' This order shall dispose of the instant writ petition, as also Writ Petition No.918 of 2014 (Najam-ul- Hasnain Zaidi), as in both the petitions, orders dated 1-4-2014 and 2-4-2014, passed by the District Co-ordination Officer, Rawalpindi, have been challenged.
2. Through this Constitutional petition, the petitioner challenged the orders passed on 1-4-2014, and 2-4-2014, by the District Coordination Officer, Rawalpindi (respondent No.2), under the provisions of section 3(1) read with Section 26 of the West Pakistan Maintenance of Public Order Ordinance, 1960, as well as, Notification of the Home Department No.SO(IS-I) 3- 12/2007, dated 9th of August, 2008, where-under, the brother of the petitioner and other relatives, have been ordered to be detained for a period of 15 days, vide orders Nos.549, 527,547, 541, 538, 537, 551, 552, 545, 529, 528, 539, 544, 546, 548, 550, 553, 554, 555, 525, 526, 530, 531, 532, 533, 534, 535, 536, whose names are as under:--
(1) Syed Farasat Kazmi son of Syed Iqbal Kazmi.
(2) Tanveer Hussain Butt son of Gul Mohammad Butt.
(3) Tayyab Abbas son of Altaf Hussain Shah.
(4) Syed Yasir Kazmi son of Syed Ejaz Hussain Shah.
(5) Asif Hussain Shah son of Mulazim Hussain
(6) Imran Hussain Butt son of Abdul Rasheed Butt.
(7) Syed Aun Abbas Kazmi alias Auni vs. Syed Qurban Hussain.
(8) Syed Imran Ali Kazmi son of Syed Qurban Hussian.
(9) Syed Sibt-e-Hassan son of Matloob Hussain.
(10) Ali Ansar Butt son of Khadim Hussain.
(11) Irfan Haider alias Fani v. Khadim Hussain.
(12) Syed Zia-ur-Raza son of Syed Abu-Ali-Qasim.
(13) Junaid Hussain son of Mumtaz Hussain.
(14) Zahid Iqbal son of Mohammad Iqbal.
(15) Muhammad Sohail Abbas son of Dilshad.
(16) Kamran Haider son of Gulzar Ali.
(17) Syed Touseef Abbas alias Saifu son of Tanvir Hussain Shah.
(18) Syed Imran Abbas Naqvi son of Tasadaq Hussain Naqvi.
(19) Fayyaz Hussain son of Aulad Hussain Shah.
(20) Syed Khawar Abbas son of Syed Ghulam Abbas.
(21) Naqash Raza son of Pervaiz Hussain.
(22) Raja Zulfiqar son of Bishrat.
(23) Dilawar Abbas son of Ghulam Abbas.
(24) Zameer-ul-Hassan alias Babbu Shah son of Mustehsan Zaidi.
(25) Syed Qamar Ali Shah son of Syed Shah Kazmi.
(26) Tahir Hussain Balti son of Mohammad Hussain.
(27) Nasir Hussain Shah son of Shah Faqeer.
(28) Syed Afraz Ali Shah son of Syed Ijaz Hussain Shah.
' It is worthy to mention here that this Court allowed Writ Petitions Nos.139, 234, 267, 278 and 279 all of-2014, on 19-3-2014, and as a consequence thereof, the persons involved in case F.I.R. No.385 of 2013, as accused, were ordered to be released on bail.
3. On the basis of said findings of this Court, the learned Assistant Advocate-General has conceded that similar orders in respect of other accused persons involved in the case, have also been passed by court of original jurisdiction.
4. The persons in respect of whom, the District Co-ordination Officer, on the basis of report furnished by the City Police Officer, has issued detention orders under section 3(1) read with Section 26 of the West Pakistan Maintenance of Public Order Ordinance, 1960, for 15-days, is on the face of it, a crude attempt to negate the effect of bail granting order dated 19-3-2014.
5. The grounds for detention have never been furnished to the detenus and an order, omnibus in nature, was passed by the District Co-ordination Officer, Rawalpindi, on the grounds that there is likelihood of the detenus being involved in subversive, illegal and sectarian activities, in case of their release from prison. Some meeting of eminent Leaders of Shia Sect in the Jail premises with the detenus, has also been made a ground for passing the impugned detention order.
6. The District Co-ordination Officer, who is present in person, has failed to justify the passage of impugned order and to show his independent application of mind. The impugned orders have been passed by verbatim reproduction of the police report and application of judicious mind of the detaining authority is not evident.
7. This Court in Abdul Rasheed Bhatti v. Government of Punjab (PLD 2010 Lahore 468), in case of similar nature, has held that the liberty of every citizen is to be protected and guaranteed under Articles 4, 9 10 and 15 of the Constitution of the Islamic Republic of Pakistan, 1973, and the State has to jealously safeguard liberty of every citizen wherever he may be; and any action without sufficient cause depriving or restricting liberty of a citizen is not envisaged by the Constitution of the country and any such action taken by the Government or any of its functionary is not immune from scrutiny of High Court in exercise of its power under Article 199 of the Constitution.
8. It is an admitted position that criminal case against all the detenus has already been registered, and the detenus have been granted bail in such registered case. The criminal activity of the detenus is, thus, already subject-matter of such criminal case and almost on the same allegations, their detention is not justified in law, as the same would amount to vexing the detenus twice. Such detention order under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960, against a person against whom some criminal proceedings are already pending, is also violative to Article 13(a) of the Constitution. The respondent authorities have failed to justify as to how the detenus were acting in a manner prejudicial to the integrity, security or defence of Pakistan, or public order or maintenance of supplies or services. Liberty of citizens cannot be curtailed merely on presumptions, and it is the power of this Court in exercise of Constitutional Jurisdiction to declare such detention orders as having been passed without lawful authority and of legal effect.
9. Section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960 necessitates the "satisfaction" of the order issuing authority on the strength of some events preceded the passage of such order.
10. A Division Bench of Karachi High Court in case of Arbab Akbar Add v. Government of Sindh through Home Secretary, Government of Sindh, Karachi (PLD 2005 Karachi 538) has dealt with a detention matter and through an authoritative view 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 which 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 the 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 is prescribed then as soon as may be. 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. 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 Mohammad Nadeem v. Government of Punjab through Home Secretary and another (PLD 2010 Lahore 371).
11. In the case, in hand, the wording of the impugned orders show that even in the order, 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.
12. 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.
13. This question has been dealt with by this Court in case of Haq Dad Khan v. District Magistrate, Mianwali (1997 PCr.LJ 1238) 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.
14. The result of the above discussion is that this petition is allowed; the impugned orders of detention dated 1-4-2014 and 2-4-2014, passed by the District Co-ordination Officer, Rawalpindi, are declared illegal and without lawful authority and the same are set aside. The detenus, whose names are given in para 2 of this order, are ordered to be released forthwith.