Munir Ahmad Langah, Rana Muhammad Yousaf, Saeed Alia Moni, Imtiaz Gulzar Chatan, M. Saleem Raja and Asif Mehmood are the detenus and in W.P. No, 2974/2007 Rao Sarfraz Ahmad is detenue. All the above-named detenus have been ordered by the Secretary, Government of the Punjab, Hone Department under Section 3(1) of the Maintenance of Public Order (XXXI), 1960 to be arrested and detained for a period of ninety days with immediate effect. In all the detention orders the grounds of arrest and detention of the detenus are one and the same, rather appear to have been copied in a cyclostyle manner, which are reproduced below:-- "(i) That you have been inviting and holding meeting 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) 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 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 & order situation, thus giving rise to a situation prejudicial to the public safety and maintenance of public order, hence this order."
2. In both the above writ petitions, the learned Law Officer was directed to collect report and parawise comments from the Home Secretary alongwith entire material. Today, Deputy Secretary has appeared and placed on record a report submitted by Muhammad Nawaz Warraich, Senior Superintendent of Police (Operations), Multan dated 5.6.2007 alongwith memorandum of grounds against each detenue and the impugned order passed against respective detenus. Report and parawise comments have also been filed; no other material worth mentioning has been placed on the record.
3. At the very outset the learned Law Officer with reference to the Full Bench judgment of this Court in Sh. Rashid's case (PLJ 2004 Lahore 1221) has raised a preliminary objection by arguing that as the relevant law provides a representation to the Home Secretary against the impugned detention order, therefore, in the presence of alternate remedy these writ petitions are not maintainable. I am, however, not persuaded to uphold the said objection of the learned Law Officer for the simple reason that under the law representation has been provided to the Home Secretary, Government of the Punjab, who himself has passed the impugned detention orders and thus it is against the 'principle of natural justice providing "no one should be judge of his own cause" and further in the comments the impugned orders have been tried to be justified through Special Secretary. Even otherwise, the Full- Bench judgment relied upon by the learned Law Officer relates to the period when detention orders used to be passed by District Magistrates, therefore, the, preliminary objection of the learned Law Officer is overruled. Reliance is placed on the reported judgments in the case "Mulazim Hussain Shah vs. Province of Punjab through Secretary, Home Department, Government of Punjab, Lahore and 2 others" (PLD 2006 Lahore 108) and 'Abu Bakar Muhammad Reza vs. Secretary to Government of Punjab, Home Department and 3 others" (PLD 2005 Lahore 370).
4. So far as merits of the case are concerned, it is submitted by learned counsels for respective petitioners that firstly the impugned orders in all these writ petitions are nothing but cyclostyle reproduction of the one order without application of mind and without any material in support of such orders. Secondly, the impugned orders have been passed on the recommendation of the Senior Superintendent of Police (Operations), Multan dated 5.6.2007 who too prayed for passing the impugned orders without application of mind as well as presence of any material except counting the political activities of the detenus like being office bearers of PML (N), Multan, participation in the functions hosted by PML (N), Multan or their participant in the protest rally against de-functioning of worthy Chief Justice of Pakistan, inasmuch as, for using the following remarks in some meeting of PML (N) held at the residence of some political leader: It is further argued that superior Courts have repeatedly held that before passing detention order under Section 3 of the Maintenance of Public Order (XXXI), 1960, the detaining authority must be satisfied objectively and not subjectively and not merely on that whims and caprices, without there being any material before them in support of such order and that the detention order cannot be upheld by this Court by mere production of order of detaining authority in proof of satisfaction within the meaning of Section 3 of Maintenance of Public Order (XXXI), 1960. It is next argued that right of life and liberty of a citizen is fully protected by Articles 9 and 10 of the Constitution of the Islamic Republic of Pakistan 1973, and further Article 10 of the Constitution provides sufficient safeguards in the matters of arrest and detention, whereas, the impugned orders have been passed in clear violation of the above said Article of the Constitution. Lastly, it is argued that the impugned orders are not only mala fide but have been passed in a highly uncalled for manner inasmuch as, most of the detenus have been ordered to be detained in Central Jail, Lahore without following the requirements of Section 3(7) of the said Order.
5: On the other hand, learned Law Officers appearing on behalf of the respondents have opposed these writ petitions on the ground of availability of alternate remedy of filing representation against the impugned detention orders before the Home Secretary, within the meaning of Section 3(6) of Maintenance of Public Order (XXXI), 1960 and secondly on the ground that, impugned orders have been passed in accordance with provisions of the law and after proper application of mind as well as satisfaction of the detaining authority.
6. I have considered the arguments of learned counsel for the parties and have also perused the available record.
7. The only material produced by the detaining authority consists of recommendations by the Senior Superintendent of Police (Operations), Multan dated 5.6.2007, which is reproduced below: "It is submitted that Munir Ahmad Langah s/o Mian Akhtar Hussain r/o Opposite Old Police Station Daulatgate, Multan is Divisional President Labour Wing, PML/N, and Multan. He creates sense of insecurity and harassm ent by his general violent and terrible conduct. He general conduct and Int- government activities disturb the public peace and tranquility. He instigates the general public against the Government by provacative speeches. His anti-social activities and movements can not otherwise be prevented and checked except by detention u/S. 3/MPO. It is requested that the above said Munir Akhtar Langah may kindly be detained u/S. 3. MPO for a period of 90 days in order to refrain him from acting in, a manner prejudicial to public peace and tranquility. Memo of ground for detention is enclosed, please."
Further, a memorandum of grounds has been attached with the same.
8. Suffice it so say that, about authenticity of the report of the Senior Superintendent of Police (Operations), Multan referred to above that in all the cases same cyclostyle recommendations have been repeated to pass the detention order, without referring to any material of evidence collected by the agency. The only impression Which one can gather from the abovementioned recommendations of the Senior Superintendent of Police (Operations), Mutlan is that same is nothing except counting of political activities of the detenus and there is not a single word mentioned in the recommendations that either activity of any of the detenue is against the state or any of its organ, whereas, there mere involvement in anti-social or anti-government activities is neither an offence nor can be equated with acting against the interest of the state, whereas, Articles 15, 16 and 17 of the Constitution of the Islamic Republic of Pakistan, 1973 not only guarantee such activities but also provide sufficient safeguards/protection - against violation of such activities, of course subject to law imposing reasonable restrictions on such activities which are detrimental to the sovereignty or integrity of Pakistan, public order or. morality. Since there is not a remotest reference either in the recommendations made by Senior Superintendent of Police (Operations), Multan dated 5.6.2007 reproduced above, or in the impugned detention orders with regard, to involvement of any detenu in any activity detrimental to the sovereignty or integrity of Pakistan, public order or morality, therefore, the impugned orders are not sustainable on this short ground. The impugned orders in all these writ petitions suffer from jurisdictional defect also, inasmuch as, none of the impugned order appears to have been passed after due application of mind about alleged anti-social or anti-Government activities by any of the detenus because the same has become more essential in view of insertion of Section 24-A of the General Clauses Act and the law declared by Hon'ble Supreme Court of Pakistan in the case reported in PLJ 2006 S.0 .564. Want of application of mind while passing the impugned detention order is manifest from the fact that in all the writ petitions the detention order is nothing but reproduction of one cyclostyle order in a tele-printer manner without attending to the allegations of anti-social or anti- Government activities of each detenu, respectively. Again before passing the detention orders, the detaining authority had to satisfy itself about the activities of a person prejudicial to public safety or maintenance of public order and as held by Hon'ble Supreme Court of Pakistan in the case 'Mie Abdul Baqi Baluch vs. The Government of Pakistan through the Cabinet Secretary, Rawalpindi" (PLD 1968 SC 313), mere production of order of detaining authority in proof of satisfaction is not sufficient to make the order of detention. Since the impugned orders in all these writ petitions do not indicate the scope and extent of satisfaction of the detaining authority before passing the impugned order the same on the touchstone of the authority of law declared by the Hon'ble Supreme Court in the cited judgment, are liable to be declared as without lawful authority and of no legal effect, and same are declared so.
9. There is also reasonable force in the contention of learned counsel for the petitions that the impugned orders were passed in a most in human, cruel, callous and reckless manner by the Home Secretary Government of the Punjab inasmuch as, he opted to send most of the detenus to different Districts unmindful of the sizzling weather with 49 celsius in the month of June, without giving any reason for sending them to the Jails situated at a distance of 300 kilometers from the residence of each detenu and this act of the Home Secretary alone is sufficient to hold that he was not passing the detention order bona fide but intention was to show bureaucratic conceit on his part and to punish the detenus for their political activities and for this act alone I while announcing the order had ordered to burden him with costs of Rs, 20,000/- to be paid by him from his own pocket to each of the detenu but at the request of learned Law Officer giving assurance on behalf of Home Secretary, not to act repeatedly in such a inhuman manner, I have recalled the said order of penalty, however, the Home Secretary, Government of the Punjab, is strictly warned to be careful in future and should refrain from passing such like orders, failing which he would not expect any leniency in this respect.
10. I am also unable to understand as to how violation of Section 144 Cr.P.C. can attract the provisions of Maintenance of Public Order (XXXI), 1960, whereas commissions of an act in violation of Section 144 Cr.P.C. is an offence punishable under Section 188 PPC. There is neither any mention in the detention orders that at the relevant time Section 144 Cr.P.C. was imposed in the District of the detenus nor any order to this effect has been produced before this Court or any action against any of the detenus for violating the imposition of Section 144 Cr.P.C. has been brought on the record. This ground of detention, therefore, not only shows lack of knowledge of the Home Secretary with regard to application of Section 144 Cr.P.C. but further shows lack of application of conscious mind while passing the impugned orders of detention, and as held by this Court in the case "AK Khalid P.C.S., Section. Officer, Ministry of Interior, Government of Pakistan, Rawalpindi vs. Khan Ghulam Qadir Khan" (PLD 1962 WP Lahore 411 Division Bench), and order passed or action taken in violation or ignorance of law is nothing but a mala fide order amounting to colourable exercise of jurisdiction and for acting in such like manner the Home Secretary is liable to be sued for damages and each detenu, if so advised, may file suit for, damages against Home Secretary (Khusro Pervaiz Khan) for keeping them in false imprisonment.
11. The upshot of above discussion is that both these writ petitions are allowed and the detention orders passed in these petitions are declared as without lawful authority and of no legal effect being mala fide having been passed in a most in human and reckless manner without application of mind as well as in sheer disregard/violation of Articles 9, 10, 15, 16 and 17 of the Constitution of Islamic Republic of Pakistan, 1973 read with Section 3 of the Maintenance of Public Order (XXXI), 1960. Resultantly, Superintendents of respective Jails where all these detenus are being kept are directed to release them forthwith Copy of this order be immediately faxed by Additional Registrar of this Bench to the Home Secretary, Government of Punjab for his perusal as well as compliance. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.