' IQBAL HAMEEDUR RAHMAN, C.J.---Through the instant. Constitutional Petition, the petitioners have prayed that the impugned extension order passed by the Federal Review Board dated 27-4-2012 of petitioners' detention may be declared illegal and be set aside. They further seek issuance of direction to respondent No,2 to hand over the custody of petitioners to their legal heirs.
2. It is pertinent to mention here that the petitioners have filed the amended writ petition in compliance with order dated'2-5-2012 wherein it was apprised that the Federal Review Board on 27-4-2012 has extended the detention period of the petitioners for another three months:
3. The succinct facts of the instant petition as mentioned by the petitioners are that petitioners were booked in case F.I.R. No,34 dated 29-1-2009 registered at Police Station Saddar Baruni, Rawalpindi and ultimately acquitted by the Lahore High Court, Rawalpindi Bench, Rawalpindi vide order dated 12-4-2011. Thereafter, it transpired that petitioners' detention order had been issued for three months on 4-4-2011 by the Deputy Secretary FIA. After that the case of the petitioners was sent to respondent No,1 /Federal Review Board which extended the detention period of the petitioners time and again and ultimately on 27-4-2012 the said detention period has been extended for further three months after the expiry of detention period. Hence this petition.
4. Learned counsel for the petitioners while arguing on the maintainability of the writ petition relied upon the case of Government of West Pakistan v. Haider Bux Jatoi and another (OLD 1969 Supreme Court 210). It is contended that the proceedings of the Federal Review Board are not judicial proceedings and there is no remedy available to the petitioners against the orders of the. Federal Review Board, therefore, writ petition lies against the order of the Federal Review Board. Moreso, repeatedly detention orders of the petitioners are being extended after the expiry of the previous detention period without any allegation or producing any fresh material evidence against the petitioners, as such, their detention is to be considered to be illegal and void ab initio in violation of the fundamental rights guaranteed under Articles 4, 9 and 10 of the Constitution. It is further contended that the basic detention order issued by the Deputy Secretary, HA had already been set aside by this Court in other writ petitions, and the petitioners are entitled to be released.
5. Learned Deputy Attorney-General while opposing the contentions advanced by the learned counsel for the petitioners contended that the writ petition is not maintainable against the order of the Federal Review Board. It is further contended that writ petition is not competent merely on the ground that petitioners had no other efficacious remedy, if otherwise untenable; that the jurisdiction of the High Court is barred to entertain the constitutional petition against the order of a Judge of the High Court or the Supreme Court passed in exercise of the functions and powers of his office. To strengthen his contentions learned Deputy Attorney-General has relied upon the cases of Registrar, Supreme Court of Pakistan, Islamabad v. Qazi Wali Muhammad (1997 SCMR 141), Muhammad Iqbal and others v. Lahore High Court through Registrar and others (2010 SCMR 632), Muhammad Ikram Chaudhry and others v. Federation of Pakistan and others (PLD 1998 Supreme Court 103), Messrs Nusrat Elahi and 41 others v. The Registrar., Lahore High Court Lahore and 68 others (1991 MLD 2546) and Asif Saeed v. Registrar, Lahore High Court and others (PLD 1999 Lahore 350).
6. Arguments of the learned counsel for the petitioners as well as learned Deputy Attorney-General heard, material made available on the record perused..
7. The petitioners, through the instant writ petition have invoked the extra ordinary Constitutional jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 alleging therein that the petitioners through the impugned extension order dated 27-4-2012 are being denied the fundamental right of liberty guaranteed by the Constitution under Article 9 of the Constitution of the Islamic Republic of Pakistan, 1973. They were earlier involved in case F.I.R. No,34 dated 29-1-2009 registered at Police Station Saddar Baruni, Rawalpindi wherein they had been duly tried and convicted by the Judicial Magistrate, Rawalpindi under section 13 of Arms Ordinance No,XX of 1965 for three years R.I. With fine of Rs,20,000. In case of non-payment of fine, to further undergo six months R.I. Under Section 5 ESA seven years R.I. With for feature of whole property owned by petitioners/accused in favour of the Government. Thereafter, their appeal before the learned Additional Sessions Judge, Rawalpindi was dismissed. On filing of Criminal Revision Petition No,25 of 2011 before the Lahore High Court, Rawalpindi Bench, Rawalpindi by the petitioners the same had been accepted through judgment dated 12-4-2011 the petitioners were acquitted. Later on the Deputy Secretary (FIA) issued a detention order of the petitioners for three months on 4-4- 2011 which was further extended by the Federal Review Board on 8-10-2011 and 2-11-2011 the same were assailed before this Court in Writ Petition No,3336 of 2011 but later on it was withdrawn. Now the petitioners through the instant writ petition have called in question the extension of detention order dated 27-4-2012 i,e, the impugned order passed by the Federal Review Board extending their detention further till 27-7-2012.
8. This Court had earlier allowed Writ Petitions Nos.1200 of 2011, 1220 of 2011, 1221 of 2011, 1222 of 2011, 1223 of 2011 and 1850 of 2011 through its judgment dated 28-6-2011 filed by the other co-accused in the same F.I.R. Against whom identical detention orders were also passed. The petitioners in the above mentioned writ petitions alone with the petitioners in the instant writ petition subsequently were acquitted through judgment dated 12-4-2011 passed in Criminal Re vision Petition No,25 of 2011, in view of the same their detention order dated 4-4-2011 passed by the Deputy Secretary FIA had been set aside by this Court as being without any justification and it was also declared to have been passed illegally as such, the above mentioned Writ Petitions were accepted by the judgment dated 28-6-2011 of this Court, wherein it had-also been observed that the Lahore High Court Rawalpindi Bench, Rawalpindi had observed that the prosecution had not been able to produce any iota of evidence against the accused persons including the petitioners involved in the said criminal case i,e, case No,34 of 2009 dated 29-1-2009, therefore, sentences were set aside which were passed- by the trial Court vide judgment dated 16-11-2010 and upheld by the Appellate Court vide judgment dated 22-1-2011. The Lahore High Court Rawalpindi Bench, Rawalpindi while delivering its judgment in the criminal revision petition had proceeded to hold that in the absence of any evidence being available against them their conviction could not be upheld on account of which petitioners and others were acquitted.
9. Learned Deputy Attorney-General assisted by Col (R) Fayyaz Hussain Ch. Directorate General, ISI, when confronted with the above detailed position, have not been able to controvert the same, rather they have failed to produce any new record of allegations or charges against the petitioners which could give any justification for granting further extension in the detention order. In the circumstances it could safely be held that the impugned order dated 27-4-2012 granting extension in the detention order of the petitioners amounts to curtailing the liberty of the petitioners in violation of the fundamental right guaranteed by the Constitution of the Islamic Republic of Pakistan, 1973 by virtue of Article 9 which states as under:-- "Security of person. No person shall be deprived of life or liberty save in accordance with law."
10. In the above perspective, the granting of further extension in the detention period vide impugned order dated 27-4-2012 by respondent No,1/Federal Review Board appears to be illegal and passed without any justification or reason in the absence of any fresh substantial material being alleged, against the petitioners, as such, it appears that the impugned order has been passed in mechanical manner without taking into consideration the realities of the circumstances existing in the case of the petitioners. The petitioners cannot be allowed to be remained under detention for an unlimited period through repeated extensions in absence of any fresh allegation/incriminating evidence being produced against them by the respondents. In view of the same, I am of the considered opinion that the impugned extension order of detention dated 27-4- 2012 has been passed in clear violation of the fundamental rights of citizens guaranteed under Article 9 of the Constitution of Islamic Republic of Pakistan, 1973, curtailing the liberty of the petitioners which cannot be allowed in any circumstances. The Superior Courts in this regard have not hesitated in exercising its extra ordinary Constitutional jurisdiction in order to rectify such grave injustice.
11. In the circumstances, the impugned detention order passed by respondent No,1/Federal Review Board is amenable to the Constitutional jurisdiction bestowed to the High Courts under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 as the said order passed by the Federal Review Board is considered to be as quasi-judicial order which can be interfered with by the High Court in exercise of its extra ordinary Constitutional jurisdiction: In this regard I am fortified in my view by the judgment of Quetta High Court in the case of Sadat Ullah v. Secretary Home Department and others (PLD 1986 Quetta 270).
12. For what has been discussed above, this writ petition stands accepted and the impugned extension order dated 27-4-2012 of detention of the petitioners is considered to have been passed in violation and against the fundamental right of liberty guaranteed under Article 9 of the Constitution of Islamic Republic of Pakistan, 1973, as such, the same is declared illegal and set aside accordingly. Respondent No,2 is directed to set the petitioners at liberty forthwith.