' MUHAMMAD QASIM KHAN, J.---Liaqat Ali petitioner being brother of Ghulam Rasool has assailed the order dated 3-11-2010 passed by District Coordination Officer, Bahawalpur/respondent No,1 which reads as under:-- ''WHEREAS, 1, Dr. Naeem Rauf, District Coordination Officer, Bahawalpur am satisfied that Mr. Ghulam Rasool son of Hussain Bakhsh cast Rajput resident of Kachiabadi Shandra Tehsil and District Bahawalpur is most active worker of banned sectarian organization namely Tehrik-e- Nifaze-Fiqah Jaffaria .Pakistan. Reportedly he has close links with the activities and terrorists of sectarian organizations particularly banned Tehrik-e-Jaffaria Pakistan and Sipah-e- Muhammad. He is criminal minded person and involved in 6 criminal cases as per police record.
He has been providing financial assistance and shelter to the desperate criminals and other persons including the activists and terrorists involved in sectarian and sabotage activities. He has been instigating his followers to create law and order situation in his locality resulting in disturbance of public tranquility, danger to human life, health and safety, posing grave threat to maintenance of public order.
(2) AND WHEREAS, based upon evidence/material place before me, I am convinced that the presence of Mr. Ghulam Rasool son of Hussain Bakhsh cast Rajput resident of Kachiabadi Shandra Tehsil and district Bahawalpur at any public place and at large will pose great 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, SP (IS-I)3-12/2007 dated 9-8-2008, I Dr. Naeem Rauf, District Coordination Officer, Baltawalpur order that Mr. Ghulam Rasool son of Hussain Bakhsh cast Rajput resident of Kachiabadi Shandra Tehsil and district Bahawalpur be arrested and detained for a period of 30- days with immediate effect. His custody shall be placed under the superintendence of Superintendent District/Central Jail, Bahawalpur for detention at New Central Jail, Bahawalpur.
(4) The grounds of this order shall be communicated in due course of time shortly.
(5) The detente stall have right to make representation against this order of the Government. "
2. It is argued by learned counsel representing the petitioner that impugned detention order passed by respondent No,1 is illegal and without lawful authority. The contention of learned counsel is that in fact Ghulam Rasool (father of the petitioner) is News Reporter and had been publishing news items against the police officials, as a result of which with mala fide intention the impugned order has been issued, otherwise, he had no link with any of the banned organizations and the alleged reports allegedly collected and submitted by respondent No,2 are fake. The learned counsel further went on to argue that the alleged press clippings being inadmissible in evidence could not be made basis for passing the impugned detention order. Lastly, it is argued that impugned detention being without any valid material is violative of Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, as such, the writ petition may be allowed with costs and the impugned detention order may be set-aside after declaring it as void ab initio. To strengthen their arguments, learned counsel for the petitioner have placed reliance on the cases: "STATE through Advocate-General, Sindh, Karachi v. Mst. TAJI BIBI" (2002 SCMR 914), "Mrs. MAMOONA SAEED v.
GOVERNMENT OF THE PUNJAB AND OTHERS" (2003 YLR 2379), "MUHAMMAD MUSIITAQ v. DISTRICT MAGISTRATE, SHEIKHUPURA AND ANOTHER" (1997 MLD 1658), "FEDERATION OF PAKISTAN THROUGH SECRETARY, MINISTRY OF INTERIOR, ISLAMABAD v. MRS. AMATUL JALIL KHAWAJA AND OTHERS"
(PLD 2003 Supreme Court 442), "Hafiz MUHAMMAD SAEED AND 3 OTHERS, v. GOVERNMENT OF THE PUNJAB, HOME DEPARTMENT THROUGH SECRETARY, LAHORE AND 2 OTHERS" (2009 YLR 2475), "Mst.
MISBAH TABASSUM and 2 others v. GOVERNMENT OF PUNJAB THROUGH SECRETARY, HOME DEPARTMENT, LAHORE AND 3 OTHERS" (2007 PCr.LJ 1776).
3. On the other hand, learned counsel representing the DCO/respondent No,1 at the very outset came with the assertion that he would adopt the same view as disclosed in the comments submitted by the DCO and would bank upon the material attached therewith, however, added that whatever material was placed by the police officers before the DCO, it was made basis for issuing the impugned detention order, as such, according to the learned counsel the DCO could not be held responsible for any lapse, if otherwise found in the impugned order.
4. The learned Assistant Advocate General strenuously opposed the writ petition and contended that petitioner has an alternate remedy and in this behalf pursuant to the order of this court the petitioner has also filed a representation which is pending, as such, this writ petition is not maintainable. On merits, the learned Assistant Advocate General while referring the report/parawise comments and the record submitted on behalf of respondent DPO, Bahawalpur, contended that Ghulam Rasool has close links with the activists and terrorists of sectarian organization particularly "Tehrik-e-Nifaze Jaffaria Pakistan" and also is guilty of rendering financial assistance and shelter to the desperate criminals and other persons including the activists and terrorists involved in sectarian and sabotage activities. On court query, the learned Assistant Advocate General in order to establish his stance referred to some press clippings, alleged letters written by Ghulam Rasool (detenu) and also copies of some F.I.Rs,
5. After hearing the arguments of learned counsel for the parties at considerable length, because of paucity of time due to Eid Holiday, this court on 16.11-2010 had issued a short order to the following effect:-- ' For the reasons to be recorded later on, this writ petition is allowed, the impugned detention order dated 3-11-2010 passed by the District Co-ordination Officer, Bahawalpur qua Ghulam Rasool son of Hussain Bakhsh, is set aside and he is directed to be released forthwith if not required in any other case. The D.R. (J) of this Bench is directed to convey this order to the concerned authorities immediately.
' Pursuant to and with reference to the said short order, this judgment shall form the detailed basis thereof.
6. With the concurrence of learned counsel for the parties this writ petition is decided as PAKKA CASE. A perusal of the impugned order would show that it had been issued against Ghulam Rasool precisely on the allegations that:--
(i) Ghulam Rasool son of Hussain Bakhsh cast Rajput resident of Kachiabadi Shandra Tehsil and district Bahawalpur is most active worker of banned sectarian organization namely Tehrik- eNifaze-Fiqah Jaffaria Pakistan;
(ii) He has close links with the activists and terrorists of Sectarian organizations particularly banned Tehrik-e-Jaffaria Pakistan and Sipah-e-Muhammad;
(iii) He is criminal minded person and involved in 6 criminal cases as per police record;
(iv) He has been providing financial assistance and shelter to the desperate criminals and other persons including the activists and terrorists involved in sectarian and sabotage activities;
(v) He has been instigating his followers to create law and order situation in his locality resulting in disturbance of public tranquility, danger to human life, health and safety, posing grave threat to maintenance of public order.
7. Before opening the case on merits, this court would like to deal with preliminary objection raised, by learned Assistant Advocate General with regard to maintainability of this writ petition in the presence of alternate and adequate remedy of filing a representation before the Home Secretary.
This contention of learned Law Officer was given anxious consideration by the court but it could not find favour for the reason that the impugned detention order was passed on 3-11-2010 and on 8-11- 2010 this Court had passed an order directing the office to intimate by fax that order along with the copy of writ petition and annexures to respondent No,3/Secretary Home Department, Government of the Punjab, Lahore and a specific direction was passed on to said respondent either to decide the earlier pending representation of the petitioner or to treat the writ petition as representation and then decide the same before the next date of hearing and case was adjourned for 15-11-2010.
On 15-11-2010 in response to the said very order a representative of respondent No,3 appeared and stated that representation could not be decided and when inquired by the court whether said representation could be decided till 16-11-2010 the said representation came up with the stance that it is not possible because availability of the Secretary Home Department will be seen, notice have to be issued to the parties and then the matter will be decided. Whereas, on 17th of November, 2010 it was Eid-ul-Azha, one of the most sacred and well celebrated religious festival of the Muslims, as such, considering the above lame excuse put forth by the representative of the Secretary Home Department, Government of the Punjab, this Court was of the firm view that respondents were not inclined to decide the pending representation and were adamant to keep the detenu confined. It was in these circumstances that this Court had to hold that although filing of representation before the Secretary Home may be an alternate remedy, but in the peculiar facts and circumstances of this case; it had lost its adequacy as well as efficacy. On the other hand, not only under provisions of Chapter-I, Part-II of Constitution, liberty, security, dignity and freedom of a person had been fully secured and guaranteed, but also under Charter of Human Rights, High Court had constitutional obligation to jealously safeguard such fundamental rights against any invasion. A learned Division Bench of Sindh High Court in the case "DR. MUHAMMAD SHOAIB SUDDLE v. PROVINCE OF SINDH, AND OTHERS" 1999 PCr.LJ 747 held that even on failure of detent to make a representation to the executive authorities, the jurisdiction of High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, would not be barred, as such representation is neither adequate nor alternate within the meaning of Article 199(1) of the Constitution. In these circumstances this Court is of the view that it could competently step in such a case, as such, jurisdiction was assumed.
8. Now coming to the factual aspects, I would refer to a celebrated judgment of the apex Court reported in "FEDERATION OF PAKISTAN through Secretary, Ministry of Interior, Islamabad v. Mrs. AMATUL JALIL KHAWAJA and others" (PLD 2003 Supreme Court 442), wherein their lordships set a criteria that the preventive detention order has to satisfy the following requirements:-
(i) The Court must be satisfied that the material before the detaining authority was such that a reasonable person would be satisfied as to the necessity' for making the order of preventive detention;
(ii) 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;
(ii) Initial burden lies on the detaining authority to show the legality of the preventive detention, and
(iv) The detaining authority must place the whole material, upon which the order of detention is based, before the Court notwithstanding its claim of privilege with respect to any document, the validity of which claims shall be within the competent of the Court to decide.
The legality and propriety of the detention order impugned in this writ petition shall be seen on the touchstone of above settled principles. As pointed out above, on court question about the material against Ghulam Rasool (detenu). To substantiate the above allegations, the learned Assistant Advocate General had nothing to refer but copies of some F.I.Rs, and a Press Release of Bahawalpur Press Club. Further, the learned Assistant Advocate General also tried to refer to some material which according to him was secret record/reports of the agencies, but having gone through the same I found nothing to term those documents as sensitive, as such, those were shown in the open court. When further C questioned as to how the press clippings, alleged press releases or some writings on letter pads could be used against the detenu to connect him with the above allegations, no satisfactory answer was given to the Court. No material whatsoever has either been collected or produced before the court, which fact has rather been admitted by the respondents that there is no valid proof as to how Ghulam Rasool is most active member of banned sectarian organization namely Tehrik-e-Nifaze-Fiqah Jaffaria Pakistan and also there is no material to establish close links of Ghulam Rasool (detenu) with activists and terrorist of sectarian organizations. As regards criminal mindedness of Ghulam Rasool is concerned, although copies of some F.I.Rs, were cited by the learned Assistant Advocate General but admittedly in none of those cases he is the convict and all those cases are reportedly pending trial. Even otherwise, this Court in the case "MUHAMMAD MUSHTAQ v. DISTRICT MAGISTRATE, SHEIKHUPURA and another" (1997 MLD 1658) has already declared that "involvement of the detenu in number of criminal cases, per se, was not a valid, ground for his preventive detention as he could not be vexed twice on the basis of the same criminal charge due to the pendency or disposal of the said criminal and his detention was nothing but punishment depriving him of his liberty." Coming to the next allegation of providing financial assistance and shelter to the desperate criminals and other persons and also that of instigation, again no record whatsoever could be shown to this Court to justify the above allegations. Furthermore, providing financial assistance or shelter to the desperate criminals is even otherwise an offence and if any person is found indulged in such like activities mere passing of detention order against him is neither proper nor appropriate remedy and solution, rather he is to be, indicted under appropriate penal clause of Pakistan Penal Code or the Anti-Terrorism Act, 1997. But here in-this case, although allegations have been levelled in the impugned detention order, yet on court query it has been admitted that so far not a single criminal case has been registered against the detenu for his alleged involvement in the above alleged nefarious activities.
It may also be observed that registration of one or two criminal cases with regard to providing financial assistance to criminals or harbouring them may also not furnish a valid ground for passing a detention order, until such culprit is not only found repeatedly involved but is also convicted for his above misdeeds and furthermore his such activities are also found prejudicial to the public peace and tranquility falling within the ambit of Section 3 of the Maintenance of Public Order Ordinance, 1960. In these facts and circumstances, this Court has no hesitation in holding that impugned detention order could not satisfy the requirements of a valid detention order on the touchstone of guidelines settled by the apex Court in "FEDERATION OF PAKISTAN through Secretary, Ministry of Interior, Islamabad v. Mrs. AMATUL JALIL KHAWAJA and others" (PLD 2003 Supreme Court 442), as not a single ground/allegation mentioned in the said order could be established from the record/material, shown to the court.
9. Adverting to the role of respondent D.C.O. Authority issuing the detention order, there is no cavil to the proposition that section 26 of the Maintenance of Public Order Ordinance, 1960 vests authority in the D.C.O. In passing such orders, but this power is not absolute and as shall be seen from the language used in subsection (1) of section 3 of West Pakistan Maintenance of Public Order Ordinance, 1960, before ,passing such detention order the authority/D.C.O. Is to "satisfy" himself that with a view to preventing any person from acting in any manner prejudicial to public safety or the maintenance of public order, it is necessary so to do, he may issue an order in writing directing arrest and detention of such person for a period to be specified in the said order, but here in this case for the reasons as detailed above, the respondent/D.C.O. Did not apply his independent judicious mind and passed the impugned detention order merely on the basis of report submitted by the District Police Officer, Bahawalpur without considering the worth of the material made available to him, whether this material could form basis for such a detention order and whether this material could even stand the test of admissibility in evidence or its evidentiary value. As a matter of fact a detention order amounts to curtailing the fundamentally guaranteed right of liberty of a person and it was for this reason that the legislators in their wisdom vested such powers with the D.C.Os. Who are expected to be unbiased, as compared to the police agency and in this way the D.C.Os. Are not supposed to react on the reports of the police agency until and unless they satisfy themselves that such reports are correct and are also supported by tangible material. It may be reiterated here that the impugned detention order has been passed by respondent D.C.O.
Without application of mind about alleged activities of the detenu, therefore, he had in fact deviated from his one of the sacred duty by taking off the liberty of a person. All the grounds of detention enumerated in the detention order passed by the Authorities in the present case, were vague, based upon presumptions and speculations; it was, therefore, sufficient to infer that detaining Authority had not applied its mind to satisfy itself for issuance of detention order of detenu, as such, this court had opted to burden the respondent/D.C.O. Bahawalpur to pay from his pocket an amount of Rs,50,000 as fine, but on the request of the learned Law Officer and undertaking by the learned counsel representing the said respondent that in future his client would not act in such inhuman manner, this Court abstains itself from imposing the fine, by seeking guidance from a judgment "MST. MISBAH TABASSUM and 2 others v. GOVERNMENTS OF PUNJAB through Secretary, Home Department, Lahore and 3 others" (2007 PCr.LJ 1776).
10. For what has been detailed above, this writ petition is allowed in terms of the short order of this court dated 16-11-2010. A copy of this judgment shall be sent to the respondent/District Coordination Officer, Bahawalpur for future guidance.