' KH. IMTIAZ AHMAD, J. --- By this single order I want to dispose of Writ Petition No, 1846-2010 titled "Dr. Niaz Ahmad v. DCO. Etc" and Writ Petition No, 2046-2010 titled "Mufti Abdul Basit v. Secretary Home Department" since common question of law and facts is involved in both the writ petitions and through the present writ petitions the preventive detention order passed against Dr. Niaz Ahmad, Aamar, Shafique-ur-Rehman, Mazhar-ul-Haq, Abdul Shakoor, Abdul Majeed and Abdul Basit has been challenged.
2. In order to resolve the controversy, it is appropriate to mention the facts in order to understand the background of the controversy. In fact Dr, Niaz Ahmad, and Muhammad Mazhar-ul-Haq were challaned in a case bearing F.I.R. No, 390, dated 6.7.2008 under Sections 120B, 121-A, 122, 123, PPC read with Section 7-ATA, Police Station Banni District Rawalpindi.
3. After the conclusion of trial which lasted for about more than a year, the learned Special Judge Anti-Terrorist Court-II, Rawalpindi, acquitted both the accused vide order dated 29.4.2009. Shafiq- ur-Rehman, Mazhar-ul-Haq, Niaz Ahmad, Abdul Majeed, Abdul Basit and Abdul Saboor were challaned in case bearing F.I.R. No, 384, dated 1.7.2008 under Section 120-B under Section 4/5, ESA, 7-ATA, 1997, Police Station New Town, District Rawalpindi. They were tried by the same Court and after the conclusion of trial were acquitted on 26.11.2009. Shafiq-urRehman, Mazhar-ul-Haq, Dr. Niaz Ahmad, Abdul Saboor and Muhammad Aamir were also challaned in case bearing F.I.R.No, 786, dated 24.11.2007 under Sections 302, 324, 120-B, 337-19v), 440, 427, PPC, 4/5, ESA, 7-ATA, 1997 Police Station R.A. Bazar, Rawalpindi, They were also tried by the same Court and after conclusion of trial, they were acquitted vide order dated 8.4.2010. Shafique-ur-Rehman, Muhammad Mazhar-ul-Haq, Niaz Ahmad, Abdul Majeed, Abdul Basit, Abdul Saboor and Muhammad Aamir were also challaned in case bearing F.I.R. No, 670, dated 24.11.2007 under Sections 302, 324, 436, 427, 440, 120-B, PPC; 4/5, ESA, 7-ATA, 1997, Police Station New Town, Rawalpindi. They were also tried by the same Court and vide order dated 8.4.2010 were acquitted. Since all the above-said 7 persons had been acquitted from all the above-mentioned 4 cases and when they were expecting their release from the jail, the DCO, Rawalpindi passed the preventive detention order dated 8.4.2010 vide letters No, 213 to 219 against the said 7 persons under Section 1 of Section 3 read with Section 26 of Maintenance of Public Order Ordinance, 1960 read with Notification of Home Department No, SO(IS-1)3-12/2007, dated 9.8.2008 for the period of 30 days with immediate effect and further mentioned that the detenus shall have the right to make representation against the said order. These preventive detention orders passed by the DCO, Rawalpindi were challenged in Writ Petition No, 1467-2010. The report and parawise comments were called in the said writ petition and after hearing both the parties this Court vide order dated 20.4.2010 after taking into consideration the entire law available directed the detenus to file representation as provided under the law with the further direction that if the representation is filed, it would be heard, considered and disposed of in accordance with law by the respondent within 7 days of its filing. Accordingly, the detenus filed representation before the DCO, Rawalpindi wherein the objection was raised that this representation could only be filed before the Home Secretary. After hearing the parties, the D.C.O. Came to the conclusion that he had no jurisdiction in the matter and directed the detenus to approach the Home Secretary for the relief. This order was passed on 30.04.2010. Thereafter once again Dr. Niaz Ahmad had filed Writ Petition before this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 against the order of DCO. However, during pendency of said writ petition since the order dated 8.4.2010 passed by the DCO had elapsed and further detention order had been passed by the Secretary of the Government of Punjab, Home Department dated 6.5.2010 against the said detunes, wherein they were detained for a period of 90 days under Section 11-EEE of the Anti-Terrorism Act, 1997 and so C.M. No, 1116-2010 was moved by Dr. Niaz Ahmad that since the Secretary, Government of Punjab, Home Department had passed the further detention order, so he be impleaded as party in the petition. Similarly, another C.M. No, 1114-2010 was filed for permission to place on record the orders passed by the Home Secretary and yet another C.M. No, 1113-2010 was moved on the ground that since the further detention order of 90 days had been passed with male fide intention and so it was prayed that petition be accepted and Court may issue the release direction in the writ petition pending before the court. Accordingly, the detention orders were also allowed to be placed on record. On C.M. No, 1116-2010, the arguments were heard and this Court vide order dated 10.5.2010 allowed the petition on the ground that the order passed by the Home Secretary was in continuation of the previous order, so Secretary was necessary party and the petition was allowed and accordingly comments from Home Secretary were also called far, which have been submitted.
4. Similarly, Abdul Basit had also filed a petition directly against the Secretary, Home Department etc. Including the DCO wherein both the preventive detention orders passed by the DCO and Home Secretary have been challenged to the extent of Abdul Saboor, Abdul Basit and Abdul Majeed .
5. Parawise comments submitted by DCO shows that he had passed the exhaustive order on the representation dated 30.4.2010. However, the Home Secretary had submitted the parawise comments in a writ petition filed by Dr. Niaz only to the extent that the petitioners had preferred the representation. He with regard to his own order has not submitted any comments. The report and parawise comments were submitted by the Additional Secretary Home Department in Writ Petition No, 2046-2010 titled "Mufti Abdul Baais v. Secretary Home Department" wherein it was maintained that ample evidence was placed on record that the petitioner's brothers were members of terrorist origination and their activities were pre-judicial to public safety, maintenance of Public Order and sectarian harmony.
6. Now before proceeding further in the matter it would be appropriate to mention the grounds of both the preventive detention orders passed by the DCO and Home Secretary, Government of the Punjab. The grounds mentioned by the DCO in his order dated 8.4.2010 are to the affect that on the basis of report by CPO, Rawalpindi, the detunes were encouraging and instigating the general public to take out processions against the government in violation of law and were organizing the workers/general public to come out in the streets and create law and order situation. By virtue of planning and attempt to take out processions, the economic activities in the District were bound to affect adversely leading to colossal loss to business community as well as the public exchequer and continuation of his activities are likely to create unrest in the public, threat to law and order situation and economic instability.
7. The grounds mentioned by the Home Secretary Punjab in his preventive detention order are that they were members of terrorist organization and their activities had been found pre-judicial to public safety and threat to sectarian/public peace and harmony in the province and security and integrity of the country.
8. Learned counsel for the petitioner namely Dr. Niaz Ahmad etc. Submitted that the order passed under Section 11-EEE of the Anti-Terrorism Act, 1997 dated 6.5.2010 was on the fact of it is illegal since the pre-requisite was that the said order could only be passed against those persons whose names had been mentioned in the list prepared according to the 4th schedule as provided under Section 11-EE of the Anti-Terrorism Act, 1997. He further contended that even in the parawise comments submitted by the Interior Secretary in the connected writ petition it was mentioned that brothers of petitioner belong to anti-terrorist group. He contended that if the brothers of petitioner were having some activities then the order should have been passed against them and not against the detenus. He further contended that grounds mentioned in the preventive detention order passed by the DCO were entirely different from the grounds mentioned by the Home Secretary in the preventive order which also shows the male fide on the part of the government. He also contended that the detenus had filed the representation before the DCO who had passed the preventive detention order against the detenus and if according to DCO he was not competent authority, even then the representation should have been forwarded to the competent authority since it is not a simple case but question of liberty guaranteed by the Constitution is involved. He further contended that the petitioners remained in the jail for more than two years and could not be released and then how it was possible that while remaining in the jail they were in a position to instigate the people or to cause any unrest or indulge in any activity prejudicial to the security of the country. He further contended that there is no record that during long period of detention in the jail, they had ever been proceeded for violating the discipline of the jail. He contended that there is absolutely no proof whatsoever that the detenus belong to any organization or are member of any organization. He contended that no person can be detained merely on presumption.
9. Learned counsel for the petitioner Mufti Abdul Baais also adopted the same arguments and further contended that if even one of the grounds is found to be false, the whole detention order becomes invalid and when the detention order on the face of it is illegal then there is no necessity of filing the representation. He contended that the detention order passed by the Home Secretary is in continuation of the order passed by the DCO. He also submitted written arguments and placed reliance upon the case-law reported in PLD 1967 SC 373, PLD 1968 SC 313, PLD 1972 SC 210, PLD 2003 SC 422, 1994 P.CrI.LJ. 2173, 1990 P.CrI.LJ.
1534.
10. On the other hand learned Additional Advocate General contended that as far as W.P.No, 1846- 2010 titled "Dr. Niaz Ahmad v. DCO, etc." is concerned that has only been filed against the order of DCO and since the amended petition has not been filed, so the said writ petition has become infructuous and is not maintainable. He contended that only memo. Of parties had been submitted in this behalf by the petitioners and they were bound to file amended petition or to file fresh petition. He further contended that the previous order was passed by the DCO under the Maintenance of Public Order while the present order was passed by the Secretary to Government of the Punjab, Home Department under Section 11-EEE of the Anti-Terrorism Act, 1997 and question of fact cannot be gone through by this Court in a writ petition since it is a question of fact that whether the detenus are the members of terrorist organization or not. He contended that there were reports of agencies. He contended that under Article 10 of the Constitution of Islamic Republic of Pakistan, petitioners had the remedy to file the representation and when the remedy is provided then firstly the said remedy should be availed and it was so held by this Court when previously the writ petition No,1467-2010 was filed. He contended that if the detention period would exceed three months then prior to the expiration of said period the matter would be placed before the Review Board, which consist of senior Judges of this Court. He contended that DCO was not the Government. He placed reliance upon the case-law reported in PLD 2004 Lahore 1221, 2010 SCMR 676, PLD 2006 Lahore 272, PLD 1992 Lahore 140, PLD 1973 Karachi 344, 2001 P.CrI.L.J.
' 1727, PLD 1965 Lahore 135, PLD 2004 Lahore 1221, 1983 SCMR 1810, 1980 SCMR 280.
11. Arguments heard. Record perused.
12. First of all I take up the legal question raised by the learned Additional Advocate General with regard to maintainability of Writ Petition No, 1846-2010 titled Dr. Niaz Ahmad v. DCO, etc". Admittedly when the said writ petition was filed, it was filed after the decision of DCO made on the representation of detenus dated 30.04.2010 since this writ petition was filed on 4.5.2010 and at that time the further detention order passed by the Secretary to the Government of the Punjab, Home Department for 90 days dated 6.5.2010 was not in field. However, when the said order was passed, the petitioner moved C.M.No, 1116- 2010 for impleading the Secretary to the Government of the Punjab, Home Department, Lahore as a party in the petition, which was allowed vide order dated 10.05.2010 and memo. Of parties was also submitted. Similarly, through C.M. No, 1114-2010 the prayer was made for placing on record the additional documents i,e, the order of Secretary to the Government of the Punjab, Home Department dated 6.5.2010 which petition was also allowed vide order dated 10.05.2010. Even the comments of the Secretary to the Government of the Punjab, Home Department were also directed to be placed on record of this Court. It is also not denied that amended writ petition has not been filed. The order on both the C.Ms. Were passed in presence of learned Additional Advocate General, so, the Government was aware of the fact that Secretary to the Government of the Punjab, Home Department has been made party in the writ petition, his order has been placed on record and his comments had been summoned, so, merely on this technical ground that amended writ petition was not filed, the detenus cannot be deprived of their legal rights. Even this Court order passed by this Court in the above-mentioned writ petition, the detenus had made the representation before the DCO who had passed the first detention order.
However, the said representation was turned down on technical ground that the DCO had no authority to hear the representation. It must be kept in mind that liberty of some persons is involved, who had also remained in the jail for more than two years and faced the agony of trial and after conclusion of their trials they were acquitted. If the DCO had no authority, even then it was he who had passed the detention order and it was for him that as soon as he had received the representation he should have forwarded immediately to the concerned authority who was competent to hear the representation. However, this was not done by the DCO and instead he had knocked out the detenus on technical grounds resulting in mis-carriage of justice and had deprived the detenus of their legal right of liberty provided by the Constitution of Islamic Republic of Pakistan, 1973 and in the said background also now once again directing the detenus to make another representation would not meet the ends of justice and would be a futile exercise. Even the Courts had also held in many cases that it is not necessary in any case to ask the detenus to make representation. I may hear refer to the case-law captioned "Federation of Pakistan through Secretary Ministry of Interior, Islamabad v. Umat-ul-Jalil Khawaja and others reported in PLD 2003 SC 442. It would be relevant to reproduce here para-6 of the said judgment:---
6. "The Judicial consensus seems to be as under:-
(i) 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, and (iv) that 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 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 requirements 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 detenue; 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 detention should not be vague and indefinite and should be comprehensive enough to enable the detenue to make representation against his detention to the authority prescribed by law; that the grounds of 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 purposes which may be attacked on the ground of malice. (Liaquat Ali v. Government of Sindh through Secretary Home PLD 1973 Karachi 78).
(Emphasis provided).
(ii) The right of a person to a petition for habeas corpus is a high prerogative right and is a Constitutional remedy for all matters of illegal confinement. This is one of the most fundamental rights known to the Constitution. There being limitation placed on the exercise of this right, it cannot be imported on the actual or assumed restriction which may be imposed by any subordinate legislature. If the arrest of a person cannot be justified in law, there is no reason why that person should not be able to invoke the jurisdiction of the High Court immediately for the restoration of his liberty which is his basic right. In all cases, where a person is detained and he alleges that his detention is unconstitutional and in violation of the safeguards provided in the Constitution, or that it does not fall within the statutory requirements of the law under which, the detention is ordered, he can invoke the jurisdiction of the High Court, under Article 199 and ask to be released forthwith (PLD 1965 Lahore 135). He need not wait for the opinion of the advisory board before praying for a habeas corpus (AIR 1952 Calcutta 26). However, jurisdiction of High Court while examining the material before the detaining authority is not unlimited. When an order passed by an Executive Authority detaining a particular person is challenged by invoking extraordinary jurisdiction of High Court. It is always by means of judicial review and cannot be treated as appeal or revision. The Court cannot substitute its discretion for that of administrative agency. The only function of the Court in such cases is to see whether or not order of detention is reasonable and objective (PLD 1979 Lahore 74) (Emphasis provided).
(iii) The Court can see whether the satisfaction about the existence of the requisite condition is a satisfaction really and truly existing in the mind of the detaining authority or one merely professed by the detaining authority (AIR 1953 SC 451). A duty has been cast upon the High Court, whenever, a person detained in custom in the Province is brought before that Court to "satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner." This Constitutional duty cannot be discharged merely by saying that there is an order which says that he is being so detained. If the mere production of an order of detaining authority, declaring that he was satisfied, was to be held to be sufficient also "satisfy" the Court then what would be the function that the Court was expected to perform in the discharge of this duty. Therefore, it cannot be said that it would be unreasonable for the Court, in the proper exercise of its Constitutional duty, to insist upon a disclosure of the materials upon which the authority had acted, so that it should satisfy itself that the authority had not acted in an "unlawful manner". (Abdul Baqi Baloch v. Government of Pakistan PLD 1968 SC 313) (Emphasis provided).
(iv) High Court cannot claim in the exercise of writ jurisdiction to usurp the functions of the authority in which power has been vested nor to substitute their own decision for the decision of that authority. Nor can the Court insist on being satisfied that there were materials upon which, itself would have taken the same action.
' It is in this sense that it has been said that the Court is not concerned with either the adequacy or the sufficiency of the ,grounds upon which action is taken. The Court in order to be satisfied as required by the Constitution, must know that there were in fact grounds relating to the purposes of the' statute upon which, the action of the authority concerned could at all has been founded after an honest application of the mind of the authority concerned to all the relevant considerations. The question, however, that still remains to be considered is as to whether the reasonableness of the action can be examined when the statute itself does not require the authority to act upon reasonable grounds, but leaves him to act upon his own subjective satisfaction. In view of the provisions of Article 199 of the Constitution that degree of reasonableness has at least to be established which has been indicated in the case of Abdul Baqi Baloch PLD 1968 SC 313. Otherwise, if an authority could protect himself by merely saying that he believed himself to be acting in pursuance of a statute, then, what would be the material upon which, the. Court could say that it was satisfied that the detention or impugned action had not been taken in an unlawful manner.
The presumption is that every imprisonment without trial and conviction is prima facie unlawful.
(Government of West Pakistan v. Begum Agha Abdul Karim Sorish Kashmiri PLD 1969 SC 14)
(Emphasis provided)."
14. It is also not out of place to mention here the case-law captioned "Muhammad Siddique Khan v.
District Magistrate" reported in PLD 1992 Lahore 140. In the said case the petitions under Article 199 of the Constitution of Islamic Republic of Pakistan were filed before the learned Single Judge, who referred the matter to larger Bench for answer:--- ' "Whether a representation under Section 6-A of the West Pakistan Maintenance of Public Order Ordinance, XXXI of 1960 can be considered to be an adequate remedy within the meaning of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, so as to debar a person from filing a Constitutional petition straightaway without availing of the said remedy."
15. The learned Division Bench of this Court answered the said question in affirmative but added an additional note in para-14 which is reproduced as under:- ' "By so observing we do not find to lay down an inflexible rule and we should not be taken to have held that in no case as a Constitutional petition can be filed without filing a representation. There may be cases where it can be demonstrated that it is not possible to file representation for example, where no grounds of detention are communicated to the detenus or where the filing of representation would be a mere exercise in futility. Similarly, there may be other cases like complete lack of jurisdiction in the authority passing the order of detention where the fling of representation may not be necessary. In the ultimate analysis the question as to whether it would be necessary to file a representation in a given case would depend upon the facts of that case."
16. As has been mentioned above, that the detenus had already been directed by this Court to file representation when first order of detention was passed against them which remedy was availed by them, but they were knocked out on technical ground and then in continuation of the first order, the present order was passed by the Secretary to the Government of the Punjab, Home Department, though under different law. So it would be in fact against the interest of justice to once again direct them to avail the remedy of representation and it would be an exercise in futility.
17. There is yet another legal point, which would be discussed later on to show that even the order passed by Home Secretary appears to be an order passed without jurisdiction.
18. Admittedly, the second detention order has been passed under Section 11-EEE of the Anti- Terrorism Act, 1997 and for convenience it is reproduced as under:--- ' "11 EEE. Power to arrest and detained suspected persons. (1) Government if satisfied that with a view to prevent any person whose name is included in the list referred to Section 11-EE, it is necessary so to do, by order in writing, direct to arrest and detain, in such custody as may be specified, such person for such period as may be specified in the order, and Government if satisfied that for the aforesaid reasons, it is necessary so to do, may extend from time to time the period of such detention for a total period not exceeding twelve months.
(2) The provisions of Article 10 of the Constitution of the Islamic Republic of Pakistan shall mutatis inutandis apply to the arrest and detention of a person ordered under subsection (1).
19. The perusal of sub-section (1) of above Section clearly shows that the Government should be satisfied with a view to prevent any person whose name is included in the list referred to Section 11- EE. It is also to be advantageous to reproduce Section 11-EE of Anti-Terrorism Act, 1997:--- 11-EE Security for good behaviour. (1). Whenever, the Federal or Provincial Government on an information received from any source that any person is an activist, office bearer or an associate of an organization kept under observation under Section 11-D or prescribed under Section 11-E or in any way concerned or suspected to be concerned with such organization or affiliated with any group or organization suspected to be involved in terrorism or sectarianism, such government may notify the name of such person or persons in a list entered in the Fourth Schedule.
2. Where a person's name is listed in the Fourth Schedule, the Federal or Provincial Government as the case may be, without prejudice to any other action which may lie against such person under this Act or any other law for the time being in force, may take following actions and exercise following powers, namely:---
(a) require such person to execute a bond with one or more sureties to the satisfaction of the District Police Officer in the territorial limits of which the said person ordinarily resides, or carries on business, for his good behaviour and not to involve in any act of terrorism or in any manner advanced the objectives of the organization referred to in sub-section (1) for such period not exceeding three years and in such amount as may be specified.
' Provided that where he fails to execute the bond or cannot produce a surety or sureties to the satisfaction of the District Police Officer order him to be detained and produced within twenty-four hours before a Court which shall order him to be detained in prison until, he executes the bond or until, a satisfactory surety or sureties if required are available or, failing that the term of the order under clause (a) expire: ' Provided further that where he is a minor, the bond executed by a surety or sureties only may be accepted;
(b) require any such person to seek prior permission from the officers incharge of the police station of the concerned area before moving from his permanent place of residence for any period of time and to keep him informed about the place, he would be visiting and the persons, he would be meeting during the stay;
(c) require:
(i) That his movements to be restricted to any place or area specified in the order;
(ii) him to report himself at such times and places and in such mode as may be specified in the order;
(iii) him to comply with both the directions; and that he shall not reside within areas specified in the order;
(d) direct that he shall not visit or got within surroundings specified in the order including any of the under mentioned places, without the written permission of the officer incharge of the Police Station within whose jurisdiction such place is situated namely:---
(i) Schools, colleges and other institutions where persons under twenty-one years of age or women given education or other raining or area housed permanently or temporarily;
(ii) Theatres, cinemas, fairs, arrestment parks, hotels, clubs, restaurant, tea shops and other places of public entertainment or resort;
(iii) Airports, Railway station, bus stands, telephone exchanges, television stations, radio stations and other such places;
(iv) public or private parks and gardens and public or private playing fields; and
(v) the scene of any public meeting or procession of any assembles of the public whether in any enclosed place or otherwise in connection with any public event festival or other celebrations;
(e) Check and probe the assets of such persons or their immediate family members i,e, parents, wives and children through police or any other government agency, which shall exercise the powers as are available to it under the relevant law for the purposes of the investigation, to ascertain whether assets and sources of income are legitimate and are being spent on lawful objective: ' Provided that no order under clause (d) or (e) above shall be made operative for a period of more than three years; and monitor and keep surveillance over the activities of such persons through police or any other government agency or any person or authority designated for the purpose.
(3) any person whose name has been notified in the list entered in the Fourth Schedule under sub- section (1) or is aggrieved by any direction or order of the Federal or Provincial Government made under sub-section (2), may within thirty days of such notification, direction or order, prefer an appeal to the Federal or Provincial Government, as the case may be, and such Government after providing an opportunity of being heard to such person decide the appeal within thirty days.
(4) Any person who violates any direction or order of the Federal or Provincial Government or any terms of bond referred to in sub-section (2), shall be punishable with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
20. The perusal of the above Section depicts that when Provincial or Federal Government received any information from any source that any person is an activist, office bearer or an associate of an organization, kept under observation under Section 11-D or prescribed under Section 11-E or in any way concerned of suspected to be concerned with such organization or affiliated with any group or organization suspected to be involved in terrorism or sectarianism such Government may notify the name of such person or persons in a list entered in the Forth Schedule. Absolutely, there is no evidence that the names of present detenus were ever notified in the list entered in the Fourth Schedule. Neither this fact was mentioned in the preventive detention order nor even in the comments, filed by the Interior Secretary in the connected writ petition filed by Mufti Abdul Basit nor even any such list has been produced before this Court. The matter did not end here that his name should be mentioned in the said list but Section 11-EE of the Act further provides that the person whose name is notified would be required to execute a bond but there is no proof that the detenus were ever required to do so. In this way, also the preventive detention order passed under Section 11-EEE of the ATA, 1997 on the face of it appears to be passed without jurisdiction and without complying with the mandatory provision of law.
21. There is yet another important aspect of the case that admittedly the detenus were in the jail for the last more than two years. When they were acquitted by the competent Court of law and were waiting for their release, to their surprise the 000 passed his preventive detention order dated 8.4.2010 under the Maintenance of Public Order Ordinance, 1960 and the grounds were that they were encouraging and instigating the general public to take out procession against the Government in violation of law and were organizing the workers, general public to come out in the streets and create law and order situation. Now these grounds on the face of it does not appeal to reason. The detenus remained in the jail for more than two years and during this period, no disciplinary action was taken against them by the Jail Authority, which shows that they were not involved in any indecent activities, thus, while remaining in the jail how they can instigate the general public to take out procession against the Government or were organizing workers and general public to come out in the streets. If they were able to do it while in jail, then they could do it during such a long period, which they spent in the jail and should not have waited for their release, however, surprisingly, when the second detention order was passed against them by the Secretary to the Government of the Punjab, Home Department, none of the previous grounds were mentioned and entirely new grounds had been mentioned which are that they were members of terrorist organization and their activities had been found prejudicial to public safety and threat to sectarian/public peace and harmony in the Province and security and integrity of the country.
22. Now the petitioners remained in jail for 30 days in view of their first detention order and also remained in jail as under-trial prisoners for more than two years but at the time of passing the first detention order, the Government was not aware that they were members of terrorist organization and their activities had been found prejudicial to the public safety but during the period of first detention, all of sudden it revealed upon the government that they are members of terrorist organization. Even no evidence or document has been produced before the Court to establish these grounds. There are only reports of some agencies and police that they were organizing the workers/general public to come out in the streets and that they had some connections with the said organization.
23. In the parawise comments filed by the Secretary to the Government of the Punjab, Home Department in writ petition No, 2046/10 filed by Mufti Abdul Basit a new plea has been raised by the Government that in fact brothers of detenus are members of terrorist organization. If the brothers of the detenus are allegedly members of terrorist organization then their brothers should be apprehended but the petitioner should not suffer for any act of their brother. All these above- mentioned facts clearly manifests that in view of the above-mentioned facts, there is no necessity to again ask the detenus to file representation as provided in Article 10(5) of the Constitution of Islamic Republic of Pakistan, 1973.
24. Consequently, for the forgoing reasons, both the writ petitions are accepted and impugned order dated 8.4.2010 passed by DCO Rawalpindi and order dated 6.5.2010 passed by the Secretary to the Government of the Punjab, Home Department are set aside and quashed with the result that the detenus namely Dr. Niaz Ahmad, Aamir, Shafiq-ur-Rehman, Mazhar-ul-Haq, Abdul Saboor, Abdul Majeed and Abdul Basit, shall be released forthwith from the jail, if not required to be detained in any other Criminal case. #EndJudgment 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.