' IJAZ AHMAD CHAUDHRY, J.---This petition has been filed on 4-4-2009 under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, calling in question the detention of the petitioners, namely, (1) Hafiz Muhammad Saeed, (2) Colonel (Retd.) Nazeer Ahmad, (3) Mufti Abdur Rehman and (4) Ameer Hamza, initially made by the respective DCOs, Lahore, Khanewal and Rawalpindi on 12-12-2008 and 13-12-2008 and then renewed by the Secretary, Home Department, Government of Punjab, Lahore on 9-1-2009 for further 60 days. Thereafter, the said order was extended by the Review Board for another period of 60 days, which was communicated, vide letter dated 9th March, 2009.
2.. The precise facts as mentioned in this petition ire that the petitioners belong to Jamat-ud-Dawa Organization having no nexus with Lashkar-e-Tayyaba and the detention of the petitioners relying upon the resolution of UNO was illegal and unlawful as the petitioners or their Organization are not involved in terrorist activities, but they arc only working for the welfare of the people like "Eidhi", but more than that they arc also educating the poor and needy people. This petition came up for hearing before the single Bench on 6-4-2009, when the writ petition was admitted for regular hearing and the respondents were directed to file the written statement. In the comments filed by the respondents it has been specially alleged that the detention order against the petitioners has been passed in compliance of the UNO Resolution. On 4-5-2009, the case was referred to the Honourable Chief Justice for constitution of the larger Bench and from 1-6-2009, we started with the hearing of this writ petition, which has been originally filed in the shape of habeas corpus.
3. The main contention of the learned counsel for the petitioners is that the basic order for the detention of the petitioners was illegal and the subsequent orders cannot supplement the same; that Pakistan is an Islamic State and its Constitution is also based on the Injunctions of Quran and Sunnah; that it is the basic principle of law that no one should be condemned unheard and any order or action taken against the principle of natural justice cannot be sustained in the eyes of law; that the liberty of the person cannot be curtailed merely on suspicion and false reports, but there should be some reasonable and strong evidence to supplement the same; that it was not required by the UNO Resolution to arrest the petitioners and detain them and against the said "Resolution" the petitioners have already filed an appeal in the International. Forum, but instead that the petitioners could follow up the same for releasing of the restrictions imposed upon them, the government has detained them without there being any evidence against the petitioners, and they are not being treated in accordance with law, which is the basic principle; that when the foundation is bad, the superstructure laid thereon will automatically fall on the ground; that the Review Board at the most is a recommendatory body, which only reports and the same cannot be considered to be a judicial verdict, but at the most it is an executive order as no Advocate is allowed to be engaged by the detainee for pleading his case; that on the other hand in the Europe even during the investigation the lawyer is provided to the accused; that the petitioners cannot be detained only to please the Indian Lobby on the false propaganda that they are involved in Mombai attacks, which is a bald allegation being raised by them only to conceal their security lapses; that this Court is not functioning as an appellate Court of the Review Board, which is constituted on the executive side, but this Court has to take the judicial notice of the material possessed by the Government and the petitioners will have a right to rebut the same, which they could not do on the executive side where it is the government, which makes the reference at the back of the detainee and the material being used against them is not shown to them; that in the present case even the grounds of allegations were not supplied to the petitioners within 15 days as required by law, which would show that the petitioners were completely ignorant for the reasons about their arrest and they could not have recourse to law; that for the first time the petitioners were provided grounds of allegations on 9-3-2009, when they were produced before the Review Board and a perusal thereof would show that the government had no such material to maintain their detention; that the petitioners cannot be deprived of their liberty at the choice and wishes of others without any material; that the orders of the executive authorities are always amenable before the courts; that it is first question .Of law that an accused is presumed to be innocent unless he is proved to be guilty by the Court of law on the basis of the evidence and the material collected during the investigation is even not read until the same is proved; that here the petitioners have been detained on flimsy grounds, which orders of the executive authorities are not sustainable in the eyes of law and may be set aside. Relies upon certain case-law, which will be discussed in the latter part of the judgment. Also contends that originally six persons were detained by the government on the same allegations out of whom four have already been released considering no material against them and the case of the petitioners being at par with the earlier released detenus, the petitioners are also entitled to the same treatment.
4. On the other hand, the leamed Attorney General of Pakistan has contended that they are bound by the UNO Resolution and while living in this global world they cannot shut the eyes when every one is having finger towards them and war has been started in the country; that not only the UNO Resolution, but the Federal Government is in possession of certain other confidential material and likewise the Punjab Government has also the same in its possession, which can be shared with this Court in chamber as these documents cannot be shown publicly; that the said material was placed before the Review Board consisting of three senior Judges of this Court, who after considering the same have extended the detention period of the petitioners and this writ petition is not maintainable as on the one hand their detention cannot be declared illegal and on the other hand no writ can be issued by the Court against its members. On the request of the learned Attorney General and the learned Advocate-General, the documents have been seen by us in the chamber although it was seriously objected by learned counsel for the petitioners that the petitioners are not present in the Court and unless they are confronted with the said material, they cannot be accused due to the same. However, it was agreed that unless the said documents are seen by us, it cannot be held that whether these documents are privileged documents and these can be made publicized or not. As such in camera proceedings were conducted in the chamber and the material was perused.
5. The learned Attomey General has contended that the material has been provided by the International Organizations and although the ' Govemment does not agree with the same, but according to the same the petitioners are being blamed for Mombai attacks and they have links with Al-Qaida, which is a militant Organization and keeping in view the prevailing circumstances in the country the detention of the petitioners under the preventive laws for security purposes is quite justified; that in the changed circumstances the previous case law cannot be taken notice and even otherwise each case has to be dealt with on its own merits and in this case for security purposes it is better for the petitioners to detain them.
6. The learned Advocate-General has also challenged the maintainability of the writ petition on the same line of the learned Attorney General. It has been conceded that the grounds of allegations for the first time were provided to the petitioners on 9-3-2009, but this could not materially affect the case of the petitioners as the Review Board having considered all the material against the petitioners has twicb extended the detention of the petitioners and four persons have already been released by the orders of the Review Board, which would show that the members of the Board have acted independently and their decision is not amenable to writ jurisdiction as no writ can be issued against its members by this Court; that the detaining authority is even otherwise authorized for refusal to disclose the allegations to the detainee considering it to be against the public interest to disclose and in this case the material against the petitioners is of such nature which cannot be publicized and for this reason the detention order cannot be set aside.
7. In rebuttal the learned counsel for the petitioners contends that it is a habeas corpus petition, which is not against the order of the Review Board, but it challenges the vires of the executive actions for detaining the petitioners under the garb of preventive measures; that there is no evidence against the petitioners that they are security risk and their detention is illegal and unlawful, who cannot be deprived of their liberty in the absence of any solid material against them; that no writ is sought to be issued against the members of this Court, but it is against the orders of the executive authorities, which were issued in cyclostyle and the petitioners have been deprived of their right to defend them in the International Forufti, which has a double standard, and the people of this country are being treated in a different manner; that unless the petitioners are confronted with the material against them and allowed opportunity to defend the same, they cannot be detained, hence, they are entitled to be released by allowing this writ petition.
8. We have heard the arguments of learned counsel for the parties and gone through the case-law minutely as well as the other documents relied upon by the learned counsel for the parties during the arguments with their able assistance.
9. At the very oqtset it was informed that petitioners Nos.3 and 4 have already been released and to their extent this writ petition is disposed of having become fructified. Now this petition only remains to the extent of petitioners Nos. 1 and 2. The first, preliminary objection has been raised by the learned Attorney General and the learned Advocate-General Punjab that as the Review Board has already extended the detention of the petitioners twice, now the writ petition is not maintainable which should be dismissed as three Honourable Judges of this Court are members of the Review Board and no writ can be issued by this Court against its Judges. Learned Attorney General has relied upon Ibrar Hassan's case PLD 1976 SC 315 in support of his contention wherein three sitting Judges were members of the board and they had scrutinized the grounds which were found germane and they had regulated the proceedings. It is also contended by the learned Attorney General that according to the majority view which is at page 321 of the judgment, writ cannot be issued against a Judge and finding of the High Court, and order of the three Judges may be whatsoever judicious cannot be overlooked by the three Judges of this Court while exercising the writ jurisdiction. We have considered this preliminary objection and found that it has been rightly pointed out by the learned counsel for the petitioners that Ibrar Hussain's case (supra) has been overruled by the august Supreme Court of Pakistan in a judgment titled as Malik Asad Ali and others v. Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1998 SC 161* relevant portion is at page 279 paragraph No,75, which is reproduced as under:- "It is, therefore, quite clear that there was unanimity in the view of all the four learned Members of Bench in Abrar Hassan's case that the appointment of a Judge of superior Court could be brought under challenge before "a Court.
' Howeyer, there was divergence of opinion on the question of nature of proceedings which could be filed to challenge such appointment. Muhammad Yaqub Ali, C.J. And Anwarul Haq, J. Were of the view that a direct proceedings to challenge the appointment of a Judge of superior Court under Article 199 of the Constitution would be barred in view of the provision of clause (5) of Article 199, and therefore, such an appointment could only be challenged collaterally in a properly filed proceedings. The other two learned Members of the Bench Salahuddin Ahmad and Muhammad Gul, JJ. On the contrary held the view that such appointment could be challenged directly only through a petition under Article 199(l)(b)(ii) of the Constitution and not collaterally in other proceedings. This divergence of opinion amongst the learned Judges of the Bench in Abrar Hassan's case was the result of different interpretation of clause (5) of the Article 199 of the Constitution by them. Muhammad Yaqub Ali, C.J. And Anwarul Haq, J. Held that the Judge and High Court are synonymous and interchangeable, and therefore, issue of a writ to a Judge would amount to issuance of writ to High Court which is prohibited by Article 199(5) of the Constitution.
The other two learned Members of the Bench, Slahuddin Ahmed and Muhammad Gull, JJ. While disagreeing with the above interpretation, held that a Judge and the Court are not always synonymous. According to them the Judge is properly identified with the Court when it does something in exercise of the jurisdiction vested in it as a Court. Otherwise, its personal identity remains distinct from the Court. The point has been aptly illustrated by the learned Judges (Salahuddin Ahmad, J. And Muhammad Gul, J. By citing an example where the Judge unlawfully confines his domestic servant at his house and when he convicts and sentences him to jail in a case brought before him as a Judge of the Court. In the former case, the action of the Judge will be amendable to the jurisdiction of High Court under Article 199 ibid. Once again there appears to be unanimity in the view of all the learned four Members of the Bench in Abrar Hassan's case, that Judge of a superior Court in his personal and individual capacity is not immune from the process of Court under Article 199 of the Constitution and that this immunity extends only to the acts and orders passed as a Judge of the Court or a member of the Court." '
"With greatest respect, we may point out that the judgments delivered by a Judge or group of Judges are the functions which identify the Judge or Judges with the Court and therefore, to that extent the bar contained in clause (5) of Article 199 of the Constitution is fully attracted. The conclusions of Salahuddin Ahmed and Muhammad Gul, JJ. In Abrar Hassan's case, supra, were also not different. What these two leamed Members of the Bench (Salahuddin Ahmed and Muhammad Gul, JJ.) in Abrar Hassan's case said was, that while the orders passed by a Judge in exercise of the jurisdiction of the Court cannot be called in question under Article 199 of the Consitution, the acts of a Judge performed in his personal capacity did not enjoy this protection.
The difference between Judge acting as a Court and a Judge acting in his personal and individual capacity is not only real but is necessary to preserve, otherwise a Judge will not be answerable for wrong done by him in his individual capacity. It may be pointed out that by accepting the office of a Judge, a person does not lose his individual identity as an ordinary citizen. Therefore, while action taken or orders passed by him in the former capacity as a Judge of the Court cannot be brought under challenge, under Article 199 of the Constitution, his action as an ordinary individual will be subject to ordinary law of the land including Article 199 of the Constitution. In this view of the matter, in our humble opinion, the view expressed by Salahuddin Ahmed and Muhammad Gul, JJ. In Abrar Hassan's case in respect of the maintainability of a petition seeking information in the nature of quo warranto against a Judge of superior Court seems to be more rational, practical and nearer to the spirit of the provision of the Constitution. A petitioner in a petition filed against a Judge of the superior Court seeking information in the nature of quo warranto, does % not challenge any action or order of a Judge passed in his capacity as a Judge of the Court or a member of the Court. The qualification to hold the office of a Judge is personal to the individual and has nothing to do with his performance - of duty as a Court or member of . The Court. The qualifications for appointment of Judges of the superior Court are laid down meticulously in the Constitution. To possess the qualifications prescribed under the Constitution is a sine qua non for an individual to hold the office of a Judge of superior Court. Therefore, when the appointment of a Judge of superior Court is challenged on the ground that he did not possess the qualification prescribed by the Constitution, the relator is not asking the Court to strike down any of his actions which he has performed or is performing as a Judge of the superior Court but asks for examination of his personal qualification to be entitled to hold the office of the Judge of superior Court. Such an exercise, in our humble opinion, does not fall within the mischief of the provision of Article 199(5) of the Constitution. We are, therefore, in no doubt that a petition seeking information in the nature of quo warranto lies against the Judge of a superior Court under Article 199 of the Constitution. We are further of the view that such an attack on the validity of the appointment of a Judge of a Superior Court through collateral proceeding is not a proper remedy as firstly, such occasion may or may not arise and secondly, when the appointment of a Judge is attacked collaterally in a proceeding arising from his order, he is not necessarily arrayed as a respondent in the Court and therefore, he cannot be called upon to justify his appointment. It is also to be noted that in a collateral attack, on the validity of the appointment of Judge, the proceedings are directed against the order passed by him and validity of his appointment is only challenged through a side wind, which is possible only, if the order passed by the Judge is subject to appeal, revision, review or other proceedings before a higher forum. Therefore, if the law does not permit any appeal or other proceedings against the order passed by a Judge, the occasion to challenge the validity of his appointment in collateral proceedings may not arise at all. For this reason too, we are in respectful agreement with the view expressed by Salahuddin Ahmed and Muhammad Gul, JJ. In Abrar Hassan's case that a petition against the Judge of a superior Court seeking information in the nature of quo warranto is maintainable under Article 199 of the Constitution. This view is more rational and has the effect of advancing the remedy and suppressing the mischief."
' Page 287 paragraph No,79.
"Mr. Abdul Hafeez Pirzada, the learned counsel for respondent No,2 also heavily relied on the observations of Cornelius, C.J., Yaqub Ali, C.J. And Abdul Kadir Shaikh, J. In Jamal Shah, Abrar Hassan and Muhammad Akram Shaikh's cases (supra) respectively, to contend that if the principle that a Judge of superior Court cannot issue a writ to another Judge of the same Court under Article 199 of the Constitution is not strictly adhered to, it will effect and destroy the traditional comity existing between the Judges of superior Courts is neither a rule of law nor a Constitutional requirement. It is only a highly desirable tradition which has existed for long and should continue to be followed by the Judges to maintain harmony and smooth working of the Courts anu also to preserve their institutional image in the eyes of the public. However, this high tradition of maintaining comity between the Judges of superior Courts cannot come in the wav of discharge of more important Constitutional duty imposed upon the Judges of the superior Courts to protect and defend the Constitution under the oath of their office. Therefore, if the violation of a provision of the Constitution is brought to the notice of a Judge of the superior Court in a properly filed proceedings which involved the person of another Judge of the same Court, the relief, in the absence of a Constitutional bar, cannot be declined relying on a principle of high tradition of maintaining commity between the Judges of the superior Courts. The proceedings in the nature of quo warranto as held by Indian Supreme Court in the case of University of Mysore v. Govinda Rao AIR 1965 SC 491 confer jurisdiction and authority on superior Courts to control executive action in the matter of making appointments to public offices against the relevant statutory provisions. These proceedings provide a positive safeguard to citizens against usurpers of public offices, who in some cases may be allowed to continue to hold the office in connivance or with the help of the executive authority:-"
11. We have considered that status of the Review Board is of recommendatory body. The argument of the learned Attorney General is that Haider Bux Jatoi's case reported in PLD 1969 SC 210, is not applicable in the present case as in the Constitution of 1962, composition of the Board was a Judge of the High Court nominated by the Honourable Chief Justice and the Senior Officer nominated by the Governor of the Province, but now the Board consists of three sitting Judges of this Court and the decision of the Board is judicious, which is not amenable in writ jurisdiction.
12. We have perused the relevant provisions of Article 8 (c)(ii) of the Constitution of 1962, which is reproduced as under:--
(ii) Where .The law is a Provincial Law- a Judge of the High Court of the Province concerned, who shall be nominated by the Chief Justice of that Court, and another senior officer in the service of Pakistan, who shall be nominated by the Governor of that Province."
' From the bare perusal of the said Article it is found that the sitting Judge of the High Court nominated by the Chief Justice was member of the said Board, but even then the High Court had set aside the order of the Review Board. The said order was assailed in the august Supreme Court of Pakistan and the august Supreme Court of Pakistan in Haider Bux Jatoi's case PLD 1969 SC 210, has declared that the order of the Review Board was quasi judicial and was amendable in writ jurisdiction. Relevant portion which is at page 223, is reproduced as under:- "xxxxx In any case "such further information" must relate to the grounds on which the order of detention is based or else the Board instead of exercising an advisory jurisdiction will be assuming to itself the powers of detention under subsection (1) of section 3. Such a result is clearly not contemplated in subsection (5d) of the Ordinance. In the view formed by us the High Court has rightly quashed the order of the Provincial Government dated the 12th March, 1968, extending the period of detention of respondent No,1 for three months with effect from 18th March, 1968."
' The appeal filed by the Government against the order passed by the High Court quashing the order of detention of the detenus extending the period of detention was set aside.
13. Article 10 of the Constitution of Islamic Republic of Pakistan, 1973 now deals with the detention matter, which is reproduced under:-
(10) (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 of the journey from the place of arrest to the Court of the nearest Magistrate, and no such person shall he 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 authorize 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. Explanation this Article, "the appropriate Review Board" means:--
(i) in the case of a person detained under a Federal law, a Board appointed by the Chief Justice of Pakistan and consisting of a Chairman and two other persons, each of whom is or has been a Judge of the Supreme Court or a High Court; and
(ii) in the case of a person detained under a Provincial law, a Board appointed by the Chief Justice of the High Court concerned and consisting of a Chairman and two other persons, each of whom is or has been a Judge of a High Court.
'Explanation:ll.--The opinion of a Review Board shall be expressed in terms of the views of the majority of its members.
(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 represen tation 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) The authority making the order shall furnish to the appropriate Review Board all documents relevant to the case unless a certificate, signed by a Secretary to the Government concerned, to the effect that it is not in the public interest to furnish any documents, is produced.
(7) Within a period of twenty four months commencing on the day of his first detention in pursuance of an order made under a law providing for preventive detention, no person shall be detained in pursuance of any such order for more than a total period of eight months in the case of a person detained for acting in a manner prejudicial to public order and twelve months in any other case: 'Provided that this clause shall not apply to any person who is employed by, or works for, or acts on instructions received from the enemy [or who is acting or attempting to act in a manner prejudicial to the integrity, security or defence of Pakistan or any part thereof or who commits or attempts to commit any act which amounts to an anti-national activity as defined in a Federal law or is a member of any association which has for its objects, or which indulges in, any such anti-national activity].
(8) The appropriate Review Board shall determine the place of detention of the person detained and fix a reasonable subsistence allowance for his family.
(9) Nothing in this Article shall apply to any person who for the time being is an enemy alien."
14. Article 10(4) of the Constitution provides that detention of a person for a period exceeding three months cannot be extended 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 only then the detention can be extended and under sub-Article (2) Explanation I, the Board will be appointed by the Chief Justice of the High Court concerned and consisting of a Chairman and two other persons, each of whom is or has been a Judge of a High Court. In Haider Bux Jatoi's case discussed above, sitting Judge of the High Court was also a member of the Board and it was declared by the august Supreme Court of Pakistan that order was amenable in writ jurisdiction and the same High Court had set aside the said order. In PLD 1986 Quetta 270, as well the same question arose that whether the writ jurisdiction could be invoked after the order of the Review Board and it was held at page 277 by the learned Division Bench which is reproduced as under:-- "The above-quoted passage indicates that the proceedings before the Board are quasi-judicial nature and amenable to judicial review by the superior Courts, but it does not necessarily follow that the High Court can easily overlook the opinion given by the Board. The object of constituting a Board comprising of three learned Judges of this Court in terms of above sub-clause (ii) of Explanation I to clause (4) of Article 10 of the Constitution of Islamic Republic of Pakistan, 1973 is to provide an alternate adequate remedy to a detenu, in case detention is for a period of more than 3 months, the High Court, therefore, will be reluctant to entertain a constitutional writ petition for reviewing of an opinion of the Board in the absence of compelling reasons."
Which shows that writ jurisdiction is not barred even after the Review Board extends the detention period , but there should be compelling circumstances for reviewing the opinion of the Board.
15. The learned counsel for the petitioners has contended that the decision of the Board even was not quasi judicial, but it is an executive order as sub-Article (4) of Article 10 of the. Constitution of Islamic. Republic of Pakistan, 1973, only provides that appropriate. Review Board can form an opinion and can report to the detaining authority for extension of detention after a period exceeding three months while affording an opportunity of being heard in person to the detainee.
The learned counsel for the petitioners has rightly pointed out that from the language used in the said sub-Article it is clear that the Board has only to form an opinion and report it to the detaining authority, which cannot be given the status of the judgment or order of this Court. It is admitted that even after such extension of detention by the Review Board the government has the authority to release the detainee even before the expiration of the said period. As such it is clear that in the preventive detention matters only the executive authorities are competent to decide that whether any person on the material laid before it has to be detained and such a person can be kept under detention for a period of 90 days at the initial stage. Then it is also within the domain of the executive authorities to send a reference for extension of detention to the Review Board. As such the original are the orders of the Executive authorities and this Court can look into wires of the same, but there is no matter that any writ will be issued against the other learned Judges of this Court. The detainee is not allowed to be represented before the Board through any counsel of his choice and the Board even could be constituted Of retired Judges of the High Court. So the order of the Board passed by the retired judges of the High Court can only be considered as an executive order.
16. The intention of the legislature is clear that the Board has been constituted only to form an opinion and to provide safeguard to the detainee, but the opinion of the Board cannot be termed as judicial decision. On the other hand, even in the departmental inquiries the services of an Advocate can be hired by an official facing the inquiry under the principles of natural justice and it has been rightly pointed out by the learned counsel for the petitioners that in America even at investigation stage the accused is at liberty to seek legal assistance. In Haider Bux Jatoi's case PLD 1969 SC 210, it has been held that the Board does not have powers of the government to extend the extension, but it can be passed by the detaining authority, if the Board gives an opinion that there is sufficient cause for further detention. Hence, we hold that for the above reasons the writ petition is maintainable and this Court can look into the original order to ascertain that whether there were sufficient grounds for passing the detention order with the detaining Authority and the Detaining Authority has complied with the provisions of the Constitution and the order is sustainable in the eyes of law or not. Moreover, it has been held in Imtiaz Ahmad v. Ghulam Ali and 2 others PLD 1963 SC 382 that technicalities should not come in the way of substantial justice and people should not be ousted on the ground of technicalities. The relevant portion is reproduced as under.-- "I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the Bar, I do not feel much impressed with them. I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defects. Any system which by giving effect to one form and not to the substance defeats substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his."
17. The first order for detention of the petitioners and four others was passed on 12-12-2008 and 13- 12-2008 by the District Coordination Officers concerned in a cyclostyle manner and for ready reference one of the same is reproduced as under:-- ' ORDER ' No, RAM/HVC/299, Whereas, I Sajjad Ahmad, District Coordination Officer Lahore is satisfied that certain desperate and dangerous persons are moving at large instigating and brain washing the youth to undertake undesirable activities and also patronizing and assisting the incitement of hatred and contempt against different segments of the society. They arc also instigating the public at large to indulge into the activities resulting in disturbance of public tranquility, danger to human life, health and safety; thus posing grave threat to maintenance of public order.
(2) AND WHREAS, upon based evidence/material placed before, I am convinced that the presence of Hafiz Muhammad Saeed s/o Kamal Din Resident of 134-E MA Johar Town Lahore District Lahore at any public place will pose grave threat to the public safety and is likely to cause breach of public peace and order.
(3) NOW THEREFORE, in exercise of powers conferred upon me under subsection (1) of section 3 read with section 26 of Maintenance of Public Order Ordinance, 1960 and Notification of Home Department No,SO (S-D3-12/2007 dated 9th August, 2008, I Sajjad Ahmad, District Coordination Officer Lahore order that Mr. Hafiz Muhammad Saeed son of Kamal Din resident of 134-E MA Johar Town Lahore District Lahore be arrested and detained for a period of 30 days, with immediate effect. His custody shall be placed under the superintendence of Inspector General Prisons Punjab for his detention at his residence located 134-E MA Johar Town Lahore already declared as sub-jail.
(4) The grounds of this order shall be communicated in due course of time shortly.
(5) The detenu shall have right to make representation against this order of the Government.
' From the perusal of the abovesaid detention order it is found that the DCO having been satisfied that desperate and dangerous persons had been moving at large while instigating and brain washing the youth to undertake undesirable activities and also patronizing and assisting the incitement of hatred and contempt against different segments of the society. They were also instigating the public at large to indulge into the activities resulting in disturbance of public tranquillity, danger to human life, health and safety; thus posing grave threat to maintenance of public order. On the expiry of detention order of 30 days, Secretary to Government of the Punjab, Home Department, in exercise of powers conferred upon him under subsection (1) of section 3 of Maintenance of Public Order Ordinance, 1960, passed the second detention order for a period of 60 days of all the six petitioners and the same language was used which has been mentioned in section 3 of Maintenance of Public Order Ordinance, 1960 and reproduced in the abovesaid order.
The order passed by the Home Secretary even does not contain that it was the extension of the earlier order, but from the language, it seems to be a fresh order, which shows that the executive authorities had passed the detention orders in a carelessness manner, who even did not know that the detainee was already in custody and it cannot be expected that due care had been observed while passing such order, what to talk that the material had been given due consideration allegedly used against the petitioners. Then reference was made by the Government of the Punjab for extention in preventive detention of the petitioners under section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960, on 9-3-2009, when detention order of two of the detenus namely, Qazi Kashif Niaz alias Abu Umar son of Niaz and Qari Muhammad Yasin Baloch, was not extended and the detention of the petitioners herein, namely, Ameer Hamza, Mufti Abdul Rehman, Colonel (Retd) Nazir Ahmad and Hafiz Muhammad Saeed was extended and they were committed to house arrest for another 60 days.
18. It is conceded by the learned Advocate-General that grounds were not supplied to the detenus when the first orders for detention were passed against the petitioners by the DCO on 12-12-2008 in respect of Amcer Hamza, Hafiz Muhammad Saeed and by DCO Khanewal order dated 13-12-2008 against Mufti Abdul Rehman and order dated 1212-2008 passed by the DCO Rawalpindi for detention of. Colonel (R) Nazir Ahmad. Even no grounds were supplied to the detainees/petitioners when the detention orders were passed against all the detenus for the second time by the Secretary to Government of the Punjab, Home Department on 9-1-2009 and for the first time grounds were supplied to them when the petitioners and others whose detention has not been extended were produced before the Review Board on 9-3-2009. The said grounds are reproduced as under:--
(1) United Nations Security Council vide its Resolution Nos.1267 (1999), 1333 (2000) 1373 (2001), 1390 (2002), 1455 (2003), 1526 (2004), 1617 (2005), 1735 (2006) and 1822(2008) has directed to apply travel restrictions, arms embargo and to freeze the funds and other financial resources of certain individuals and entities.
(2) United Nations (Security Council) Act, 1948 (XIV of 1948) has issued S.R.O. No,1236(I)/2008 dated 11th December, 2008 enlisting and updating the list of individuals and entities made by Al-Qaida and Taliban Sanctions Committee of the United Nations Security Council on 2nd December, 2008 and 10th December, 2008.
(3) On 10th December, 2008, the Committee approved the enlisting of Lashkar-e-Tayyaba, Jamaat-udDawa (JUD), Al-Akhtar International and Al-Rasheed Trust to the consolidated list of individuals and entities subject to assets freeze, travel ban and arms embargo set out in paragraph 1 of Security Council Resolution 1822(2008) adopted under Chanter 7 of the Charter of United Nations.
(4) On 10th December, 2008, Security Council Al-Qaida Taliban Sanctions Committee approved addition of the name of Hafiz Muhammad Saeed, CNIC No,3520025509842-7, resident of House No,116, Muhallah Johar, Tehsil City, District Lahore Pakistan to the consolidated list of individuals and entities subject to assets freeze, travel ban and arms embargo set out in paragraph 1 of Security Council Resolution, 1822 (2008) adopted under Chapter 7 of the Charter of the United Nations.
(5) Ministry of Interior vide letter dated I lth December, 2008 has intimated that Pakistan is the signatory of United Nations Security Council Resolution No,1267 and whenever an entity/ individual is listed under United Nations Security Council Resolution 1267, the Ministry of Foreign Affairs notifies the same S.R.O. Which is sent to all Ministries and Provincial Governments for implementation.
Government of Pakistan is, therefore, obliged to take necessary action in this regard.
(6) Hafiz. Muhammad Saeed son of Kamal Din r/o 116-E M.A. Johar Town Lahore is the Central Ameer of JUD.
(7) Intelligence Agencies have reported that activities of Hafiz Muhammad Saeed, Central Leader of (defunct) JUD arc prejudicial to the maintenance of public peace and tranquility and religious harmony. (It is to be noted that in a cyclostyle the names of the petitioners were replaced in paras 4 and 6 above).
' The first and second detention order passed by the DCOs dated 12-12-2008 and 13-12-2008 and the Home Secretary Government of the Punjab on 9-1-2009 did not find mention that the petitioners had been detained under the garb of some UNO Resolution, but it was for the first time that this stand was taken before the Review Board, which shows that even the Government was not confident for making detention of the petitioners on what allegation and how the petitioners could know about the allegations against them. It is evident that the Government had violated the provisions of the Constitution as envisaged in Article 10(5), which is reproduced as under:-- "(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."
' The perusal of the above sub-Article (5) of the Constitution makes clear that it was mandatory upon the detaining authority to provide grounds of detention D on which the order has been made within 15 days, but the Detaining Authority made clear violation of express provisions of the Constitution, which deprived the petitioners to assail their detention before the competent forum and also to know the allegations against them. Even the grounds of allegations allegedly communicated to the petitioners were not meant for providing to them, but a perusal thereof would show that these were only prepared to submit D before the Review Board for seeking further detention of the petitioners. As such it cannot be said that the petitioners were in a position to plead their case before the Review Board when they were completely ignorant about the allegations against them and first time they were confronted with the said allegations.
19. We have found that this violation of law alone is sufficient to declare the detention of the petitioners as illegal as it E was mandatory which shows that how the Legislature was careful about the person, being detained without a trial. It has been rightly pointed out by the learned counsel for the petitioners that in PLD 1988 Kar. 237 at page 240, which is a DB judgment, while observing that since no grounds had been supplied in furtherance of the detention order against the detenus, the detention order was quashed while declaring it illegal and the detenu was set at liberty. Similar question arose in Nathania Naz v. Additional District Magistrate, Sialkot and another PLD 1983 Lah.
244 relevant portion is at page 246 wherein no ground was given to the detenu and the order was quashed.
20. We have considered the arguments of learned counsel for the petitioners and after perusal of the grounds which were even provided after three months of the detention of the petitioners in violation of the constitutional provisions and found that grounds Nos.l to 5 arc regarding UNO Resolution through which United Nations Security Council has given the names of individuals and entities to apply travel restrictions, arms embargo and to freeze the funds and other financial resources of certain individuals and entities. The Ministry of Interior forwarded the said resolution to the Home Department on the basis of which the detention order has been passed. According to Ground No,7 the Intelligence Agencies had reported that activities of Ameer Hamza of JUD were prejudicial to the maintenance of public peace and tranquility and religious harmony. All the detainees were provided these cyclostyle grounds only by substituting their names and the responsibility in the JUD in para Nos.4 and 7. It is note worthy that two of the detainees, namely Qazi Kashif Niaz alias Abu Umar and Qari Muhammad Yasin Baloch, who according to the grounds were also attached with JUD, but thew detention was not extended by the Review Board. However, detention of the remaining four persons or the same grounds had been extended. Then subsequently on 5-5-2009, the detention of Hafiz Muhammad Saeed and Colonel (Retd) Nazir Ahmad was extended while extension in the detention of Ameer Ilamza and Mufti Abdul Rehman was not recommended on the same grounds. We have noticed that in the original orders similar grounds had been given for the detention of all these six persons, but we do not find any distinguishable facts and circumstances in the case of the two petitioners, namely, Hafiz Muhammad Saeed and Colonel (Retd.) Nazir Ahmad for maintaining their detention when no other material is available on the record against them by the detaining authority. Even otherwise, we are of the view that as per grounds Nos.1 to 5 which were based on the UNO Resolution which itself did not ask for detention of the petitioners and the others whose detention has not been extended, but resolution of UNO only imposes travel ban, bar on arms and freezing of assets. In the report and para-wise comments, Home Secretary Punjab in para No,4 has stated that detention order was based only on the UNO Resolution and reply of para No,4 is reproduced as under:-- "Admitted to the extent of receipt of Ministry of Foreign Affairs Gazette Notification No,S.R.O.
1236(1)/2008 dated 11-12-2008 in which it was intimated that in pursuance of United Nations Security Council Resolution No,1267 (199) Security Council alQauida and Taliban Sanctions Committee has approved the addition of 4-entries including Lashakr-e-Tayyaba and Jamaat- udDawa (JUD) to its consolidated list of individuals and entities. Subject to assets freeze, travel ban and arms embargo set out in paragraph 1 of Security Council Resolution 1822 (2008) adopted under Chapter 7 of the Charter of the United Nations."
' From the perusal of the same it is evident that the detaining authority was influenced only from the UNO Resolution and had not seen any other material. This ground is bad for the reason that it did not call for detention of any of the petitioners G and the sufficient ground was not available for their detention. The order is bad and even if one of the grounds is bad, the whole of the order would be vitiated as has been held in Federation of Pakistan through Secretary, Ministry of Interior, Islamabad v. Mrs. Amatul Jalil Khawaja and others PLD 2003 SC 442 relevant portion is at page 456, which is reproduced as under:-- "An order of preventive detention has to satisfy the requirements laid down by their Lordships of the Supreme Court that is to say, (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; iv) that the detaining authority must place the whole material order of detention 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. 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 requirement of the law relating to preventive detention should be 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 and should be against his detention, that is they are not irrelevant to the aim and object of this law and that the detention should not be for extraneous considerations or for the ground of malice: Liaqat Ali v. Government of Sind through Secretary, Home PLD 1973 Kar.
78."
21. We have taken into consideration the view taken by the learned Division Bench reported in PLD 1986 Quetta 270, that for interference in the orders of the Review Board there should be compelling circumstances. We find that the compelling circumstances to interfere in the present detention order are the non supply of grounds of allegations in violation of the Constitution, which cannot be ignored. It alone is sufficient to vitiate the initial order and subsequent orders. The petitioners have been deprived of their liberty under the garb of preventive detention, but they are being blamed for security risk without any evidence against them in this regard. In Mst. Kush Niaz v. Federation of Pakistan 2004 YLR 1680, a Division Bench of this Court held that:-- "Where State Security is involved the Court may be reluctant to exercise Constitutional jurisdiction even in the case of detention if the order is bona fide and is supported by the material on record though there may be some infirmity in the detention order as to procedure and not as to substance."
' In the present case the Government is not in possession of any evidence that the petitioners are risk to security of Pakistan and merely on the basis of the UN Resolution their liberty cannot be curtailed, but the Government can act upon the same in letter and spirit and not beyond the mandate given by it. We are not going into vires of the Resolution as the said matter is not before us, but have observed that the Government is going ahead by ordering detention of the petitioners in spite of that it was not required to do by the Resolution of UNO.
22. In Malik Ghulam Jilani's case reported in PLD 1975 SC 66, it was held that the High Court can issue a writ of habeas corpus if the custody of the person is found violative of Articles 9 and 10 oil the Constitution. For ready reference the relevant partition at page 284 is reproduced as under:-- "Under Article 9 he shall not be deprived of life or liberty save in accordance with law. Under Article 10(i) & (2) when a person is arrested he shall not be detained in custody without being informed as soon as possible of the grounds of his arrest and will not be denied the right to be defended by a legal practitioner of his own choice. And "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." Any law or action which is violative of these rights will be void under Article 8 of the Constitution. Since Articles 9 and 10 are not included in Article 232(1), referred to above, the State shall not frame any, law even while the Proclamation of Emergency is in force in contravention of these rights. If such a law is enacted, any act done or proceeding undertaken under it, shall be struck down by a High Court under Article 199 as without lawful authority and of no legal effect. This result will follow even if the President has by an Order declared that the right to move any Court for the enjoyment of these Fundamental Rights shall remain suspended while the Proclamation of Emergency is in force, for, as said earlier, Article 233 does not permit the State to make laws which are inconsistent with the Fundamental Rights other than the Rights specified in Articles 15, 16, 17, 18, 19 and 24. This power is independent of the power of the High Court to enforce Fundamental Rights conferred by Chapter 1 of Part-11 of the Constitution, Consequently if a person is taken into custody under a law which is violative of Articles 9 and 10, a High Court will under Article 199(1)(b) issue a writ of habeas corpus and direct his release forthwith."
' Similarly, it has been pointed out by the learned counsel for the petitioners that in a case reported in PLD 1966 SC 286 the Government of East Pakistan v. Mrs. Rowshan Bijaya Shaukat All Khan at page 313, the arrest was declared bad from the very inception and this has an important bearing on what follows as no grounds were specified as to why suspicion had been entertained by the Inspector against the detenu. In PLD 1954 Lah. 813 at page 817 (B), it has been held that if the initial custody is bad, the custody subsequently also will be bad.
23. Under Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, every citizen of this country has a right to enjoy the protection of law, which is inalienable right of every citizen. Though the learned counsel for the petitioner has challenged the UNO Resolution during the arguments that Pakistan is sovereign State and UNO Resolution has no sanction behind and it is not enforceable as 26 Resolutions on Kashmir Issue have been kept in cold storage by UNO and India has not acted upon the same, but we will not indulge in this proposition as UNO Resolution and its implication can be, dealt with in the appropriate proceedings. Moreover, petitioners have already filed appeal against it before the International Forum and we will not go into its vires. However, we have found that the UNO Resolution itself did not require for the detention of the petitioners, and it can be safely said that the detaining authority had passed the mechanical order without considering the K valuable rights of the petitioners through the detention order which cannot be taken away normally unless there was sufficient cause for their detention and liberty of the citizens cannot be curtailed under the garb of any order passed in a mechanical manner.
24. It is relevant to note that no documentary or any other evidence had been produced before this Court or even alleged in the comments submitted by the respondents on the basis of which detention order had been passed. We are clear in our mind that when the orders were initially passed by the DCOs or the Secretary Home, nothing was in possession of the Government or the detaining authority satisfying itself for issuing detention order. However, during ,the arguments, the learned Attorney General and the learned Advocate-General made verbal request for in camera proceedings as they wanted to produce some secret material to be .In possession of the Government against the petitioners. Arguments have been addressed by both the parties on this issue. The learned counsel for the petitioners objected to the production of the alleged privileged documents to be shown to the Courts on the ground that the document whichever is to be used against the petitioners, it is their right to be shpwn to them and to confront them with the said documents. On the other hand, the learned Attorney General and the learned Advocate-General have contended that these are privileged documents winch cannot be shown in open Court.
Learned counsel for the petitioners Mr. A.K. Dogar, on the other hand raised objections that there was no mention of any sensitive material in any of the orders in possession of the respondents and they had not shown any source of procuring the material and the material should be shown to the detenus and unless they are confronted with it, the same cannot be used against them. It is contended that august Supreme Court of Pakistan in a case reported in PLD 2000 SC 442 at page 456, has held that the detaining authority should show and declare in the order through which the detenu is detained to the Court and the detenu notwithstanding its claim of privilege, validity of any such document will be produced and decided by the Court. However, it was decided by us that whether the document could be used or had been properly used by the concerned authorities and due care was taken into consideration before passing of the detention order or whether these could be shown to the detenus or not is a question, which could only be resolved after perusal of the documents. Hence, we held in camera proceedings.
25. The said documents are mostly the reports of the Intelligence Agencies. The first report is dated 6-4-2009 and this document shows that in order to cover up lacuna, this report has been obtained after about 4 months of the detention of the petitioners and the report is found incorrect as nothing happened which was apprehended in the said report. The second report is dated 21-4-2009. If the said report is correct, why any action was not taken against the responsible persons and even otherwise this report was prepared during the period when the petitioners had already been detained, who cannot be held responsible for any apprehension about any action on the part of JUD. The next reports are dated 13-5-2009 and 23-5-2009 and these reports were procured during the pendency of this writ petition apparently to cover up the lacunas, but there was no solid evidence or source to supplement the said report. As regards the contention of the learned Attorney General that the petitioners are being blamed to be involved in Mombai attacks, we have observed that not a single document has been brought on the record that JUD or the petitioners were ever involved in the said incident. As far as the allegation in the UN Resolution that Hafiz Saeed and Zaki ud Din had links with Al-Qaida, we have found that in the earlier judgment reported in.
Mamoona Saeed v. Government of Punjab etc, PLD 2007 Lah.128 it was observed that there was no evidence against JUD for its links with AlQaida. This report is without any supporting evidence. Even otherwise there is no credibility attached to the said reports. Moreover, there is nothing on the record so far that this Organization had any links with Al-Qaida and it seems to be only a bald allegation, which was never considered by the detaining authority. It would be relevant to mention here at this juncture that our security laws and Anti-Terrorism Laws are silent about the fact that Al-Quada was a terrorist organization. These are fresh documents and fresh grounds cannot be taken into consideration for extending the period of detention as is laid down in Haider Bux Jatoi's case PLD 1969 SC 210. Even after the perusal of the said documents we do not find any material declaring that the detention was necessary for the security of the petitioners and there is no evidence that the petitioners had any links with Al-Qaida or any terrorist movement which could endanger the security of Pakistan except for the bald allegations being levelled by the Indian Lobby that they are involved in Mombai attacks, but there is no such evidence or even any linkage borne out from the said documents against the petitioners. There is also no such evidence declaring that the petitioners arc involved in anti-State activities and security risk.
26. The above are the reasons for our short order announced on 2-6-2009, reproduced below:--
2. As regards petitioners Nos.1 and 2, after hearing the learned counsel for the parties and perusal of the case-law on the subject as well as the material produced by the learned Law Officers in chamber, for the reasons to be delivered later on, with a unanimous view, we have held that this writ petition in the form of habeas corpus is maintainable as prima facie the Government has no sufficient grounds to detain the petitioners for preventive measures. So far as Resolution of UNO is concerned, there is no matter before us about its vires and the Government can act upon the same in letter and spirit, if so advised, but relying upon the same their detention cannot be maintained as it was even not desired thereby. Hence, this writ petition is allowed, the impugned detention orders including the subsequent orders passed in o continuation thereof are quashed and both petitioners Nos.1 and 2 will be released forthwith, if not required in any other case."
' The hearing of this writ petition continued on 6-5-2009, 7-5-2009, 8-5-2009, 12-5-2009, 15-5- 2009, 21-5-2009, 27-5-2009, 30-5-2009, 1-6-2009 and today. The Government has already released petitioners Nos.3 and 4 and this petition to their extent having become infructuous is disposed of accordingly.
2. As regards petitioners Nos.1 and 2 after hearing the learned counsel for the parties and perusal of the case law on the subject as well as the material produced by the learned Law Officers in Chamber, for the reasons to be delivered later on, with a unanimous view, we have held that this writ petition in the form of habeas corpus is maintainable as prima facie the Government has no sufficient grounds to detain the petitioners for preventive measures. So far as Resolution of UNO is concerned, there is no matter before us about its vires and the Government can act upon the same in letter and spirit, if so advised, but relying upon the same their detention cannot be maintained as it was even not desired thereby. Hence, this writ petition is allowed, the impugned detention orders including the subsequent orders passed in continuation thereof are quashed and both petitioners Nos.l and 2 will be released forthwith, if not required in any other case. 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.