ORDER IBAD-UR-REHMAN LODHI, J. - Through this Constitutional petition, the petitioner challenged the order passed on 30.4.2013, by the District Coordination Officer, Muzaffargarh (respondent No. 2), under the provisions of Section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960, whereunder father of the petitioner has been order to be detained for a period of one month.
2. After hearing the arguments and going through the record, it seems that the order, impugned herein, has been passed on the recommendation of the police authorities, whereby, the person detained has been termed as "one having connection with some defunct organizations. The District Coordination Officer, who is the order issuing authority, has not furnished any material justifying the connection of the detained person with any of the defunct organization. Even today, the learned Assistant Advocate- General was specifically asked to place on record any material, which was made basis to satisfy the independent mind of the Order issuing authority for such detention order, but he failed to place on record any such material.
3. Section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960 necessitates the "satisfaction" of the order issuing authority of the strength of some events preceded the passage of such order.
4. A Division Bench of Karachi High Court in case of Arbab Akbar Adil Vs. Government of Sindh through Home Secretary, Government of Sindh, Karachi PLD 2005 Karachi 538) has dealt with a detention matter and through an authoritative views has held as under:-- "Initial burden lies on the Detaining Authority to show the legality of the preventive detention.
Detaining Authority must place the whole material upon with the detention order is based, before 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; Order of detention must be made by he Authority prescribed in the law relating to preventive detention. Each of the requirements of the law relating to preventive detention should be strictly complied with. Satisfaction must in fact exist with regard to the necessity of preventive detention of the detenu. Grounds of detention should have been furnished within the ' period prescribed by law, and if no such period if prescribed then as soon as may be. Grounds of detention should not be vague and indefinite and should be comprehensive enough to enable the detehu to make representation against his detention to the Authority prescribed by law. Grounds of detention^should be within the scope of the law relating to preventive detention, i.e., the same should not be irrelevant to the aim and object of the law and the detention should not be for. Extraneous considerations or for purposes which may be attacked on the ground of malice.
Detention order taking away the liberty of a citizen is not sustainable on subjective considerations.
Objectivity should exist in the detention order which can be demonstrated by giving necessary details and particulars therein.
Application of mind essential. Word "satisfied" used in S. 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960, indicates that the Authority issuing the detention order should apply his mind to the facts forming basis of the same. Until and unless there is something tangible in the detention order the Authority issuing it cannot be said to have applied his mind objectively and his opinion based on reasons."
Similar view was taken by this Court, in case of Muhammad Nadeem Vs. Government of Punjab through Home Secretary and another (PLD 2010 Lahore 371).
5. In. The case, in hand, the wording of the impugned order shows that even in the ender, the District Coordination Officer has not demonstrated as to whether there is any satisfaction on his part before issuance of such detaining order. Even no grounds of detention were provided to the person detained.
6. The learned Assistant Advocate-General has taken an objection with regard to the maintainability of the present Constitutional petition in presence of a remedy available to the petitioner under Section 6 of the West Pakistan Maintenance of Public Order Ordinance, 1960 by way of representation before the Government.
7. This question has been dealt with by this Court in case of Haq Dad Khan Vs. District Magistrate, Mianwali (1997 P.Cr.L.J. 1288), where similar objection was raised by the learned Assistant Advocate-General, which was answered in the manner that since order passed against the detenu was coram-non-judice and nullity in the eye of law, therefore, there was no need for detenu to file representation before the Government, because such representation could only be made, when order of detaining authority was passed within the four corners of provisions of Section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960. The remedy by way of a representation before the Government has always been considered as an illusion and a Constitutional petition straightaway has always been entertained.
8. The grounds, which were attached with the detention order are vague and unspecific and as held in Arbab Akbar Adil's case (supra), the detention order taking away the liberty of a citizen is not sustainable on subjective considerations. Objectivity should exist in the detention order which can be demonstrated by giving necessary details and particulars therein, which both are conspicuously missing in the present case.
9. The result of the above discussion is that this petition is allowed; the impugned order of detention dated 30.4.2013 is illegal and without lawful authority and the same is set aside. The detenu, namely, Hakeem Khan is ordered to be released forthwith.