This writ petition calls in question the order of the Government of Punjab, dated 24th of November, 1981, whereby the restrictee, Maulana Muhammad Akbar Saqi, was ordered to reside and remain within the revenue limits of District Sargodha, for a period of 90 days, under section 5(1) (b) of the West Pakistan Maintenance of Public Order Ordinance, 1960 (hereinafter referred to as the Ordinance), as without lawful anthority. The petition is supported by the affidavit of the restrictee, Maulana Muhammad Akbar Saqi. The impugned order of the Provincial Government reads :- "No. 3-2-H-Spl : I/81.
GOVERNMENT OF THE PUNJAB HOME DEPARTMENT Dated : 24th November, 1981 Order :.
Whereas, the Governor of the Punjab is satisfied that with a view to preventing you, Maulana Muhammad Akbar Saqi (JUP defunct) of Sargodha District, from acting in a manner prejudicial to public safety and maintenance of public order, as well as public interest, it is. Necessary to give you directions hereinafter appearing.
(2) Now, therefore, in exercise of the powers conferred upon him by section 5(1) of the West Pakistan Maintenance of Public Order Ordi--nance; 1960, the Governor of the Punjab is pleased to direct that you, Maulana Muhammad Akbar Saqi, shall reside and remain within the revenue limits of District Sargodha, for a period of 90 (Ninety) days with effect from the date of this order which comes into force immediately.
(3) The grounds of this order are enclosed herewith.
(4) You are hereby informed that you are entitled to make a representa--tion to the Government of Punjab against this order.
By Order of The Governor of Punjab.
(Sd/-)
Under Secretary Special-1, Government of the Punjab 24-11-1981Home Department."
2. The order, in question, was accompanied by the Memorandum of Grounds communicated to the restrictee on which the above order was based ; reads thus :- "No. 3-2-H-Spl. 1/81 GOVERNMENT OF THE PUNJAB HOME DEPARTMENT Dated, the 24th November, 1981.
Memorandum of Grounds:
(1) That you Maulana Muhammad Akbar Saqi (JLJP defunct) of District Sargodha, have addressed meetings at Noor Shah, District Sahiwal, on 2-1I-1981, Okara, District Sahiwal, on 2-11-1981, village Miana Gondal, District Gujrat, on 16-11-1981 and Sheikhupura on 14-1 1-1981 and have, therefore, indulged in political activities which is not conducive to public safety and public peace.
(2) And that with a view to preventing you, from taking part in further illegal activities and from acting in a manner prejudical to public safety and maintenance of public order as well as public interest it is necessary to confine you to -the revenue limits of District Sargodha.
(3) Hence this order.
24-I1-1981.By Order of the Governor of Punjab (Sd/-)
Under Secreeary Special-I, Government of the Punjab, Home Department."
3. The petitioner has assailed the validity of the impugned order on the following grounds :- "(i) That the grounds taken are vague and do not furnish any material. Such grounds cannot form the basis of an order passed under the West Pakistan Maintenance of Public Order Ordinance, 1960;
(ii) that none of the grounds discloses any material warranting invoking of the provisions of the Maintenance of Public Order Ordinance, 1960;
(iii) that from the texture of the grounds it appears that the respondent had not at all applied his mind while passing the impugned order ;
(iv) that even the texts of the speeches of the detenu were not available and the impugned order has been passed out of mala fides to reck the programme of holding `Shahadat-e-Hussain' conferences between 11th and 20th December, 1981 ;
(v) that none of the alleged addresses of the detenu has created any law and order situation, nor is there any evidence of the same ;
(vi) that the impugned order is bad in law and averse to the Constitu--tion in so far as it prevents the detenu and other citizens of the country from exercising their basic right of propagating the religion of Islam for which this country was created; and
(vii) that the petitioner has got no other efficacious remedy available to him except to invoke the special jurisdiction of this Honourable Court."
4. The Government took up the plea in its parawise comments filed through the Section Officer Speial-I of the Home Department of the Province of Punjab that the restrictee in his speeches under the garb of Islamic Mission had been making political speeches in order to bring disaffection of the masses against the present Government and before making speeches on religious view, political speeches were also made. The speeches made were highly inflammatory and could disturb public peace, as could be observed from the extracts of the speeches. The texts were purported to be attached with the report as specifically stated in paragraph 6(iv) of the report but it was never done. Later, however, the respondent filed an application C. M. No. 241/82, under section 123 of the Evidence Act read with section 151, C. P. C. For the claim of the privilege in respect of the documents which formed the basis of the impugned order. The application was accompanied by the affidavit of the Home Secretary to Government of the Punjab. The Home Secretary claimed privilege of the documents, in question, on the ground :-- "That the official records are in the custody of the Home Secretary, Government of the Punjab, who has thoroughly examined the same in order to ascertain whether it would be in the public interest to produce the documents and whether the documents are unpublished official record relating to the affairs of the State. On thorough examination the Home Secretary, Government of the Punjab is of the considered view that the documents are unpublished official record relating to the. Affairs of the State and the disclosure of the same shall not be in the public interest." -ft-was, however, stated in the application that the Court may peruse the documents and form its own opinion as to whether the privilege claimed by the Government was to be granted. .
5. It is unfortunate that the writ petition could not be disposed of earlier partly because of the engagements of the learned Advocate-General in other Government cases and partly because of the similar engagements of the learned counsel for the petitioner. Mr. Muhammad Aslam, a represen--tative of the Home Department brought the record pertaining to the impugned order in the Court on the last date of hearing i. e. 10-2-1982. On perusal of the files, it transpired that in this writ petition, as well as in the connected writ petitions filed by Maulana Shah Ahmad Noorani and Maulana Abdus Sattar Khan Niazi, bearing Nos. 5769/81 and 5697/81, the impugned orders had been passed under the order of the Deputy Secretary, Home Department, Government of the Punjab after discussing the matter with the Home Secretary and in consequence thereof, the formal orders in all the three writ petitions were signed by the Under Secretary Special I, Home Department. It may be pointed out that the Home Secretary claimed privilege only in respect of the material on the basis of which the impugned order had been passed in this writ petition as well as in the connected writ petitions but the privilege has not been claimed to the entire file and, therefore, it is within the competence of the Court to take cognizance of the documents in the file other than those in respect of which privelege was claimed. Reference may be made to Begum Sardar Hayat Khan of Tamman v. Government of West Pakistan and another (1) where it was held that where privilege is claimed by the Government only in respect of certain documents, then the privilege is to be upheld to the extent of the documents specified by the authority and not to the entire file.
6. Sh. Riaz Abmad, the learned Advocate-General submits that the impugned order is intra-vires of section 5 of the Ordinance, in that, it has been issued under the signatures of the Under Secretary to the Government of Punjab and, therefore its validity is not open to question on the ground that it is not an order or instrument made or executed by the Governor in terms of Article 139 of the Constitution of Islamic Republic of Pakistan, 1973 read with rule 11(1) and (2) of the Punjab Government Rules of Business, 1974 which were duly framed under Article 139 of the Constitution. It is further submitted that the individual judgment of the Governor was not necessary. Reliance is placed on Emperor v. .Sibnath Benerji and others (2) and Mst. Nasim Fatima v. Government of West Pakistan and another (3). It is next contended by the learned Advocate-General that the speeches made by the petitioner were `prejudicial to public order and maintenance and since it is one of the functions of the Home Department to take such steps/actions, as it may deem fit for maintenance of public order and internal security, as is apparent from the distribution of business allocated to the Home Department, under Item I of the Schedule II of the aforesaid Rules. This being so, it is submitted that the record pertaining to the speeches allegedly made by the petitioner comes within the ambit of "un--published official record relating to the affairs of the State" as contemplated by section 123 of the Evidence Act and that the disclosure of the same shall not be in the public interest in view of the privilege claimed by the Home Secretary. Reliance is placed on S. B. Chaudhry v. I. P. Changkakati (4).
(1) PLD 1969 Lah. 985(2) AIR 1945 P C 156
(3) PLD 1967 Lah. 103(4) AIR 1960 Assam 210 The learned Advocate-General further submits that the grounds specified in the impugned memorandum of grounds are not vague, in that, it has been specifically stated that the restrictee addressed meetings at Noor Shah, District Sahiwal, on 2-I1-1981, Okara, District Sahiwal on 2-11-1981, village Miana Gondal, District Gujrat on 16-11-1981 and Sheikhupura on 14-11-1981 and has therefore, indulged in political activities which was not conducive to public safety and public peace. The learned Advocate-General also submits that these allegations against the restrictee have been pleaded with particularity in the impugned order and, therefore, the same does not suffer from any vagueness and that the grounds are relatable to section 5 of the Ordinance. The learned Advocate-General further submits that Martial Law Regulation No. 48 prohibits all sorts of political activities and, therefore, the prohibitory order passed by the Government is lntra vires of section 5 of the Ordinance. Learned Advocate-General also contends that mere sufficiency or insufficiency of the material and that another view is possible from the material which formed the basis of the impugned order, is not a valid ground for striking down the impugned order.
7. Dr. Khalid Ranjha, learned counsel for the petitioner submits that he does not dispute with the proposition of law that this Court is not concerned with sufficiency or otherwise of the material which formed the basis of the impugned order and that as held in Government of West Pakistan and another v. Begum Agha Abdul Karim shorish Kashmiri (1), "the Court, in order to be satisfied as required by the Constitution, must know that there were in fact grounds relatable to the purposes of the statute upon which the action of the authority concerned could, at all, have been founded after an honest application of the mind of the authority concerned to all the relevant considerations." Reference was also made to Malik Ghulam Ji1ani v. Govern--ment of West Pakistan and another (2) and Mir Abdul Baqi Baluch v. Govern--ment of Pakistan etc. (3). Dr. Khalid Ranjha, however, contended that the impugned order is liable to be struck down for want of particularization of any specific speeches allegedly made by the restrictee. In support of his contention, reliance was placed on Muhammad Ajmal Khan v. The District Magistrate, Lyallpur and 4 others (4). It is next contended by Dr. Khalid Raniha, the learned counsel for the petitioner, that the records kept by the Government regarding the speeches allegedly made by the restrictee are not privileged documents within the ambit of sections 123 and 124 of the Evidence Act. Reference was made to Teja Singh v. Emperor (5), in which it was held that the record kept at the Police Station about the activities of a particular person and the reports about him made by the Sub- Inspector to the inspector from time to time cannot be regarded as privileged documents under sections 123 and 124 of the Evidence Act.
(1) PLD1969SC14(2) PLD1967SC373
(3) PLD 1968 SC 3113(4) PLD 1977 Lah. 20
(5) AIR 1945 Lah. 293
8. I have given my anxious consideration to the submissions made by the learned counsel for the parties. Having gone through the material placed before me and perusal of the file, in the light of the contentions raised by the learned counsel for the parties, I am of the opinion that it is not necessary for the purpose of decision of this case to dispose of all the contentions raised in the writ petition as it can be disposed of on some of the short legal grounds. It is proved from the record that the utterances of the alleged speeches made by the restrictee were brought to the notice of the Home Secretary by the Section Officer Special-I, vide his note date 24-11-1981 in which a recommendation was made for taking action against the restrictee under the Ordinance, preferably confining him to the Revenue limits of District Sargodha. In consequence, the Deputy Secretary (Judicial) Home Department, discussed the matter with the Home Secretary and approved the action proposed by the Section Officer and eventually the impugned order was issued under the signatures of the Under Secretary Special-I, of the Home Department, Government of the Punjab. It is, therefore, apparent from the record that the Home Secretary failed to apply his independent mind but merely approved the proposal of the Section Officer. On this short ground alone, the impugned order is liable to be quashed. The arguments of the learned Advocate-General that the impugned order having been issued under the signatures of the Under Secretary Special-I is deemed to be an order passed by the Government in terms of rule 11(2) of the Rules of Business is devoid of any force. The Under Secretary to Government of the Punjab is not authorised to sign an order or instrument of Government under the aforesaid rule which reads thus :- 11.-(1) All executive actions of Government shall be expressed to be taken in the name of the Governor.
(2) Save in cases where an officer has been specifically empowered to sign an order or instrument of Government, every order or instrument shall be signed by the Secretary, the Additional Secretary, the Joint Secretary, the Deputy Secretary, the Section Officer or the Officer on Special Duty in the Department concerned, and such signature shall be deemed to be proper authentication of such order or instrument.
(3) ---------------------: - . .
It would thus be seen that the Under Secretary Special does not figure any--where under the aforesaid Rule and, therefore, on this ground alone, the impugned order is liable to be struck down.
I also find great force in the submission of the learned counsel for the petitioner that the impugned grounds suffer from vagueness and the restrictee has been denied to exercise his statutory right to make an effective representation to the Government in terms of section 5(a) of the Ordinance. The arguments of the learned Advocate-General that the alleged vagueness of the impugned grounds should be examined in the context of Martial Law Regulation No. 48 which banned all political activities and therefore, it was sufficient if it was alleged against the restrictee that he indulged in political activities by uttering various speeches on various dates at specified places mentioned in the impugned grounds. The argument is devoid of any force. The question before the Court is not whether the restrictee contravened Martial Law Regulation No. 48 but whether the speeches allegedly made by him were prejudicial to public safety and maintenance of public order and whether the ground which led to the passing of the impugned order have been adequately particuldrized to enable the restrictee to snake an effective statutory representation to the Government. The test to determine whether a particular ground is vague or otherwise is whether an effective representation, apart from a bare denial of accusation, can be made by the person against whom an order has been passed under section 5 of the Ordinance. Reference may be made to the judgment of the Division Bench of this Court in Muhammad Ajmal Khan v. The District Magistrate, Lyallpur and 4 others. The relevant portion reads thus :- "It has been argued that ground No. 2 is not vague inasmuch as the detenu has been accused of meeting labour leaders at his residence on 27th of September, 1975 when he came out of jail.
According to the learned counsel for the respondents time and place being clearly given in the ground the same cannot be termed to be vague. We, however, do not find force in this contention.
The names of the labour leaders whom the detenu is alleged to have met have not been given. The test for finding out whether a particular ground is vague or not is whether an effective representation apart from a bare denial of the accusation conveyed to the detenu can be made by him."
In the present case, in the absence of particularization of any specific speech or substance thereof and the language used in the speech was not conveyed to the restrictee, therefore, the impugned grounds being vague are not sustainable in law.
In view of the above, the writ petition is hereby accepted and the impugned order passed under the signatures of the Under Secretary Special-I, Government of the Punjab Home Department under section 5(1)(6) of the West Pakistan Maintenance of Public Order Ordinance, 1960. Is hereby declared as without lawful authority and of no legal effect.
The parties shall bear their own costs.