SHEZADA MAZHAR, J.---Through this single judgment, I intend to dispose of writ petitions bearing Nos.11938, 11941 and 11942 of 2014 as in these writ petitions same detention order dated 7-8-2014 passed by respondent has been challenged.
2. Briefly the facts are that respondent No.3/DCO, Sahiwal vide an order dated 7-8-2014 directed detention of Molvi Niaz Ahmad, Qari Usman Ali Naqshbandi and Muhammad Aslam Rizvi, respectively for a period of fifteen days, on almost similar ground that their activities are prejudicial to public peace and tranquility.
3. As is clear from a visual look of the impugned order is nonspeaking orders, neither these orders mention the reasons justifying the detention of the petitioners, neither it refers to any other material on the basis of which the authority had satisfied itself nor these borders even touch the pleas raised by the detenus. Thus, the above referred grounds alone are sufficient to declare those orders as nullity in the eyes of law and are liable to be set at naught.
4. However, in order to secure the ends of justice, the Law officer was directed to argue the cases and produce before the court whatever the material is available against the detenu. Thus, lengthy hearing has been given to the parties.
5. The learned Additional Advocate General referred to some typed reports and contended that detenus they detenu arranges(sic.) program and meetings hatering against the writ of government and chants slogans against them, whereas. But on inquiry by the Court as to who prepared these reports and whether any case diary in any police station was ever registered, whether these activities are not covered by any penal clause of Pakistan Penal Code or the Anti- Terrorist Act, 1997, as most of the allegations referred above are criminal offences under and why criminal cases were not registered after the information had been conveyed to the authorities, the learned Law Officer remained unable to reply and could not refer case diary of any police station, or material in support of these reports.
6. The liberty of a citizen, save in accordance with law, is protected by the Constitution of Islamic Republic of Pakistan, 1973, and this Court being custodian of the Constitution has to jealously protect and safeguard such fundamentally guaranteed rights. In the case "Federation of Pakistan through Secretary, Ministry of Interior, Islamabad v. Mrs. Amatul Jalil Khawaja and others" (PLD 2003 Supreme Court 442), the Hon'ble Supreme Court of Pakistan, has held as under:- S. 3(1)---Constitution of Pakistan (1973), Arts. 199 & 10---Preventive detention---Judicial review--- Scope---Right of a person to a petition for habeas corpus---Extent---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-- -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---Court cannot substitute its discretion for that of administrative agency and the only function of the Court in such cases is to see whether or not order of detention is reasonable and objective.
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 legislation. 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 un-Constitutional 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."
The apex court in the above referred case while setting down specific criteria to gauge whether a detention order is valid or not, held as under:- S. 3(1)---Preventive detention---Requirements to be satisfied by an order of preventive detention enlisted.
An order of preventive detention 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) 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 had been strictly complied with; that "satisfaction" in fact existed with regard to the necessity of preventive detention of the detent 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 detenu to make representation against his detention to the authority prescribed by law; that the grounds of detention 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.
The Hon'ble Supreme Court of Pakistan further provided guidelines for the detaining authority, as to on what conditions must exist, which would render their exercise based on their "satisfaction". The relevant paragraph is reproduced here under:- "S. 3(1)---Constitution of Pakistan (1973), Art. 199---Preventive detention--- Judicial review--- Scope--- "Satisfaction" of the detaining Authority---Nature-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"---Court, in proper exercise of its Constitutional duty can insist upon 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 "---Principles.
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. A duty has been cast upon the High Court, whenever a person detained in custody 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 to "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"."
7. As shall be seen from the above reproduced portion of judgment from the cited case, it is manifest that edifice of satisfaction is to be built on the foundation of evidence, as conjectural presumption cannot be equated to that of "satisfaction"; it is subjective assessment and there can be no objective satisfaction. In exercise of jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, if this court comes to a conclusion that the grounds mentioned in the detention order are not supported by sufficient material, then there is nothing stopping this Court from exercising the power of judicial review. There is plethora of judgments on the point that the material should be of such a nature by examination of which, a man of common prudence must form his opinion that detention order has been rightly passed and the detaining authority is required to establish each and every ground of detention on the basis of sufficient material to justify its order. If the material on any one of such ground is missing then the whole detention order would loose its sanctity and would be liable to be set aside. In the case C "Muhammad Ayaz Khan and 6 others v. The District Magistrate, Batagram and another" (1995 PCr.LJ 587), it has been held that "Court must be satisfied that the material placed before the Authority empowered to issue detention order was of such a nature/character so as to persuade a person of ordinary prudence to make an order of preventive detention, such satisfaction should be established in respect of each of the grounds of detention and none of them should be vague, speculative or nonexistent, and detaining Authority should be, in the first instance, able to discharge the initial onus/burden that the detention order is based on and backed by law/legality. All such requirements, however, must co-exist and if any of them is lacking/missing, detention order is liable to be struck down." In the case "Gulzar Ahmad v. District Magistrate and another" (1998 PCr.LJ 1790), it was held that fact of person being liable to prosecution for commission of an offence in ordinary criminal Court cannot be a ground for preventive detention under the Ordinance. In the instant cases, no ground whatsoever has been mentioned by respondent No.1 while extending the detention period of the detenus and the impugned orders on the face of it are clear indicative of the fact that the said authority neither examined the material nor applied its independent judicial mind and extending the detention period just on the recommendations by the DCO on the charges, detailed above.
8. Admittedly, none of the detenus has been enlisted in the 4th schedule. Section 11-EE of the Anti- Terrorism Act, 1997, provides that where any information is received that a person is an activist, office; bearer or an associate of an organization, or in any concerned or suspected to be concerned with such organization or affiliated with any group or organization suspected to be involved in terrorism or sectarianism, the name of such person be placed in list entered in the Fourth Schedule. As such, if at all there was some material available with the government against the detenus, their names must have been placed in the Fourth Schedule and then would have been required to execute a bond so that their activities could be kept under watch. Unless and until any such order placing their names in the 4th schedule is passed, it could not at all be said that they are involved in sectarian activities. Here in these cases the allegations against the detenus, as have been detailed above, including the allegation that they provided or collected funds for any proscribed organizations, arranged meetings to be addressed by any member of such organization or rendered support, could more appropriately be checked under sections 11A, 11B, 11F, 11H, 11I, 11J and 11K of the Anti-Terrorism Act, 1997.
9. Furthermore, section 154 of the Code of Criminal Procedure, 1898 only requires laying an "information" about the commission of a cognizable offence. The word "information" has been defined in Black's Law Dictionary Sixth Edition (Centennial Edition (1891-1991), as An accusation exhibited against a person for some criminal offense, without an indictment." Meaning thereby it is quite an initial stage and first step to set the law into motion by registration of a criminal case, where after, such information may be probed into and only then it can be concluded whether such information was true so as to lead towards indictment, or not. On the other hand, as discussed above with reference to the celebrated judgments of the Hon'ble Supreme Court of Pakistan, "sufficient" grounds must exist which would firstly satisfy the conscious of the detaining authority and such satisfaction may consist upon such a material on the basis of which even a man of common prudence would have no other option except to form an opinion tilting towards the detention order. Black's Law Dictionary Sixth Edition (Centennial Edition (1891-1991), had defined the word "sufficient", as "Adequate, enough, as much as may be necessary, equal or fit for end proposed, and that which may be necessary to accomplish an object." Therefore, as compared to information within the meaning of section 154, Cr.P.C., the stage to establish "sufficient" grounds to pass a detention order requires strict adherence to the solid material collected by the agencies. As such, it can safely be concluded that before passing an detention order, the authorities must have a recourse to section 154, Cr.P.C., when the allegations levelled against the detenus in the detention orders constitute a criminal offence under Anti-Terrorism Act, 1997, Pakistan Penal Code or any other law, as in this case most of the allegations levelled against the detenus are criminal offences.
Furthermore, under section 11L of the Anti-Terrorism Act, 1997 a person who receives an information about involvement of a person in an offence covered by Anti-Terrorism Act, 1997, and he believes or suspects that some one has committed an offence under the above Act, he is under a legal compulsion to disclose such belief or suspicion to the police officer.
9(sic.) In a situation where the Anti-Terrorism Act, 1997 has comprehensively dealt with almost all eventualities, which could in any way connect any person with proscribed organizations, the first option to be exercised by the government could be to set the provisions of this Act into motion through a proper process G detailed in the Act, itself and the detention order, being an extreme step taking away the liberty of a person, must be used only as a last resort. Priority must be given to book the persons in criminal cases under the Anti-Terrorism Act, or any other relevant law, if their activities are offences under such laws.
10. For what has been discussed above, here in this case neither the names of the detenus were ever placed in 4th schedule, nor they were proceeded against under the Anti-Terrorism Act, 1997 for committing criminal offences covered by the law, ibid. Further, there is no other material what to talk of "sufficient" to justify the impugned detention orders, thus, the orders passed by the respondent authority miserably fail H to reach the standards as set by the Hon' ble Supreme Court of Pakistan, in the judgment referred, supra. Consequently, all these writ petitions have been allowed by setting-aside the respective impugned detention orders and the detenus are ordered to be released forthwith if not required in any other case.